Abstract

In Trustees for the time being of the Children’s Resource Centre Trust v Pioneer Food (Pty) Ltd (Legal Resources Centre as amicus curiae), Wallis JA held that in defining the class it is not necessary to identify all the members of the class otherwise the question would arise whether a class action was necessary as joinder in terms of the court rules would be permissible. He held that what is required is that the class be defined with sufficient particularity that a specific person’s membership can be objectively determined by examining his or her situation in light of the class definition. It can accordingly be inferred that, where the claimants are all identifiable, irrespective of the size of the class, they may need to be joined as plaintiffs to the proceedings. Class action proceedings may therefore not be the appropriate procedural device to be utilised in such circumstances. The problem, however, is that where the class comprises a large group of persons, joinder may be cumbersome and largely unfeasible. This potential problem is significant in that a court ordering joinder in such circumstances could potentially undermine the very foundation for the incorporation of the class action in to South African law, namely, access to justice. The article will accordingly consider what the test is that our courts should apply and what the factors are that it should take into consideration when determining the appropriateness of a class action as opposed to joinder. These issues have not yet been subject to a comprehensive and critical analysis with regard to the procedural approaches of prominent foreign jurisdictions, which is what the article will aim to do.