STRICT PRODUCT LIABILITY IN TERMS OF THE
CONSUMER PROTECTION ACT 68 OF 2008
MAPHETO RAISIBE-
RHP 320
SUPERVISOR: DR J BARNARD
DEPARTMENT OF MERCANTILE
2016
Introduction
Prior to the Consumer Protection Act, 1 in order for a consumer to claim
damages from a supplier in respect of defective goods, they had to rely on
either common law warranty against latent defects or contractual remedies. 2
In terms of the common law, merchant seller of a product could only be liable
for harm caused to the consumer or their property due to a defective product if
there existed a contractual relationship between them that provided for that
claim, and if a consumer could prove that the was delict committed by the
producers or manufacturers.3 This means that in terms of common law, liability
is fault based.4 This often left a consumer without an effective remedy since
they found it difficult to prove negligence by the culpable party and they seldom
had a contract with any party other than the retailer.5
The CPA introduces strict product liability, which provides that the producer or
importer, distributor or retailer of any goods is liable for any harm caused
wholly or partly as a result of the supply of unsafe goods, a product failure, or
defect or hazards in the goods, inadequate instructions or warnings provided
to the consumer pertaining to any risk associated with the use of the goods
regardless of whether the harm resulted from any negligence on the part of the
importer, retailer,producer or distributor.6
Liability in terms of the Act is joint and several meaning a consumer can
choose to claim from any party in the supply chain even if they have no
contract with that party and are unable to prove that party’s negligence. 7
Research problem
The introduction of strict product liability by the CPA does come with its own
difficulties such as the problematic aspect contained in the Act itself in terms of
what a defect is.8 The general objective of this study is to analyze the strict
product liability under section 61 of the CPA and in particular it seeks to
achieve the objectives such as critically discussing the content of section 61
including the duties on suppliers in terms of this section, the analysis other
relevant provisions in terms of the CPA (such as section 53 definitions), identify
the issues contained in section 61 and propose certain amendments which will
1
68 of 2008 (hereinafter the CPA).
Sandra B, Product Liability- Our Courts’ Approach to product liability claims and the impact of
the Consumer Protection Act thereon, with specific reference to manufacturers’ and suppliers’
liability
https://www.markraminc.co.za/knowledge/our-courts-approach-to-product-liability-claims, 22
June 2015 (accessed on 10 October 2016).
3
Basson J “The South African Law on ‘Products Liability’ - Quo Vadis?” (2001) 12 The South
African Journal of Industrial Engineering 83.
4
Basson J (note 3).
5
Basson J (note 3).
6
Section 61 of the CPA
7
Brigit R, The Consumer Protection Act - A new liability
http://www.polity.org.za/article/the-consumer-protection-act-a-new-liability-, 16
March 2011(accessed 28 September 2016).
8
Brigit R (note 7).
2
benefit both the consumers and the suppliers
Assumptions
My assumptions regarding strict product liabilty in terms of the CPA are that
there are ambiguities contained in the wording of the Act may hinder its
application and that the introduction of strict product liability has increased
compliance obligations of suppliers.
Research questions
In relation to strict product liability under the CPA, I will be answering the
question of what is the application of the CPA to product liability, what is the
liability contained in section 61,what duties are on suppliers in terms of section
61 and what defences can suppliers raise against section 61.
Motivation
Loubser and Reid remark that strict product liability is helpful to consumers
that are harmed by defective products where proof of negligence on the part of
the suppliers is impossible or difficult. 9 A consumer is usually unable to
scrutinize a product for a defect, and thereby trusting that the product is safe
and will cause no harm to property or health of that consumer or any other
person.10 By introducing the strict product liability, the CPA has made it easier
for consumers to be able to hold either importers, retailers, producers, or
distributors liable even if they are unable to prove negligence, they just have to
prove wrongfulness.11
The CPA amongst other things aims to promote fair,accessible and substantial
marketplace for consumer products and services.12 With the introduction of
the different protected consumer rights in the CPA, this inevitably added
another layer of compliance to the duties of suppliers and it is clear that the
suppliers will need to observe extensive compliance obligations.13
As will be show in the research, the application of the CPA is problematic in
some instances. When analyzing the wording of section 61 of the CPA, some
ambiguities come to light and the study will highlight on those ambiguities
while creating awareness of the duties of suppliers which in turn may lead to a
decrease of harmful and defective products being released into the
marketplace.
In order to answer my first and second questions which are “what is the
Loubser and Reid “Liability for products in the Consumer Protection Bill 2016: A comparative
critique” Stell LR 2006 pg 415.
10
Loubser and Reid (note 9) pg 417.
11
Nagel et al (2015) Commercial Law (5th ed) pg 235.
12
Preamble of the CPA (note 1 above).
13
Sandra B (note 2)
9
application of the CPA to product liability?” and “what is the liability contained in
section 61?” I will be looking at the wording of the CPA and relevant provisions
such as section 61 and section 53 definitions which are relevant to section 61.
“what liability is incurred by the suppliers under the strict product liability
regime?” and “what i I will be using the wording of section 61 of the CPA, I will
also look at McQuoid specifically his definition of product liability, 14 I will also
look at the common law approach and also referring to the Commercial law
textbook.15 I am also going to refer to different cases such as Wagener v
Pharmacare Ltd,Cuttings v Pharmacare Ltd,16 and Halstead-Cleak v Eskom
Holdings Limited.17
To answer my third and fourth question “what duties do the suppliers have in
terms of products?” and “what defences the suppliers can raise against section
61?” I will again look at the CPA and different opinions of writers such as
Loubser and Reid.
Methodology
The methodology for this study involves examining literature from primary
sources, such as legislation, case law and common law together with
secondary sources which include the opinion of authors in books and journals.
Structure
The dissertation will be divided into four chapters. These chapters are as
follows;
Chapter One:
Introduction
Chapter Two:
Purpose and Application of the CPA
Chapter Three:
Critical analysis of product liability in terms
of the CPA
Chapter Four:
Conclusion and recommendations
Time line/ Schedule
Date
Activity
July 25
Research begins
July 25- August 11
Research of applicable legislation
-
McQuoid-Mason Consumer Law in South Africa(1997) 65.
Nagel et al Commercial Law(5th ed)
(2003) 2 ALL SA 167 (SCA).
(26360/14) [2015] ZAGPPHC 632; 2016 (2) SA 141 (GP).
August 18-25
Analyzing the applicable legislation
September 05-15
Research of applicable published
documents and literature
September 17-October 15
Analyzing
applicable
documents and literature
October 20- November 02
Research applicable cases
November 03-20
Analyzing the applicable cases
published
Literature overview
Bibliography
Books
Nagel et al Commercial Law (2016) 5th edition chapter 14 paras 54-111
McQuoid-Mason Consumer Law in South Africa(1997) 65
Case Law
Halstead-Cleak v Eskom Holdings Limited.(26360/14) [2015] ZAGPPHC 632;
2016 (2) SA 141 (GP)
Wagener v Pharmacare Ltd,Cuttings v Pharmacare Ltd (2003) 2 ALL SA 167
(SCA)
Internet sources
Brigit R, The Consumer Protection Act - A new liability
http://www.polity.org.za/article/the-consumer-protection-act-a-new-liability-, 16 March 2011(accessed 28 September 2016)
Sandra B, Product Liability- Our Courts’ Approach to product liability claims
and the impact of the Consumer Protection Act thereon, with specific reference
to manufacturers’ and suppliers’ liability
https://www.markraminc.co.za/knowledge/our-courts-approach-to-product-liabi
lity-claims, 22 June 2015 (accessed on 10 October 2016)
Journal articles
Barnard J “The influence of the Consumer Protection Act 68 of 2008 on the
warranty against latent defects, voetstoots clauses and liability for damages”
2012 De Jure 455 – 484
Basson J “The South African Law on ‘Products Liability’ - Quo Vadis?” (2001)
12 The South African Journal of Industrial Engineering 83
Loubser M & Reid E “Liability for products in the Consumer Protection Bill 2006:
A Comparative Critque” 2006 Stellenbosch Law Review 413-453
Legislature
Consumer Protection Act 68 of 2008