A critical and comparative analysis of the South African and Australian product liability regimes

dc.contributor.advisorVan Heerden, C.M. (Corlia)
dc.contributor.emailu18031219@tuks.co.zaen_US
dc.contributor.postgraduateMatekwe, Takudzwa
dc.date.accessioned2025-02-13T14:24:53Z
dc.date.available2025-02-13T14:24:53Z
dc.date.created2025-04
dc.date.issued2024-10
dc.descriptionMini Dissertation (LLM (Mercantile Law)--University of Pretoria, 2024.en_US
dc.description.abstractProduct liability claims involve recovering damages for harm, whether through property damage or personal injury, caused by a defective product. In South Africa, the concept of product liability initially found its roots in common law, either in the law of delict or via contract, which usually takes the form of a breach of warranty or misrepresentation regarding the suitability and non-defectiveness of the product concerned. A delictual claim is based on the negligent causing of harm by the supplier. However, the common law exhibits various shortcomings in terms of the protection afforded to the consumer. One of the main challenges posed by the common law is the requirement that the consumer has to prove fault on the part of the supplier of the defective goods. Due to the lack of knowledge of the supplier’s processes, consumers often cannot discharge this burden, thus leaving them without any sufficient legal recourse. This inadequacy of the common law to facilitate sufficient redress, the constitutional dispensation that came into effect through the introduction of the Constitution of the Republic of South Africa, 1996, and the influence of international consumer standards such as the EU Product Liability Directive and Part 3 to 5 of Schedule 2 of the Australian Competition and Consumer Act (ACL) urged the South African legislature to enact the Consumer Protection Act 68 of 2008 (CPA). In a bid to remedy the shortcomings of the common law, a “strict” product liability regime was introduced and captured in section 61 of the CPA, albeit the South African product liability regime can be regarded as “hybrid” rather than strict due to the defences it affords to suppliers. Product liability under the CPA affords consumers greater protection by no longer requiring a consumer to prove fault on the part of a supplier. It holds the whole supply chain strictly liable for the harm caused by releasing defective goods on the consumer market. However, the statutory strict liability regime came with its practical flaws. One of the flaws in the Act that materialised concerned identifying potential claimants (consumers) for strict product liability under section 61 of the CPA. In the hope that judicial precedence would resolve this lacuna in the Act, the court in Eskom Holdings Limited v Halstad-Cleak 2017 (1) SA 333 (SCA) to some extent unfortunately exacerbated this flaw and provided little guidance to the provision. This dissertation is a critical appraisal of the South African “strict” product liability regime as introduced in section 61 of the CPA. The research seeks to determine whether product liability in section 61 sufficiently protects consumers. The current and the previous positions governing product liability in South Africa will be meticulously examined to determine the sufficiency of the current regime. Lastly, the Australian product liability regime will be considered, in an attempt to find solutions or draw recommendations regarding the shortcomings in the South African product liability laws.en_US
dc.description.availabilityUnrestricteden_US
dc.description.degreeLLM (Mercantile Law)en_US
dc.description.departmentMercantile Lawen_US
dc.description.facultyFaculty of Lawsen_US
dc.description.sdgSDG-12: Responsible consumption and productionen_US
dc.description.sponsorshipCannon Collinsen_US
dc.description.sponsorshipABSAen_US
dc.identifier.citation*en_US
dc.identifier.doiDisclaimer Letteren_US
dc.identifier.otherA2025en_US
dc.identifier.urihttp://hdl.handle.net/2263/100861
dc.language.isoenen_US
dc.publisherUniversity of Pretoria
dc.rights© 2023 University of Pretoria. All rights reserved. The copyright in this work vests in the University of Pretoria. No part of this work may be reproduced or transmitted in any form or by any means, without the prior written permission of the University of Pretoria.
dc.subjectUCTDen_US
dc.subjectSustainable Development Goals (SDGs)en_US
dc.subjectProduct liabilityen_US
dc.subjectDefective goodsen_US
dc.subjectConsumer protectionen_US
dc.subjectConsumer Protection Acten_US
dc.subjectAustralian Consumer Lawen_US
dc.titleA critical and comparative analysis of the South African and Australian product liability regimesen_US
dc.typeMini Dissertationen_US

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