1. THE CONSUMER PROTECTION ACT
Eric Levenstein
Director, Werksmans Inc
19 July 2010
A New Playing Field For Product Liability

2. Consumer Protection Legislation?
Worldwide concern for consumer rights.
National Credit Act, 2005 – new playing field for the advance of credit
Consumer Protection Act, 2008
Brings South Africa into line with foreign jurisdictions (USA, UK, Australia)
Recognition of internationally recognized consumer rights 1 2 3 4

3. New Consumer Protection Act, 2008 Product Liability?
Recognition of the exploitation by manufacturers of consumer rights when defective goods supplied into the market
Rights of historically disadvantaged persons
Recognition of the need to protect the interests of all consumers when purchasing defective products
Need for protection of consumers from hazards to their well-being and safety

4. Consumer Protection Act, 2008 Rights of redress for Consumers?
Big business vs little consumer?
Levels of literacy an issue?
Concerns about consumer’s rights of access to courts and ability to claim damages (cost of litigation)
Legislation recognizes…. 1 2
Need to develop effective means of redress for consumers

5. The Consumer Protection Act – A New Playing Field for Manufacturers Liability?
The Consumer Protection Act introduces strict liability for manufacturers in respect of defective products sold into the South African market.
This will impact on production and insurance costs for manufacturers as well as have an effect on the number of claims brought by consumers seeking redress for damages caused by the supply of defective products.

6. Law of Delict and Product Liability
In order for any person to sue for damages flowing from manufacturers liability one will need to establish the elements of a delict need to prove/establish:
Wrongfulness
Manufacturer has a legal duty according to the legal convictions of the community (boni mores) reasonably to prevent defective products from reaching the market

7. Law of Delict and Product Liability continued
Negligence (fault)
Once wrongfulness has been established there must also (at least) be negligence on the part of the manufacturer in order to find liability
Manufacturer’s conduct must be tested against the care that a reasonable person would have exercised in the particular circumstances
What was reasonably foreseeable?
Strict liability (no fault)

8. Definition of Product Liability
“The basis and extent to which a manufacturer or supplier of some product should be liable to the ultimate consumer or user for harm done by reason of a defect in design or manufacture”

9. Types of Product Defects
These are categorised as follows: 1
Harmful ingredients
Foreign objects
Deterioration before sale
Bad design
Poor preparation
Lack of proper instructions or warning
Bad packaging 2 3 4 5 6 7

10. Types of Product Defects continued
Examples: South Africa / UK / USA
Harmful ingredients:
Anthrax in horse fodder
Arsenic in horse fodder
Defective cement/bricks used in construction
Defective pesticide*
Dangerous insecticide**
Harmful chemical in underwear causing dermatitis
* Kroonstad Westilike Boere Ko-op Vereniging vs Botha 1964
** Mordt NO vs Union Government 1939

11. Types of Product Defects continued
Deterioration before sale
Bone tainted and maggoty ham
Canned tongue causing Ptomaine poisoning
Musty flour
Bad design
Car with defectively designed steering
Grass cutter that ejects stones
Hotel with a defectively designed fire place (Cathkin Peak Hotel vs. JD Malesch Architects 1993)

12. Types of Product Defects continued
Poor preparation
Defective valve and cylinder placed in tractor
Wrong variety of wheat sold
Borer beetle in furniture
Whale oil mixed with sperm oil instead of pure whale oil
Lack of proper instructions or warnings
No warning in instructions about pumping too much air into a petrol lamp causing an explosion
Wrong labels on dipping drums (Lennon Ltd vs BSA Co 1914 AD)

13. Types of Product Defects continued
Bad packaging
Hill vs James Crawe Ltd 1978 (Defective Packaging Case)
For convenience, most product defects can be divided up into four broad categories:
Manufacturing or production defects
Design defects
Information defects
Potentially dangerous goods

14. Liability of Manufacturers
In order for a third party consumer to succeed in a product liability claim against a manufacturer, he or she will generally have to prove that the defect was due to the negligence of the manufacturer.
Negligence generally means that one will need to show that the manufacturer was careless in the production process.
This is often a difficult onus to discharge:
for indigent consumers; and
at great cost in the litigation process to the consumer.

15. Strict Liability for all Manufacturers?
There is a strong argument that there should be strict liability for all manufacturers irrespective of whether or not they are contractually linked to consumers. Argument is supported by -
The manufacturer is in the best position to reduce the risk
Losses suffered by individual consumers may be overwhelming to them but can be insured against by the manufacturer and distributed amongst the public as a cost of doing business
The manufacturer is responsible for placing the product in the market
Strict liability against the seller means that the latter must in turn sue the manufacturer, which leads to needless circuitry and litigation; the consumer should be able to sue the manufacturer directly in strict liability without privity
Consumers lack the means and skill to investigate the soundness of the product for themselves
Advertising and marketing devices used by manufacturers, such as trade marks, lull consumers into a false sense of security concerning the quality of the goods.

16. Consumer Protection Act (“CPA”)
Consumer Protection Act (“CPA”) Important Definitions impacting on “Product Liability”
“Goods” includes-
anything marketed for human consumption;
any tangible object not otherwise contemplated in paragraph (a), including any medium on which anything is or may be written or encoded;
any literature, music, photograph, motion picture, game, information, data, software, code or other intangible product written or encoded on any medium, or a licence to use any such intangible product;
a legal interest in land or any other immovable property, other than an interest that falls within the definition of “service” in this section; and
gas, water and electricity.

17. in respect of a person acting in the ordinary course of business-
Consumer Protection Act (“CPA”) Important Definitions impacting on “Product Liability”
“transaction” means-
in respect of a person acting in the ordinary course of business-
an agreement between or among that person and one or more other persons for the supply or potential supply of any goods or services in exchange for consideration; or
the supply by that person of any goods to or at the direction of a consumer for consideration; or
the performance by, or at the direction of, that person of any services for or at the direction of a consumer for consideration; or
an interaction contemplated in section 5(6), irrespective of whether it falls within paragraph (a) – (mainly supply of goods/services to clubs, associations, franchise agreements)

18. Consumer Protection Act (“CPA”)
Consumer Protection Act (“CPA”) Important Definitions impacting on “Product Liability”
“consumer”, in respect of any particular goods or services, means-
a person to whom those particular goods or services are marketed in the ordinary course of the supplier’s business;
a person who has entered into a transaction with a supplier in the ordinary course of the supplier’s business, unless the transaction is exempt from the application of this Act by section 5(2) or in terms of section 5(3);
if the context so requires or permits, a user of those particular goods or a recipient or beneficiary of those particular services, irrespective of whether that user, recipient or beneficiary was a party to a transaction concerning the supply of those particular goods or services; and
a franchisee in terms of a franchise agreement, to the extent applicable in terms of section 5(6)(b) to (e)

19. Section 5(2) - this Act does not apply to any transaction-
Consumer Protection Act (“CPA”) Limit on type of Transaction (exemptions)
Section 5(2) - this Act does not apply to any transaction-
in terms of which goods or services are promoted or supplied to the State;
in terms of which the consumer is a juristic person whose asset value or annual turnover, at the time of the transaction, equals or exceeds the threshold value determined by the Minister in terms of section 6.
Section 5(5) - If any goods are supplied within the Republic to any person in terms of a transaction that is exempt from the application of this Act, those goods, and the importer or producer, distributor and retailer of those goods, respectively, are nevertheless subject to sections 60 and 61. 1

20. Consumer Protection Act (“CPA”) Jurisdiction?
Section 5(8) - the application of this Act in terms of subsections (1) to (7) extends to a matter irrespective of whether the supplier-
resides or has its principal office within or outside the Republic

21. Consumer Protection Act (“CPA”) Threshold Applicable
Section 6(1) - on the early effective date as determined in accordance with item 2 of Schedule 2, and subsequently at intervals of not more than five years, the Minister, by notice in the Gazette, must determine a monetary threshold applicable to the size of the juristic person for the purposes of section 5(2)(b)
Section 6(2) - the initial threshold determined by the Minister in terms of this section takes effect on the general effective date as determined in accordance with item 2 of Schedule 2, and each subsequent threshold takes effect six months after the date on which it is published in the Gazette.

22. Consumer Protection Act (“CPA”)
New basis for product liability action in South Africa?
Consumer has right to fair value, good quality and safety (Sections 53 to 61)
Important sections:
Section 55 – Consumers right to safe, good quality goods
Section 56 – Implied warranty of quality
Section 58 – Warning concerning fact and nature of risks
Section 61 – Liability for damage caused by goods (strict liability)

23. Consumer Protection Act
Right to Fair Value, Good Quality and Safety (Section 53)
In this Part, when used with respect to any goods, component of any goods, or services-
“defect” means-
any material imperfection in the manufacture of the goods or components, or in performance of the services, that renders the goods or results of the service less acceptable than persons generally would be reasonably entitled to expect in the circumstances; or
any characteristic of the goods or components that renders the goods or components less useful, practicable or safe than persons generally would be reasonably entitled to expect in the circumstances;
“failure” means the inability of the goods to perform in the intended manner or to the intended effect;

24. Consumer Protection Act continued…
“hazard” means a characteristic that-
has been identified as, or declared to be, a hazard in terms of any other law, or
presents a significant risk of personal injury to any person, or damage to property, when the goods are utilized; and
(d) “unsafe” means that, due to a characteristic, failure, defect or hazard, particular goods present an extreme risk of personal injury or property damage to the consumer or to other persons.

25. Consumer Protection Act continued…
Consumers rights to demand quality service (Section 54)
(1) When a supplier undertakes to perform any services for or on behalf of a consumer, the consumer has a right to-
the timely performance and completion of those services, and timely notice of any unavoidable delay in the performance of the services;
the performance of the services in a manner and quality that persons are generally entitled to expect;
the use, delivery or installation of goods that are free of defects and of a quality that persons are generally entitled to expect, if any such goods are required for performance of the services; and
the return of any property or control over any property of the consumer in at least as good a condition as it was when the consumer made it available to the supplier for the purpose of performing such services,
having regard to the circumstances of the supply, and any specific criteria or conditions agreed between the supplier and the consumer before or during the performance of the services.

26. Consumer Protection Act continued…
Section 54…..
If a supplier fails to perform a service to the standards contemplated in subsection (1), the consumer may require the supplier to either-
remedy any defect in the quality of the services performed or goods supplied; or
refund to the consumer a reasonable portion of the price paid for the services performed and goods supplied, having regard to the extent of the failure.

27. Consumer Protection Act Section 55 - Consumers’ Rights to Safe, Good Quality Goods
Section 55(1) does not apply to goods bought at an auction
Section 55(2) states that every consumer has a right to receive goods that:
are reasonably suitable for the purpose for which they are generally intended;
are of good quality, good working order and free of defects;
will be useable and durable for a reasonable period of time, having regard to the use for which they would normally be put and to all the surrounding circumstances of their supply;
comply with any applicable standards set under the Standards Act, 1993.

28. Consumer Protection Act Section 55 - Consumers’ Rights to Safe, Good Quality Goods continued
Section 55(3) states that if a consumer has specifically informed the supplier of the purpose for which the consumer wishes to acquire any goods, or the use to which the consumer intends to apply those goods, and the supplier:
ordinarily offers to supply such goods; or
acts in a manner consistent with being knowledgeable about the use of those goods,
the consumer has a right to expect that the goods are reasonably suitable for the specific purpose that the consumer has indicated.

29. Consumer Protection Act Section 55 - Consumers’ Rights to Safe, Good Quality Goods continued
Section 55(4) states in determining whether any particular good satisfies the requirements of subsection 55(2) or (3), all of the circumstances of the supply of those goods must be considered, including but not limited to:
the manner and purpose for which the goods were marketed, packaged and displayed, the use of any trade description or mark, any instructions for, or warnings with respect to the use of the goods;
the range of things that might reasonably be anticipated to be done with or in relation to the goods; and
the time when the goods were produced and supplied.

30. Consumer Protection Act Section 55 - Consumers’ Rights to Safe, Good Quality Goods continued
Section 55(5) states that:
it is irrelevant whether a product failure or defect was latent or patent, or whether it could have been detected by a consumer before taking delivery of the goods; and
a product failure or defect may not be inferred in respect of particular goods solely on the grounds that better goods have subsequently become available from the same or any other producer or supplier.
Section 55(6) states that subsection (2)(a) and (b) do not apply to a transaction if the consumer:
has been expressly informed that particular goods were offered in a specific condition; and
has expressly agreed to accept the goods in that condition, or knowingly acted in a manner consistent with accepting the goods in that condition.

31. Consumer Protection Act Section 56 – Implied Warranty of Quality
Section 56(1) states that there will be an implied provision that the producer or importer, the distributor and the retailer all warrant that the goods comply with the requirements and standards contemplated in section 55, except to the extent that those goods have been altered contrary to the instructions, or after leaving the control, of the producer or importer, a distributor or the retailer, as the case may be.

32. Consumer Protection Act Section 56 – Implied Warranty of Quality continued
Section 56(2) states that within six months after the delivery of any goods to a consumer, the consumer may return the goods to the supplier, without penalty and at the supplier’s risk and expense, if the goods fail to satisfy the requirements and standards contemplated in section 55, and the supplier must either:
repair or replace the failed, unsafe or defective goods; or
refund to the consumer the price paid by the consumer for the goods,
at the option of the supplier, subject to subsection 56(3).

33. Consumer Protection Act Section 56 – Implied Warranty of Quality continued
Section 56(3) states that if a supplier elects in terms of subsection 56(2) to repair any particular goods or any component of any such goods, and within three months after that repair, the failure, defect or unsafe feature has not been remedied, or a further failure, defect or unsafe feature is discovered, the supplier must:
replace the goods; or
refund to the consumer the price paid by the consumer for the goods.

34. Consumer Protection Act Section 58 – Warning Concerning Fact and Nature of Risks
In terms of section 58(1) the supplier of any activity or facility (as defined) that is subject to any:
risk of an unusual character or nature;
risk of which a consumer could not reasonably be expected to be aware, or which an ordinarily alert consumer could not reasonably be expected to contemplate, in the circumstances; or
risk that could result in serious injury or death,
must specifically draw the fact, nature and potential effect of that risk to the attention of consumers in a form and manner that meets the standards set out in section 49.

35. Consumer Protection Act Section 49 – Notice Required for Certain Terms and Conditions
Section 49 is very specific in terms of the manner in which notices must be given to consumers. In particular there is an obligation on suppliers to specifically draw the fact, nature and potential effect of risks to the attention of the consumer in a manner and form that satisfies the requirements of subsections 49(3) to (5), and the consumer must have assented to that provision or notice by signing or initialing the provision or otherwise acting in a manner consistent with acknowledgment of the notice, awareness of the risk and acceptance of the provision.

36. Consumer Protection Act Section 49 – Notice Required for Certain Terms and Conditions continued
In terms of section 49(3) a provision, condition or notice contemplated in terms of subsection 49(1) or (2) must be written in plain language as described in section 22.
In terms of section 49(4) the fact, nature and effect of the provision or notice contemplated in subsection (1) must be drawn to the attention of the consumer:
in a conspicuous manner and form that is likely to attract the attention of an ordinarily alert consumer, have regard to the circumstances; and
before the earlier of the time at which the consumer-
enters into the transaction or agreement, begins to engage in the activity, or enters or gains access to the facility; or
is required or expected to offer consideration for the transaction or agreement.

37. Consumer Protection Act Section 49 – Notice Required for Certain Terms and Conditions continued
In terms of section 49(5) the consumer must be given an adequate opportunity in the circumstances to receive and comprehend the provision or notice as contemplated in subsection 49(1).

38. Consumer Protection Act Section 22 – Right to Information in Plain and Understandable Language
In terms of section 22(1) the consumer has a right to information in plain and understandable language and the producer of a notice must produce, provide and display that notice in the prescribed form as set out in the Act as well as in plain language.
In terms of section 22(2) any notice, document or visual representation would be in plain language if it is reasonable to conclude that an ordinary consumer of the class of persons for whom the notice, document or visual representation is intended, with average literacy skills and minimal experience as a consumer of the relevant goods or services, could be expected to understand the content, significance and import of the notice.
Cost Implication?

39. Consumer Protection Act Section 60 – Safety Monitoring and Recall
National Consumer Commission to set up industry-wide codes of practice for-
receipt of notice of consumer complaints or reports for product failures, defects or hazards
return of goods because of a failure, defect or hazard
personal injury, illness or damage to property caused as a result of a product failure, defect or hazard
monitoring the extent of injury or damage resulting from the use of those goods
analysis of information with the object of detecting or identifying any previously undetected or unrecognized potential risk to the public from the use of or exposure to those goods
conducting investigations into the nature, causes, extent and degree of the risk pertaining to those goods;
notification to consumers of the nature, causes, extent and degree of the risk pertaining to those goods; and
if the goods are unsafe, recall those goods for repair replacement or refund.

40. Consumer Protection Act Section 60 – Safety Monitoring and Recall continued…
If the Commission has reasonable grounds to believe that any goods may be unsafe, or that there is a potential risk to the public from the continued use of or exposure to the goods, and the producer or importer of those goods has not taken any steps required by an applicable code contemplated in subsection (1), the Commission, by written notice, may require that producer to –
conduct an investigation contemplated in subsection (1); or
carry out a recall programme on any terms required by the Commission.

41. Consumer Protection Act Section 61 – Liability for Damage Caused by Goods (Strict Liability)
This section does away with the need for the consumer to prove negligence/fault in any action for delict or claim for damages.
The producer or importer, distributor or retailer of any goods is liable for any harm, as described in section 61(6) caused wholly or partly a consequence of:
supplying any unsafe goods;
a product failure, defect or hazard in any goods; or
inadequate instructions or warnings provided to the consumer pertaining to any hazard arising from or associated with the use of any goods,
irrespective of whether the harm resulted from any negligence on the part of the producer, importer, distributor or retailer, as the case may be.

42. Consumer Protection Act Section 61 – Liability for Damage Caused by Goods (Strict Liability) continued
Section 61(5) provides an exclusion of liability. It states that the liability of a particular person in terms of section 61 does not arise if-
the unsafe product characteristic, failure, defect or hazard that results in harm is wholly attributable to compliance with any public regulation;
The alleged unsafe product characteristic, failure, defect or hazard:
did not exist in the goods at the time it was supplied by that person to another person alleged to be liable; or
was wholly attributable to compliance by that person with instructions provided by the person who supplied the goods to that person, in which case subparagraph (i) does not apply;

43. Consumer Protection Act Section 61 – Liability for Damage Caused by Goods (Strict Liability) continued
Section 61(5)
it is unreasonable to expect the distributor or retailer to have discovered the unsafe product characteristic, failure, defect or hazard, having regard to:
that person’s role in marketing the goods to consumers; and
the state of scientific and technical knowledge at the time the goods were under the control of that person; or
the claim for damages is brought more than three years after the:
death or injury of a person contemplated in subsection (6)(a);
earliest time at which a person had knowledge of the material facts about an illness contemplated in subsection (6)(b); or
earliest time at which a person with an interest in any property had knowledge of the material facts about the loss or damage to that property contemplated in subsection (6)(c); or
the latest date on which a person suffered any economic loss contemplated in subsection (6)(d).

44. Consumer Protection Act Section 61 – Liability for Damage Caused by Goods (Strict Liability) continued
Section 61(6) states that harm for which a person may be held liable in terms of this section include:
the death of, or injury to, any natural person;
an illness of any natural person;
any loss of, or physical damage to, any property, irrespective of whether it is movable or immovable; and
any economic loss that results from harm contemplated in paragraph (a), (b) or (c).

45. Consumer Protection Act Can the Supplier Require the Consumer to waive the liability of the Supplier?
Section 48(1)…. a supplier must not –
(c) Require a consumer or other person to whom any goods or services are supplied at the direction of the consumer –
(i) to waive any rights;
(ii) assume any obligation; or
(iii) waive any liability of the supplier
on terms that are unfair, unreasonable or unjust, or impose any such terms as a condition of entering into a transaction

46. Importation of Foreign Goods?
The effect that the CPA will have on the importation of foreign goods should not be underestimated
Section 5(8) states that the application of the Act will extend to suppliers irrespective of whether the supplier…. “resides or has its principal office within or outside the Republic”
“Importer” is defined as any person who brings goods or causes them to bring goods from outside the Republic into the Republic with the intention of making them available for supply in the ordinary course of business – clearly applies to imported goods manufactured offshore
“Distributor” is defined as a person who is supplied with those goods by an importer
Will be section 61 (strict liability) implications for importers
Any local retailer, importer or distributor will have to ensure that any imported products have the correct warning labels as set out in sections 58 and that additionally the language used on such warning labels complies with section 22 (the plain and understandable language provisions).

47. Conclusion
Consumers will now be able to sue for damages based on the Consumer Protection Act
Litigation costs dramatically decreased due to the consumer shifting the burden of proof onto the manufacturer (strict liability)
Brings SA into line with foreign jurisdictions (strict liability)
With the opening up of global markets and the drive to export SA products overseas, SA manufacturers will now find themselves in a position where SA consumers are afforded the same protection as their overseas counterparts

48. Eric Levenstein, Director
Thank you
Eric Levenstein, Director