Before the advent of the Consumer Protection Act (CPA), the common law determined the principles of product liability in South Africa (the liability that arises when a product supplied by a manufacturer, distributor or supplier contains a defect which causes financial loss or damage either to a person or to his property).

In terms of the common law, the manufacturer, retailer or distributor of the product could only be found liable for harm caused to a consumer or their property by reason of a defective product if there was a contractual relationship between them that provided for such a claim, if the consumer could prove negligence on the part of the supplier or manufacturer. In other words, liability was fault based.

This often left consumers without an effective remedy against product manufacturers, designers or distributors as they seldom had a contract with anyone other than the retailer and were unable to meet the onus of proving the culpable party's negligence.

The CPA introduces far reaching changes to the law of product liability and introduces the concept of strict liability for the first time into South African law. In terms of Section 61 of the CPA, a producer, importer, distributor or retailer of goods is liable for any harm or damage caused wholly or partly as a result of:

• the supply of unsafe goods,
• a product failure,
• defect or hazard in the goods,
• inadequate instructions or warnings provided to the consumer pertaining to any risk associated with the use of the goods regardless of whether the harm resulted from any negligence on the part of the producer, importer, distributor or retailer.

This liability is joint and several, which means that a consumer can elect to take action against any one of the parties in the supply chain - even if they don't have a contract with that party and even where they are unable to establish negligence. Furthermore, suppliers, manufacturers and distributors may not contract out of this strict liability.

Although liability is not fault based in terms of the Act, and is joint and several, the strict liability created is not absolute and a number of defenses remain available to a party faced with a product liability claim. For example, a party may contend that:
the product defect or hazard is wholly attributable to compliance with a public regulation, it is unreasonable to expect the distributor or supplier to have discovered the defect having regard to the role they played in the supply chain, or the defect did not exist in the product when it was supplied by that party to another liable party, or was wholly attributable to compliance with instructions provided by the product supplier.

It can be argued that the above defences still allow a supplier or manufacturer to rely on an absence of negligence in certain circumstances; but even so, the Act significantly shifts the burden of proof from the consumer to the relevant parties in the supply chain.

Written by Brigit Rubinstein, Director, Dispute Resolution at Cliffe Dekker Hofmeyr