The Requirements to bring a Class Action in Zimbabwe

To institute a class action in Zimbabwe, certain requirements that are set out in the Class Actions Act [Chapter 8:17] ought to be met. The most basic requirements were set out by the court in Sithole v FBC Bank Ltd & Another 2021 (1) ZLR 471 (H) 481 as follows:

• Filing an application for leave to institute class action with the High Court
• The application is made by any person, whether or not he or she is a member of the class of persons concerned
• The application is made in the form and manner prescribed in the rules of court

Any one appointed as a representative of a class action in Zimbabwe should be a suitable appointee who is able to represent the best interests of all the members of the class of persons concerned. He or she should not be a busybody, but at the very least should have the mandate to represent others in the class action in Zimbabwe. see Hanzi v Zimbabwe National Road Administration & Others 2012 (1) ZLR 559 (H).

An application to bring a class action in Zimbabwe can only be made to the High Court. see Commercial Farmers' Union v Mhuriro & Others 2000 (2) ZLR 405 (S). The High court will generally grant leave to bring a class action in Zimbabwe where it is satisfied that given the facts and circumstances of the case, a class action is appropriate, and in determining whether or not this is so the High Court takes into account the following factors:

• whether or not a prima facie cause of action exists
• the issues of fact or law which are likely to be common to the claims of individual members of the class of persons concerned
• the existence and nature of the class of persons concerned, having regard to -
• its potential size
• the general level of education and financial standing of its members
• the difficulties likely to be encountered by the members enforcing their claims individually
• the extent to which the members of the class of persons concerned may be prejudiced by being bound by any judgment given in the class action
• the nature of the relief claimed in the class action, including the amount or type of relief that each member of the class of persons concerned might claim individually; and the availability of a suitable person to represent the class of persons concerned; and any other relevant factor

It is important to note that the High Court may grant leave to being a class action in Zimbabwe notwithstanding the fact that the claims of individual members of the class of persons concerned involved different issues of fact or law, the relief sought by the individual members of the class of persons concerned may require individual determination or the members of the class of persons concerned seek different forms of relief. see Petho v Minister of Home Affairs & Another 2002 (2) ZLR 436 (S).

Where the High Court has granted leave to institute a class action in Zimbabwe, the appointed representative is obliged to cause a notice specifying the following:

• the cause of action giving rise to the class action, with sufficient detail to enable the circumstances giving rise to the action to be identified
• the nature of the relief being sought in the class action; and
• the class of person concerned in the class action, with sufficient detail to enable the members to identify themselves with the intended action and to advise members of the class concerned that: each member of the class concerned will be bound by the class action and its results unless the member notifies the Registrar of the High Court, within a period fixed by the court or rules of court, as the case may be, and specified in the notice, that he or she wishes to be excluded from the action; and each member of the class concerned has the right to apply for leave to intervene in the class action in order to protect his or her interests