Manufacturers will soon be strictly liable for defective products
WHEN the new Consumer Protection Bill becomes law later this year, manufacturers will be held strictly liable for defective products sold into the South African market.
This will empower all South Africans to sue manufacturers for damages, bringing South Africa (SA) in line with jurisdictions like the United States, the United Kingdom and Australia.
This is according to Eric Levenstein, a director at leading SA law firm Werksmans at a recent forum event hosted by the University of Pretoria’s Gordon Institute of Business Science.
The new legislation, which promotes a fair, accessible and sustainable marketplace for consumer products and services, entrenches every consumer’s right to purchase products that are of fair value, good quality and safe.
Levenstein said the number of claims from consumers seeking to redress the harm caused by defective purchased products will increase dramatically, since consumers will no longer have to prove it was the manufacturer’s fault.
This lifts a costly and major evidential burden. Historically, consumers had to prove “wrongfulness”, which meant:
The manufacturer did not fulfil a legal duty to reasonably prevent defective products from reaching the market; and It was the manufacturer’s fault due to negligence. “The most difficult element to prove is that damages caused are the manufacturer’s fault,” he noted.
For a consumer to succeed in a product liability claim against a manufacturer, he/she had to prove that the defect was due to negligence on the part of the manufacturer.
“So, one would have to show that the manufacturer was careless in the manufacturing process. This kind of evidence is simply not available to the consumer,” he said.
Strict liability, which is introduced in section 61 of the Bill, states that any producer, importer, distributer or retailer of a good is liable for any harm wholly or partly as a consequence of: • A product failure, defect or hazard in a good; or Inadequate instructions or warnings provided to the consumer pertaining to any hazard arising from the use of such goods. Levenstein said there is a strong case for imposing strict liability on all manufacturers, whether they are contractually linked to consumers or not. The following supports this argument: • Advertising and marketing devices used
by manufacturers, such as trade marks, lull
• consumers into a false sense of security concerning product quality. Consumers lack the means and skills to investigate the soundness of the product.
The Bill categorises the types of product defects as follows:
Harmful ingredients Foreign objects Deterioration before sale Poor design Poor preparation Lack of proper instructions or warning Poor packaging. Section 52(2) of the Bill requires manufacturers to package goods in a way that clearly displays on or within the packaging a notice that prescribes standards and provides the consumer with adequate instructions for the safe handling and use of those goods.
Levenstein said all purchased products will now come with implied warrantees of quality, not just specific warrantees against defects. This means every consumer will be entitled to buy products that are: • Reasonably suited to their originally intended purposes Of good quality In good working order Free from defects.
The Bill is designed to:
Promote consumer confidence and empowerment Develop a culture of consumer responsibility through individual and group education, vigilance, advocacy and activism Improve consumer awareness and information Encourage responsible and informed consumer choice and behaviour Provide for consistent, accessible and efficient systems of consensual resolution of disputes and systems of redress for consumers. The Bill states, “Existing provisions relating to the protection of consumers in SA are fragmented, outdated and mostly incorporated in legislation that is merely incidental to consumer protection. They are also based on principles that are no longer applicable to the values of a developing democratic society.”
“This has resulted in uneven regulation with heavy regulation in some industries and self-regulation in others. This leaves consumers and, in particular, small businesses, vulnerable to widespread abuse.”
There are currently no general rules of law relating to the consumer’s most basic rights to information, disclosure, fairness and transparency.
The current legislative framework does not address the challenges of discriminatory and unfair market practices, the proliferation of low quality and unsafe products, consumers’ lack of awareness of rights, inadequate protection and limited redress, as well as weak enforcement systems.
“The arrival of the Bill will undoubtedly revolutionise the way in which business is done in SA,” said Werksmans director Neil Kirby.