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.