On 18 March 2013, the applicant (Lytton Investments) and respondent (Standard Chartered Bank) entered into a loan contract for a short-term loan facility of US$160,000 to finance the applicant's business activities. The loan was conditional upon the applicant paying an advance amount equivalent to 4.5% of the loan value. The applicant alleged that despite meeting its obligations, the respondent only advanced US$49,237 instead of the agreed amount, causing damages to its business operations. The applicant sought leave to institute a class action under s 3 of the Class Actions Act [Chapter 8:17] on behalf of persons who, after paying facility fees in advance, received loan amounts much less than stipulated in their loan contracts. The respondent contended that the total US$160,000 facility included a US$40,000 short-term loan used to settle an outstanding 2012 facility, that management fees of 3% were non-refundable, that the applicant failed to deposit a minimum of US$45,000 as required by the "deposit covenant," and that the facility was 'uncommitted' and subject to availability of funds. Prior to this application, the applicant had issued summons on 13 July 2015 against the respondent for damages arising from breach of the loan contract, which case was still pending before the court.
1. The application is dismissed. 2. The applicant to pay respondent's costs on the ordinary scale.
An applicant who has already instituted individual proceedings against a respondent based on a particular cause of action cannot subsequently apply for leave to institute a class action based on the same or similar cause of action. To allow such an application would be to sanction an improper joinder of unknown parties via the back door. Where an applicant has instituted proceedings to protect its own interests, it should either have considered class action at the outset or withdrawn the initial proceedings before applying for class action leave. A binding precedent established in the initial individual case would provide legal benefit to others in similar situations, thereby fulfilling the purpose that would otherwise be served by a class action in such circumstances.
The court made several non-binding observations: (1) The court noted with approval that Zimbabwe's Class Actions Act is progressive compared to South Africa's legislation, as Zimbabwe permits consumer class actions while South Africa limits class actions to matters concerning infringement of constitutional rights. (2) The court observed that a full ventilation of the application on its merits would have raised interesting legal points beneficial to the legal profession, particularly given the scarcity of precedents on class actions in Zimbabwe. (3) The court noted that there are hardly any considerable decisions in Zimbabwean jurisdiction dealing with class actions, referencing Zimbabwe Tobacco Association v Reserve Bank of Zimbabwe HH77/13 and Petho v Minister of Home Affairs & Anor 2002 (2) ZLR 436(5) as examples of limited precedent, both of which were decided on procedural grounds rather than substantive consideration of s 3 requirements. (4) The court commented on the essence and purpose of class actions, emphasizing that the Act facilitates justice by allowing even 'good samaritans' outside the affected class to fight others' causes, provided they satisfy the court that there is a genuine cause and a class needing protection.
This case provides important guidance on the procedural requirements and limitations for instituting class actions in Zimbabwe under the Class Actions Act [Chapter 8:17]. It establishes that a party who has already instituted individual proceedings on a particular cause of action cannot subsequently apply for leave to institute a class action based on the same or similar cause, as this would amount to an improper joinder via the back door and would result in court processes being clogged by multiple matters by the same entity. The judgment emphasizes that applicants must make strategic decisions at the outset about whether to pursue individual or class remedies. The case also highlights the progressive nature of Zimbabwe's class action legislation compared to South Africa, where class actions are limited to constitutional rights matters, whereas Zimbabwe's Act permits consumer class actions. The decision contributes to the limited jurisprudence on class actions in Zimbabwe, noting that there are very few precedents in this area of law. The judgment demonstrates judicial recognition that precedents set in individual cases can provide legal benefits to others in similar situations, reducing the need for class actions in certain circumstances.