Product liability : the common law and the Consumer Protection Act 68 of 2008

Abstract

The main purpose of this dissertation is to discuss the influence of the Consumer Protection Act 68 of 2008 (“CPA” or “the Act”) on product liability in South Africa whilst taking into account the common law position which finds application in situations where the CPA does not apply. Under the South African common law, the only recourse available to consumers who suffer harm or sustain an injury as a result of a defective product, is a claim under the law of contract or the law of delict. Claims under both the law of contract and law of delict unfortunately have its shortcomings, most notably the consumer under the law of contract has to prove that a breach of warranty occurred and that a contractual nexus existed between the parties. Whereas under the law of delict the consumer is required to prove fault on the part of the supplier of the defective goods, which in most cases proved to be a difficult or impossible task and as a result the consumer is left without any effective recourse. The court in Wagener v Pharmacare was also not prepared to impose strict product liability on the producer but left it to the legislature to do so. The legislature answered the call with the enactment of section 61 of the CPA, which has introduced a so-called strict product liability regime for harm caused by defective goods. Section 61 of the CPA states that the producer or importer, distributor or retailer of any goods is liable for any harm caused wholly or as a consequence of supplying any unsafe goods a product failure defect or hazard in any goods or the inadequate instructions or warning provided to the consumer pertaining to any hazard arising from or associated with the use of any goodsirrespective of whether the harm resulted from any negligence on the part of the producer, importer, distributor or retailer, as the case may be. Many academics have applauded the CPA in this respect. However, the defences available to a supplier in terms of the CPA have led to some criticism. Section 2(2) of the CPA also provides that foreign and international law may be incorporated when interpreting and applying the CPA and as section 61 of the CPA shares similarities with the European Directive on Product Liability of 1985 (“EU Directive”), it is accordingly useful to consider the application and interpretation thereof. The final conclusion drawn from this dissertation, is that the CPA makes provision for a modified strict product liability regime and could in more than one instance be regarded as defective in itself. It is however contented that the CPA is a step in the right direction and future interpretations by our courts of section 61 are welcomed.