The scope of liability for product defects under the South African Consumer Protection Act 68 of 2008 and common law - A comparative analysis

[摘要] ENGLISH ABSTRACT : The South African Consumer Protection Act 68 of 2008 ('CPA') has introduced strict liability forharm caused by defective consumer goods. This represented a radical reform of South Africanproduct liability law, which had developed in the form of the fault-based Aquilian action. Section61 of the CPA imposes strict liability on the producer, importer, distributor and retailer for harmresulting from unsafe goods, product failures, defects or hazards or inadequate instructions orwarnings accompanying goods.It is argued that a statutory strict liability regime requires comprehensive and logically coherentregulation which should, in the interest of legal certainty, remain as consistent as possible withthe existing common law rules. The CPA's product liability framework gives rise to legaluncertainty in a number of respects.The study comprises a comparative analysis the CPA's product liability framework withreference to its common law background and similar regimes in the USA, EU and Australia,identifying relevant principles, conclusions and rules to assist South African courts andpractitioners in the interpretation and application of the product liability framework. Further, thestudy examines to what degree section 61 liability extends the scope of common law liability forharm caused by defective goods. Finally, the study investigates the likely practical impact ofsection 61 by reviewing judicial, semi-judicial or administrative handling of product liabilityclaims in South Africa since introduction of the CPA compared to the experience in foreignjurisdictions.The study undertakes applied comparative research, which involves critically evaluating thedifferences and similarities between the South African and foreign product liability frameworksand drawing conclusions on the theoretical and likely practical impact of strict product liability inSouth Africa. The efficacy of the CPA's product liability framework is measured against thefollowing criteria: (i) the CPA's legislative purposes (ii) fairness in balancing competing interestsof consumers and the supply chain (iii) legal certainty, and (iv) flexibility to adapt to a changingconsumer marketplace and technological advancements.It is argued that the legal uncertainty arising from aspects of the CPA's product liabilityframework can to an extent be remedied by way of purposive interpretation, in so far as this ispermitted by principles of statutory interpretation, having regard to the legislative policyunderpinning the CPA and, where appropriate, similar frameworks in foreign legal systems.Further, recommendations are made for legislative amendment.The study concludes that introduction of strict product liability has been a significant step in theright direction in aligning South African consumer law with that of its international tradingpartners and will prompt higher levels of product safety generally. Further, it is likely that section61 will increase the number of product liability claims due to the extended scope of liability andthat the new judicial, semi-judicial and administrative bodies created under the CPA will dealwith the vast majority of claims. However, it is the duty of the courts and legislature to providethese bodies with clearer guidelines on the interpretation of the CPA's product liabilityframework.

[发布机构] Stellenbosch University