Class Action Seminar


Nortons Inc., together with the South African Chamber of Commerce and Industry (SACCI) and the Mandela Institute at Wits School of Law, gathered together a panel of experts to discuss the judgment, handed down by Judge Wallis of the Supreme Court of Appeal last year, and the effects it has on South Africa’s jurisprudence. The event was a huge success with interesting discussion points and question and answer sessions.

Topic: A new class – the problems and promises of class action litigation in South African law
Date: Wednesday 12 June 2013
Time: 8:30 am – 4:00 pm
Venue: Chalsty Teaching and Conference Centre, Wits School of Law, West Campus, University of the Witwatersrand, Johannesburg (map to Wits) (map inside Wits)

RSVP: Registration is closed.

Agenda (click on a speaker to read more):

The seminar was divided into sessions and each session had a question, answer and discussion time so create an interactive and informative event.

Breakfast: 07h30 – 08h30

Introduction: 8:30 – 8:50am


Professor Marylyn Christianson, Acting Director, Mandela Institute
Welcome

Neren Rau, CEO of SACCI
Introduction

John Oxenham, Director at Nortons Inc.
Topic: Dealing with class action relief – implications for corporate South Africa


Session 1: 8h50 – 11h00


Adv. Max du Plessis, Associate Professor of Law, University of KwaZulu-Natal
Topic: The role of comparative law under the Constitution in class actions

Adv. David Unterhalter SC, Member of the Appellate Body of the World Trade Organisation
Topic: Is South Africa ready for class actions from cartel conduct?

Prof. Wouter de Vos, Magistrates Commission Member
Topic: Reflections on the recognition of a general class action in South Africa


Tea: 11h00 – 11h30

Session 2: 11h30 – 13h00


Adv. Isabel Goodman, Victoria Mxenge Group of Advocates
Topic: Key elements in defending against class action applications

Anthony Norton, Director at Nortons Inc.
Topic: The possible legal ramifications of class actions in South African law in the competition law field

Tembeka Ngcukaitobi, Director of the Constitutional Litigation Unit at the Legal Resources Centre
Topic: Pursuing class action relief for the public interest


Lunch: 13h00 – 14h00

Session 3: 14h00 – 16h00


Patrick Smith, RBB Economics
Topic: The role of economic analysis in class actions

Geeta Singh, Partner in the Office of Genesis Analytics, India
Topic: International economic experience relating to class actions and the implications for a developing South African jurisprudence

Ulrich Denzel, Partner at Gleiss Lutz and member of the Association for the Study of Antitrust Law, Germany
Topic: International legal trends in class actions – lessons for South Africa from Europe and Germany

Andreas Stargard, Partner at Paul Hastings LLP, Brussels and Washington
Topic: Lessons from the USA – the home of class action relief – a look at recent class action developments


Background:

On 29 November 2012, Judge Wallis of the Supreme Court of Appeal (the “SCA”) handed down judgment in The Trustees of The Children’s Resource Centre / Pioneer Foods (Pty) Limited & Others. The case related to the certification of a class in respect of a number of class actions against three bread producers arising from an investigation by the Competition Commission into price fixing and market allocation in respect of various bread products (the “Bread class action litigation”).

The appeals were brought by a bread distributor in the Western Cape and by a number of organisations in relation to a so-called “consumer” class action for damages after their applications were dismissed by the Western Cape High Court (the “WCHC”).

In its decision the SCA held that class actions should be recognised, not only in respect of constitutional claims, but also in any other case where access to justice in terms of Section 34 of the Constitution required that it would be the most appropriate means of litigating the claims of the members of the class. The SCA then laid down the requirements for such an action, commencing with the need for certification by the court at the outset, before even the issuing of summons. For this purpose, the SCA set out the following criteria before a court could certify a class action:

  • there must be an objectively identifiable class;
  • a cause of action must exist which raises a triable issue;
  • there must be common issues of law and fact that can appropriately be dealt with in the interests of all members of the class;
  • there must be appropriate procedures for distributing damages to the members of the class; and
  • the representatives must be suitable to conduct the litigation on behalf of the class.

The SCA found that the appellants’ case had changed during the course of the litigation; and it held that their definition of the proposed class was over-broad and the relief they sought inappropriate. However, Wallis JA held that their claim was potentially plausible and, as this was the first time that the SCA had laid down the requirements for bringing a class action, it was appropriate to afford the appellants an opportunity to remedy the flaws in their papers in compliance with these new requirements.

Accordingly, the SCA remitted the matter back to the WCHC.

 


Speakers Biographies:

 

Professor Marylyn Christianson
Marylyn is the acting director of the Mandela Institute and an associate professor at Wits Law School. She was previously a senior lecturer in the Department of Mercantile Law at UNISA. Her primary interest is Labour Law, with a particular focus on individual labour law and the law of unfair dismissal. Marylyn has recently researched the use of polygraph testing in employment, with particular emphasis on the legal and constitutional aspects. Her other research interests are disability equity in the workplace and the legal and ethical aspects of genetic information and its use in the workplace and in insurance. Marylyn is the co-author or General principles of Commercial Law 3ed (Juta 1997) and the co-author and co-editor of Essential Labour Law Volumes 1 and 2 2ed (Labour Law Publications 2000)
Neren Rau
Neren Rau assumed the role of CEO of SACCI in June 2008. Mr Rau had worked at the Reserve Bank for seven years and headed the Financial Safety Net Division of the Financial Stability Department. In that role, he was responsible for financial sector continuity planning inclusive of identifying risks that threaten the broader financial sector, formulating contingency plans and crisis management strategies to deal with such threats and developing and enhancing financial safety net policies.
Adv. David Unterhalter SC
David serves as a member of the Appellate Body of the World Trade Organisation. He has enjoyed a leading practice as a barrister in the fields of trade law, competition law, and public law. He practices in London and Johannesburg, where he is a Senior Counsel. David Unterhalter also holds a chair at the University of the Witwatersrand, Johannesburg, and has published widely in the fields of competition law, the law of evidence and public law. He has held visiting professorships at University College London and Columbia University. He acted as lead counsel for one of the respondents in the Bread class action litigation.
Adv. Max du Plessis
Max du Plessis is an associate professor of law at the University of KwaZulu-Natal and a senior research associate at the International Crime in Africa Programme at the Institute for Security Studies. In addition to his academic and research work, Max is a practising barrister in South Africa with an expertise in public law and international law. He is an an associate tenant at Doughty Street chambers, London. He has written widely in the field of administrative, constitutional, international and international criminal law. He appeared as counsel in the Bread class action litigation.
Judge Malcolm Wallis (Key Note)
Judge of the Supreme Court of Appeal and former chairman of the General Council of the Bar of South Africa.
Judge Dennis Davis
Judge Dennis Davis was educated at Herzlia School, Universities of Cape town (UCT) and Cambridge. He began teaching at UCT in 1977 and was appointed to a personal chair of Commercial Law, in 1989. Between 1991 and 1997 he was Director of the Centre for Applied Legal Studies of the University of the Witwatersrand. He held joint appointment at Wits and UCT 1995 – 1997. He was appointed a Judge of the High Court in 1998 and as President of the Competition Appeal Court in 2000.
Prof. Wouter de Vos
Professor Wouter de Vos, formerly of the University of Johannesburg (RAU), Stellenbosch and Rhodes, is regarded as one of the leading procedural lawyers in this country, and is a member of the Magistrates Commission. He is an NRF-rated researcher and lectures Criminal Procedure and Evidence at LLB and LLM level at UCT.
Adv. Isabel Goodman
Isabel Goodman was admitted to the Bar in November 2006, and joined the group in July 2011. Isabel holds a BA LLB from the University of Cape Town and an LLM from Harvard Law School. Before coming to the Bar, she clerked at the Constitutional Court for Justice Goldstone and Justice Moseneke (as he then was) and later worked for a leading public interest litigation group in Mumbai, India. Isabel’s practice tends towards general public and commercial law matters, including, in particular, constitutional law, administrative law and mining law.
Tembeka Ngcukaitobi
Current director of the Constitutional Litigation Unit at the Legal Resources centre. Tembeka was a partner at Bowman Gilfillan Attorneys since 2004. He is a graduate of the universities of Transkei, Rhodes and the London School of Economics and Political Science, where he completed a LLM degree with a focus on regulatory and public law. After graduating with his law degree, Tembeka worked for the Legal Resource Centre’s Grahamstown office and was later appointed as law clerk to former Chief Justice Arthur Chaskalson. Tembeka has argued cases before the High Court, the Supreme Court of Appeal and the Constitutional Court. In 2008 he was appointed by the President to serve on the South African Law Reform Commission. He is also a trustee of the Constitutional Court Trust.
Patrick Smith
Patrick Smith is a partner at RBB Economics. Previously a chemical engineer, Patrick applies economics, econometrics and industrial expertise to competition policy, litigation and arbitration. He has testified and consulted to parties, agencies and interveners in high-profile, complex and multi-jurisdictional proceedings over the past decade. These include leading roles in Syniverse/MACH, Universal/EMI, Gold Circle/Kenilworth Racing, First Quantum v DRC, Pioneer/Pannar, InBev/Anheuser Busch, ABF/GBI, Polymers and Inco/Falconbridge. Patrick holds a BSc (Hons. First Class), and MSc in chemical engineering from the University of Cape Town, and a BA (First Class) in economics and management and an MSc in economics for development from Oxford University.
Geeta Singh
Dr Geeta Singh is a partner in the India office of Genesis Analytics, and has more than eleven years of experience in litigation consulting. She has worked on a wide variety of cases in the fields of competition economics, compensation disputes and valuation. These cases have derived from several different industries including healthcare, publishing, rubber chemicals, health insurance, construction, media and the airlines.

Geeta specialises in litigation matters in various markets, and provides economic analyses for clients using the principles of economics and finance. In India, she has advised clients on issues relating to monopolies, cartels and predatory pricing. She has also provided economic analysis for merger filings presented to the Competition Commission in India and in other jurisdictions.

Prior to her career in the litigation consulting industry, Geeta was based at the Center for International Development at Harvard University where she worked on public policy issues for developing countries. She obtained her BA in Economics from Delhi University, and an MA in Economics from the Delhi School of Economics. She has a PhD in Economics from Stanford University.Ulrich Denzel
Ulrich regularly advises domestic and international clients on German and European antitrust/competition law. He specialises in handling merger control proceedings, defending companies accused of cartel activities and representing clients in connection with claims for damages under civil law. He also regularly advises on distribution law and compliance issues.

Ulrich studied in Tübingen, Aix-en-Provence (Maître en Droit interna-tional 1997) and Chicago (LL.M. 2002). He has been a partner at Gleiss Lutz since 2008. In 2001, Ulrich received the Alfred Gleiss scholarship. He is a member of the Association for the Study of Antitrust Law.Andreas Stargard
Andreas Stargard is a partner at Paul Hastings LLP in its an antitrust and competition department in the Brussels and Washington DC offices. Stargard focuses on global competition law and has represented companies in cartel investigations, merger approvals, civil litigation, and monopoly cases.

 

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