PRODUCT LIABILITY: A CHANGING PLAYING FIELD?

Abstract

Product liability in South Africa has historically been classified as falling within the sphere of the law of delict generally; with fault being a necessary element for liability. However, this historical classification has changed with the dawn of a new era in consumer law. The Consumer Protection Act 68 of 2008, and more specifically section 61, seems to impose liability without fault on certain parties for harm caused by their goods or products. Section 61, on the face of it, appears to be extremely beneficial for consumers who wish to tackle larger companies and defendants in product liability cases. In practice, though, this may not be the case as section 61 shares a number of similarities with the European Directive on Product Liability of 1985 and the United Kingdom Consumer Protection Act 1987, neither of which has been entirely successful in eliminating fault. This article considers the common-law system which has been applied to product liability cases in the past, and thereafter considers the provisions of the Consumer Protection Act which amend the principles applicable, in order to determine whether section 61 will benefit consumers. The article will further look at how similar provisions in Europe have been interpreted and applied by courts in order to assess the potential problems which might arise from
section 61 in South Africa. Once these problems have been identified, this article will address a provision which is unique to the South African statute which may go some way in bringing about a different result in South Africa, thereby avoiding the problems faced in Europe.