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lOMoARcPSD|10435457Civil Case Summaries
Law of Civil Procedure (University of Johannesburg)
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CHAPTER 2
Permanent Secretary, Department of Welfare, Eastern Cape v Ngxusa & Others
Until 1994 the class action was unknown in South African law. It is because so many South Africans are in a poor
position to seek legal I redress and because the technicalities of legal procedure, including joinder, may unduly
complicate the attainment of justice, that both the interim Constitution of the Republic of South Africa and the
Constitution of the Republic of South Africa, 1996 (sec. 38 [c]) created the express entitlement for 'anyone'
asserting a right in the Bill of Rights to A litigate 'as a member of, or in the interest of, a group or class of
persons'.
The respondents were among tens of thousands of recipients of social disability grants whose grants had
unilaterally and without notice been terminated by the Eastern Cape provincial authorities. They sought in a
Provincial Division not only the reinstatement of their grants, but also leave to institute representative, class
action and public interest proceedings against the provincial authorities, with the assistance of the Legal
Resources Centre (the LRC), in terms of s 38 (b), (c) and (d) of the Constitution on behalf of everyone else in the
province who had also had their grants unfairly and unlawfully terminated. (The respondents subsequently
decided to proceed with a class action under s 38 [c]). The Court granted the orders sought and ancillary relief in
the form of a 'disclosure order', requiring the provincial government to provide the LRC with details of members
of the class kept on computer or physical file, and a 'publication order', requiring the respondents to
disseminate information about the proposed class action through the print and radio media in the province and,
with the assistance of the provincial government, by notices at pension payout points. The object of the
publication order was to allow members of the class, if they so wished, an opportunity to exclude themselves
from the proposed proceedings. Although the Court a quo granted the appellants leave to appeal against the
granting of leave to institute the class action, it ordered that the disclosure and publication orders be implemented
pending the appeal.
On appeal the appellants contended that:
(a) The order had not adequately defined the class; and
(b) That the order wrongly had included residents of the province outside the jurisdictional domain of the
Court a quo (i.e. the Eastern Cape Division of the High Court).
The SCA held that the most important feature of a class action was that other members of the class, although not
formally and individually joined, benefited from and were bound by the outcome of the litigation unless they
invoked prescribed procedures to exclude themselves from and that situation before the court appeared to be
tailor-made for class proceedings: the class which the respondents represented were from the poorest in society,
who because of their poverty, had the least chance of vindicating their rights through the legal process because
their individual claims were small; and they were scattered throughout the province with many of them located in
small towns and remote rural areas. What was found to be common to all was that they were victims of official
excess, bureaucratic misdirection and unlawful administrative methods.
It is against the background of such persons' constitutional entitlements that the class action provided for in sec.
38 had to be interpreted and in the circumstances of this particular case (i.e. unlawful conduct by the province
against a disparate body of claimants lacking access to individualised legal services, with small claims unsuitable
for [if not incapable of] enforcement in isolation), led to the conclusion that the respondents' assertion of authority
to institute class action proceedings was unassailable.
The court found that the province’s conduct in the matter pointed to a contempt for people and process that did
not befit an organ of government under the South African constitutional dispensation. When an organ of
government invoked legal processes to impede the rightful claims of its citizens, it not only defied the Constitution
(which in s 41 [1] [d] commanded all organs of State to be loyal to the Constitution and in sec. 195 [1] [e] requires
that public administration be conducted on the basis that peoples' needs had to be responded to), it also misused
the mechanisms of the law. The province had conducted its case as if it were at war with its own citizens and its
conduct was all the more appalling because those it was combating were the least powerful in terms of the
secular hierarchies. The standard requirements for a class action were found to be present in this case, namely
(1) the class was so numerous that joinder of all its members was impractical; (2) there were questions of
law and fact common to the class; (3) the claims of the respondents representing the class were typical
of the claims of the rest; and (4) the respondents through their legal representatives (the LRC) would
fairly and adequately protect the interests of the class.
Concerning the argument by the appellant that most of the respondents’ evidence was hearsay (and thus
inadmissible), the court held that few class actions could be maintained without an element of hearsay and that
the nature of hearsay evidence produced in this instance, from district surgeons, advice offices, public authorities,
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civic and political organisations, had left little doubt that the provincial authority's methods had caused and
continued to cause widespread misery and injustice. Concerning the argument that the court a quo lacked
jurisdiction to hear the full matter as two other courts bore jurisdiction, the court held that the Court had in the
past applied the common law doctrine of cohesion of cause of action (continentia causae ) to hold that where one
court had jurisdiction over part of a cause considerations of convenience, justice and good sense justified its
exercising jurisdiction over the whole cause. The present case justified the further evolution of that doctrine.
Thus, the fact that the Eastern Cape Division had jurisdiction over the respondents and over those members of
the class entitled to payment of their grants within its domain was sufficient to give the Court jurisdiction over the
whole class who, subject to satisfactory 'opt-out' procedures, would accordingly be bound by its judgment. The
court expressed that there was no doubt that the Constitution required that, once an applicant had established a
jurisdictional basis for his or her suit, the fact that extra-jurisdictional applicants were sought to be included in the
class could not impede the progress of the actions. A significant proportion of the envisaged class resided and
received benefit payments within the domain of the Eastern Cape Division. That Court thus had undoubted
jurisdiction over them. That was sufficient warrant, both from a common law and constitutional point of view, to
confer on that Division jurisdiction in respect of the remaining members of the class.
The appeal was dismissed and the decision in Ngxusa and Others v Permanent Secretary, Department of
Welfare, Eastern Cape, and Others 2001 (2) SA 609 (E) was confirmed.
CHAPTER 4
MAYNE V MAIN
In this case the SCA dealt with the issue of residence, the court held that it was
possible for a person to have to more than one residence. However, according to
section 19(1) of the Supreme Court Act, for the purpose of legal proceedings, a
person can reside in only one place at any given moment. Therefore when a person
has more than one residence, he or she will be sued in the court having jurisdiction
at the place where that person was residing at the time summons was served.
THERMO RADIANT OVEN SALE V NELSPRUIT BAKERIES
FACTS: Plaintiff (respondent), a South African company, had at Johannesburg,
through its agent, purchased a bakery oven from the defendant (appellant), an
Australian company, for the sum of R16,180. The oven was installed in plaintiff's
bakery and in terms of the agreement between the parties the sum of R12,944 was
paid on delivery. It was agreed that the balance of R3, 236 would become payable
after the oven had been tested and found satisfactory. Plaintiff averred that the oven
was found not to be in accordance with specifications that neither the quality nor the
quantity of the bread which the said oven was capable of baking was in accordance
with the warranties given, and that, despite repeated requests by the plaintiff, the
defendant had failed to remedy the defects. As a result plaintiff claimed payment
from the defendant of the amount of R22, 000 being damages which it had allegedly
suffered by reason of defendant's breach of warranty. The latter denied liability and
claimed payment of the sum of R3,236, the balance of the purchase price. In order to
found jurisdiction the plaintiff had then successfully applied to the Court to attach, as
the only asset within the Republic of the defendant, its claim against plaintiff for R3,
236. The defendant had then unsuccessfully applied to the Full Bench for an order
setting aside this order of attachment and he appealed.
LEGAL QUESTION: Whether attachment was essential to found or confirm
jurisdiction against the peregrine defendant?
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