Stellenbosch University Law Clinic and Others v Lifestyle Direct Group International (Pty) Ltd and Others (16262/2019) [2021] ZAWCHC 133; [2021] 4 All SA 219 (WCC); 2022 (2) SA 237 (WCC) (21 July 2021)

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[2021] ZAWCHC 133
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Stellenbosch University Law Clinic and Others v Lifestyle Direct Group International (Pty) Ltd and Others (16262/2019) [2021] ZAWCHC 133; [2021] 4 All SA 219 (WCC); 2022 (2) SA 237 (WCC) (21 July 2021)

IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
REPORTABLE
CASE
NO: 16262/2019
In
the matter between:
STELLENBOSCH
UNIVERSITY LAW CLINIC
First Applicant
ADELE
ROTHMANN
Second Applicant
IGNATIUS
MICHAEL
HEYNS
Third Applicant
DERRICK
FERREIRA DOS
SANTOS
Fourth Applicant
RONALD
ABRAHAM ARTHUR ESBACH
Fifth Applicant
NICOLENE
ELS
Sixth Applicant
ALICIA
PELSER
Fifth Applicant
VANESSA
VENTER
Seventh Applicant
CASSIEM
HALLIDAY
Eighth Applicant
And
LIFESTYLE
DIRECT GROUP INTERNATIONAL
(PTY)
LTD
First Respondent
CAPITAL
LIFESTYLE SOLUTIONS (PTY) LTD
t/a
LIFESTYLE
LEGAL
Second Respondent
LOAN
TRACKER SA (PTY)
LTD
Third Respondent
LOAN
SPOTTER SA (PTY)
LTD
Fourth Respondent
LOAN
MATCH SA (PTY)
LTD
Fifth Respondent
LOAN
CHOICE SA (PTY)
LTD
Sixth Respondent
LOAN
QUEST SA (PTY) LTD
Seventh Respondent
LOAN
CONNECTOR SA (PTY)
LTD
Eighth Respondent
LOAN
HUB SA (PTY) LTD
Ninth Respondent
LOAN
ZONE SA (PTY)
LTD
Tenth Respondent
LOAN
LOCATOR SA (PTY)
LTD
Eleventh Respondent
LOAN
SCOUT SA (PTY)
LTD
Twelfth Respondent
LOAN
TRACER SA (PTY)
LTD
Thirteenth Respondent
LOAN
DETECTOR SA (PTY)
LTD
Fourteenth Respondent
LIFESTYLE
LEGAL (PTY)
LTD
Fifteenth Respondent
LIFESTYLE
ATTORNEYS (PTY) LTD
Sixteenth Respondent
ALL
WHEEL AUTO (PTY)
LTD
Seventeenth
Respondent
DAMIAN
MALANDER
Eighteenth Respondent
NANDIE
PAICH
Nineteenth Respondent
Bench: P.A.L.Gamble, J
Heard: 8 & 9 March 2021
Delivered: 21 July 2021
This judgment was handed down
electronically by circulation to the parties' representatives via
email and release to SAFLII. The
date and time for hand-down is
deemed to be 15h00 on Wednesday 21 July 2021.
JUDGMENT
GAMBLE,
J:
INTRODUCTION
1.
The applicants seek the certification by
this Court of an “opt-out” class action to be instituted
against the respondents
in which they will seek to undo certain
agreements which the respondents allegedly concluded with a multitude
of consumers, to
reverse various transactions concluded pursuant to
such agreements and to compensate aggrieved consumers for the losses
allegedly
incurred as a consequence of a fraudulent scheme
implemented by the respondents. The applicants also seek to interdict
the respondents
from conducting such scheme pending the final
determination of the class action.
2.
The applicants contend that the respondents
are not registered credit-providers but that they nevertheless lure
unsuspecting consumers
with promises of loans and loan-finding
services. Then, it is said that, although the respondents are not
registered legal practitioners,
they purport to charge consumers for
legal advice. It is said that in the process, the respondents conduct
an unlawful scam, firstly,
by inviting online applications for
financial assistance and then by making use of the information and
personal details supplied
by consumers making such applications to
dupe them into concluding unwanted fixed-term contracts for legal
assistance in which
so-called “subscription fees” are
then debited from the consumers’ bank accounts.
3.
In short, say the applicants, the
respondents are wily confidence tricksters who exploit the
informality of the internet and the
financial straits in which poor
consumers find themselves to perpetrate an array of frauds against
innocent and vulnerable persons
on a daily basis. In summary, say the
applicants, consumers are duped into believing that they are applying
for a much-needed cash
loan while in fact they receive no money and
end up paying a monthly instalment for legal “services”
which they never
sought, nor receive. They seek to bring an end to
this sorry state of affairs through the mechanism of a class action,
and in the
interim, through the imposition of an interdict
pendent
lite
.
4.
After the launch of the application for a
class action on 13 September 2019, there were two applications by
non-parties to the suit.
Firstly, on 19 December 2019, Legalwise
South Africa (Pty) Ltd, under Rule 12 of the Uniform Rules, sought
leave to intervene as
the tenth applicant in the proceedings.
Secondly, on 21 February 2020, the Payments Association of South
Africa (“PASA”)
applied to be admitted to the proceedings
as
amicus curiae.
5.
The matter was originally enrolled for
hearing over 2 days in April 2020 but had to be postponed due to the
Covid 19 pandemic. It
eventually came before this Court on 8 and 9
March 2021 when a virtual hearing was conducted. Advs.J.G.Dickerson
SC and L.C.Kelly,
the respondents by Adv. P-S.Bothma, PASA by Adv.
A.M.Price and Legalwise by Adv.N.Mayosi, represented the applicants.
The Court
is indebted to counsel for their heads of argument which
have greatly assisted in the preparation of this judgment.
IN LIMINE ISSUES
6.
The respondents oppose Legalwise’s
application for joinder as a co-applicant and that procedural issue
will thus need to be
determined in the course of this judgment.
7.
As far as PASA’s participation is
concerned, I did not understand any of the parties to be opposed
thereto. Mr. Bothma, correctly
in my view, accepted that the case as
a whole raised a number of novel issues arising from, inter alia, the
application of the
Consumer Protection Act, 68 of 2008 (“the
CPA”) and that the issue of the utilization of the debit order
system by
the respondents fell for consideration. To the extent that
PASA, as an arm of the South African Reserve Bank (“SARB”),

had expert knowledge of the implementation of this system, its
contribution would be relevant.
8.
The
admission to proceedings of an
amicus
curiae
is governed by Rule 16A of the Uniform Rules as well as the court’s
inherent jurisdiction to regulate its own process. Ultimately,
the
discretion to admit an
amicus
is taken in the interests of justice and is intended to promote
transparency, efficiency and understanding in constitutional
litigation
“by creating space for interested non-parties to
provide input on important public interest matters”
[1]
.
Having heard counsel for PASA, I am satisfied that its contribution
is helpful to the determination of the issues and it is thus

appropriate that it be admitted as an
amicus.
The
substance of PASA’s submissions will appear from the body of
this judgment.
9.
At the commencement of proceedings on the
second day of the hearing, Mr. Bothma sought leave to introduce a
supplementary affidavit
by the eighteenth respondent setting out
certain developments which had emerged since the filing of the
respondents’ papers.
This arose as a consequence of the Court’s
query at the commencement of argument on the first day whether the
respondents
were still operating the various internet websites of
which the applicants had complained. The Court’s concerns in
that regard
were occasioned by its own inability to access those
websites via the internet to view them, and a further concern that
the interlocutory
relief might be moot in the circumstances.
10.
The thrust of the supplementary affidavit
was directed at the interim relief sought by the applicants and
intended to demonstrate
that no such relief was required in the
circumstances, as the websites had been closed down. The applicants
managed to file a reply
to the respondents’ supplementary
affidavit shortly before the conclusion of proceedings on the second
day. That affidavit
sought to demonstrate that certain of the
websites claimed to have been closed down by the respondents were in
fact still operative
and that the case for interim relief was very
much still a live issue.
11.
In
the result, both supplementary affidavits were received by the Court
and now form part of the record.
[2]
They thus fall to be considered in the course of the judgment.
12.
As will appear from this judgment, there is
significant common ground between the applicants and respondents on
the criteria for
the certification of a class action and the
lis
between the parties in this application is limited to two discrete
issues – (i) commonality of issues, and (ii) appropriateness
of
the remedy.
DEVELOPMENT OF THE CLASS
ACTION IN OUR LAW
13.
While it has been employed extensively in
the United States of America and certain common law jurisdictions
similar to ours, class
action litigation is a relative novelty in
South African law and can be considered still to be in the stage of
jurisprudential
development. That notwithstanding, our highest courts
have already pronounced decisively on the topic and guidelines have
been
set to guide both litigants and courts alike faced with an
application such as this, for the certification of a class action.
14.
At
the heart of class action litigation lies access to justice for
ordinary working people who cannot otherwise afford the exorbitant

cost of litigation in our country.
[3]
Such collective litigation saw the light of day in our legal system
at the turn of the century in response to a serial failure
by the
Eastern Cape Provincial Government to pay disability grants to needy
persons who qualified therefor. A group of four individuals,
duly
assisted by a public interest law firm, the Legal Resources Centre,
commenced proceedings to secure the recovery of outstanding
grants
and to procure the future payment thereof. After such action had been
sanctioned in the Provincial Division, the Province
took the matter
on appeal, where Cameron JA delivered the unanimous judgment of the
Supreme Court of Appeal.
[4]
I shall quote in some detail from that judgment as it usefully
provides the legal tapestry against which the present matter falls
to
be considered. All internal references in the judgments cited in this
judgment have been omitted, unless expressly cited.
15.
In
Ngxuza
,
Cameron JA described the social importance of class action litigation
as follows.
“
[1]
The law is a scarce resource in South Africa. This case shows that
justice is even harder to come by. It concerns the ways in
which the
poorest in our country are to be permitted access to both. In the
Eastern Cape Division of the High Court four individual
applicants,
assisted by the Legal Resources Centre, brought motion proceedings
against the Eastern Cape provincial government (represented
by
respectively the departmental and political heads of provincial
welfare, who are the first and second appellants). They sought

two-fold relief. The first portion was to reinstate the grants they
had been receiving under the Social Assistance Act, which the

province had without notice to them terminated. The province conceded
the claims of three of the applicants, with payment of arrears
and
interest. They are the respondents in the appeal (I refer to them as
“the applicants”). A fourth applicant failed,
and he
plays no further part in the proceedings in which the contested issue
is the immensely more expansive, second portion of
the relief the
applicants sought. That concerned the plight of many tens of
thousands of Eastern Cape disability grantees they
alleged were in a
similar predicament to themselves, in that they, too, had had their
grants unfairly and unlawfully terminated.
On their behalf, aiming to
secure the reinstatement en masse of their cancelled pensions, the
applicants sought to institute representative,
class action and
public interest proceedings in terms of s 38(b), (c) and (d) of the
Constitution. Froneman J, in a judgment now
reported granted them
leave to proceed.”
16.
The Learned Judge of Appeal went on to
examine the procedural basis for allowing litigants to proceed by way
of a class action.
“
[4]
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. Defendants may also be sued as members
of a class. 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 approach
to participation
in legal process creates 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 sixty years ago:
“
The
cardinal difficulty with joinder ... is that it presupposes the
prospective plaintiffs’ advancing en masse on the courts.
In
most situations such spontaneity cannot arise either because the
various parties who have the common interest are isolated,
scattered
and utter strangers to each other. Thus while the necessity for group
action through joinder clearly exists, the conditions
for it do not.
It may not be enough for society simply to set up courts and wait for
litigants to bring their complaints —
they may never come. What
is needed, then, is something over and above the possibility of
joinder. There must be some affirmative
technique for bringing
everyone into the case and for making recovery available to all. It
is not so much a matter of permitting
joinder as of ensuring it.”
[H
Kalven, Jr and M Rosenfield
“
The
Contemporary Function of Class Suit
”
(1941)
University
of Chicago Law Review
684 at 687-8.  To similar effect is H Erasmus
Superior
Court Practice
A2-4J: The traditional rules governing joinder
“
are
impractical where the number of applicants is large and/or all the
potential applicants have yet to be identified.
”
]
[5]
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
which individually they are in a poor position to seek
legal redress,
either because they do not know enough or because such redress is
disproportionately expensive. If each is left
to assert his rights
alone if and when he can, there will at best be a random and
fragmentary enforcement, if there is any at all
.”
[6]
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’”.
17.
In
November 2012, the Supreme Court of Appeal heard two applications
brought by purveyors of bread seeking the certification of
class
actions aimed at attacking the dominance in the consumer market of
certain bread cartels allegedly responsible for price
fixing.
[5]
Both matters were heard by the same panel of judges with separate
judgments being delivered in each case. The
rationes
decidendi
of the decisions were, however, unanimous and the decisions are now
regarded as having established the criteria to be applied by
courts
considering the certification of class actions.
18.
In
CRC
Trust
, Wallis JA stressed the
importance of correctly categorizing the nature of the intended class
action.
“
[
18]
Recognition of the representative nature of a class action has
important implications for determining the requirements for such

actions. If the action is representative it is essential to identify,
not necessarily by name but by description, those who are
being
represented. As it is their rights that are to be adjudicated upon,
they must either be given the opportunity to be excluded
from the
class (to opt out) or they must be required to join the class (to opt
in). It is also necessary to identify the representative
and to
determine both their suitability to act as such and the basis upon
which they will do so. The element of aggregation of
claims dictates
that the claims brought together in the action, whilst not
necessarily identical, should raise common issues of
fact or law, the
resolution of which will serve to resolve or enable the resolution of
all claims.”
19.
The learned Judge of Appeal went on
to list the requirements for certification of class actions.
“
[
26]
In the course of argument the presiding judge put to counsel the
following list of the elements that should guide a court in
making a
certification decision. They were:
•
the
existence of a class identifiable by objective criteria;
•
a
cause of action raising a triable issue;
•
that
the right to relief depends upon the determination of issues of fact,
or law, or both, common to all members of the class;
•
that
the relief sought, or damages claimed, flow from the cause of action
and are ascertainable and capable of determination;
•
that
where the claim is for damages there is an appropriate procedure for
allocating the damages to the members of the class;
•
that
the proposed representative is suitable to be permitted to conduct
the action and represent the class;
•
whether
given the composition of the class and the nature of the proposed
action a class action is the most appropriate means of
determining
the claims of class members.
There
is an element of overlapping in these requirements. For example, the
composition of the class cannot be determined without
considering the
nature of the claim. The fact that there are issues common to a
number of potential claimants may dictate that
a class action is the
most appropriate manner in which to proceed, but that is not
necessarily the case. A class action may be
certified in respect of
limited issues, for example, negligence in a mass personal injuries
claim, leaving issues personal to the
members of the class, such as
damages, to be resolved separately.
[27]
This list corresponds substantially with the factors identified by
the Law Commission as the requirements for certification.
It also
overlaps with what Cameron JA said [in
Ngxuza]
were ‘the
quintessential elements of a class action’, in dealing with a
contention that a class had been inadequately
described, namely
‘…
that
(1) the class is so numerous that joinder of all its members is
impracticable; (2) there are questions of law and fact common
to the
class; (3) the claims of the applicants representing the class are
typical of the claims of the rest; and (4) the applicants
through
their legal representatives, the Legal Resources Centre, will fairly
and adequately protect the interests of the class.’
Similar
requirements are prescribed in Federal Rule 23(a) of the Federal
Rules of Civil Procedure in the United States of America,
namely that
the class is so numerous that joinder of all its members is
impracticable; that there are questions of law or fact
that are
common to the class; that the claims of the representative parties
are typical of the claims of the class; and that the
representative
parties will fairly and adequately represent the interests of the
class. These requirements are referred to as numerosity,
commonality,
typicality and adequate representation. Similar requirements are to
be found in other jurisdictions.”
20.
In
CRC
Trust,
the Supreme Court of Appeal set
aside the court
a quo
’s
refusal to certify a class action and remitted the matter back for
reconsideration in accordance with the criteria suggested
by that
court.
21.
In delivering the unanimous judgment
of the court in
Mukkadam (SCA)
,
Nugent JA concurred with the approach of the panel in
CRC
Trust
as regards the approach to class
action certification but declined to certify such action on the basis
of the facts before that
court.
22.
Mukkadam
(SCA)
proceeded
to the Constitutional Court where the main judgment of the court was
delivered by Jafta J,
[6]
who commented as follows in relation to the approach to be adopted in
the certification of class actions, with specific reference
to the
judgment of Wallis JA in
Mukkadam
(SCA)
.
“
Section
173
[33]
Section 173 of the Constitution provides: ―
‘
The
Constitutional Court, Supreme Court of Appeal and High Courts have
the inherent power to protect and regulate their own process,
and to
develop the common law, taking into account the interests of
justice.’
Standard
for certification
[34]
It is apparent from the text of the section that it does not only
recognise the courts‘ power to protect and regulate
their own
processes but also their power to develop the common law where
necessary to meet the interests of justice. The guiding
principle in
exercising the powers in the section is the interests of justice.
Therefore, this is the standard which must be applied
in adjudicating
applications for certification to institute class actions.
[35]
In
Children’s Resource Centre
, the Supreme Court of
Appeal laid down requirements for certification. These requirements
must serve as factors to be taken into
account in determining where
the interests of justice lie in a particular case. They must not be
treated as conditions precedent
or jurisdictional facts which must be
present before an application for certification may succeed. The
absence of one or another
requirement must not oblige a court to
refuse certification where the interests of justice demand
otherwise.’
23.
Against
that background, class action certification has been considered in
the High Court in a number of cases. Perhaps the most
celebrated
decision to date is
Nkala
[7]
,
the so-called “silicosis case”, in which mine-workers
affected by that lung disease and pulmonary tuberculosis, sought
to
recover compensation for occupational injuries suffered at the hands
of their employers over the years.
24.
A Full Bench of the erstwhile
Gauteng Local Division, which granted the applicants leave to pursue
a class action, gave the following
useful overview of the procedure.
“
[33]
To sum up, a class action represents a paradigmatic shift in the
South African legal process. It is a process that permits
one or more
plaintiffs to file and prosecute a lawsuit on behalf of a larger
group or "class" against one or more defendants.
The
process is utilised to allow parties and the court to manage a (sic)
litigation that would be unmanageable or uneconomical
if each
plaintiff was to bring his/her claim individually. It is normally
instituted by a representative on behalf of the relevant
class of
plaintiffs. The class action process is part of the equity-developed
law and is designed to cover situations where the
parties,
particularly plaintiffs, are so numerous that it would be almost
impossible to bring them all before the court in one
hearing, and
where it would not be in the interest of justice for them to come
before court individually.
[34]
It is not only for the benefit of plaintiffs that the class action
process was conceived, it is also designed to protect a
defendant(s)
from facing a multiplicity of actions resulting in it having to
recast or regurgitate its case against each and every
individual
plaintiff. Furthermore, it enhances judicial economy by protecting
courts from having to consider the same issues and
evidence in
multiple proceedings, which carries with it the possibility of
decisions by different courts on the same issue. On
the other hand, a
class action allows for a single finding on the issue(s), which
finding binds all the plaintiffs and all the
defendants.”
25.
Lastly, by way of background
discussion, it is necessary to mention the question of representivity
and, further, to distinguish
between the “opt-out” and
“opt-in” procedures which are integral to class actions.
In
CRC Trust,
the court explained it thus.
“
[16]
In class actions the party bringing the action does so, on behalf of
the entire class, every member of which is bound by the
outcome of
the action, so that a separate action by a member of the class after
judgment can be met with a plea of res judicata.
The concept is most
fully defined, by Professor Mulheron,
[8]
in the following terms:
‘
A
class action is a legal procedure which enables the claims (or parts
of the claims) of a number of persons against the same defendant
to
be determined in the one suit. In a class action, one or more persons
(“representative plaintiff”) may sue on his
or her own
behalf and on behalf of a number of other persons (“the class”)
who have a claim to a remedy for the same
or a similar alleged wrong
to that alleged by the representative plaintiff, and who have claims
that share questions of law or
fact in common with those of the
representative plaintiff (“common issues”). Only the
representative plaintiff is a
party to the action. The class members
are not usually identified as individual parties but are merely
described. The class members
are bound by the outcome of the
litigation on the common issues, whether favourable or adverse to the
class, although they do not,
for the most part, take any active part
in that litigation.’
[17]
The class action serves to bring a number of separate claims together
in one proceeding. In other words it permits the aggregation
of
claims. However, that is not its only function. Of equal or greater
importance, as Professor Silver points out,
[9]
is the fact that the class action is ‘a representational
device’. It is -
‘…
a
procedural device that expands a court’s jurisdiction,
empowering it to enter a judgment that is binding upon everyone with

covered claims. This includes claimants who, not being named as
parties, would not ordinarily be bound. A class-wide judgment
extinguishes the claims of all persons meeting the class definition
rather than just those of named parties and persons in privity
with
them, as normally is the case.
Judges
and scholars sometimes treat the class action as a procedure for
joining absent claimants to a lawsuit rather than as one
that permits
a court to treat a named party as standing in judgment on behalf of
them. This is a mistake … Class members
neither start out as
parties nor become parties when a class is certified.’
[18]
Recognition of the representative nature of a class action has
important implications for determining the requirements for
such
actions. If the action is representative it is essential to identify,
not necessarily by name but by description, those who
are being
represented. As it is their rights that are to be adjudicated upon,
they must either be given the opportunity to be excluded
from the
class (to opt out) or they must be required to join the class (to opt
in). It is also necessary to identify the representative
and to
determine both their suitability to act as such and the basis upon
which they will do so. The element of aggregation of
claims dictates
that the claims brought together in the action, whilst not
necessarily identical, should raise common issues of
fact or law, the
resolution of which will serve to resolve or enable the resolution of
all claims.”
As I have said, the applicants
seek an “opt-out” certification in this matter. Further,
the first applicant (“the
Law Clinic”) has undertaken to
represent the class and there is no objection thereto by the
respondents.
THE RELEVANT FACTUAL MATRIX
26.
Given the limited disputes in this
application for certification, I need only give a broad overview of
the relevant background facts
and circumstances. I shall rely
extensively on the Law Clinic’s founding affidavit deposed to
by one of its senior attorneys,
Mr. Stephanus van der Merwe, for that
purpose. Mr. van der Merwe is also a lecturer at the University.
THE WEBSITES
27.
Mr.
van der Merwe notes that the Law Clinic had received hundreds of
complaints from irate consumers concerning some 12 websites
that were
cause for concern. Listed under the address prefix
https://www
,
they
all prominently bore the word “loan” as part of their
respective domain names as appears from the following list
(the name
of the company using such website is indicated in parentheses)
(i)
loantrackersa.co.za (Loan Tracker SA (Pty)
Ltd, the third respondent);
(ii)
loanspottersa.co.za (Loan Spotter SA (Pty)
Ltd, the fourth respondent);
(iii)
loanmatchsa.co.za (Loan Match SA (Pty) Ltd,
the fifth respondent);
(iv)
loanchoicesa.co.za (Loan Choice SA (Pty)
Ltd, the sixth respondent);
(v)
loanquestsa.co.za (Loan Quest SA (Pty) Ltd,
the seventh respondent);
(vi)
loanconnectorsa.co.za (Loan Connector SA
(Pty) Ltd, the eighth respondent);
(vii)
loanhubsa.co.za (Loan Hub SA (Pty) Ltd, the
ninth respondent);
(viii)
loanzonesa.co.za (Lone Zone SA (Pty) Ltd,
the tenth respondent);
(ix)
loanlocatorsa.co.za (Loan Locator SA (Pty)
Ltd, the eleventh respondent);
(x)
loanscoutsa.co.za (Loan Scout SA (Pty) Ltd,
the twelfth respondent);
(xi)
loantracersa.co.za (Loan Tracer SA (Pty)
Ltd, the thirteenth respondent).
The twelfth website related to an
entity called “Loan Detector SA (Pty) Ltd” (the
fourteenth respondent) whose domain
name is unknown to the Law
Clinic.
28.
Each of these websites, says Mr. van der
Merwe, offered either loans or a loan finding service, intended to
induce consumers to
conclude agreements for unwanted services. In
most instances, monies were debited from the bank accounts of
consumers who had subscribed
for such services via the websites,
shortly after they had visited the website in question. It is said
that the websites generally
employed the same
modus
operandi
to mislead consumers: they
were invited to submit an on-line application form for what appeared
to be a loan (or a service that
would assist them in procuring a
loan). However, tucked away in the terms of service discretely
advertised on the website was a
recordal that the consumer had
entered into an agreement for a service unrelated to a loan (or
loan-finding service) e.g. “
telephonic
legal advice service.”
Such
agreement was invariably for a fixed term of 12 months and comprised
an initial subscription fee ranging from R399 to R429
and a monthly
subscription of R99 for the remaining duration of the agreement.
29.
In the founding affidavit, Mr. van der
Merwe has consistently referred to an “agreement” thereby
suggesting, through
the use of inverted commas, a purported
agreement. The respondents, on the other hand, have referred to a
“Service Agreement”
thereby suggesting, I understand, an
agreement for the provision of services of some or other kind. For
the sake of clarity and
consistency, I shall refer throughout in this
judgment to the consequences of a consumer’s application on any
of the websites
for an advertised product as an agreement. I
expressly avoid the use of inverted commas in relation thereto.
THE
MODUS OPERANDI
30.
It is pointed out that consumers were
required to provide their banking details when submitting their
applications. Mr. van der
Merwe says that the common understanding
amongst people with whom the Law Clinic had spoken was that such
details were furnished
on the understanding that they were applying
for a loan. But, once again, buried in the terms of the service was
an authorisation
by the consumer permitting the company behind the
website in question to debit monies due under the agreement from
their bank accounts.
31.
Consumers told the Law Clinic that after
submitting such applications they began to notice deductions being
effected from their
bank accounts while no loan payments were
forthcoming. When they followed up with the companies in question
they were routinely
informed, to their astonishment, that they had
concluded agreements with the one of the respondent companies and in
the process
had authorized debit orders to be set up against their
bank accounts. Yet, when they attempted to cancel the agreements,
consumers
were stonewalled by the companies responsible for the
deductions. They are said to have been harassed by those companies’

employees who threatened to take legal action, including
blacklisting, against consumers who did not make payment in terms of
their agreements.
32.
The Law Clinic reports that there
were literally thousands of complaints by consumers who had fallen
foul of the respondents’
alleged trickery. A Facebook group set
up in response to the alleged scam was said to have numbered almost
700 in August 2019.
In addition, there had been widespread coverage
in the print and electronic media detailing the plight of consumers
said to have
been caught out by the respondents. For instance, on 28
April 2019, an investigative television programme known as “
Carte
Blanche
” aired an expose of the
alleged scam noting as follows –
“
Struggling
to make ends meet in the current economy, South Africans who have
found themselves desperate enough to apply for certain
online loans
have stepped into a world of pain as they inadvertently ended up in a
debt spiral, having to pay for services they
never asked for, through
debit orders they had no idea they were authorising. It’s a
nightmare that once begun, can take
you years to clear up.”
33.
Mr. van der Merwe illustrated his
evidence through screen shots from various of the websites referred
to above. As I have said,
the Court was unable to access these
websites directly to evaluate for itself how they functioned.
However, the Law Clinic’s
founding affidavit provides useful
assistance in that regard. The websites, as appear from their names
listed above, all prominently
feature the word “loan”.
Not only do the names of the websites immediately create the
impression that the respondents
offer loans or loan finding services,
the wording of many of the screen shots consistently advertise loans.
I shall recite but
one example.
34.
The
website
www.loanlocatorsa.co.za
(being that of the eleventh respondent) contains the following get
up.
“
Blacklisted
and need a loan? / Quick and easy online signup
….
Loans up to R200 000, no
loan fees. No credit checks. Apply online now. Open
Monday–Friday.
Highlights: Hassle Free Application Process.
Convenient Service Package. Offering Expert services.
Apply Online. Log In. Loan
Information”
35.
The respondents generally made use
on their webpages of hyperlinks whereby consumers could access
application forms directly by
clicking their computer cursors on
words such as “Apply Online”. Mr. van der Merwe points
out that the respondents
targeted some of the most vulnerable members
of society, being cash-strapped consumers desperate for financial
assistance who are
easily attracted by the offer of easy finance to
relieve their debt-burdens.
36.
The joinder in the application of
the second to ninth applicants adequately demonstrated how a range of
consumers spread out across
the country –from the Western Cape
to KwaZulu-Natal, Gauteng and beyond - had been entrapped in unwanted
contracts by offers
of quick money via the respondents’
websites. Their individual circumstances (confirmed by supporting
affidavits) more than
adequately lends credence to the Law Clinic’s
assertions that they believed they were applying for loans whereas
they were
ultimately told that they had applied for legal services.
These services were said to have been unwanted, not required and,
most
importantly, never rendered to the consumers in question.
THE
RESPONDENTS
37.
The third to fourteenth respondents
comprise a web of small companies, each with physical offices located
across greater Cape Town.
They are all associated with the first
respondent, (“the Lifestyle Direct Group”) which has its
registered offices
in Bellville. The second respondent (Capital
Lifestyle Solutions (Pty) Ltd, which trades as “Lifestyle
Legal” and will
thus be referred to as such) is a subsidiary of
the Lifestyle Direct Group and has its registered offices at Century
City. It has
been registered as a debt collector since 2015 and this
is its primary focus – it functions as the “in-house”

debt collection agency for the Lifestyle Group.
38.
The fifteenth respondent, which is
described as Lifestyle Legal (Pty) Ltd, has its registered offices at
the same premises as the
Lifestyle Group in Bellville, while the
sixteenth respondent (“Lifestyle Attorneys”) also has its
registered offices
at Century City. It is said that Lifestyle Legal
(i.e. the second respondent) was the corporate entity used to harass
consumers
by sending them threatening emails, letters of demand,
draft summonses and the like.
39.
The
persons behind this web of corporate entities are Mr. Damian Malander
(the eighteenth respondent) and Ms. Nandie Paich (the
nineteenth
respondent), both of whom reside in Cape Town. Mr. Malander is the
sole director of the Lifestyle Group, Lifestyle Legal,
Lifestyle
Attorneys and the seventeenth respondent, an entity curiously known
as “All Wheel Auto (Pty) Ltd”.
[10]
40.
It is pointed out by Mr. van der Merwe that
all of the companies that operate the websites referred to were
registered on the same
day – 20 May 2015 – and that all
such websites are hosted on the same server
(“ns1.lifestyle-srv.com”).
On 10 June 2016, Mr. Malander
resigned his sole directorships of the third to fourteenth
respondents and was immediately replaced
by Ms. Paich, who remains
the sole active director of those entities. Mr. Malander remains a
director of Lifestyle Attorneys, together
with Mr. Dlakavu Ndumiso.
Neither Messers Malander and Ndumiso nor Ms. Paich are qualified or
practicing attorneys. The claim by
the Law Clinic that Mr. Malander
and Ms. Paich are ultimately in control of the companies behind the
alleged online loan scam thus
appears to be well founded on the facts
as presented to the Court.
41.
The Law Clinic further points out that,
although the websites advertise loans or “loan-finding
services”, none of the
companies that own and operate them are
registered credit providers. In fact, it says that their real
business is that of a “telephonic
legal advice assistance
centre” yet none of the consumers it interacted with ever
wanted such a service or received such
advice. It goes without saying
that the companies, which were not registered as legal practitioners,
were never lawfully permitted
to furnish such advice.
42.
In summary, the
modus
operandi
employed by the Lifestyle
Direct Group and its subsidiaries or affiliates, is said to have been
·
intended to lure unsuspecting consumers in
need of a loan to supply their banking details;
·
to obfuscate the true nature of the legal
relationship actually concluded between the parties;
·
immediately to deduct unauthorized
amounts from such bank accounts;
·
to prevaricate when consumers attempted to
cancel the agreements so concluded; and
·
to harass and threaten the consumers with
bogus legal action and blacklisting when they attempted to terminate
the legal relationship
that had ultimately eventuated between the
parties.
THE APPLICANTS’ CAUSES
OF ACTION
43.
Mr. van der Merwe says that the class
action will encompass four causes of action, two of which are based
on the common law with
the others sourced in the CPA.
44.
Firstly, it is said that the agreements
concluded between the members of the class and the respondents were
prima facie unconscionable,
unjust unreasonable or unfair in terms of
ss 40, 41 and 48 of the CPA. If this is established at trial, the
members of the class
would be entitled to declaratory relief to such
effect, the restoration to them of any monies paid over to the
respondents as well
as compensation under s52 of the CPA for any
losses incurred as a consequence of such agreements and deductions
from their bank
accounts.
45.
Secondly, and in the alternative to the
primary cause of action, the Law Clinic contends that the consumers
are entitled to declaratory
relief that the agreements are unlawful
at common law on the basis of fraudulent misrepresentation and that
they are entitled to
restitution and damages.
46.
Thirdly, it is said that the respondents’
conduct in demanding (or collecting) payments from the consumers was
unconscionable
in terms of s40 of the CPA or unlawful at common law.
This would entitle such members of the class to declaratory relief
and an
order under s52(3)(b)(iii) of the CPA to cease such conduct,
alternatively to a prohibitory interdict at common law.
47.
Fourthly, it is claimed that Mr. Malander
and Ms. Paich used the respondent companies to conceal and avoid
their liability for the
alleged online scam thereby conducting the
businesses of the companies with the intention of defrauding their
customers. It is
said that consumers are entitled to common law
relief for declaratory orders piercing the corporate veil.
48.
In discharging its evidential burden, the
Law Clinic says the class will seek to rely on the Electronic
Communications and Transactions
Act, 25 of 2002 (“ECTA”)
which deals with so-called “click wrap contacts”. These
are agreements concluded
electronically when a consumer ticks a box
on a website prior to submitting an online application. It says that
the probity and
enforceability of contracts so concluded has not yet
been tested in our courts.
49.
As I have said, Mr. Bothma accepted that
the applicants had made out a prima facie case for relief based on
the causes of action
as pleaded in the founding affidavit of Mr. van
der Merwe and the relevant facts set out therein. Counsel accepted,
too, that the
Law Clinic was a suitable party to act as the class
representative. It is thus not necessary to consider these aspects of
the application
in any greater detail. The only contentious issues
for purposes of certification were the questions of commonality and
appropriateness.
The determination of the appropriateness of
certifying a class action will, largely, be influenced by the
question of commonality,
and it is to that criterion that I then
turn.
COMMONALITY
50.
In
CRC
Trust,
[11]
the SCA considered the criterion of commonality in a class action
suit in relation to questions of fact and law, with reference
to the
decision of the US Supreme Court in
Wal-Mart
[12]
.
In that matter, Scalia J was of the view that the claims of the class
–
“
must
depend upon a common intention….That common intention,
moreover, must be of such a nature that it must be capable of

classwide resolution – which means that determination of its
truth or falsity will resolve an issue that is central to the

validity of each one of the claims in one strike.”
51.
Consequently,
a class action does not require every member of the class to have an
identical cause of action or to put forward identical
facts and seek
identical relief. Nor does such an action need to dispose of every
aspect of a claim for certification to be granted.
It is sufficient
that there be some issues of fact, or some issues of law (or a
combination thereof) that are “common to
all members of the
class and can appropriately be determined in one action.”
[13]
52.
The present case concerns the alleged
implementation by Mr. Malander and Ms. Paich, through the corporate
entities that they effectively
controlled, of a fraudulent scheme
which targeted unsuspecting consumers through the repetitive use of
misrepresentations, on the
one hand, and material omissions on the
other, to lure them into completing online application forms for
services they neither
needed nor had requested, followed by the
almost immediate deduction of debit orders from their bank accounts
in respect of services
never rendered. This is said to have been a
relatively simple scheme that was repeated many, many times with a
veritable host of
victims being targeted countrywide. Articulated
thus, the scheme appears to neatly fit the commonality criteria for a
class action
claim.
53.
Indeed, the founding affidavit of Mr. van
der Merwe demonstrates the following common issues of fact and law in
this application.
53.1
The manner in which the respondent companies implemented the scheme,
from the first advertisement to the
final debit order;
53.2
The extent to which the respondents and the agreements are regulated
by the CPA;
53.3
Whether the respondents’ conduct amounts to unconscionable,
false and misleading, unfair, unreasonable
or unjust conduct under
the CPA and, if so, what the appropriate remedies under the CPA would
be;
53.4
What the respondents’ representations to consumers were and
whether they may be considered fraudulent;
53.5
Whether, given the respondents’
modus
operandi
, the agreements were validly
concluded or whether they were induced by misrepresentation;
53.6
Whether the bank charges that consumers were forced to incur might
justify a claim for damages;
53.7
Whether it would be just and equitable to order restitution to the
consumers of the amounts so debited from
their bank accounts;
53.8
Whether the conduct of Mr. Malander and Ms. Paich constituted
reckless or fraudulent abuse of the corporate
respondents’
legal personalities, and if so
53.9
Whether it would be appropriate to pierce the corporate veil so as to
hold them personally responsible for
the losses suffered by the
consumers.
54.
I agree with counsel for the Law Clinic
that these issues can be determined by the adducing of evidence and
the presentation of
argument at one hearing, long as it may be in
anticipated duration. Put otherwise, if a class action is denied,
similar (if not
identical) evidence will have to be lead in separate
courts by each of the thousands of the members of the class. Given
the relatively
limited quantum involved individually, these cases
would likely be spread across numerous regional and magisterial
jurisdictions
throughout the country. That state of affairs needs
only to be stated to demonstrate that it would be inefficient and an
unnecessary
waste of resources for both parties. Indeed, a single
consolidated hearing would appear to be manifestly beneficial to the
respondents
as well.
55.
The respondents argued that, since the
individual causes of action are delictual, there were issues unique
to each prospective plaintiff
that were not capable of class-wide
resolution. In this regard, the question of causation was
highlighted, the submission by Mr.
Bothma being that courts would be
required to conduct unique factual investigations into each
consumer’s claim with the further
prospect of cross-examination
to test the veracity and reliability thereof. For instance, it was
said that the respondents would
want to be satisfied that a
particular consumer had actually been duped by a particular website
visited rather than having intentionally
“taken a punt”
(as counsel put it) on the service on offer.
56.
In my view, this argument misses the point.
The consumers in the prospective class complain that they were misled
by the websites
they visited, having been referred there
automatically when they accessed an online search-engine such as
Google looking for short-term
loans. The contention that there are a
series of unique factual determinations which will be required is
actually a myth. The primary
issue is whether the respondents’
modus operandi was the establishment of websites which were intended
to mislead innocent
consumers into believing they were applying for
loans when, in truth and fact, they were not. That state of affairs
can be factually
determined with reference to an objective assessment
of the individual websites concerned, and in particular, whether they
were
designed to mislead. The enquiry, ultimately, is whether the
respondents created a trap for consumers through which they (the
respondents)
intended to benefit themselves.
57.
Similarly, the proposed enquiry under the
CPA as to whether an agreement into which a consumer was misled was
unconscionable, unjust
and/or unreasonable and thus not enforceable,
is capable of being made on an objective assessment of the wording of
the agreement
itself, read in its contextual setting. That is an
assessment that can be made on behalf of a class as a whole without
the necessity
of having to resort to an individualized approach
through the presentation of case-specific evidence. The same argument
applies
to the fourth cause of action which seeks to pierce the
corporate veil.
58.
But even if there are areas where the
concept of commonality is perhaps somewhat stretched, this would not
be a reason to refuse
certification. Such issues as may well be found
to be lacking in communality can be dealt with in due course through
the directions
of the trial judge and the judicial manager (the
so-called “Special Master” referred to below) appointed
to oversee
the class action. After all the over-riding consideration
in certifying any class action is the interests of justice and this
purpose
is served by such an approach.
59.
In
Nkala,
the court cited with approval the
dictum
of the Canadian Supreme Court in
Vivendi
.
[14]
“
[94]
The approach adopted by the Canadian Supreme Court in
Vivendi
Canada Inc v Michell
Dell’
Aniello
is instructive. There the court held:
‘
the
common question may require nuanced and varied answers based on the
situations of individual members. The commonality requirement
does
not mean that an identical answer is necessary for all the members of
the class, or even that the answer must benefit each
of them to the
same extent. It is enough that the answer to the question does not
give rise to conflicting interests among the
members
.’
[95]
This is particularly so because:
‘
the
underlying (commonality) question is whether allowing the suit to
proceed as a representative one will avoid duplication of

fact-finding or legal analysis. Thus an issue will be ‘common’
only where its resolution is necessary to the resolution
of each
class member’s claim. It is not essential that the class
members be identically situated vis-à-vis the opposing
party.
Nor is it necessary that common issues predominate over non-common
issues or that the resolution of the common issues would
be
determinative of each class member’s claim. However, the class
members’ claims must share a substantial common ingredient
to
justify a class action. Determining whether the common issues justify
a class action may require the court to examine the significance
of
the common issues in relation to individual issues. In doing so, the
court should remember that it may not always be possible
for a
representative party to plead the claims of each class member with
the same particularity as would be required in an individual
suit.’
[96]
In
Vivendi
the court noted with reference to similar cases
that an issue will be considered common if addressing it enables all
the claims
to move forward. It need not be determinative of the final
resolution of the case. It is sufficient that it allows the claims to

move forward without duplication of the judicial analysis. This
however does not preclude a class action suit.
[97]
The approach in
Vivendi
, in our view, is correct for it
ensures that the interests of justice predominate.”
I consider that the approach
advanced in
Vivendi
is applicable in this matter too.
APPROPRIATENESS
60.
Turning to the question of the
appropriateness of the envisaged procedure in respect of the claims
in this matter, one must first
consider the definition of the class
sought to be represented. I did not understand Mr. Bothma to take
issue with the proposed
definition and the matter can thus be dealt
with briefly.
61.
The
Law Clinic’s manager and a senior lecturer at the University of
Stellenbosch, Dr. Theo Broodryk, penned an article in
the 2019
Stellenbosch Law Review entitled “The South African Class
Action Vs Group Action As An Appropriate Procedural Device”
[15]
.
The article is wide-ranging and discusses much of the relevant case
law, both local and international. In discussing the importance
of
the definition of the relevant class Dr. Broodryk observes that
“
[a]
proper class definition inter alia enables the court to determine how
notification to the putative class members should be given,
to decide
who does not form part of the class and may accordingly institute
individual actions, and to establish who will be bound
by the court’s
order.”
62.
Dr. Broodryk goes on to point out that,
even where class members are identifiable, this does not necessarily
render class action
proceedings inappropriate.
“
[W]here
for example the individual class members are not in a financial
position to vindicate their rights through ordinary litigation,
where
the class is numerous, or where the individual claims of class
members are small, joinder may be costly, cumbersome and
inappropriate. Requiring joinder in such circumstances may deprive
class members of their right to access to justice. In other words,

the fact that class members are identifiable should not necessarily
mean that a class action is not the appropriate mechanism to

adjudicate class members’ claims.”
63.
In
Steinhoff
[16]
Unterhalter, J provided the following useful summary of the
importance of the definition of the class.
“
27.Class
definition provides the foundation for a class action. As
Children’s
Resources
makes plain, the class or classes should be defined with sufficient
precision to ensure that membership of the class can be determined
by
reference to objective criteria. There are good reasons for this. The
rights of members of the class are affected by certification.
They
are bound by the outcome of the class action if they have not chosen
to opt out or, in some species of class action, they
have elected to
opt in. The
members of the class must thus be determined or determinable. The
membership of the class should have an identity of
interest.
Furthermore, the definition of the class will be relevant to other
considerations that the certification court is required
to consider.
Thus, by way of example, the heterogeneity of a class may impact upon
the common issues capable of determination in
a class action, the
suitability of a class representative and the complexity of the
proposed litigation. So too, a class that is
under-inclusive may lack
utility, because the joinder of individual plaintiffs in a single
action may be quite as effective as
the certification of a class
action. In other cases, a class may [be] over-extensive and lack
coherence which gives rise to other
infirmities.”
64.
The applicants propose that the class in
this matter be defined as follows:
“
All
persons who have had any moneys debited from their bank accounts
and/or who have been harassed and/or threatened in connection
with
any demand for or collection of payment by any of the respondents at
any time from 20 May 2015 to date on the basis of them
having
concluded purported ‘agreements’ with any of the
respondents through any of the websites listed in Annexure
A”.
65.
Accordingly, membership of the
proposed class is established by way of objective criteria,
viz
–
65.1
Whether any of the respondents debited any amount from an
individual’s bank account. This can be objectively
established
by viewing the bank statements of the member concerned.
65.2
Whether any of the respondents have subjected the individual member
to threats of harassment in relation
to payments under an agreement
concluded via one of the websites. This can be objectively
established by considering correspondence
from the respondents –
either via SMS, email or letter.
65.3
Whether the individual purported to conclude an agreement with one of
the respondents. This is established
through correspondence with the
respondents and the individual’s own records regarding the
submission of an application form
via one of the respondent’s
websites.
66.
In the result, I am persuaded that
membership of the proposed class is determined by an objective
connection to one (or more of)
the respondents, the alleged unlawful
conduct of the respondents in question and a defined timeframe. This
renders certification
appropriate.
67.
Finally, on this score, the
appropriateness of the certification is confirmed by the fact that
the class is a large one and the
claims relatively small – some
so low that they might conceivably be recoverable in the Small Claims
Courts. Added to that
is the fact that the claims are spread over a
multitude of geographical jurisdictions which would not only place
strain on the
litigants (and the respondents in particular) but the
courts as well, where there is the risk of multiple findings at
variance
with each other. Such an outcome is clearly not in the
interests of justice.
OPTING OUT OR IN?
68.
As
to the form of certification, the Law Clinic has asked for an
“opt-out” class action regime. In the answering
affidavit,
there was opposition to this categorisation but at the
hearing of the matter, I did not understand Mr. Bothma to raise any
objection
thereto. The distinction between the two regimes was
summarized as follows by Dr. Broodryk in the abstract to a journal
article
he authored entitled “The South African Class Action
Mechanism: Comparing the Opt-In Regime to the Opt-Out Regime”
[17]
“
The
opt-in class action regime requires individual class members to take
positive steps to participate in the class action. In other
words,
class members are required to come forward and opt into the class
action, failing which they will not be bound by or benefit
from the
outcome of the litigation. Support for the opt-in regime is
essentially premised on the belief that individuals who are
unaware
of the litigation should not be bound by its outcome. The opt-out
class action regime, on the other hand, automatically
binds members
of the class to the class action and the outcome of the litigation
unless the individual class members take steps
to opt out of the
class action. Support for the opt-out regime is essentially based on
the view that the opting-in requirement
could undermine one of the
primary purposes of class action litigation, which is to facilitate
access to justice.”
69.
In his concluding remarks in this
article, Dr. Broodryk makes the following point
.
“
It
may be that the circumstances of the case are such that the opt-in
procedure is indeed preferable to the opt-out procedure. As
was the
case in
Linkside
,
this may occur where the court is confronted with a relatively small
group of individual claimants each of whom is identifiable
and
especially where each claimant has a substantial individual claim. In
this regard, the court should assess whether the size
of the
claimants’ individual claims is such that it is unlikely that
they would, in the absence of class proceedings, litigate

independently. If it is likely that they would litigate
independently, then those claimants should be given an opportunity to
opt into the proceedings.”
Finally, the author stresses the
importance of a court being afforded the discretion to decide upon
the appropriate regime.
“
The
primary advantage of providing the court with judicial discretion to
choose between requiring opt-in, opt-out and no-notice
orders is that
it enables the court to decide, with reference to the circumstances
of the particular case, which procedure would
be most suited to the
overall disposition of the case.”
70.
In my view, the present matter is
well suited to an opt-out class action. The envisaged class is large
and the individual claims
are relatively small when compared, for
instance, to the personal injuries sustained in the silicosis case.
Given that there is
no evidence that any of the affected consumers
has commenced legal proceedings against any of the respondents, it is
reasonable
to infer that there is little likelihood of independent
litigation ensuing. Lastly, the cost of individual litigation in
relation
to the sums intended to be recovered is likely to be high
and thus a deterrent to the pursuit of individual claims. The
interests
of justice would, in such circumstances, favour the
extension of collective litigation to all members of the class
without more,
so as to render such consumer-based claims affordable.
THE
SPECIAL MASTER
71.
The applicants have indicated in
their notice of motion (as amended) that they intend asking for the
appointment by the trial court
of a so-called “special master”
to attend to the nuts and bolts of the administration of the class
action, including
the verification of claims, the disbursement of
payments and the management of any surplus amounts.
72.
The
office of the special master is a novel concept in our law but is
well known in the United States of America where it is expressly

catered for by regulation.  Its introduction into our law has
been the subject of some legal debate and resistance but the

appointment of such an entity was expressly sanctioned by the
Constitutional Court, albeit in different circumstances, in
Mwelase
[18]
,
and in the administration of the proceeds of a class action in
Linkside
[19]
.
73.
In his celebrated final judgment in the
Constitutional Court in
Mwelase
,
Cameron J explained the origins and utility of the office of a
special master, stressing the importance of not breaching the
separation of powers principle by retaining judicial control over the
functions of the special master.
“
[56]
Yet we can gain much from considering how what works elsewhere might
also work here. In the United States, the use of special
masters has
developed flexibly. It occurs in all areas of law. It is more
familiar in courts with heavier caseloads and complex
law suits that
test judicial capacity and expertise. Special masters may help the
court with complex electronic discovery, or undertake
fact-finding
investigations, or facilitate settlement attempts, or formulate
remedies and monitor compliance. But the critical
point is that under
Rule 53 of the Federal Rules of Civil Procedure the court keeps its
power freely to endorse or reject or change,
in part or wholly, the
special master’s recommendations, or remit with directives. It
is the court that retains responsibility
and control over the
eventual order….
[58]
Special masters, often with expertise in specialist areas of
government, may assist with either devising a remedial plan or

implementing it. In implementing a remedy, the main task of a special
master is to oversee and monitor – rather than usurping

performance of executive functions, which is closer to the functions
of other court-appointed officers (administrators or receivers,
whose
respective tasks may be to supplement or replace management of a
government institution).”
74.
In their revised draft order furnished to
the Court after the hearing, the applicants asked only that the trial
court ultimately
hearing this matter appoint a special master on such
terms as it considers appropriate. Having considered the approach of
the court
in
Linkside
,
I am satisfied that the appointment of a special master will provide
an effective procedural mechanism in this matter to oversee
the
administration of the consequences of the class action (if
successful). It is best left to the trial court to determine the

precise parameters of the special master’s functions and
duties.
CONCLUSION
75.
In the light of all of the aforegoing
considerations, and mindful of the built in safeguards contained in
the order proposed by
the Law Clinic, I am satisfied that the
certification of a class action on the terms and conditions proposed
should be granted.
JOINDER OF LEGALWISE
76.
According to the deponent to the founding
affidavit in the intervention application, Ms. Underhay, LegalWise’s
“Executive
Officer”,
“
20.
…LegalWise, is a private company that operates as a service
provider to Legal Expenses Insurance Southern Africa Limited,
a
short-term insurance provider in terms of the
Short-Term Insurance
Act, 53 of 1998
…The services it provides to its insured
members comprise of (sic) legal and consulting services in the form
of legal and
court procedures counselling, general legal assistance
in negotiations and correspondence with third parties, debt relief
and other
legal services.
21.
In broad terms, insured members are provided with para-legal services
and other legal insurance benefits…
23.
The legal insurance benefits provide members with cover for civil,
criminal and labour litigation matters, as well as access
to the
panel of attorneys countrywide who form part of the LegalWise
network.”
77.
LegalWise says that it seeks to intervene
in the proceedings, acting both in its own interests and those of its
members but it does
not immediately say what those interests are. It
goes on to say that it has not cited the applicants as parties in the
joinder
application because they have consented to the intervention
of Legalwise in the main application i.e. the application for
certification.
The respondents oppose the intervention application by
LegalWise, primarily on the basis that it has no legal interest in
the class
action.
78.
The basis for the intervention, says
LegalWise, is because a number of its clients (who apparently enjoy
insurance cover with it)
were victims of the alleged online scam
perpetrated by the respondents and it provides the Court with ample
examples of its clients’
complaints.
79.
LegalWise says that the main application -
“
75…
raises
substantially the same issues as those that have been brought to the
attention of LegalWise by its members. These are the
same issues that
would arise in any litigation that Legalwise would institute against
the respondents on behalf of its members
.
76.
The core business of LegalWise is premised on the protection of the
rights of its members. Its aim is to provide its members
with equal,
fair and affordable access to justice and legal assistance, by giving
people the opportunity to have access to a lawyer
and enjoy even the
most basic rights they have according to the law. These services are
provided to members in return for a monthly
fee or premium. The
conduct described by the second to the ninth applicants in the main
application on the one hand, and that described
to LegalWise
counsellors by its members on the other hand, implicates the legal
rights of its members and accordingly LegalWise’s
obligation to
protect those rights. Given that the conduct of the respondents as
described in the main application is the same
as that experienced by
LegalWise members, and that this conduct raises in relation to the
applicants in the main application the
same legal issues as arise in
relation to Legalwise members, I submit that, in those circumstances,
it is evident that LegalWise
has a direct and substantial interest in
the subject matter of the main application. Its interest is more than
a financial one.
It is a legal interest in the case itself, in that
any judgment handed down and orders granted by this Court in the main
application
will directly impact Legalwise and its members and may
prejudicially affect their interests.
77.
A further factor which makes the intervention of LegalWise justified
in this matter is convenience. Were LegalWise to pursue
separate
legal proceedings on behalf of its members, arising from the same
conduct against the same respondents as those asserted
in the main
application, the waste of judicial resources and other parties’
resources is patent. It would not serve judicial
economy. In
addition, separate proceedings would give rise to the real
possibility of conflicting judgments in relation to substantially
the
same facts and legal issues, against the same respondents. This too
is a factor that justifies this Court permitting the intervention
of
LegalWise is applicant in this matter.”
80.
I must confess to some confusion as
to just what LegalWise seeks to achieve through its purported
intervention in this application.
It does not say that it wishes to
join as a co-plaintiff in the class action proceedings and it is
obvious that it cannot so join:
it has no cause of action vis-vis any
of the respondents and there is consequently no
lis
between it and any of the respondents.
As an insurer, LegalWise would be entitled to seek relief on behalf
of any its insured parties
in such parties’ names through the
principle of subrogation, but it does not make out such a case in its
joinder application
either. Nor does LegalWise say that it wishes to
be certified as a joint class representative with the Law Clinic in
the class
action.
81.
It seems to me that it effectively wishes
to hold a “watching brief” in these proceedings on behalf
of those clients
who might be the victims of the alleged scam to
ensure that they are properly looked after by the Law Clinic. But, to
do so, it
does not require to be joined in the suit as a party since
there could be no objection at any stage of proceedings for
LegalWise’s
lawyers to be present in court as observers. Nor
does it need to be joined as a party to provide the Law Clinic with
evidential
and/or procedural support
82.
I agree with Mr. Bothma that LegalWise has,
however, no legal interest which justifies its joinder in this
application. The application
must accordingly fail and LegalWise must
bear the wasted costs occasioned to any of the other parties through
its application for
joinder under
Rule 12.
INTERDICTORY RELIEF
83.
In its notice of motion, the Law Clinic
asks for an interim interdict (its so-called Part A Relief) under
s114
of the CPA, alternatively the common law, in terms whereof the
respondents are –
83.1
ordered to shut down the websites listed in Annexure A to the notice
of motion. (These are the websites that
have been set out above.);
83.2
in the alternative, restrained from operating the websites in a
manner which is unconscionable, unjust, unreasonable
or unfair in
terms of
ss 40
,
41
and
48
of the CPA;
83.3
interdicted from debiting the bank accounts of any persons in terms
of any agreement purportedly concluded
through the aforesaid
websites;
83.4
restrained from making any demands for, or collecting, payment from
consumers for services allegedly provided
under any agreement
allegedly concluded through the websites;
83.5
interdicting the respondents from threatening or harassing any
persons in connection with any demand for,
or collection of, any
payment allegedly due under any agreement purportedly concluded via
any of the websites.
This interim relief is sought
pending the final determination of the application for class action
certification and any class action
initiated pursuant to such
certification.
84.
During argument on the second day of the
hearing (9 March 2021) Mr. Bothma referred to the supplementary
affidavit deposed to by
Mr. Malander earlier that day. This is the
affidavit already referred to which was filed in response to the
Court’s enquiries
regarding the functionality of the websites.
In that affidavit, Mr. Malander gives details of the chronology of
the matter since
the filing of this application.
85.
Mr. Malander refers to the Carte Blanche
airing on 28 April 2019 and says that subsequent thereto, in May and
June 2019, the first
to seventeenth respondents were “exited”
from the National Payment System (“NPS”) on the
insistence of
PASA. He references the founding affidavit in the
amicus
application
by PASA in that regard.
86.
As I understand PASA’s affidavit, as
part of its statutory functions under the
National Payment System
Act, 78 of 1998
, it monitors, inter alia, the abuse of the debit
order system by commercial users in the banking sector, and it is
empowered to
put an end to such abuse in appropriate circumstances.
PASA says the following regarding the respondents in the affidavit of
Mr.
Walter Victor Volker, its CEO, dated 6 January 2020.
“
62.
Through the monitoring component of the 4-prong model [described
above], PASA has been informed of customer complaints against
the
Fourth Respondent, Loan Spotter SA (Pty) Ltd, with directors Damian
Malander (Eighteenth Respondent) and Nandie Paich (Nineteenth

Respondent).
63.
Further quantitative and qualitative due diligence uncovered direct
links between the Eighteenth and Nineteenth Respondents
and the other
Respondents in the main action, as well as debit order disputes and
unpaid ratios resulting from customer complaints
and disputes.
64.
As a result, the First to Seventeenth Respondents were exited from
the NPS during May and June 2019. In addition, the Respondents’

company registration details, director details, as well as their
Abbreviated Shortnames (ABSNs) were added to the PASA exit database,

which information is centrally stored and administered by PASA on
behalf of the Sponsoring Banks.”
87.
The effect of these steps by PASA, says Mr.
Malander, is that
“
15.
At this stage, and primarily because of the respondent companies
having been exited from the NPS, the continuing of their business

became untenable and on 3 April 2020 the respondent companies’
websites were decommissioned. The respondent companies have
not
traded since.”
Mr. Malander goes on to allege
that the Law Clinic was aware of this situation by 24 April 2020 at
the latest.
88.
As regards the future of the companies’
businesses, Mr. Malander says the following.
“
20.
As explained above the respondent companies were exited from the
National Payment System during July 2019. Eventually, and on
account
of an inability to process debit payments the business of the
respondent companies grinded (sic) to a halt and the websites
were
decommissioned on 3 April 2020.
21.
As matters stand, the respondent companies do not trade and do not
operate any of the websites. There is also no demand for
payment made
by the respondent companies of any customer.
22.
The negative press occasioned by the Carte Blanche episode as well as
the inability to process debit payments has rendered it
impossible
for the respondent companies to recommence business activities. I
also have no intention or appetite to revive the respondent

companies’ business.
23.
I therefore have no difficulty in giving an undertaking along the
lines set out in paragraphs 2.1 to 2.4 of the notice of motion.”
89.
As I have said, the Law Clinic smartly put
together a reply to this supplementary affidavit by Mr. Malander
which was handed up
after lunch on the second day of the hearing. In
that affidavit, Mr. van der Merwe takes issue with the veracity of
the allegations
made by Mr. Malander and notes that he had accessed
the website of the Lifestyle Direct Group (the second respondent)
that very
morning and found it to be “still extant and
operative”.
90.
Mr. van der Merwe further points out that a
search of the records of the Companies and Intellectual Property
Commission (“the
CIPC”) had revealed that certain of the
respondent companies were still listed as being “in business”
and that
the CIPC had actually corresponded with Mr. Malander a
couple of months previously. Further, he notes that CIPC records
reflect
that certain of the companies were in the process of
deregistration.
91.
Mr. van der Merwe expresses disquiet at the
fact that certain of the respondent companies were being deregistered
in the midst of
attempts to fix them with liability for their alleged
malpractices under the CPA. These steps are said to be “indicative
of a surreptitious effort to frustrate the relief sought by the
applicants” and Mr. van der Merwe voices concern that by the

time the class action commences, the corporate records and
documentary evidence of the companies involved in the alleged scam
might have been done away with. He also suggests that there may be
other entities that Mr. Malander controls that the applicants
may not
even be aware of. To this end, Mr. van der Merwe indicates that the
applicants might have to consider beefing up their
interdictory
relief “to prohibit Malander from directly or indirectly
replicating his pattern of fraud through other natural
and/or
juristic persons.”
92.
At the conclusion of the hearing, counsel
for the Law Clinic submitted a revised draft order which made
provision for extended interim
relief and asked that the draft serve
as an amendment of the notice of motion.
93.
On
24 March 2021, Mr. Malander deposed to and filed a further
supplementary affidavit in which he sought to respond to Mr. van der

Merwe’s allegations in the affidavit of 9 March 2021 and to
furnish further undertakings to the Court
pendent
lite.
The applicants did not oppose the filing of this affidavit which the
Court then received and filed of record
[20]
94.
In the further supplementary affidavit, Mr.
Malander explains that he believed that the Lifestyle Legal website
had been decommissioned
and was surprised to see that its homepage
had not been decommissioned. In any event, he says, Lifestyle Legal
does not trade.
Mr. Malander explains that the records of the CIPC
are misleading if they suggest that the respondent companies are
still trading
and repeats that they are dormant, as are their bank
accounts. Lastly, Mr. Malander says that having considered the draft
order
handed in by the Law Clinic at the conclusion of the hearing,
he has no difficulty furnishing an undertaken along the lines of the

interim interdict sought in paragraph 12 of the draft order.
95.
There has been no response from the Law
Clinic to this tender, and, importantly, no suggestion that such an
undertaking is unacceptable
to it, or that it would not serve the
same purpose as an interdict. Given the manner in which the issues
were ultimately ventilated
so late in the day, and the limited
evidence warranting an interim interdict, I consider that Mr.
Malander should be taken at his
word and his undertaking recorded as
part of the Court’s order. He would breach that undertaking at
his peril and the Law
Clinic would then be entitled to approach the
court urgently for further interim relief.
COSTS
96.
There is no reason why the costs occasioned
to the Law Clinic in bringing this application should not follow the
result. Further,
I am satisfied that the complexity and magnitude of
the application warranted the employment of two counsel. The evidence
presented
by the
amicus curiae
was of assistance to the court in considering the implications of the
respondent companies having exited the NPS system and was
accordingly
admitted. The
amicus
only
sought costs in the event of opposition to its application. There was
no opposition and so no such order will thus be made.
97.
As I have already said, the wasted costs
incurred in response to its abortive joinder application must be
borne by LegalWise.
IN THE
RESULT, THE FOLLOWING ORDERS ARE MADE
:
A.
AMICUS CURIAE
The application for admission as
amicus curiae
by the Payments Association of South Africa is
granted, with no order as to costs.
B.
JOINDER APPLICATION
1.
The application by Legalwise South Africa
(Pty) Ltd to be joined as an applicant in this matter is refused.
2.
Legalwise South Africa (Pty) Ltd is to bear
the wasted costs occasioned to the First to Nineteenth Respondents by
their opposition
to the joinder application.
C.
CLASS CERTIFICATION
1.
The following
persons shall constitute a
class for purposes of the class action described in paragraph 0
below (“the class”):
1.1    All persons
who have had any moneys debited from their bank accounts and / or who
have been harassed and /
or threatened in connection with any demand
for or collection of payment by the respondents at any time from 1
May 2015 to date
on the basis of them having concluded purported
agreements with the respondents by submitting an application on one
of the websites
listed in Annexure “A” hereto.
2.
It is declared that the applicants may act as representatives of the
class in an action claiming
the relief set out in the particulars of
claim attached to the applicants’ supplementary affidavit dated
11 November 2019
(as may be amended from time to time) (‘the
class action’).
3.
The applicants are declared to have the requisite legal standing to
bring the class action on behalf
of the class.
4.
The applicants are granted leave to
pursue the class action on the basis that any members of the class
who do not wish to be bound
by the outcome of the class action may
opt out thereof as contemplated in paragraph 5
below.
5.
The members of the class shall be bound
by the outcome of the class action unless they give notice of their
election to opt out
thereof to Stellenbosch University Law Clinic
(‘the Law Clinic’), in the manner described in annexure
“B”,
by not later than 1 October 2021.
6.
The members of the class are to be
notified of this action by way of the notice attached hereto as
annexure “B”, with
the notice to be publicised by the
respondents within 1 month from the date of this order, which notice
must be publicised as follows:
6.1    by mail to
each person on the respondents’ customer databases at their
last known address by the respondents;
6.2     by
email to each person on the respondents’ customer databases at
their last known email address
by the respondents;
6.3
by SMS
to each person on the
respondents’ customer databases at their last known cell phone
number by the respondents;
6.4
by publication in one edition per week
of the most widely circulated daily newspaper in each province of the
Republic for four weeks
following the granting of this order;
6.5
by having the notice read out over: (1)
an English-language radio station with the highest listenership in
each province of the
Republic and (2) a radio station broadcasting in
the language most widely spoken in each province of the Republic,
other than English,
which readings must take place at least once a
day for four weeks following the granting of this order;
6.6
by publication of the notice on: (1) the
Law Clinic’s webpage and Facebook pages, as well as on the home
page of each website
operated by any of the respondents or their
proxies and associates and (2) keeping such notice there for a period
of eight weeks
from the date of the granting of this order; and
6.7
by publication of the notice on the
Facebook group page ‘Action Against Lifestyle Legal, Loan Hub
SA and other Scams’,
where it must be kept for at least eight
weeks from the date of this order.
7.
The respondents are ordered to pay the
costs of the aforesaid notifications jointly and severally and are to
report to the Law Clinic
and this Court within 1 week from the date
on which they have complied with paragraph 6 above.
8.
The respondents are ordered to furnish
the Law Clinic with the last known physical address, email address
and telephone / cell phone
numbers of each person on the respondents’
customer databases.
9.
The parties are granted leave to
approach this Court for a variation or amplification of this order in
respect of the notifications,
on duly amplified papers, if any party
deems it necessary.
10.
The respondents shall file reports with
this Court detailing their compliance with paragraph 5
within 8 weeks of the granting of this
order.
11.
A special master shall be appointed on
such terms as the trial court deems appropriate.
12.
It is recorded that the first to
eighteenth respondents have furnished to the Court an undertaking
that, pending the final determination
of the class action as
aforesaid, they will desist from directly or indirectly (whether
themselves or through any other natural
or juristic person):
12.1
operating the websites listed in
annexure “A” (save for the publication of the notice
referred to in paragraph 5
above)
or websites with substantially similar content;
12.2
conducting
the same, or substantially similar business(es), conducted by the
respondents and described in the papers filed of record
in order to
market financial and/or legal services or conclude any agreement in
respect such;
12.3
debiting the bank accounts of any
persons in terms of any agreement allegedly concluded through the
listed websites or any website
with similar content referred to in
paragraph 12.2
above;
12.4
making demands for or collecting payment
from consumers for services allegedly provided in terms of any
agreement allegedly concluded
through the listed websites or any
website referred to in paragraph 12.2
above;
12.5
harassing and/or threatening any person
in connection with any demand for, or collection of payment, in terms
of any agreement allegedly
concluded with any of the respondents
through the listed websites or any website referred to in paragraph
12.2
above;
12.6
proceeding with the de-registration of
any of the respondent companies;
12.7
destroying, removing, expunging or
altering any of the company’s records, including but not
limited to: share registers, share
certificates, minutes of directors
and shareholder meetings, minutes and resolutions of shareholder
meetings, bank statements,
databases (whether electronic or
hardcopy), contracts with any members of the class, financial
statements, management accounts,
correspondence and the referral of
any debts for debt collection.
13.
The first to eighteenth respondents
shall pay the applicants’ costs of suit relating to this
application jointly and severally,
the one paying the other(s) to be
absolved, which costs will include the costs of two counsel where
employed.  Such costs
shall include all reserved costs in
respect of all previous set downs and scheduled hearings.
GAMBLE, J
ANNEXURE
A – LIST OF WEBSITES
https://www.loantrackersa.co.za
https://www.loanspottersa.co.za
https://www.loanmatchsa.co.za
https://wwwloanchoicesa.co.za
https://www.loanquestsa.co.za
https://www.loanconnectorsa.co.za
https://www.loanhubsa.co.za
https://www.loanzones.co.za
https://www.loanlocatorsa.co.za
https://www.loanscoutsa.co.za
https://www.loantracer.co.za
The website
for Loan Detector SA (domain name unknown)
ANNEXURE
B – NOTICE TO THE CLASS
Please
take notice that a class action will be instituted in the Western
Cape Division of the High Court of South Africa against
the companies
and individuals listed below:
1.
Lifestyle Direct Group International (Pty)
Ltd
2.
Capital Lifestyle Solutions (Pty) Ltd t/a
Lifestyle Legal
3.
Loan Tracker SA (Pty) Ltd
4.
Loan Spotter SA (Pty) Ltd
5.
Loan Match SA (Pty) Ltd
6.
Loan Choice SA (Pty) Ltd
7.
Loan Quest SA (Pty) Ltd
8.
Loan Connector SA (Pty) Ltd
9.
Loan Hub SA (Pty) Ltd
10.
Loan Zone SA (Pty) Ltd
11.
Loan Locator SA (Pty) Ltd
12.
Loan Scout SA (Pty) Ltd
13.
Loan Tracer SA (Pty) Ltd
14.
Loan Detector SA (Pty) Ltd
15.
Lifestyle Legal (Pty) Ltd
16.
Lifestyle Attorneys (Pty) Ltd
17.
All Wheel Auto (Pty) Ltd
18.
Damian Malander
19.
Nandie Paich
Please
take notice further that the class action will be brought on behalf
of the following class:
“
All
persons who have had any monies debited from their bank accounts
and/or who have been harassed and threatened in connection
with any
demand for or collection of payment by any of the respondents at any
time from 20 May 2015 to date on the basis of them
having concluded
purported agreements with any of the respondents through any of the
websites listed below:
https://www.loantrackersa.co.za
https://www.loanspottersa.co.za
https://www.loanmatchsa.co.za
https://wwwloanchoicesa.co.za
https://www.loanquestsa.co.za
https://www.loanconnectorsa.co.za
https://www.loanhubsa.co.za
https://www.loanzones.co.za
https://www.loanlocatorsa.co.za
https://www.loanscoutsa.co.za
https://www.loantracer.co.za
“
Should
you wish
not
to be a member of the class you may opt out of
the class by notifying the class action attorneys of record, the
Stellenbosch University
Law Clinic, of your choice to so opt out by
no later than Friday 1 October 2021.
The
Stellenbosch University Law Clinic can be contacted at:
Address:
18 – 24 Crozier Street
Stellenbosch
Telephone:
(021) 808 3600
Email:
rhkadmin@sun.ac.za
Electronic
copies of the Court’s order certifying the class action and the
particulars of claim therein shall be available
on the Stellenbosch
University Law Clinic’s webpage –
https://www.sulawclinic.co.za
You
may contact the Stellenbosch University Law Clinic through the
details provided above should you wish to obtain more information

about the class action.
[1]
Children’s
Institute v Presiding Officer of the Children’s Court,
District of Krugersdorp and others
2013 (2) SA 620
(CC) at [26]
[2]
See pages 1043 to 1102
[3]
See, for example,
The
South African Law Commission
The
Recognition of Class Actions and Public Interest Actions in South
African Law Report
Project
88 (1998) para 1.3 – 1.4;
South
African Law Commission
The Recognition of a
Class Action in South African Law Working Paper 57
Project
88 (1995) para 5.28
[4]
Permanent Secretary,
Department of Welfare, Eastern Cape v Ngxuza
2001 (4) SA 1184 (SCA)
[5]
Trustees for the time
being of the Children’s Resource Centre Trust v Pioneer Food
(Pty) Ltd and others
2013 (2) SA 213
(SCA) (“CRC Trust”);
Mukkadam
and others v Pioneer Foods (Pty) Ltd and others
2013 (2) SA 254
(SCA) (“Mukkadam SCA”)
[6]
Mukkadam v Pioneer
Foods (Pty) Ltd and others
2013 (5) SA 89
(CC) (“Mukkadam CC”). Mhlantla J and
Froneman J (Skweyiya J concurring) delivered separate judgments in
which they
agreed with Jafta J on the outcome of the appeal for
varying reasons.
[7]
Nkala
and others v Harmony Gold Mining Co Ltd and others
2016 (5) SA 240 (GJ)
[8]
The reference is to the writing of Professor Rachael Mulheron in
‘
The Class
Action in Common Law Legal Systems: A Comparative Perspective 3.
’
[9]
The reference is to the writing of Prof. Charles Silver, “Class
Actions – Representative Proceedings 5
Encyclopaedia
of Law and Economics
194.
[10]
This
company is alleged to have debited a consumer’s bank account
without that consumer having had any contact with it.
It is
therefore inferred by the Law Clinic that it must have procured the
consumer’s banking details from one of the other
entities in
the group.
[11]
At [44] – [45]
[12]
Wal-Mart Stores Inc,
Petitioner v Betty Dukes
et
al
131 S Ct 2541
at 2551
[13]
CRC Trust
at [45]
[14]
Vivendi Canada Inc v
Michell Dell’ Aniello
[2014] R.C.S 1
at [46]
[15]
(2019) 30 Stell LR
at 6
[16]
De Bruyn v Steinhoff
International Holdings NV and others
[2020] ZAGPJHC 145 (26 June 2020)
[17]
PER/PELJ
2019 (22)
[18]
Mwelase and others v
Director-General, Department of Rural Development and Land Reform
and another
2019 (6)
SA 597 (CC)
[19]
Linkside
and others v Minister of Basic Education and others
[2015] ZAECGHC 36 (26 January 2015)
[20]
See pp 1103 - 1123