Having debated with senior legal counsel and researched class actions internationally, Theron & Partners – the lawyers bringing the application on behalf of investors – say class actions are rarely started on an opt in basis. In other words, where those concerned must actively opt into the action before their claims are included.
“We understand that such an option will be more suitable where the class is not easily identifiable. In the Highveld Syndication matters, the classes are easily identifiable,” explains Marina Verdoes of Theron & Partners.
All the individuals concerned in this matter invested some amount of money – an average of R250 000 per investor, according to the attorneys – in one or more of property syndication companies, Highveld Syndications 15 to 22.
If a class action was certified, by way of example, for HS 19 to 22 (which collectively have 9 000 investors) and investors were then given 30 days to opt in, Verdoes points out that this would create an “administrative conundrum”.
Perhaps more importantly, explains attorney and head of the class action Jacques Theron, the claims of investors – many of whom are pensioners who may not yet be aware of the action – might prescribe before the message of the action reaches them.
On the other hand, notes Verdoes, “If opting out is applicable, a few investors opting out over the period [30 days] would be much easier to handle”.
“If the certificate is granted and the court endorses the opt out option, investors will be afforded 30 days within which to indicate whether they do not want to join the class action,” she continues. “As part of the relief sought in the certification application, we have requested a list of all investors from the business rescue practitioner and will therefore be in a better position to contact investors directly.”
All this would seem to make the ‘opt-out’ basis of the class action a much safer option.
‘Investor support driving the action’Reshana Pillay, partner at law firm Hogan Lovells, agrees the class action lawyers are “playing it safe” by launching the action on an opt-out basis. “It is however important for people to know whether or not they fall within the class definition so that they know whether they should either opt in or out,” Pillay says.
“If they opt out there is nothing that prevents them from pursuing their individual claim,” she notes.
According to Verdoes, however, “a large number of the claimants are pensioners who cannot afford to litigate in person against large companies and/or wealthy respondents”, which include the likes of property mogul, Nic Georgiou.
Georgiou is MD of Orthotouch, which bought properties in the HS companies on the grounds that it would maintain investors’ interest payments. It has failed to do so and recently had a new scheme of arrangement sanctioned in court as a compromise with investors.
Theron & Partners has applied to have this scheme rescinded.
Pillay, meanwhile, is not sure whether the court, when deciding on whether or not to certify the class action, will be keen on the R1 000 per-claim registration fee investors need to pay to participate in the action. “This will be decided in the certification hearing,” she says, supporting Verdoes’s comments that ultimately the court has discretion to order which option is more suitable.
“There is nothing in law that prevents the representative of the class to require payment of an amount upfront, whether the amount is fair and reasonable is debatable,” Pillay adds.
While roughly 7 000 investors have joined a class action group, the Highveld Syndication Action Group (HSAG), Theron confirms that not everyone has paid the registration fee. “A lot of people have promised their support and promised to pay over a few months,” he tells Moneyweb. “Investors are very much in favour of this class action and the support of the investors is obviously driving this certification application forward.”