A critical analysis of product liability under the Consumer Protection Act 68 of 2008.

Abstract

Product liability can be described as a situation where a supplier is held accountable to a consumer for the supply of defective goods. The concept of product liability has its roots in the common law. Under the common law, consumers could use the law of delict or the law of contract to sue for defective goods that were supplied to them,. However, the common law exhibited various shortcomings in terms of the protection afforded to the consumer. For example, a consumer was required to prove fault on the part of a supplier of defective goods, which placed a difficult burden upon a consumer seeking to obtain redress for such defective goods. Circumstances often arose where a consumer was unable to discharge the burden. As a result, a consumer was often left without any effective remedy. The Consumer Protection Act 68 of 2008, in order to remedy this situation, provides the consumer with greater protection by no longer requiring a consumer to prove fault on the part of a supplier. A strict liability regime has therefore been created. Many academics have applauded the Act in this respect. However, the defences available to a supplier in terms of the Act have exposed the Act to some criticism. What remains to be seen is how the courts will interpret and apply this strict liability regime and how they will apply the defences. However, this is yet to be seen as no judgments on the operation of a product liability claim made in terms of the Act have been reported. This may soon change as two consumers have recently launched a claim against Builders Warehouse for the supply of allegedly defective ladders. An analysis of the Builders Warehouse case is therefore useful in order to understand what approach South African courts will adopt to the application of the provisions of the Act, particularly in light of the fact that the Act is influenced by the European Directive on product liability, thereby enabling us to see whether the South African law will follow the European lead. Furthermore certain recommendations are made for reform on effective ways that consumers can enforce their rights.