oa Comparative and International Law Journal of Southern Africa - Certification : the procedure, its role in class action proceedings in Ontario and the proposed South African certification procedure
One of the primary reasons for the introduction of class actions is to improve access to justice. However, the existence of substantive barriers to the court system and its operation will bar litigants from pursuing meritorious claims, and this creates a wrong climate for class actions. It is therefore important that the legal infrastructure of class proceedings be designed in a way that counteracts such barriers and ensures efficient litigation.
Class proceedings are necessary to deal with the burden which is placed on the normal litigation process by the complex demands of a large number of litigants, and is of necessity a procedural mechanism. Certification is a vital part of such a mechanism and its role is to ensure that class proceedings are appropriate. Therefore, until a potential action is certified, it is not a class action.
In South Africa constitutional provision has been made for class actions and public interest actions. The South African Law Commission recommended legislation to provide for these actions in general practice, and included draft legislation in its recommendations. Since no legislation has been forthcoming, the proposed legislation pertaining to certification will be evaluated against the Ontario legislation to test its potential effectiveness.
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