Opt-in class action for damages vindicated by constitutional court

Abstract

The history behind the above proceedings in the constitutional court is briefly as follows. The applicant in this matter (also referred to as "Mukaddam" where appropriate) and two other parties brought an application in the Western Cape high court against Pioneer Foods (Pty) Ltd ("Pioneer"), Tiger Consumer Brands Ltd ("Tiger") and Premier Foods Ltd ("Premier"), all major manufacturers of bread, in which they sought leave to launch a class action for damages on an opt-in basis on behalf of approximately 100 distributors of bread in the Western Cape against the respondents. (This was referred to as "the distributor application".) This application in the high court was heard together with a similar application against the respondents, brought simultaneously by NGOs and other parties purporting to act on behalf of the consumers of bread in the Western Cape and elsewhere. (This was referred to as "the consumer application".) These proceedings flowed from the three respondents' contravention of the Competition Act (89 of 1998) by colluding to fix the price of bread, to reduce the discount given to the distributors and to implement other restrictive practices, as established in proceedings before the competition tribunal. Substantial fines were imposed on Pioneer and Tiger, whilst corporate leniency was extended to Premier because it had co-operated with the competition commission in its investigation of the matter.