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The Rules Board for Courts of Law, with the approval of the Department of Justice and Constitutional Development, have published amendments in the Government Gazette relating to the Rules Regulating the Conduct of the Proceedings of the Provincial and Local Divisions of the High Court of South Africa ("Uniform Rules of Court") and the Magistrates Courts of South Africa which will come into effect on 19 September 2025.
High Court
The first amendment is to Rule 1 (titled "Definitions") which includes the following definition for "class action":
"'class action' means an action instituted by a representative on behalf of a class of persons, which may include the representative, in respect of whose claims the issues of fact or law involved are substantially similar in respect of all members of the class, and where the members of the class are bound by the outcome of the common issues in the action".
The second amendment involves the inclusion of Rule 11A (titled "Certification of class actions"), which provides that no action shall proceed as a class action unless it has been certified by a court taking the interests of justice into consideration. This new Rule 11A provides that an application for the certification of an action as a class action must be on notice of motion, supported by an affidavit in accordance with Rule 6 of the Uniform Rules of Court. Rule 11A thereafter sets out the factors which must be included in this affidavit, which includes stipulating whether the class will be an opt-in or opt-out class, or a combination of both, and needed to be accompanied by a draft Particulars of Claim setting out the grounds upon which the plaintiffs' action will be based.
The court certifying the class action may also give directions with regard to the giving of notice of the action (including its form and manner) to the members or potential members of the class concerned. Additionally, the court may make any other order which it deems appropriate in the interests of justice. An application for leave to appeal against an order made in certification proceedings of an action as a class action must be made in accordance with Rule 49 of the Uniform Rules of Court.
Finally, the last amendments to the Uniform Rules of Court are directed towards Rules 68 and 70 (titled "Tariff for sheriffs" and "Taxation and tariff of fees of attorneys" respectively).
Magistrates Court
The amendments are largely to the provisions relating to the increase in the scale of costs and fees.
Conclusion
Class action litigation is very common in countries like the USA, England and Canada. South Africa has seen a few class action-related matters and it is anticipated that there will be more in future. It is therefore encouraging to see specific rules developed in regard to class action litigation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
