23/07/2022
How is a class action initiated? What is the limitation period for bringing a class action? Can the time limit for bringing a class action be paused? How long do class actions typically take from filing to a final decision?
Class actions are initiated by filing an application for certification (ie, by way of Notice of Motion), supported by an affidavit. Ordinarily, certification applications are launched in the High Court and, accordingly, governed by Rule 6, which deals with motion proceedings. Although there are no specific rules prescribing the form of the motion, previous orders granted by the High Court suggest that certification applications should seek:
• declaration of a defined class;
• certification of the class representatives as authorised to institute the class action on behalf of the class; and
• directions regarding how notice of the class action should be given, including the date by which members of the certified class must opt in or opt out of the class.
It has also been practice to seek orders in which the legal representatives of the representative litigants are certified to represent the class and to recognise any applicable contingency fee agreements.
Due to the courts’ approach to certification, it is necessary that the affidavit filed in support of the certification application must not only identify the relevant class, but also outline the cause of action in the action proceedings it hopes to pursue once certified (attaching a draft particulars of claim) and to provide details of how notice will be given to members of the proposed class (attaching a draft notice or notices; providing details of how such notices will be published; and providing details such as the costs of publication and how this will be dealt with). Finally, the affidavit filed must provide the averments necessary to satisfy a court of the requirements developed by the courts and outlined further in question 9.
The Prescription Act, 68 of 1969, requires that damages claims be brought within three years from the date on which the cause of action arose (which, in effect, means the time at which the plaintiff had full knew that he or she had a claim). Prescription will not commence running or be interrupted in certain prescribed circumstances including if a person is a minor, insane, under curatorship, prevented by a superior force (including any law or court order) from interrupting prescription or outside South Africa. The launching of certification proceedings will also interrupt prescription.
In general, the duration of High Court proceedings (from filing to determination) depends on the capacity of the courts. However, the novelty, complexity and nature of class actions generally entails long-running proceedings, which may take at least a year or two to reach certification stage in even the simplest of class actions. There are initiatives in the High Courts to bring complex matters, including class actions, under case management. However, there is no statutory requirement limiting the duration of proceedings from the time of filing to the time of the handing down of judgment. To date, the most significant class actions have not proceeded to trial.
