Unity is Strength
Now we’re going to take on the bullies!
I know some people don’t like confrontation, and I know some people believe in the principle of just turning the other cheek. If you’re one of those people, please don’t read any further, because this letter will upset you.
There are a few injustices happening that are bothering me a lot. What bothers me the most is the fact that the offenders are getting off scot-free. The reason for this is that the victims don’t have the knowledge and/or financial means to do something about it, and the bullies know this. Well, that’s going to change now, because I’ve discovered a new law!
It’s not really a new law, actually, but it’s a principle that was unknown in our legal system before 1994. Thanks to our new constitution, it’s no longer unknown. It just isn’t used very often because not many people know about it. It’s called a class action.
The following excerpt of a judgement by Judge Cameron (at the time still a judge of the Constitutional Court) in Permanent Secretary, Department of Welfare, Eastern Cape, and Another v Ngxusa and Others 2001(4) SA 1184 (SCA) got me thinking, and it illustrates the value of class actions:
“In the type of class action at issue in this case, one or more claimants litigate against a defendant not only on their own behalf but on behalf of all other similar claimants.
The most important feature of the class action is that other members of the class, although not formally and individually joined, benefit from, and are bound by, the outcome of the litigation unless they invoke prescribed procedures to opt out of it. The class action was until 1994 unknown to our law, where the individual litigant’s personal and direct interest in litigation defined the boundaries of the court’s powers in it. If a claimant wished to participate in existing court proceedings, he or she had to become formally associated with them by compliance with the formalities of joinder.
The difficulties the traditional A approach to participation in legal process create are well described in an analysis that appeared after the class action was nationally regularised in the United States through a Federal Rule of Court more than 60 years ago:
The class action cuts through these complexities. The issue between the members of the class and the defendant is tried once. The judgment binds all and the benefits of its ruling accrue to all. The procedure has particular utility where a large group of plaintiffs each has a small claim that may be difficult or impossible to pursue individually. The mechanism is employed not only in its country of origin, the United States of America, where detailed rules governing its use have developed, but in other countries as well.
The reason the procedure is invoked so frequently lies in the complexity of modern social structures and the attendant cost of legal proceedings:
‘Modern society seems increasingly to expose men to such group injuries for it is precisely because so many in our country are in a ‘poor position to seek legal redress’ and because the technicalities of legal procedure, including joinder, may unduly complicate the attainment of justice that both the interim Constitution and the Constitution created the express entitlement that ‘anyone’ asserting a right in the Bill of Rights could litigate ‘as a member of, or in the interest of, a group or class of persons’.”
Groups like Afriforum regularly fight against social injustices, but no-one ever fights against commercial injustices. The question I now have is why can’t we use this class action principle, or even a variation of it, to fight commercial injustices? It looks to me like the reason that it’s not done is because no-one is prepared to go out on a limb. Well, I’m prepared to, and I’m going to do it.
The big obstacle stopping people from taking action themselves is the legal costs, and the biggest reason that people don’t take action jointly is because they don’t have each other’s information. Both these obstacles have now been removed, because I will act as co-ordinator and the legal costs will be equally divided among all the claimants. We’ll even be able to afford to hire the best private investigators to collect evidence. All of this will cost each claimant a fraction. I myself am not looking for any remuneration for my services. The pleasure’s enough for me!
It reminds me of the true-story movie “Erin Brockovich”, where she took the lead in taking on and beating the big mining powers. Do go and rent that DVD.
Injustices that I want to address through separate class actions:
Injustice One – The banks’ repossession policy
Fortunately, not many of our members have been victims, but statistics show that thousands of other people have been victims of the banks. People who lost their income due to the .........................
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