Product liability claims in South Africa have undergone significant changes since the implementation of the Consumer Protection Act (CPA) in 2011. We have seen firsthand how this legislation has changed the landscape for both consumers and businesses.

What is product liability?

Product liability refers to the legal responsibility of manufacturers, distributors, and sellers for injuries or damages caused by defective products. Product liability claims can arise from various defects, such as design defects, manufacturing defects, and marketing defects. Before the CPA, product liability claims were governed by the principles of the common law. This meant that consumers had to rely on the delictual law of negligence or breach of contract to prove their claims against manufacturers, distributors, or sellers.

However, common law principles were often inadequate to protect consumers, especially in cases where products caused harm due to defects. For example, it was difficult for consumers to prove that a product was defective or that the manufacturer or seller was negligent. This led to a low success rate of product liability claims in South Africa.

What is the Consumer Protection Act?

The CPA is a piece of legislation that was introduced in South Africa in 2011. It aims to protect consumers from unfair business practices, promote fair competition in the marketplace, and provide consumers with better protection against unsafe and defective products. The CPA applies to all suppliers of goods and services in South Africa, including manufacturers, importers, distributors, wholesalers, and retailers. The Act provides consumers with various rights, such as the right to:

• Safe, good quality goods;
• Products that are fit for their intended purpose;
• Products that are free from defects and hazardous conditions;
• Products that comply with applicable safety and performance standards; and
• Adequate and clear product information.

How has the CPA changed product liability claims in South Africa?

The CPA has introduced a new regime of product liability claims in South Africa. Under the CPA, consumers have a direct claim against the producer, importer, distributor, or retailer of a defective product. This means that consumers can now claim from any supplier in the supply chain, depending on their level of involvement in the defect. The CPA has also introduced a new concept of strict liability for defective products. This means that a consumer does not have to prove negligence or fault on the part of the supplier to claim damages for a defective product. Instead, the consumer only needs to prove that the product was defective and caused harm.

Moreover, the CPA has expanded the scope of product liability claims to include not only physical harm but also economic harm. This means that consumers can now claim damages for economic losses, such as lost income, as a result of a defective product.

Interesting and important judgments

Since the implementation of the CPA, there have been various interesting and important court judgments that have shaped the legal landscape of product liability claims in South Africa. Here are some examples:

Chetty v Hart N.O. and Others (2016)

In this matter, the plaintiff was injured when the handle of a frying pan broke off, causing hot oil to spill onto her. The plaintiff instituted action against the manufacturer, importer, and retailer of the frying pan for damages under the CPA. The defendants argued that the plaintiff had not proved that the frying pan was defective, but the court found that the frying pan was defective because it did not comply with the applicable safety and performance standards. The court also found that the plaintiff had suffered harm as a result of the defect. The defendants were held jointly and severally liable for the damages.

This matter was especially significant as it highlighted how the CPA shifted the burden of proof from the consumer to the supplier.

Barkhuizen and Others v Napier (2016)

The plaintiffs purchased a house from the defendant. The house was built on dolomite soil, which caused it to subside and suffer structural damage. The plaintiffs instituted action against the defendant for damages under the CPA, alleging that the house was defective. The court found that the defendant had breached the implied warranty of quality and fitness for purpose under the CPA and that the plaintiffs had suffered harm as a result of the defect. The defendant was held liable for the damages. This illustrated that the CPA applies to immovable property and not just movable goods. It also demonstrates how the CPA could be used to protect consumers from defective construction and property.

MEC for Health, Gauteng v DZ (2017)

The plaintiff was injured when she fell off a hospital bed. The plaintiff claimed compensation from the hospital for damages under the CPA, alleging that the bed was defective and did not comply with applicable safety standards. The court found that the hospital had breached the implied warranty of quality and safety under the CPA and that the plaintiff had suffered harm as a result of the defect. The hospital was held liable for the damages. This matter was significant because it showed how the CPA also applies to government entities and not just private businesses.

The CPA has changed product liability claims in South Africa by providing consumers with better protection against unsafe and defective products. Under the CPA, consumers have a direct claim against any supplier in the supply chain and can claim damages for physical and economic harm caused by defective products. The CPA has introduced a new concept of strict liability for defective products, which has shifted the burden of proof from the consumer to the supplier.

If you believe you have a product liability claim, contact the Kruger Incorporated litigation team for assistance.