Product liability in terms of section 61 the Consumer Protection Act, 2008

In terms of section 61 of the CPA, consumers will no longer have to prove negligence on the part of the supplier of a product that has caused harm.

The Consumer Protection Act, 2008 (CPA) came into effect on the 1 April 2011. Until then a consumer had to enforce its rights either under the common law of sale (and had to show that the sold goods were unfit, or partially unfit, for the purpose for which they were intended to be used) or under our law of delict, for claims for harm caused by defective goods where there was no direct contractual relationship between the manufacturer or other supplier of products and the person who used them and suffered harm.

One of the most significant changes that the CPA introduced to South African consumer law was in the context of product liability: in terms of section 61 of the CPA, consumers will no longer have to prove negligence on the part of the supplier of a product that has caused harm.

However, although a person who claims damages due to the supply of an unsafe, defective or hazardous product will, on the basis of section 61 of the CPA, no longer be required to prove that the manufacturer or other person in the supply chain acted negligently in manufacturing or supplying the goods in question, the claimant will still have to prove the existence of a defect, unsafe characteristic or hazard in the product and will have to prove that this was the cause of the harm suffered.

Unlike the majority of the provisions of the CPA, section 61 applies to all consumers of goods and services, whether they are large or small. Thus both an individual and a large corporate entity that suffers harm due to the supply of an unsafe, defective or hazardous product will be able to claim damages on the basis of section 61, from any of the producer, importer, distributor or retailer of the product in question.

Section 61 provides for ‘joint and several’ liability, allowing a consumer who suffers harm from a defective product to bring a claim against any person in the supply chain for damages, thus introducing the concept of strict liability. While many other countries adopted the concept of strict liability for any harm caused where that product was unsafe, had a product failure, defect or hazard or was provided with inadequate instructions or warnings in relation to any hazard arising from or associated with the use of the product, until the enactment of the CPA, claimants seeking damages for harm caused by defective products under the law of delict in South Africa had to prove that the producer of the products was at fault in some way.

A particular supplier such as a distributor who supplies unsafe product or a product with insufficient warnings may, however, escape liability if he can show that the product characteristic that made the product unsafe, the defect or the hazard, was not present at the time that he sold or otherwise supplied the goods in question or, in the case of a distributor or retailer of products, who is not engaged in manufacturing or importing products, if it is unreasonable to have expected that distributor or retailer to have discovered a problem with the products, having regard to the role played by that person in marketing them.