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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION , EAST LONDON CIRCUIT COURT )
CASE NO : EL 1788 /2023
Date Heard: 20 February 2025
Date Delivered: 15 April 2025
In the matter between :
TENANTS OF THE EASTERN CAPE
DEVELOPMENT CORPORATION Applicant
and
THE EASTERN CAPE DEVELOPMENT CORPORATION Respondent
JUDGMENT
MULLINS AJ
[1] This is an application brought in accordance with section 38(2) of the
Constitution of South Africa Act, 108 of 1996 for the certification of a proposed class
action. The notice of motion frames the relief sought as follows:
“1. That the tenants of the Ea stern Cape Development Corporation be
declared a class and a “class litigation certificate” for leave to institute a
class litigation be granted in favour of the Applicant.
2. That the Applicant be ordered to institute such class litigation within 60
court days from the grant of this order and to serve the Respondent
with such papers upon issue.
3. That the Applicant shall inform the members of the class of their right to
opt-out of this litigation. Such notification shall be by way of a notice in
a newspa per circulating in the area and/or any other suitable means,
within 14 days from the grant of this order.
4. That there shall be no order as to costs, save where this application
becomes opposed.”
[2] The Applicants are described as Tenants of The Eastern Cape Development
Corporation. They are represented by one Anna Nosipho Ngqono (the “Deponent”).
The Respondent is the Eastern Cape Development Corporation , an organ of state
established in accordance with section 2 of the Eastern Cape Development
Corporation Act, 2 of 1997.
[3] The Respondent is the registered owner of a substantial number of
immovable properties situated in Butterworth and Mthatha (the “Properties”), which
were “inherited” by it on the incorporation of the former homeland of Transkei into the
Republic of South Africa . These Properties were originally rented out by the
erstwhile Government of Transkei and are still occupied, whether by the original
lessees, or their successors in tit le (the “Tenants”).
[4] The Applicants, whose actual number is uncertain from the papers, comprise
a group of the Tenants .
[5] For many years there has been an on -going dispute between the Respondent
and the Tenants as to the continued occupation by them of the Properties or, more
correctly, the basis of their continued occupation . The Respondent seeks to sell the
Properties , which the Tenants, including the Applicants, are attempting to frustrate on
various grounds (which grounds are dealt with below) .
[6] The application is premised on Section 38(c) of the Constitution, which reads:
“38 Enforcement of rights
Anyone listed in this section has the right to approach a competent
court, alleging that a right in the Bill of Rights has been infringed or
threatened, and the court may grant appropriate relief, including a
declaration of rights. The persons who may app roach a court are –
(a) …
(b) …
(c) anyone acting as a member of, or in the interest of, a group or
class of persons;
…”
[7] Although the quoted section appears to confine class actions to issues of a
constitutional nature, it is trite that this is not so. In Child ren’s Resource Centre Trust
and Others v Pioneer Foods (Pty) Ltd and Others1 the Supreme Court of Appeal (per
Wallis JA) stated :
“[21] In my judgment it would be irrational for the court to sanction a class
action in cases where a constitutional right is invoked, but to deny it in equally
appropriate circumstances, merely because of the claimants’ inability to point
to the infringement of a right protected under the Bill of Rights. The procedural
requirements that will be determined in relation to the one type of case can
1 2013 (2) SA 213 (SCA)
equally easily be applied in the other. Class actions are a particularly
appropriate way in which to vindicate some types of constitutional rights, but
they are equally useful in the context of mass personal injury cases or
consumer litigation. …”
[8] As for the institution of a class action , Wallis JA had this to say:
“[23] All of the parties accepted that it is desirable in class actions for the
court to be asked at the outset, and before issue of summons, to certify the
action as a class action. This involves the definition of the class; the
identification of some common cl aim or issue that can be determined by way
of a class action; some evidence of the existence of a valid cause of action;
the court being satisfied that the representative is suitable to represent the
members of the class; and the court being satisfied that a class action is the
most appropriate procedure to adopt for the adjudication of the underlying
claims . In my view they were correct to do so and we should lay it down as a
requirement for a class action that the party seeking to represent the class
shou ld first apply to court for authority to do so. My reasons for adopting that
requirement are the following.”2 [Underlined for emphasis].
[9] And, as for the requirements necessary to make out a case for the
certification of a class action the Learned Ju dge of Appeal stated the following:
“[26] In the course of argument the presiding judge3 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 dep ends upon the determination of issues of fact,
or law, or both, common to all members of the class;
2 The reasons why certification is a prerequisite are set out in paragraph [24] of the judgment. This
aspect need not be dealt with for the purpose of this judgment.
3 In the court a quo.
• 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 da mages 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 n ature 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 sep arately. ” [Underlined for emphasis].
[10] The Deponent describe s herself as an adult female person residing as a
tenant at […] S[…] Crescent, Butterworth, Eastern Cape. Attached to her founding
affidavit is a list of the Applicants, numbering 77 indi viduals, whom she claims to
represent. They are all Tenants of the Respondent ’s Properties situated in either
Mthatha or Butterworth in accordance with agreements of lease .
[11] Due to the lapse of time many Applicants are no longer in possession of a
copy of the contract they concluded with the Respondent, or its predecessor in title .
Some of the Applicants have been in occupation for decades. However, a lease
agreement concluded between the Respondent and one of the Applicant s is
attached as an example. It is common cause that this lease agreement applies
across the board.
[12] On 19 September 2022 the Respondent dispatched a letter addressed to
“Dear Tenant of ECDC” under the heading “ INVITATION TO COME FOR
NEGOTIATIONS FOR ACQUISI TION OF LEASED PROPERTY”. The letter goes on
to state that the Respondent had resolved to dispose of all stand -alone houses and
the Tenants were being afforded an opportunity to purchase the Properties based on :
“… a first right of refusal mechanism, subj ect to terms and conditions, or via a
public auction process.”
[13] According to the Deponent the Tenants responded to the invitation, but were
met with unreasonable selling prices.4 In the result the Respondent commenced
with the public auction process.
[14] On 22 August 2023 the Respondent dispatched further correspondence to all
the Tenants , again inviting them to express an interest in purchasing the Propert ies
leased by them . The Tenants had until 15 September 2023 to respond , failing which
the Propert ies would be sold on a public auction.
[15] On 13 September 2023 an attorney representing various Tenants sent an
email to the Respondent requesting an extension to 15 October 2023 in order to take
proper instructions.
[16] The Respondent appears to have ignored this communication , because on 3
October 2023 it held a public auction at which certain Properties were sold.
[17] That event prompted a prior application for the certification of a class action
(the “First Certification Application”), which was apparently successful, but because
the proposed class action was not instituted timeously the order la psed and was
abandoned. This is thus the second attempt to have a class action certified. Neither
that application, nor the judgment and order was placed before me and I am thus in
the dark as to the basis upon which the class action was certified and th e conditions,
if any. In the circ umstances I have to deal with the matter de novo on the papers
before me.
4 How she knows this is not stated. No details are forthcoming .
[18] On 20 November 2023, under case no. 1914/2023, and after the First
Certification Application had already been launched, one Booi and seven others
brought an urgent application in this court to interdict their Properties from being sold
by public auction, which auction was due to take place on 23 November 2023, and
for a further order to preclude the Respondent from evicting them. The application
was successful. It would be apposite to quote the interim order that was granted:
“1. Leave is granted for this application to be dealt with as one of urgency
in terms of rule 6(12).
2. Pendin g the final determination of the application for certification of a
class [action] brought in this court under case number EL1788/2023
and the subsequent launching of class action proceedings:
(a) The Respondent is interdicted and restrained from proceedin g
with the public auction of immovable properties situated at
Mthatha and Butterworth scheduled for 11h00 on Thursday 23
November 2023.
(b) The Respondent and/or any persons acting under the instruction
of the Respondent are interdicted and restrained from evicting
the Applicants from their respective properties being leased from
the Respondent or its successor -in-title.
3. The Respondent is directed to pay the costs of the application.”
[19] Although paragraphs 2(a) and (b) refers to auction sales schedul ed to take
place on 23 November 2023, on a perusal of the judgment , which is attached to the
founding affidavit, it is clear that the Learned Judge’s intention was that the auction
sales of all the Respondent’s Properties was to be suspended pending the ou tcome
of the First Certification Application. Be that as it may, as the relief that was granted
in the First Certification Application was abandoned, the interim order lapsed
automatically and is no longer of any relevance .
[20] The Deponent submits that a case has been made out for certification, in that:
(a) The proposed class has been clearly defined and the members thereof
can be objectively identified ;
(b) A triable issue has been raised, namely the refusal by the Respondent
to grant the Applicants the right of first refusal and/or a claim based on
unjustified enrichment due to the maintenance expended on , and/or
improvements made, and/or alterations effected , to the Properties over
the years;
(c) The issues of law and fact are c ommon to the members of the class;
(d) The proposed Applicants are representative of the class.
[21] In addition to filing an opposing affidavit on the merits the Respondent took
issue with the Deponent’s attorney’s authority and with the Deponent’s authority to
represent the 77 Applicants listed in her founding affidavit . This prompted an
application to file supplementary affidavits in which 45 of the 77 perso ns originally
listed attested to supporting affidavits.
[22] The Respondent initially opposed th is application, but subsequently withdrew
its opposition. The attorney’s mandate and the Deponent’s authority to represent the
Applicants who filed supporting affidavits is thus not in issue.
[23] In its answering affidavit the Respondent, represented by a senior legal
advisor, disputed that the requirements for the institution of a class action had been
established.
[24] By way of background the Respondent stated that it is the owner of numerous
properties in the Eastern Cape, both commercial and residential. During 2022 a
decision was taken to sell many of the residential properties situated in the erstwhile
Transkei , but to first offer them to the existing Tenants . Given the poor state of the
accounts (i.e., the arrear rental ) it tried, as a last resort , to come up with various cost
saving proposals , one of which was to give the Tenants an opportunity to purchase
the pr operty occupied by them on favourable terms . Some Properties have in fact
been sold on this basis and t ransfers are in the process of taking place.
[25] Where a Tenant did not respond to an invitation to negotiate for the purchase
of his/her Property , or an agreement could not be reached, some of the Properties
have already been sold by public auction. 34 Properties have already been sold in
this manner .
[26] Insofar as the present application is concerned the Respondent states that of
the 77 Properties listed , the status of 74 thereof is as follows :
(a) In respect of 2 of the Properties the address es do not exist;
(b) In respect of 7 of the Properties they h ave already been sold and
transferred;
(c) In respect of 13 of the Properties they have already been sold and are
in the process of being transferred;
(d) In respect of 14 of the Properties they consist of flats and there is no
intention to sell them;
(e) In respect of 27 of the Properties Tenants who had made offers to
purchase had not complied with the agreement s reached;
(f) In respect of 5 of the Properties there are sub -division applications in
progress and there are no plans to sell them ;
(g) In respect of 2 of the Properties they are zoned for commercial use and
are not for sale;
(h) In respect of 4 of the Properties sale agreements are being
renegotiated with the Tenants ;
(i) In respect of 2 of the Properties evictions are currently under way.
[27] Significantly, the Property occupied by the Deponent was sold by public
auction on 3 October 2023 and the transfer is pending . This occured before the
launching of this application.
[28] According to the Respondent m any of the Tenants (not only the ones listed as
Applicants) owe substantial sums of money in arrear rental and they (the Tenants)
expect this debt simply to be written off. The Respondent, as a state owned
enterprise, is subject to the MFMA and cannot do so. While it attempts to reach
favourable arrangements with Tenants , it is obliged to sell the Properties at market -
related prices, whether to an existing Tenant or to an outside buyer.
[29] Also, according to the Respondent, o f the 77 Properties listed a staggering
R44,882,118 .00 is owed in arrear rental , which is an average of R582,106 .00 per
property.5 Only three properties are not in arrears (as at the date of the filing of the
answering affidavit) . The Depo nent owes R1,192 ,749.54 in arrear rental .
[30] With regard to the merits the Respondent conceded that many of the
Properties were subject to lease agreements concluded with its predecessor, the
Transkei Development Corporation, but that those agreements have all been
cancelled and debt recovery proceedings are underway. The majority of the
occupiers of the 77 Properties have already been handed over for collection , which
includes the Deponent. This process is independent of the potential sale of the
Properties and/or eviction of current occupiers.
[31] The Respondent challenges the applicability of a class action on the basis
that the application does not distinguish between, or identify, which Applicants
challenge the s ale of the Property occupied by them on the basis of alleged :
5 I added up the individual outstanding amounts myself.
(a) Maintenance done , and what it consists of . In any event , clause 11 of
the lease agreement states that the le ssee is responsible for the
maintenance of the interior of the structure and it is unclear whether the
alleged maintenance is in respect of the interior or the exterior ;
(b) Improvements / alterations done , and what this consists of . In any
event , clause 12 of the lease agreement states: “ The LESSEE shall
not make or permit to be made any alterations or additions to the
premises or to any installation therein, whether structural or otherwise,
… without the written consent of the LESSOR, which consent shall not
be unreasonably withheld.” The Respondent has no record of anyon e
requesting permission to effect improvements / alterations and
therefore no compensation is payable;
(c) Defects to the Properties , which are dealt with in clause 9. It requires a
Tenant to notify the Respondent within 21 days of the defect occurring
(so as to afford the Respondent an opportunity to make good). No
such notices have ever been received and therefore, if a Tenant
attended to the defect him- or herself, no compensation is payable ;
(d) Failure to afford an Applicant a right of first refusal.
[32] The Respondent also attacks the application based on the paucity of
information provided. Even the Deponent fails to set out what her case is and,
despite being in a position to do so, she does not s ay whether her claim is for the
remedying of defects and/or maintenance and/or effecting improvements, nor what
the nature of this work entailed and the quantum of her damages .
[33] Another angle advanced by the Respondent is that the Applicants have a
perfectly valid defence against an y claim for arrear rental and/or eviction : namely , a
counterclaim. There are, according to the Respondent, on -going cases before the
courts and in many instances counterclaims have indeed been instituted. It is further
relevant that the Respondent acknowledges that the principle “ huur gaat voor koop”
is applicable in every instance. Thus, if there is a valid lease a Property that is sold
will be subject to the terms of that lease.
[34] In conclusion , the Respondent submitted that the Applicants had not satisfied
any of the requirements for the certification of a class action (an aspect to which I
return below).
[35] I turn now to the 45 supporting affidavits. In addition to confirming the
Deponent’s aut hority, s ave in respect of a few instances , the affidavits are generic in
nature and deal primarily with the Respondent ’s alleged failure to afford the
Applicants a right of first refusal. In some instances work done on a Property is
mentioned , but only in passing . Very scanty details are provided and n o figures are
mentioned.
[36] In its supplementary answering affidavit (in response to the supporting
affidavits) the Respondent denies that there is a legally enforceable right of first
refusal. It submits that this does not appear from the written lease agreement s
(which is correct) , nor is there compliance with section 2(1) of the Alienation of Land
Act, 68 of 1981. What the Respondent elected to do was to invite the Tenants to
enter into negotiations to acquire the Propert ies occupied by them , rather than the
Properties being sold by public auction. The Respondent states that it was not
obliged to do this, nor to agree to sell a Property to a Tenant.
[37] Although one of the requirements for the certification of a class action is a
cause of action raising a triable issue, one must guard against entering into the
merits and demerits of the parties’ respective cases and to attempt to resolve
disputes of fact (of which there are many in this matter ). It must not be forgotten that
certification is a procedural step and not an exercise in weigh ing up the probabilities.
Those are for a trial court to determine in due course in the event of a class action
being c ertified . It is only if the Applicants’ case is totally without merit that this
requirement would be taken into account in refusing certification .
[38] To quote Children’s Resource again:
“[39] It must be borne in mind that, as a result of the procedure we now lay
down, the party seeking certification will have set out in a draft pleading and in
affidavits the basis for the proposed action. In so doing the court will probably
have more material available to it in regard to the cause of acti on than would
be the case with a normal exception. That will enable the court to make a
proper assessment of the legal merits of the claim and, sensitively applied in
this new area of law and procedure there should not be a difficulty. Unless it is
plain t hat the claim is not legally tenable, certification should not be refused.
The court considering certification must always bear in mind that once
certification is granted the representative will have to deliver a summons and
particulars of claim and that i t will be open to the defendant to take an
exception to those particulars of claim. The grant of certification does not in
any way foreclose that or answer the question of the claim’s legal merits in the
affirmative.”
[39] Provided the proposed class can e stablish a prima facie case – a triable issue
– the strength of the proposed class action should not be a bar to certification. In
other words, when it comes to assessing the strength of a claim, the bar is set very
low.
[40] Insofar as defining an identi fiable class is concerned, there is one thing the
Applicants, and whoever else may in due course elect to join them, have in common:
they are all Tenants (or occupiers) of the P roperties owned by the Respondent . In
addition, they all face the potential of the respective Propert ies being sold and, in
due course, eviction therefrom .
[41] Defining the class is one thing. Identifying the individuals who fall within the
class is something else. In paragraph 3 of the notice of motion the right to “ opt out”
is provided for. However, during argument the Applicants brought an application to
amend paragraph 3 of the notice of motion to provide for the right to “ opt in” . The
application was not opposed and the notice of motion was amended accordingly . In
the circumstances the class will include only those individuals who cho ose to be a
member thereof.
[42] Even so, manageability and commonality remain an issue. Is the potential
number of individuals too extensive and are their circumstances such that the issues
are too broad? In Children’s Resource those questions were dealt with thus:
“[31] … The broader the class the less likely it will be that there is the
requisite commonality.”
[43] In Wal-Mart Stores Inc., Petitioner v Betty Dukes et al6 Scalia J stated (in the
Supreme Court of the United States of America ) that the claims:
“… must depend upon a common contention … That common contention,
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 stroke .”
[Underlined for emphasis].
[44] An example of th e “one stroke” scenario is a bus accident (the example in
Children’s Resource is a train derailment) in respect of which multiple delictual
claims arise. The cause of action and the facts to prove it rely on a relatively narrow
issue: was the bus -driver negligent? That each individual claimant has a separate
damages claim based on his/her individual circumstances is another matter entirely.
[45] The Applicants ’ problem in this regard is immediately apparent. They do not
rely on one cause of action. There are a multiplicity of actions. Some resist the sale
of the Property they occupy and/or their eviction therefrom on the basis that they are
owed compensation for having done maintenance; others for having effected
improvements; others for having effected alterations; others for having repair ed
defects . The on ly common denominator is that they all claim that they are entitled to
a right of first refusal , which they claim has not been afforded to them .
[46] Apart from the allege d right of first refusal t here is no commonality and in this
regard I can, once again , do no better than to quote from Children’s Resource :
6 131 S Ct 2541
“[44] This does not require that every claim advanced in the class action,
save possibly in relation to quantum, be identical. It requires that there be
issues of fact, or law, or both fact and law, that are common to all members of
the class and can appropriate ly be determined in one action . Dealing with the
issue of commonality in Wal-Mart Scalia J said that the claims :
…7
In my view that is correct. The simplest example of such a common issue
would be the issue of negligence in a case involving the derailment of a train.
That could give rise to different claims, such as damages for personal injuries
by passengers, dependents’ claims for loss of support in respect of those
killed, claims for loss of or damage to goods being carried on the train and
damage to ot her property arising as a result of the derailment, but there would
be sufficient commonality on the issue of negligence to sustain a class action .
[45] That highlights the point that the class action does not have to dispose of
every aspect the claim in o rder to obtain certification. It might in an
appropriate case be restricted to the primary issue of liability, leaving quantum
to be dealt with by individual claimants. Certain common issues could be
certified for the entire class, and other subsidiary iss ues certified in respect of
defined sub -classes. But the question in respect of any class or sub -class is
always whether there are common issues that can be determined that will
dispose of all or a significant part of the claims by the members of the class or
sub-class .” [Underlined for emphasis].
[47] As I have already alluded to, in the present matter there is no one cause of
action. There are five potential causes of action which have been identified by the
Applicants themselves . The only common denominator is that every Applicant
makes the allegation that he/she was not given a right of first refusal. I should a dd
that if the Applicants do have right of first refusal (and I mak e no finding in this
regard) that would not entitle them to acquire the Properties they occupy as of right.
It would merely afford them an opportunity to make an offer , subject to such
7 Scalia J has already been quoted above.
conditions as may be applicable in each particular case . The Responde nt, while
disputing that it is legally obliged to afford a right of first refusal, has nevertheless
undertaken to do so.
[48] There is, however, a more funda mental problem facing the Applicants. Wh ere
the Applicants’ case falls apart is in respect of the relief they seek. They do not seek
to enforce a right, but to prevent the Respondent from enforcing its right to sell
and/or evict them from the Properties , by raising a defence thereto : be it a claim
based on having done maintenance to a property ; effect ing repairs ; effect ing
improvements ; remed ying defects and/or being afforded a right of first refusal .
[49] It is difficult, if not impossible, to envisage how the Applicants will formulate
the particulars of claim on behalf of multiple plaintiffs . It will have to be along the
lines of: when (or if) the Respondent sells my Property by way of public auction ; or,
when (or if) the Respondent bring s an application for my eviction , I have a defence
thereto, in whole or part, based on one or more of the grounds referred to . These
are not cause s of action. They are defence s to a potential action / application which
may or may not be instituted by the Respondent .
[50] It is furthermore relevant that t he Respondent’s right to sell the Properties is
not be ing challenged. The Applicants ’ case is that if and when it does so:
(a) They must be given a right of first refusal;
(b) They must be compensated for what they many have expended on the
Property.
[51] The first issue is not seriously in dispute. The Re spondent is affording the
Tenants a right of first refusal, albeit denying a legal obligation to do so. The second
issue is a right that the law recognises. If a particular Applicant can prove
improvements he/she will be entitled to compensation therefore (subject, of course,
to the terms of the applicable lease agreement).
[52] Even if a class action particular s of claim could be formulated along these
lines, it stands to reason that the facta probanda in respect of every claim will be
different. There can be no “one size fits all” scenario. No “one stroke ”. There will be
77, or 45, or who knows how many distinct claims , each one relying on the specific
facts applicable to the particular Property in qu estion .
[53] It is for this reason that an application for certification should contain a draft
particulars of claim in order to assist the court in making a proper assessment as to
whether or not it would be appropriate to certify a class action. In this regard see the
quote from Children’s Resource in paragraph 3 8 above.
[54] In the unreported case of Bartosch v Standard Bank of South Africa Ltd and
Others8 Chetty J formulated this requirement in even stronger terms :
“The application must be accompanied by draft particulars of claim setting out
the cause of action, the class, and the relief sought. The affidavits need to set
out the evidence available to support the cause, as well as evidence it is
anticipated will become available, and the w ay it will be procured.”
[55] Not only is the notice of motion silent in this regard, the founding affidavit and
supporting affidavits fall woefully short of what is envisaged .
[56] As already alluded to, i t is not the Applicants’ case that the Responden t is not
entitled to sell the Properties they occupy. If that were the case the Wal-Mart “one
stroke” test would probably have been met. Their claims arise (if they have one)
only if and when a sale is in the offing . Their claims for compensation for monies
expended on the Properties (under the various different headings ) will be a reaction
thereto. No two cases will rely on the same facts.
[57] In De Bruyn v Steinhoff International Holding NV & Others ,9 on the absence of
a triable issue, Unterhalter J (as he then was) stated:
8 [2014] ZAECPEHC 52
9 2022 (1) SA 442 (GJ).
“265. Commonality is judged by asking whether the issue of law or fact, once
determined, resolves the issue for the class. If, by contrast, the determination
of the issue requires multiple individual determinations , then commonality is
lacking. …” [Underlined for emphasis].
[58] In Mukaddam v Pioneer Foods (Pty) Ltd and Others10 the Constitutional Court
considered the factors to be considered when deciding whether to certify a class
action. Dealing with the list of factors to be taken into account the Constitutional
Court stated that they w ere not exhaustive. In this regard Jafta J stated the
following:
“[47] … In deciding whether a class action should be allowed, that court is
bound to apply the standard or test laid down by a superior court. This
accords with the principle of judicial pre cedent. This means that in future the
High Courts will be bound to apply the interests of justice standard and in
determining where those interests lie in a given case, guidance will be sought
from the factors mentioned …” [Underlined for emphasis].
[59] Ultimately it comes down to the determination of what is in the interests of
justice. This requires the exercise of a discretion: taking all the relevant factors into
account, is it in the interests of justice to certify a class action in the specific
circumstances based on th e specific facts of the particular matter ?
[60] I considered certifying a class action on the limited issue of whether the
Applicants have a right of first refusal. However, whichever way th at dispute is
resolved, it will not resolve the other disputes. In any event, whether it is legal ly
obliged to do so or it is doing so based on a policy decision, the Respondent has
undertaken to afford the existing Tenant s an opportunity to acquire his/her Property
before it is sold on public auction. In some instances this has happened. There is
thus no real dispute in this regard. Furthermore, insofar as there may be a dispute in
this regard, it would be far more convenient to resolve it by way of a te st case. It
could probably be done on application.
10 2013 (5) SA 89 (CC)
[61] Given the conclusion I have come to I find that it is not necessary to consider
the other requirements (referred to in paragraph 9 above) for the certification of a
class action .
[62] It follows that in the exercise of my discretion I am not satisfied that it will be in
the interests of justice to certify a class action.
[63] With regard to costs there is no reason to deviate from the usual rule that the
unsuccessful party should pay th e costs. Although it was submitted in argument on
behalf of the Applicants that I should apply the Biowatch principle on the basis that
the matter concerned section 25 of the Constitution (not to be deprived of one’s
property ) and section 26 (which deals with the right to housing ), this was not the
grounds upon which the Applicants approached the court. No case was made out on
the papers.
[64] The costs are to be paid by the Deponent and the 45 persons who filed
supporting affidavit s, which affidavits appear on pages 55 – 197 of the application for
leave to file supporting affidavits. Such costs are to include reserve d costs wherever
so ordered. With regard to counsel’s fees, the matter was a complicated one
deserving of an order based on scale C.
[65] I make the following order:
(a) The application is dismissed.
(b) The Deponent to the founding affidavit and the 45 persons who filed
supporting affidavits (which appear at pp. 55 – 197 of the application
for leave to file supporting affida vits, dated 15 August 2024) are to pay
the costs of the application jointly and severally, the one paying the
others to be absolved , such costs to include any reserved cost orders.
(c) Counsel’s fees are to be taxed on scale C.
__________________________ ______
NJ MULLINS
ACTING JUDGE IN THE HIGH COURT
APPEARANCES: Applicants : Adv. Z. Zito
Attorneys: Mbewana Attorneys
c/o Msamo Attorneys
85 Oxford Street
Absa Building
EAST LONDON
Respondent : Adv. N. Schultz
Attorneys: Gravett Schoeman Inc.
The Hub
Bonza Bay Road
Beacon Bay
EAST LONDON