Browsing by Author "Kriek, Carla"

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    The scope of liability for product defects under the South African Consumer Protection Act 68 of 2008 and common law - A comparative analysis
    (Stellenbosch : Stellenbosch University, 2017-03) Kriek, Carla; Loubser, Max; Stellenbosch University. Faculty of Law. Dept. of Public Law
    ENGLISH ABSTRACT : The South African Consumer Protection Act 68 of 2008 (‘CPA’) has introduced strict liability for harm caused by defective consumer goods. This represented a radical reform of South African product liability law, which had developed in the form of the fault-based Aquilian action. Section 61 of the CPA imposes strict liability on the producer, importer, distributor and retailer for harm resulting from unsafe goods, product failures, defects or hazards or inadequate instructions or warnings accompanying goods. It is argued that a statutory strict liability regime requires comprehensive and logically coherent regulation which should, in the interest of legal certainty, remain as consistent as possible with the existing common law rules. The CPA’s product liability framework gives rise to legal uncertainty in a number of respects. The study comprises a comparative analysis the CPA’s product liability framework with reference 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 and practitioners in the interpretation and application of the product liability framework. Further, the study examines to what degree section 61 liability extends the scope of common law liability for harm caused by defective goods. Finally, the study investigates the likely practical impact of section 61 by reviewing judicial, semi-judicial or administrative handling of product liability claims in South Africa since introduction of the CPA compared to the experience in foreign jurisdictions. The study undertakes applied comparative research, which involves critically evaluating the differences and similarities between the South African and foreign product liability frameworks and drawing conclusions on the theoretical and likely practical impact of strict product liability in South Africa. The efficacy of the CPA’s product liability framework is measured against the following criteria: (i) the CPA’s legislative purposes (ii) fairness in balancing competing interests of consumers and the supply chain (iii) legal certainty, and (iv) flexibility to adapt to a changing consumer marketplace and technological advancements. It is argued that the legal uncertainty arising from aspects of the CPA’s product liability framework can to an extent be remedied by way of purposive interpretation, in so far as this is permitted by principles of statutory interpretation, having regard to the legislative policy underpinning 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 the right direction in aligning South African consumer law with that of its international trading partners and will prompt higher levels of product safety generally. Further, it is likely that section 61 will increase the number of product liability claims due to the extended scope of liability and that the new judicial, semi-judicial and administrative bodies created under the CPA will deal with the vast majority of claims. However, it is the duty of the courts and legislature to provide these bodies with clearer guidelines on the interpretation of the CPA’s product liability framework.