The effectiveness of the product liability regime in terms of the Consumer Protection Act 68 of 2008 in South Africa : a comparative analysis with Australia

Abstract

Product liability arising from the harm caused by a defective product being supplied to a consumer, is currently and has historically been a pressing concern within the South African consumer context. The establishment of this liability has previously been catered for in terms of the South African common law, either in terms of the law of Delict or via principles captured within contract law. The evident practical flaws of establishing product liability in terms of the common law, coupled with the new Constitutional dispensation, urged the South African legislature in promulgating and implementing the Consumer Protection Act (“CPA”) and specifically introducing the so called ‘strict’ product liability regime as captured within section 61 of the CPA. The primary difference between this method of product liability establishment and the method captured within the common law, is that fault is now not required to be proven on behalf of the ‘supplier’ (party to the supply chain) for product liability to ensue. Although this newly originated ‘strict’ product liability regime as captured within section 61 of the CPA has alleviated the primary common law burdens of establishing product liability, it still has evidential practical flaws and obstacles, which impair both the application and effectiveness of the CPA. This dissertation will seek to determine whether this newly introduced ‘strict’ product liability regime is in fact effective or not. The past and present positions governing product liability in South Africa will be critically examined and analyzed, in determining the current position’s effectiveness. Additionally, the Australian position on product liability will be consulted, in order to draw possible recommendations as to alleviate the current South African position’s practical flaws.