Representative actions

There is a provision in the High Court Rules (1971) which does not seem to be well known. This is Rule 89 in Order 13. This provision provides the framework for bringing what is known as public interest or social action litigation. It is of particular importance when a number of persons have all been affected by certain conduct, but the individuals in this group cannot afford to litigate individually. Together, however, they can raise enough money to employ a lawyer to argue the case on behalf of the group. A representative or representatives can then be nominated and the lawyer can bring the action in the name of the representatives on behalf of all the persons in the group. The provision is designed to avoid the laborious and unnecessary process of each person in the group having to sue separately when all have the same basis for suing. The sort of situation where this action would be highly appropriate is in a “Bhopal” type disaster affecting the health of various persons.

Rule 89(1) reads:

Where numerous persons have thesame interest in any proceedings, the proceedings may be begun, and, unless the court otherwise orders, continued, by or againstany one or more of them as representing all or as representing all except one or more of them. (my emphasis).

Rule 89(2) allows P to apply to the court for the appointment by the court of one or of some of a number of defendants to represent the defendants in the proceedings.

From the standpoint of the claimants, this provision is very useful insofar as it makes the proceedings far less cumbersome and costly.

Under Rule 89(3), the judgment (or order) at the end of such proceedings is binding on all the plaintiffs and the defendants who were being represented. (It can only be enforced against persons not parties to the proceedings with the leave of the court).

Under Rule 89(5), however, a person against whom the judgment or order is binding may dispute his liability “on the ground that by reason of facts and matters particular to his case he is entitled to be exempted from such liability.”

How these provisions would be applied can be illustrated by a few concrete examples.

The escape of noxious fumes from a fertilizer manufacturing plant causes harm to the health of fifty people in the vicinity who inhale these fumes. One of the fifty claimants can be nominated as representative for the other forty-nine. A legal practitioner can then sue the owners and operators of the factory under the Aquilian action, citing the person nominated as the representative plaintiff. The legal practitioner would then seek to prove that the defendants wrongfully and negligently allowed the escape of the noxious fumes and that it was these fumes which caused the injuries to the plaintiffs. If then the requirements for the Aquilian action are established, the defendants would be made liable to pay damages. The damages suffered by each plaintiff would, however, have to be individually quantified as these would vary from person to person.

A municipality is empowered under legislation in certain specified circumstances to expropriate land for development purposes after following set procedures and subject to payment of fair compensation. It purports to expropriate a certain block of land on which thirty people have individual smallholdings. The thirty persons affected seek to challenge the expropriation and have it set aside on the basis that the action by the municipality was ultra vires its powers and that the mandatory procedures for the exercise of these powers were not complied with. Alternatively, they are alleging that if the municipality had acted intra vires its powers, it had failed to pay fair compensation for the properties. The thirty can nominate a representative and the action on behalf of the entire group can be brought in his or her name.

One hundred persons have brought shares in a company. They are all alleging that they were induced to do this as a result of certain fraudulent misrepresentations made by the owner of the company. Soon after they invested in the company it went insolvent and they lost all their money. The owner of the company, however, owns several other lucrative enterprises. The investors wish to sue for damages for fraudulent misrepresentation. They nominate one person to sue on behalf of himself or herself and the other ninety-nine plaintiffs.

Class actions

There are various restrictions on the use of the representative action procedure under the High Court Rules that make it narrow in scope. It can only be employed where the persons on behalf of whom the action is brought all have the same interest in the proceedings. This effectively disqualifies public interest non-governmental organisations, such as the Legal Resources Foundation and the Consumer Council, or concerned individuals from bringing a class action on behalf of other people. There are other limitations such as that all the parties must be asking for the identical relief; damages cannot be claimed in a group action; and it is doubtful whether a court can make a globular award to be distributed against the persons in the group.

The Law Development Commission recommended that the law on group actions be changed to facilitate group actions so as to provide an expeditious and inexpensive method for large numbers of persons to exercise and enforce their legal rights. It recommended that non-governmental organisations should be allowed to bring such actions. See Report No. 50 Proposed Class Action (1996).

Acting on this recommendation in 1999 the Government passed the Class Actions Act [Chapter 8:17]. The important features of this legislation are as follows.

A class action is now available for a far wider range of circumstances than previously. For example, it could be brought even though there are different issues of fact or law relating to the claims or the relief sought which may require individual determination.

A person or organisation wishing to bring a class action on behalf of others will be required to obtain the leave of the court to mount such action. The court will grant leave if it considers that a class action is the appropriate way of proceeding. The court will exercise a supervisory role over the ongoing action to ensure that this procedure is used genuinely for the purpose for which it was designed, namely, to facilitate access to justice for those who would often, because of poverty, ignorance or lack of motivation to try to manoeuvre through complex legal procedures, end up not receiving justice (s 8). The court can also appoint a commissioner to perform such duties as determining particular issues or assessing individual monetary claims of individuals in the class (s 9).

To make the proceedings benefit as many potential beneficiaries as possible, the judgment in a class action is binding on all members of the class concerned other than those who, after notice has been given of the action, have advised that they wish to be excluded from the class action concerned (s 11). In a class action the court can, where appropriate, award judgment in the form of an aggregate amount to be distributed amongst the members of the class concerned (s 12).

In order to assist representatives embarking upon such actions on behalf of others, there will be a Class Action Fund (s 14). This fund will be constituted of monies made available by Parliament, donations and re-imbursements of costs made by members of the class in a successful class action.

Usually in Zimbabwe, legal practitioners are not permitted to take on actions on a contingent fee basis. However, in respect of class actions, subject to certain limitations, it is proposed here that a legal practitioner will be permitted to make an arrangement with any person who is to be a representative in a class action for the payment of fees and disbursements in respect of the class action dependent on the success of the class action.