Class actions have the potential to be abused by plaintiffs, for example where a large number of claims are brought for trifling amounts and there is no public policy issue. Whether a class action for a small recovery can be pursued will be decided at the certification stage of proceedings, but by then large amounts of time and resources will have been lost.
A possible way to limit the abuse of class actions is to include a compulsory arbitration clause where there is a written contract between the supplier and the consumer. Although arbitration must be agreed to by the parties, arbitration clauses oblige parties to privately adjudicate matters instead of clogging up the judicial system. While the claimants are still able to pursue claims, they may not do so in court, unless a competent court has found good cause not to enforce the arbitration agreement. South African courts have yet to pronounce on whether or not an arbitration clause that effectively excludes class actions is an infringement of the constitutional right of access to courts.
