A critical examination of Section 61 of the Consumer Protection Act 68 of 2008 and its implications for those in the supply chain.

Abstract

Product liability in South Africa fell under the common law prior to introduction of the Consumer Protection Act 68 of 2008. Under the common law consumers could claim for any damages that they suffered as a result of purchasing defective goods in terms of the law of sale and the law of delict, however, their remedies were limited. Another problem consumers faced was proving the element of fault which was an essential element in order for a claim under the law of delict to be successful. Consumers could often not prove fault because they had little or no knowledge of the manufacturing process. Commentators, as well as decided cases, called for the introduction of strict product liability. Finally the courts said that if strict product liability were to be introduced it would be the job of the legislature to do so. The legislature thereafter introduced a form of strict product liability in the form of section 61 of the Consumer Protection Act that altered the common law position. This provision imposed a form of strict liability on all entities in the supply chain: producers, importers, distributors and retailers. Parties in the supply chain can now be held liable irrespective of fault. This drastically increases the potential risk for all entities in the supply chain. Section 61 also widens the scope of people who could be regarded as suppliers so now those who were not viewed as suppliers in terms of the common law can now be regarded as suppliers in terms of section 61. This provision also includes certain defences which the entities can rely on. These issues are considered in this dissertation. Every entity in the supply chain will have to consider product liability insurance therefore product liability insurance is explained as well as the importance of this insurance and the terms and conditions of a standard type policy. Lastly, conclusions and recommendations are made to make those in the supply chain aware of their liability as well as the steps they will need to take in order to protect themselves in the event that they face product liability claims.