World Consumer Rights Day
South African consumers have joined the ranks of well-protected consumers across the globe with the enactment of the comprehensive Consumer Protection Act 68 of 2008, which came into full effective operation on 31 March 2011. This Act aims at providing greater, internationally aligned consumer protection in areas where the common law was lacking or where no protective framework previously existed.
It specifically applies in the context of defective goods that are supplied to consumers. The issue of liability for harm caused by defective products has recently come under the spotlight again with allegations against Ford regarding their Kuga vehicles that apparently have defects which cause them to catch fire.
World Consumer Rights Day on 15 March is an opportune time to consider the extent to which South African consumers are afforded redress in respect of defective goods that may also be hazardous or unsafe. Section 55 of the Consumer Protection Act gives every consumer the right to receive goods that are reasonably suitable for the purposes for which they are generally intended; are of good quality, in good working order and free of any defects; will be usable and durable for a reasonable period of time (having regard to the use to which they would normally be put and to all the surrounding circumstances of their supply); and comply with any applicable standards set under the Standards Act 29 of 1993 or any other public regulation.
Section 55 also has the effect that, in respect of a transaction to which the Consumer Protection Act applies, suppliers will no longer be able to escape liability for defective goods by inserting voetstoots clauses in contracts. If a supplier inserts such a clause into a contract to which the Act applies, the clause will be void and the supplier will not be able to rely on it.
Where defective goods have been supplied to a consumer, section 56 of the Act provides for redress to the consumer. It states that in any transaction or agreement pertaining to the supply of goods, there is an implied warranty given by the whole supply chain (that is the producer, importer, distributor and retailer) that the goods comply with the requirements and standards contemplated in section 55.
If within six months of delivery of the goods to the consumer, it appears that the goods are defective, and as long as the consumer has not altered the goods contrary to the instructions of, or after it left the control of, the producer, importer, distributor and retailer, the consumer will be able to rely on the relief afforded by section 56.
This means the consumer will be able to return the goods to the supplier without having to pay any penalty fee and without bearing the risk if something happens to the goods while they are in the process of being returned. The consumer then has the right to direct the supplier to either repair or replace the defective goods, or to refund to the consumer the price that the consumer paid for the goods. If, however, the defect in the goods only becomes apparent after the six months mentioned in section 56, the consumer is still able to fall back on the common law of sale for protection because the Consumer Protection Act specifically preserves the consumer’s common law rights by virtue of section 2(10).
Where defective goods also cause harm, for instance by causing the death of or injury to a person, section 61 of the Act makes the whole supply chain (and not just the manufacturer) liable for the harm caused by defective products and makes it easier for consumers to pursue product liability claims against suppliers because the common law requirement previously imposed on consumers to prove that the manufacturer was negligent no longer applies.
If products that are defective, hazardous or unsafe have been released onto the consumer market, the supplier is supposed to do a voluntary product recall to swiftly withdraw those products before they cause any harm to consumers. Where the supplier fails to do a product recall when necessary, section 60 of the CPA empowers the National Consumer Commission, as primary enforcer of the Act, to impose a mandatory product recall on that supplier.
It is very important that consumers who are aware of defective products that have the potential to cause harm bring the matter swiftly to the attention of the supply chain as well as the National Consumer Commission.
– Author Prof Corlia Van Heerden and Prof Jacolien Barnard (UP Consumer Law Cluster, Department of Mercantile Law)
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Profs Corlia van Heerden and Jacolien Barnard