The concept of “defect” and “defectiveness” in terms of the CPA

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The move from fault-based product liability to strict product liability

Over the years fault as basis for delictual liability in South Africa came under increased attack.342 Already in 1913 in the case of Union Government v Sykes343 the court remarked that the fault principle caused unequal treatment of the consumer. 344 Later in Kroonstad Westelike Boere Kooperatiewe Vereniging Bpk v Botha and Another345 the court formulated the following rule for holding a merchant seller strictly liable for defects in goods sold (based on the Pothier-rule): “Liability for consequential damages caused by latent defects attaches to a merchant seller, who was unaware of the defect, where he publicly professes to have attributes of skill and expert knowledge in relation to the kind of goods sold…Whether a seller falls within the category mentioned will be a question of fact and degree, to be decided from all the circumstances of the case. Once it is established that he does fall within that category, the law irrebuttably attaches to him the liability in question, save only where he has expressly or by implication contracted out of it.”346 The difficulties experienced by a plaintiff with a product liability claim were exacerbated by the reality that the modern South African consumer increasingly functioned in a time of unprecedented industrialisation, automatisation and technological innovation.
347 Inequality in resources abounded as manufacturers became ever more powerful due to mass production of products. 348 In the modern market the manufacturer became remote from the user and sales were accomplished through other suppliers who had very little involvement with the production process, leaving consumers exposed to the risk of defective products and harm.349 In this regard Mcquoid-Mason argued that because the vast majority of manufacturers do not sell directly to the public, consumers would not be able to rely on the strict liability of manufacturers for consequential damages occasioned by latent product defects as imposed at common law in Kroonstad v Westelike Boere Ko-operatiewe Vereniging Bpk v Botha and Another.

The road to implementing the CPA

Prior to the introduction of the Consumer Protection Act (CPA) terms such as “consumer protection” and “consumer legislation” were not generally referred to in South Africa.374 Consumer law was “fragmented and outdated”375 although Woker points out that South African consumers were to a certain extent protected through industry specific, provincial and national legislation.376 Naudé and Eiselen indicate that since 2000 a number of comprehensive consumer protection laws have however been enacted, providing wider ranging measures of consumer protection.377 The first step in this direction was the enactment of the Electronic Communications and Transactions Act378 in 2002 that provides protection to online consumers.
Another such step was the enactment of the National Credit Act379 that came into full effective operation in June 2007 and also introduced various measures to protect consumers, although aimed specifically at consumer protection in the credit market. However over the years no comprehensive piece of legislation existed that provided extensively for general consumer protection measures – the closest South Africa came to providing some general consumer protection measures was by enacting the Consumer Affairs (Unfair Business Practices) Act (hereinafter referred to as UBPA) in 1988.

Purpose and objectives of CPA

In terms of the long title the objectives of the CPA are to: promote a fair, accessible and sustainable marketplace for consumer products and services and for that purpose to establish national norms and standards relating to consumer protection, 410 [and] to provide for improved standards of consumer information. The preamble to the Act further provides that: it is necessary to develop and employ innovative means to protect the interests of all consumers, ensure accessible, transparent and efficient redress for consumers who are subjected to abuse or exploitation in the marketplace…a law is to be enacted in order to promote and protect the economic interests of consumers… [and] protect consumers from hazards to their well-being and safety

The CPA and the preservation of the consumer’s common law rights

The CPA ‘s objective to extend the best and widest possible protection to consumers is further borne out by section 2(10) which states that “no provision of the CPA must be interpreted so as to preclude a consumer from exercising any rights afforded in terms of the common law.” Accordingly section 2(10) serves to preserve the consumer’s common law rights. As pointed out by Barnard, this preservation of common law rights extends only to consumers and not to suppliers.457 Naudé and Eiselen refer to section 2(10) as a “general savings clause”, stating that it prohibits a reading of the CPA that results in the limitation of any common law-remedy which may have been available to the consumer.458 They further indicate that section 2(10) must be viewed against the backdrop of the presumption that the legislature does not intend to alter the common law unless clearly stated in a particular statute. Accordingly they remark that section 2(10) confirms that the CPA does not revoke or alter the common law and must be read to be capable of co-existing with the common law.

Table of Contents :

• Part A
• Chapter 1: General Introduction
  • 1. Introduction
  • 2. Defectiveness as foundational concept
  • 3. Tracing the origins and evolution of modern product liability
  • 3.1 The development of product liability in the USA
  • 3.2 The development of product liability in the EU and South Africa
  • 4. Research statement
  • 5. Research objectives
  • 6. Selection of comparative jurisdictions
  • 6.1 European Union
  • 6.2 Australia
  • 7. Delineation and limitations
  • 8. Referencing technique
  • 9. Outline of chapters
• Part B: South African jurisdiction
• Chapter 2: The South African common law of product liability ex delicto
  • 1. Introduction
  • 2. Concept of “defect” for purposes of common law product liability ex delicto
  • 3. Overview of other elements of common law product liability ex delicto
  • 3.1 Wrongfulness
  • 3.2 Negligence
    • 3.2.1 The interaction between negligence and wrongfulness
    • 3.2.2 Application of the res ipsa loquitur doctrine
  • 3.3 Causation
  • 3.4 Harm
  • 4. Defences under the common law of product liability ex delicto
  • 4.1 Introduction
  • 4.2 Consent
  • 4.3 Contributory negligence
  • 4.4 Prescription
  • 5. The move from fault-based product liability to strict product liability
  • 6. Conclusion
• Chapter 3: The CPA and strict product liability
  • 1. The road to implementing the CPA
  • 2. The Consumer Protection Act 68 of
  • 2.1 Introduction
  • 2.2 Purpose and objectives of CPA
  • 2.3 Scope of application of CPA
    • 2.3.1 Introduction
    • 2.3.2 Relevant definitions
    • 2.3.3 Exempt transactions
  • 2.4 The CPA and the preservation of the consumer’s common law
  • rights
  • 3. Strict product liability in terms of section 61 of the CPA
  • 3.1 The provisions of section
  • 3.2 Discussion
    • 3.2.1 Special application of the CPA for purposes of product liability
    • 3.2.2 Proof of negligence not required
  • 4. Conclusion
• Chapter 4: The concept of “defect” and “defectiveness” in terms of the CPA
  • 1. Introduction
  • 1.1 The relevance of section
  • 1.2 The multi-layered concept of defectiveness in section
  • 2. Unpacking the concepts of “defect” and “defectiveness”
  • 2.1 Exploring the significance of section 55 of the CPA
  • 2.2 Section 55 and the definition of “defect” in section
  • 2.3 The definition of “defect” as per section 53(1)(a)
    • 2.3.1 Section 53(1)(a)(i)
    • 2.3.2 Section 53(1)(a)(ii)
    • 2.3.3 The consumer expectations test in section
  • 2.4 Concluding remarks on the concept of defect
  • 2.5 Other definitions relating to the broader concept of
  • “defectiveness” for purposes of section
    • 2.5.1 Section 61(1)(a): Unsafe
    • 2.5.2 Section 61(1)(b): Failure
    • 2.5.3 Section 61(1)(b): Hazard
    • 2.5.4 Section 61(1)(c): inadequate instructions or warnings
    • 2.5.5 Must the defect be latent or patent?
  • 3. Conclusion
• Chapter 5: Statutory defences against product liability
  • 1. Introduction
  • 2. Defences available in terms of the Consumer Protection Act
  • 2.1 Introduction
  • 2.2 Analysis of statutory defences introduced by the CPA
    • 2.2.1 Section 61(4)(a): compliance with public regulation
    • 2.2.2 Section 61(4)(b)(i): defect did not exist at time of supply
    • 2.2.3 Section 64(4)(b)(ii): compliance with instructions by prior supplier
  • 2.2.4 Section 61(4)(c): not reasonable to discover defect
  • 2.2.5 Section 61(4)(d): prescription
  • 3. The impact of section 2(10): retention of consumer’s common law rights
  • 4. Conclusion
• Part C: Comparative jurisdictions
• Chapter 6: Product liability in the European Union
  • 1. Introduction
  • 2. The 1985 EU Product Liability Directive
  • 3. Review of the Directive
  • 4. The concept of “defect” for purposes of the Product Liability Directive
  • 5. The statutory defences provided by the Directive
  • 5.1 Article 7: Statutory product liability specific defences
    • 5.1.1 Article 7(a): product not put into circulation
    • 5.1.2 Article 7(b): defect not existing at time of supply
    • 5.1.3 Article 7(c): product not supplied for gain or in the course of busines
    • 5.1.4 Article 7(d): compliance with public regulations
    • 5.1.5 Article 7(e): development risk defence
    • 5.1.6 Article 7(f): existence of a design defect
  • 5.2 Limitation of defences
    • 5.2.1 Prescription
    • 5.2.2 Period of repose
  • 6. Final remarks
  • 7. Conclusion
• Chapter 7: Product liability in Australia
  • 1. The development of the Australian strict product liability regime
  • 1.1 Shift from fault-based liability into strict liability
  • 2. Product liability in terms of the ACL
  • 2.1 Introduction
  • 2.2 “Safety defect” as a basis for product liability
  • 2.3 Liability for loss or damage
    • 2.3.1 Liability for loss or damage suffered by an injured individual
    • 2.3.2 Liability for loss or damage suffered by a person other than an
  • injured individual
    • 2.3.3 Liability for loss or damage suffered by a person if other goods
    • are destroyed or damaged
    • 2.3.4 Liability for loss or damage suffered by a person if land,
  • buildings or fixtures are destroyed or damaged
  • 2.4 Statutory defences
  • 2.5 Limitation periods
  • 3. The concept of “defect” in Australian product liability law
  • 4. Statutory defences to defective goods actions
  • 4.1 Introduction
  • 4.2 Section 142(a): No safety defect exists at the time of supply
  • 4.3 Section 142(b): Compliance with a mandatory standard
  • 4.4 Section 142(c): State of scientific or technical knowledge (development
  • risk defence)
  • 4.5 Section 142(d): Goods was comprised in another good
  • 4.6 Limitation defences
    • 4.6.1 Prescription
    • 4.6.2 Period of repose
  • 5. Conclusion
• Part D
• Chapter 8: Conclusions and Recommendations
  • 1. General conclusions
  • 2. Conclusions regarding the product liability regime introduced by the CPA
  • 3. Recommendations
  • 4. Suggestions for further research
  • Bibliography

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Strict product liability in South Africa: An analysis of the concept of « defect » and the statutory defences available to the supply chain