Reflecting on 30 Years of Class Action in South Africa: A People Inured to Hardship but Not to Collective Redress?

by | Jun 16, 2026 | SLR, SLR V36 I3

Reflecting on 30 Years of Class Action in South Africa: A People Inured to Hardship but Not to Collective Redress?

Author: Theo Broodryk

ISSN: 1996-2193
Affiliations: BA LLB LLD (Stell), Professor of Law and Head: Law Clinic, Stellenbosch University
Source: Stellenbosch Law Review, Volume 36 Issue 3, 2025, p. 481-500
https://doi.org/10.47348/SLR/2025/i3a5

Abstract

This contribution examines the underutilisation of class action litigation in South Africa over the past 30 years. Despite having a constitutional foundation for class actions since 1993, South Africa has seen remarkably few cases – only 21 certification judgments in three decades, with a success rate of just 45%. The article highlights this disparity through international examples like the iPhone “Batterygate” scandal and the Roundup herbicide litigation, which prompted extensive class action lawsuits and substantial settlements in the United States of America and Canada, while generating no similar litigation in South Africa despite widespread product use. The contribution identifies several key barriers to class action utilisation: the absence of comprehensive legislation governing the procedure, stringent certification thresholds that require establishing a triable cause of action, a shortage of specialised practitioners, an underdeveloped litigation funding market, cultural perceptions of futility among marginalised communities, and the “negative value suit” problem, where individual recoveries may be less than participation costs. The author argues that increased class action usage is crucial for South Africa because these mechanisms enhance judicial efficiency, promote access to justice for economically disadvantaged groups, ensure consistent outcomes, provide deterrent effects against corporate misconduct, and can catalyse broader social and regulatory reforms. The author, furthermore, expresses optimism on a gradual transformation in the South African collective redress landscape, founded on recent developments, including new certification rules being incorporated into the Uniform Rules of Court, growing legal awareness, and an unprecedented number of pending class actions involving mining health damages, product liability, environmental disasters, and consumer fraud. It is concluded that class actions are poised to play a significantly greater role in South African law, offering opportunities to transform abstract rights into practical remedies and empower citizens to seek collective justice against systemic harms.

Privacy For Sale? The Legality of the Pay-or-Consent Model in South Africa

by | Jun 16, 2026 | SLR, SLR V36 I3

Privacy For Sale? The Legality of the Pay-or-Consent Model in South Africa

Author: Zinhle Novazi

ISSN: 1996-2193
Affiliations: BSoc LLB (UCT) LLM (WITS) LLM (QMUL), Lecturer, Stellenbosch University
Source: Stellenbosch Law Review, Volume 36 Issue 3, 2025, p. 501-539
https://doi.org/10.47348/SLR/2025/i3a6

Abstract

This contribution investigates the legality of the pay-or-consent model, also known as the pay-or-okay model, in which users must either pay a subscription fee or consent to potentially invasive personal data processing to access an online service, within the framework of South African law. With reference to Meta Platforms’ 2023 implementation of this model on Facebook, this contribution explores whether such practices comply with the Protection of Personal Information Act 4 of 2013 (“POPIA”), the Consumer Protection Act 68 of 2008 (“CPA”), South African common law and competition law. Drawing comparative insights from European Union law, including the General Data Protection Regulation (“GDPR”), the Court of Justice of the European Union (“CJEU”)’s decision in Meta Platforms v Bundeskartellamt, and the European Data Protection Board’s Opinion 08/2024 on Consent in the Context of Consent or Pay Models Implemented by Large Online Platforms, the contribution examines how power asymmetries, lack of meaningful alternatives, and bundled consent undermine the voluntariness of consent under both data protection and consumer frameworks. The analysis unfolds across four key dimensions: (1) the data protection requirement that consent must be voluntary, granular, and informed; (2) the commodification of personal data and potential abuse of dominance under South African competition law; (3) the failure of South African contract law and public policy doctrine to sufficiently address structural coercion and substantive unfairness in digital contracts; and (4) the CPA’s role in regulating procedural and substantive unfairness in platform-consumer relationships. The article argues that existing South African law lacks the doctrinal clarity and institutional capacity to regulate consent-based digital business models effectively. It concludes that absent legislative reform or purposive judicial intervention, the pay-or-consent model risks entrenching digital inequality and commodifying privacy. The article calls for a normative shift in South African legal doctrine, particularly in contract, consumer, and data protection law, to prioritise substantive fairness and user autonomy in the face of increasing platform dominance.

From Promise to Practice: A Critical Analysis of South Africa’s Legislative Frameworks on Offender Rehabilitation 30 Years into Democracy and Beyond

by | Jun 16, 2026 | SLR, SLR V36 I3

From Promise to Practice: A Critical Analysis of South Africa’s Legislative Frameworks on Offender Rehabilitation 30 Years into Democracy and Beyond

Authors: Windell Nortje & Tasné Marshall

ISSN: 1996-2193
Affiliations: LLB LLM and LLD, Associate Professor, Department of Criminal Justice and Procedure, Faculty of Law, University of the Western Cape; LLB LLM, LLD Candidate, Department of Criminal Justice and Procedure, Faculty of Law, University of the Western Cape
Source: Stellenbosch Law Review, Volume 36 Issue 3, 2025, p. 540-567
https://doi.org/10.47348/SLR/2025/i3a7

Abstract

Offender rehabilitation seeks to transform incarcerated persons into law-abiding citizens. This approach employs several intervention strategies to address the underlying causes of criminal behaviour. Effective rehabilitation programmes can reduce recidivism rates, enhance public safety and security, and provide offenders with the opportunity for personal growth and development. It is essential to understand that offender rehabilitation should be considered a right, not a privilege. This contribution aims to highlight this right and its significance for offenders in South Africa by analysing the most prominent legal developments of offender rehabilitation over the last 30 years. To achieve this, the article will examine the Constitution of the Republic of South Africa, 1996, the Correctional Services Act 111 of 1998, and the White Paper on Corrections in South Africa, 2005. Additionally, the article will examine Goal 16 of the Sustainable Development Goals (“SDGs”), as well as the Aspirations of the Agenda 2063. The right to offender rehabilitation recognises the potential for positive change in offenders. This is vital as it underpins essential elements of the justice system, such as balancing public safety, human dignity, and societal progress. Nevertheless, a major concern is that South Africa’s domestic laws merely hint at offender rehabilitation without explicitly stating it as a right. This contribution asserts that offender rehabilitation ought to be deemed a fundamental right rather than implied by provisions in the White Paper and sections in the Constitution. By treating rehabilitation as a right, we recognise each individual’s worth and capacity for change while addressing the societal need of reduced crime and improved public safety. We, therefore, recommend the development of new rehabilitation policies.

Transforming Polarisation. The Role of Mediation in Reframing Conflict Narratives

by | Jun 16, 2026 | SLR, SLR V36 I3

Transforming Polarisation. The Role of Mediation in Reframing Conflict Narratives

Author: Alain-Laurent Verbeke

ISSN: 1996-2193
Affiliations: Stellenbosch TPR Research Chair Holder 2025, Professor of Law, Negotiation & Mediation, KU Leuven, Tilburg University & Harvard Law School, Attorney at the Bar of Brussels
Source: Stellenbosch Law Review, Volume 36 Issue 3, 2025, p. 568-582
https://doi.org/10.47348/SLR/2025/i3a8

Abstract

In increasingly individualistic and competitive societies, we seem to have lost fluency in the language of mediation. We find it ever more difficult to listen attentively and authentically to others, and to subject our own perceptions to critical reflection. This contribution argues for the revitalisation and recentring of what may be described as organic mediation, or médiation naturelle, within contemporary social life. Its underlying aspiration is that mediation might once again be recognised as a natural and deeply human mode of communication in an increasingly polarised and adversarial world. Mediation should not be reduced to a mere technical instrument for dispute resolution; rather, it constitutes a transformative social practice, grounded in empathy, active listening and genuinely inclusive communication. The contribution proceeds in three steps. First, it examines several foundational characteristics of mediation (part 1). Building on this framework, it then considers mediation as a linguistic and cognitive skill set (part 2) capable of enabling dialogue that moves beyond the stalemates currently affecting both our public and private spheres. However, before this language can be meaningfully learned and practised in a true dialogue, a crucial precondition must be met: the creation of an environment in which it can genuinely be spoken (part 3). It is here that mediation ultimately reveals itself as a philosophy of being grounded in compassion. As a profound acknowledgment of our shared humanity, compassion may enable us to transcend the boundaries that perpetuate conflict and polarisation.

National Treasury narrows the gateway: Considering Section 16(3)(c) of the VAT Act [Case note on Capitec Bank Limited v Commissioner for the South African Revenue Service (CCT 209/22) 2024 ZACC 1]

by | Jun 16, 2026 | SLR, SLR V36 I3

National Treasury narrows the gateway: Considering Section 16(3)(c) of the VAT Act [Case note on Capitec Bank Limited v Commissioner for the South African Revenue Service (CCT 209/22) 2024 ZACC 1]

Authors: Mariam Mia, Shaaira Sackoor and Faeeza Soni

ISSN: 1996-2193
Affiliations: TA(SA), BCom BCom (Hons) MCom (Tax), Senior Lecturer, University of the Witwatersrand; Master Tax Professional (SA), BCom BCom (Hons) MCom (Tax), Senior Lecturer, University of the Witwatersrand; CA(SA), BAccSci HDip Acc MCom (Acc), Senior Lecturer, University of the Witwatersrand
Source: Stellenbosch Law Review, Volume 36 Issue 3, 2025, p. 583-593
https://doi.org/10.47348/SLR/2025/i3a9

Abstract

In the case of Capitec Bank Limited v Commissioner for the South African Revenue Service, the court addressed the interpretation and application of section 16(3)(c) of the Value-Added Tax Act 89 of 1991. Capitec Bank Limited offered loan financing to unsecured borrowers, together with loan cover at no extra charge. It claimed a tax deduction on indemnity payments made by third party insurers to Capitec Bank Limited that applied against the borrowers’ outstanding loan accounts in the event of their death or retrenchment. The court ruled that Capitec Bank may claim a partial deduction that reflects the extent of taxable supplies made by the bank in accordance with its business of providing loans to unsecured borrowers. The apportionment matter was referred to SARS to determine a reasonable method of apportionment. This case note comments on the pertinent and contentious matters that arise from this judgment, as well as the effect of the recent amendment to the definition of “insurance” and the addition of the definition of “premium” in the Value-Added Tax Act.