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
Neren Rau, CEO of SACCI
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
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.
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.