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1 INTRODUCTIONThe common law in South African does not contain any provision regardingclass actions and prior to 1993 class actions were not recognized inSouth Africa The first step in any application for class actions is isto ascertain if there is a need for a preliminary step calledcertification The South African Law Commission commented in its draftbill thatA preliminary action should be brought before court requesting leaveto institute or defend an action as a class action proceeding and toask for directions as to procedureThe court also has the discretion to refuse to grant an order forcertification if any of the criteria have not been met and which will bediscussed later on in this paper Therefore it can be stated that onlyonce an action is certified by a court will it proceed as a classaction Class actions were enacted into South African law in terms ofSection 38c of the Constitution which provides that a person canapproach a court for redress in respect of a breach of a fundamentalright contained in the Bill of Rights to include anyone acting as amember of or in respect of a group or a class of persons In 1998 a draft bill was published by the South African Law Commission in which it suggested a definition for class actions as followsAn action instituted by a representative on behalf of a class ofpersons in respect of whom the relief claimed and the issues involvedare substantially similar in respect of all members of a class andwhich action is certified as a class action in terms of the ActThe right to class actions was incorporated into legislation for thefirst time in South Africa in the Competition Act while the ConsumerProtection Act has followed the wording in the Constitution and statesthat Award for damages against a supplier for collective injury to all ora class of consumers generally to be paid on any terms or conditionsthat the court considers just and equitable
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