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      The South African Class Action Mechanism: Comparing the Opt-In Regime to the Opt-Out Regime

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          Abstract

          In Mukaddam v Pioneer Food (Pty) Ltd 2013 2 SA 254 (SCA), Nugent JA stated that, once the class is confined to claimants who choose positively to advance their claims and are required to come forward for that purpose, he can see no reason why they are not capable of doing so in their own names through joinder - they do not need a representative to do so on their behalf. The members who choose to opt in to the class action will thus be identifiable. If that is the case then, according Nugent JA, joinder may be the appropriate procedural device. A problem evidenced by this approach is accordingly that, by suggesting that joinder is the appropriate procedural device where all the claimants are identifiable, rather than a class action, the court essentially attacked the viability of the opt-in regime of class action litigation. The preferential treatment afforded by our courts to the opt-out class action regime is further reinforced by the finding of Nugent JA that the opt-in class action regime can be utilised only in exceptional circumstances. As exceptional circumstances had not been proved, he found that a class action was not the most appropriate way to pursue the claims. He accordingly suggested that joinder was a viable option to pursue the claims. The opt-in class action regime requires individual class members to take positive steps to participate in the class action. In other words, class members are required to come forward and opt into the class action, failing which they will not be bound by or benefit from the outcome of the litigation. Support for the opt-in regime is essentially premised on the belief that individuals who are unaware of the litigation should not be bound by its outcome. The opt-out class action regime, on the other hand, automatically binds members of the class to the class action and the outcome of the litigation unless the individual class members take steps to opt out of the class action. Support for the opt-out regime is essentially based on the view that the opting-in requirement could undermine one of the primary purposes of class action litigation, which is to facilitate access to justice. The Constitutional Court in Mukaddam v Pioneer Foods (Pty) Ltd 2013 5 SA 89 (CC) held that Nugent JA was wrong to find that an applicant in an opt-in class action is required to show exceptional circumstances. However, the court did not provide reasons for its disagreement. The issue relating to exceptional circumstances in opt-in class actions was dealt with in two sentences. The Constitutional Court also failed to deal with the nature and status of the opt-in class action compared with opt-out class actions in South African law. The note will accordingly consider when, if at all, it is appropriate to use the opt-in class action regime compared to the opt-out class action regime.

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          Most cited references2

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          "Reflections on the introduction of a class action in South Africa"

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            "Judicial supervision of individual settlements with class members in Australia, Canada and the United States"

            V Morabito (2003)
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              Author and article information

              Contributors
              Role: ND
              Journal
              pelj
              PER: Potchefstroomse Elektroniese Regsblad
              PER
              North-West University (Potchefstroom Campus) (Potchefstroom, North-West Province, South Africa )
              1727-3781
              2019
              : 22
              : 1
              : 1-17
              Affiliations
              [01] orgnameStellenbosch University South Africa tbroodryk@ 123456sun.ac.za
              Article
              S1727-37812019000100034
              10.17159/1727-3781/2019/v22i0a4506
              f12b8a3c-39ba-4c29-88a9-c0b9a779c056

              This work is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.

              History
              : 13 January 2019
              : 20 February 2018
              : 13 January 2019
              Page count
              Figures: 0, Tables: 0, Equations: 0, References: 13, Pages: 17
              Product

              SciELO South Africa


              opt-in,Class action,opt-out,res judicata,joinder,notice
              opt-in, Class action, opt-out, res judicata, joinder, notice

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