This recent High Court judgment warns that class action certification is not there for the mere asking.

The lengthy 125-page judgment canvases issues such as the suitability of the class representatives, commonality, funding arrangements, litigation funders, contingency fees and whether there exists a cause of action raised on a triable issue.

It is worth a close read for all those who may be engaged in class action litigation and exposed to litigation funding debates.

The court found that there was no prima facie case establishing the facts and the accordingly certification was denied.   It reiterated its duty to screen class actions to ensure that it is in the interests of justice for them to proceed.

The court said that the trial would be unmanageable if the class definitions were certified on the broad basis sought. 

On the applicants’ version, the proposed classes would total between 131 000 and 142 000 people. 

Every one of those would have to prove, among other things, in the second stage of the action that they suffered from a malady that could be caused by lead exposure; that the malady has, as a matter of fact, been caused by lead exposure rather than, for example, genetics or malnutrition and that the lead exposure is due to soil contamination by the mine during the relevant period rather than, for example, artisanal mining.

The action would take an extremely long time to be completed if it is completed at all.   The applicants argued that it would take 10 years for their legal team merely to take instructions from every member of the proposed classes.  If that was so, said the court, it would take much longer for a South African court to assess the claim for each class member in the second stage. 

An unmanageable class action would be not only adverse to the respondents’ interests but undermine the applicants access to justice.