Prior to the Consumer Protection Act, Act 68 of 2008, (hereinafter referred to as “the Act”) coming into force, a person seeking to recover damages from a supplier in respect of defective goods could rely on either contractual remedies or the common law warranty against latent defects. A person seeking to recover damages from a manufacturer in respect of defective goods was, in the absence of a contractual relationship with said manufacturer, required to claim in delict. This last-mentioned claim, due to its very nature, necessitated inter alia that negligence on the part of the manufacturer be alleged and proved in order for the claim to succeed.

This position was confirmed in the matter of CIBA-GEIGY (Pty) Ltd v Lushof Farms (Pty) Ltd and Another 2002 (2) SA 447 (SCA). The facts of the matter are briefly as follows:

1. A farmer purchased pesticide, on recommendation from the supplier, for purposes of combatting weeds in his pear orchards.
2. The pesticide caused physical damage to the farmer’s pear trees, which resulted in crop failure.
3. The farmer instituted a claim against the supplier, based on a breach of the common law warranty against latent defects, and against the manufacturer, based on delict.
4. The supplier, in turn, claimed indemnification from the manufacturer in respect of any of the farmer’s damages for which it was held liable.
5. The court a quo upheld the farmer’s claims against both the manufacturer and the supplier as well as the supplier’s claim against the manufacturer. The manufacturer appealed this decision.

The Supreme Court of Appeal (hereinafter referred to as “the Court”) confirmed that the court a quo had been correct in upholding the farmer’s claim against the supplier and in upholding the supplier’s claim for indemnification from the manufacturer.

Turning to deal with the farmer’s claim against the manufacturer, the Court summarised the claim as follows:

1. The claim is delictual in nature, based on the manufacturer’s alleged negligence in manufacturing and marketing a product intended inter alia for use on pear trees without conducting sufficient tests of the product on such pear trees, while the application of the product in the recommended manner could potentially be harmful.
2. In so far as the farmer had not purchased the product directly from the manufacturer, its alleged liability comes down to what is sometimes known as “product liability”.

The manufacturer’s defences to the farmer’s claim were two-fold, namely that the court a quo did not make any finding in its judgment as to what its duty of care to the farmer would supposedly be and that the farmer did not prove that it had been negligent in any way.

With reference to the duty of care aspect, the manufacturer argued that this can only be founded on an agreement and, since it had no agreement with the farmer, there was thus no wrongfulness in this instance.

According to the Court, although the historical origin of the manufacturer’s liability is an agreement between the manufacturer and the distributor, the liability extends via the other contracting party to any third party who utilises the product in the prescribed manner and suffers damage as a result thereof. The Court further found that it follows as a matter of course that a manufacturer who distributes a product commercially, which, in the course of its intended use, and as the result of a defect, causes damage to the consumer thereof, acts wrongfully and thus unlawfully according to the legal convictions of the community.

With reference to the negligence aspect, the Court stated that the farmer did not require so-called strict liability (i.e. liability without proof of negligence) to be imposed on the manufacturer but rather that any liability on the part of the manufacturer would require proof of negligence. According to the Court, this accorded with the positive law which applied at the hearing of the matter.

The Court held that if a manufacturer produces and markets a product without conclusive prior tests, when the utilisation thereof in the recommended manner is potentially hazardous to the consumer, such negligence on the part of the manufacturer may expose him to delictual liability to the consumer. The Court concluded that the farmer had succeeded in proving that the manufacturer had not performed conclusive tests in respect of specifically pear trees’ sensitivity to the product in question prior to the commercial release thereof for use on such trees. The Court accordingly found that the manufacturer was negligent and delictually liable to the farmer. The appeal was dismissed.

The position as outlined in the above matter has, however, been changed by section 61(1) of the Act, which introduces strict liability of inter alia manufacturers and suppliers and which reads as follows:

“(1)  Except to the extent contemplated in subsection (4), the producer or importer, distributor or retailer of any goods is liable for any harm, as described in subsection (5), caused wholly or partially as a consequence of –

(a) Supplying any unsafe goods; or

(b) A product failure, defect or hazard in any goods; or

(c) Inadequate instructions or warnings provided to the consumer pertaining to any hazard arising from or associated with the use of any goods.
irrespective of whether the harm resulted from any negligence on the part of the producer, importer, distributor, or retailer, as the case may be.”

In terms of section 61(4), liability of a particular person in terms of the section will not arise if:

(a) The unsafe product characteristic, failure, defect, or hazard that results in harm is wholly attributable to compliance with any public regulation;

(b) The alleged unsafe product characteristic, failure, defect or hazard –

(i) Did not exist in the goods at the time it was supplied by that person to another person alleged to be liable; or

(ii) Was wholly attributable to compliance by that person with instructions provided by the person who supplied the goods to that person, in which case subparagraph (i) does not apply;

(c) It is unreasonable to expect the distributor or retailer to have discovered the unsafe product characteristic, failure, defect or hazard, having regard to that person’s role in marketing the goods to consumers;

(d) The claim for damages is brought more than three years after the –

(i) Death or injury of any natural person;

(ii) Earliest time at which a person had knowledge of the material facts about any illness of any natural person;

(iii) Earliest time at which a person with an interest in any property had knowledge of the material facts about the loss of or physical damage to that property (whether it is movable or immovable);

(iv) Latest date on which a person suffered any economic loss that results from harm contemplated in paragraphs (i) to (iii) above.

While the Act has limited application in terms of section 5 thereof, section 5(5) specifically states that:

“If any goods are supplied within the Republic to any person in terms of a transaction that is exempt from the application of this Act, those goods, and the importer or producer, distributor and retailer of those goods, are nevertheless subject to section 60 and 61.”

The Act has thus introduced the concept of strict liability when it comes to damages suffered as a result of defective products, in terms of which manufacturers and suppliers, amongst others, may be held liable. This strict liability may be applied even to transactions which would normally be exempt from the application of the Act, provided that the parties to the transaction acted in the ordinary course of business (as per the Act’s definition of a “transaction”).

The manner in which our Courts will approach the strict liability provisions of the Act remains to be seen as there has not been reported case law on the subject as yet.

Written by: Sandra Bester (LLB)
Associate, Markram Incorporated Attorneys