The appealability of decisions to certify class actions: Where are we now? A proposed approach after Stellenbosch University Law Clinic v Lifestyle Direct Group International (Pty) Ltd (WCC)

• Citation: (2023) 140 SALJ 263
• DOI: https://doi.org/10.47348/SALJ/v140/i2a2
• Published date: 12 May 2023
• Pages: 263-284
• Author: Broodryk, T.
• Date: 12 May 2023

263

https://doi.org/10.47348/SALJ/v140/i2a2

THE APPEALABILITY OF DECISIONS TO

CERTIFY CLASS ACTIONS: WHER E ARE

WE NOW? A PROPOSED APPROACH AFTER

STELLENBOSCH UNIVERSITY LAW CLINIC v

LIFESTYLE DIRECT GROUP INTERNATIONAL

(PTY ) LT D (WCC)

TH EO BROODRY K†

Associate Profe ssor of Law, Stellenbosch Unive rsity

Decisions re fusing to certify c lass proceedings are app ealable. The position regardin g the

appealability o f decisions certifyin g class actions is, howeve r, less clear. Regrett ably, in

Stellenbos ch Universit y Law Clin ic v Lifestyle Direct Gr oup Interna tional

(Pty) Ltd [2021] JOL 51475 (WCC), the court did not give a  nal ruling on

whether a deci sion to certif y a class actio n is appealable. G amble J merely as sumed,

without decidin g, that his decis ion in Stellenb osch Universit y Law Cli nic v

Lifest yle Direct Gr oup Interna tional ( Pty) Ltd 2022 (2) SA 237 (WCC)

to certify th e class action w as appealabl e. This arti cle aims to clar ify the prefe rred

approach when d eciding whethe r to permit an ap peal against a dec ision to certi fy a

class action.

Class act ion – certication – appe alabil ity

I INTRODUCTION

Before Gamble J’s judgment in the Western Cape High Court i n

Stellenbosch University L aw Clinic v Lifestyle Direct G roup International (P ty) Ltd

(‘Lifestyle Direct Group Inte rnational (Appeal)’)1 was delivered , it was unclear

whether a class action certi cation decision, in which a cour t certi es the

class act ion, is appealable. After this judgment, it appears th at decisions

certif ying class ac tions are likely to be appea lable. Unfortunatel y, Gamble J

did not nally ru le on this issue as he merely assu med, without dec iding,

that his decision a quo in Stellen bosch University Law C linic v Lifestyle

Direct Group Inte rnational (P ty) Ltd (‘Lifestyle Direct Group International’)2 to

certif y the class action was appea lable. Thi s article con siders the prefer red

approach when deciding whether to perm it an appeal against a decision to

certif y a class action.

As a point of depar ture, providing a br ief overview of the law relating

to class act ions in South A frica is worthwhile.

† LLB LLD (Stellenb osch). https://orcid.org/0000-0003-2514-4951.

1 [2021] JOL 51475 (WCC); [2021] ZAWCHC 220.

2 2022 (2) SA 237 (WCC).

(2023) 140 SALJ 263

© Juta and Company (Pty) Ltd

264 (2023) 140 THE SOU TH AFRICAN L AW JOURNA L

https://doi.org/10.47348/SALJ/v140/i2a2

II THE CLASS ACTION FRAMEWORK

Class act ions were rst recognised i n South Africa in the Con stitution of

the Republic of South Af rica, Act 2 00 of 1993. The interi m Constitution

recognised the possibil ity of a class action as a mea ns to enforce r ights

entrenched in the Bill of Rig hts. In 1995, a working paper on class act ions

prepared by the South A frican Law Com mission (‘SALC’)3 recom mended,

inter ali a, the introduction of a class action over the whole spectr um of

civil litigation.4 In 1998 the SALC published its nal report, which, i nter

alia, recommended that t he principles u nderlying class act ions should be

introduced by an Ac t of Parliament and that the r ules of cour t should

establish the necessar y procedures.5

Section 38(c) of the Constit ution of the Republic of South A frica, 1996

now provides for class a ctions withi n the connes of the na l Constitution.6

This mean s that class action proceed ings instituted in terms of s 38 may

only be used to en force right s entrenched in the Bi ll of Rights. However,

current South African law also allows class actions to enforce non-

constitutional rig hts. In other words, it is also possible to inst itute a class

action to enforce r ights not contained in the Constitution, such as a claim

for damages where no constit utional r ight was in fri nged.7 As De Vos

indicates, the disti nction between class act ions to enforce const itutiona l

rights a nd class actions to enforce non- constitut ional rights is not always

clear. The cases a lso do not always fall neatly into either of t hese two

categories because plai ntis somet imes rely on the i nfringement of

constitut ional and non-constit utional rights in the same action.8

Trustees for the time being of the Children’s Resource Ce ntre Trust v Pioneer

Food (Pty) Ltd (L egal Resources Cent re as amicus cur iae) (‘Children’s Resource

Centre Trust’)9 is the authorit y for class actions being ava ilable outside the

3 South African L aw Commi ssion Working Paper 57 ( Project 88) T he Recog-

nition of a Class Ac tion in South Afr ican Law (1995). At the ti me it was know n as

the South Af rican L aw Commi ssion. It beca me the South Af rican L aw Reform

Commi ssion in 20 02.

4 See summar y of recommend ations at iv– v. In preparin g the workin g paper,

the Comm ission pri mari ly used the A merica n class ac tion model as a g uidin g

principle, but a lso considered the clas s action model of O ntario, Ca nada.

5 The South Af rican L aw Commi ssion Report P roject 88 Th e Recognition of

Class Action s And Public Inte rest Actions in S outh Africa n Law (1998) para 5.6.5.

6 2001 (4) SA 1184 (SCA). Unlike, for ex ample, ru le 23 of the Unite d States

Federal Ru les of Civi l Procedure, s 3 8 of the Constit ution does not s et out

a procedura l framewor k in term s of which a clas s action is to b e conducted.

The South Af rican class action i s partly modelled on t he US mechani sm.

7 Wouter de Vos ‘Judicial a ctivis m gives recog nition to a ge neral cla ss action

in South Af rica’ 2013TSAR 370 at 372.

8 Wouter de Vos ‘Is a class act ion a “classy a ct” to implement outside the a mbit

of the Constit ution?’ 2012 TSAR 737 at 747.

9 [2013] 1 All SA 648 (SCA).

© Juta and Company (Pty) Ltd