The scope and magnitude of the proposed class actions envisaged in Nkala v Harmony Gold is unprecedented in SA; it will traverse novel and complex issues of fact and law, and help the development of class action law. This is the view of Werksmans Attorneys’ Monique Pansegrouw, in an analysis in Business Day, in which she examines the Gauteng High Court (Johannesburg) judgment handed down in May in Nkala and Others v Harmony Gold Mining Company Limited and Others.

After outlining a detailed examination of the judgment, she argues that there is still a need for legislative reform of class actions to bring such actions in line with the South African Law Commission’s report. ‘As Nkala will undoubtedly lead to further class actions being launched in SA, the need to have a comprehensive legislative framework within which to govern class actions is now more prevalent than before.’ She notes that while the case law to date has greatly assisted with the development and refinement of the certification process of SA class actions, the regulatory framework for the procedure and conduct of class actions is yet to be developed.

‘When considering the potential of 500 000 or more class members who could be part of Nkala – which sets it among the ranks of the largest class action cases yet certified in the world – it is clear that – save for it being in a country with no formal legislative framework governing class actions – there is also a dire need for clear guidance to be provided from a case management perspective on the procedures and conduct in a case of such unparalleled proportions to ensure its timeous, proactive, cost-effective, efficient, and pragmatic adjudication to the benefit of all concerned.’

Full analysis in Business Day

Nkala and Others v Harmony Gold Mining Company Limited and Others (48226/12, 31324/12, 31326/12, 31327/12, 48226/12, 08108/13) [2016] ZAGPJHC 97; [2016] 3 All SA 233 (GJ); 2016 (7) BCLR 881 (GJ) (13 May 2016)