The development of product liability in South Africa

Abstract

The dangers posed by defective products can never be overstated. Defective products have vast implications for consumers and nations. They may result in the harm, injury or death of a consumer or have catastrophic consequences for a country's export and international trade. Until recently, the only recourse available to consumers who have suffered harm or sustained injury as a result of a defective product was a claim under the law of contract or the law of delict. Succeeding in each of these claims has proved to be difficult. A breach of warranty and a contractual nexus is required under the law of contract and in respect of the law of delict all the elements of a delict must be present. The enactment of the Consumer Protection Act 68 of 2008 introduced a regulatory framework for strict product liability in South Africa in terms of which a producer or importer, distributor or retailer of any good is liable for any harm caused wholly or partly as a consequence of (i) supplying unsafe goods; (ii) a product failure, defect or hazard in any good; or (iii) inadequate instructions or warnings provided to the consumer pertaining to any hazard arising from or associated with the use of any good, irrespective of whether the harm resulted from any negligence on the part of the producer, importer, distributor or retailer, as the case may be. The origins of product liability can be traced back to ancient English law imposing strict liability on sellers of contaminated food products. Similarly, the UK Consumer Protect Act 1987 provides that producers or suppliers of products in the course of a business may be liable for personal injury or property damage caused wholly or partly by a defect in the product, irrespective of any fault on the part of the producer or supplier.