The Consumer Protection Act 68 of 2008 (“CPA”) provides for the strict liability of producers, importers, distributors or retailers of a particular product for any harm caused where the product is unsafe, had a product failure, is defective or hazardous or where the consumer was provided with inadequate instructions or warnings concerning any hazard arising from or associated with the use of the product.
Strict liability means these producers, importers, distributors or retailers can be held jointly and severally liable for any harm caused by a particular product. A consumer can therefore institute a claim against one of them (or all) for the damages that result from harm caused by the product without the consumer having to prove wrongfulness and negligence in producing, importing, distributing or selling the particular product.
The CPA provides several ways for consumers to enforce their rights. If a dispute arises, consumers can:
- Refer the matter to the Consumer Tribunal.
- Approach a relevant ombud with jurisdiction, such as the Consumer Goods and Services Ombud, or an industry-specific ombud like MIOSA.
- Apply to the Consumer Court.
- Refer the matter to another alternative dispute resolution agent, as outlined in the CPA.
- File a complaint with the National Consumer Commission.
These options ensure that consumers have multiple avenues to address violations of their rights effectively.
The CPA also provides that a consumer is entitled to approach a court of law with jurisdiction, only if all other remedies available to such consumer in terms of national legislation have been exhausted.
This raises the question: can a consumer approach a court of law directly to institute a claim against a producer, importer, distributor or retailer for personal injuries caused by their product, or must the consumer first exhaust the plethora of other available enforcement remedies as provided for in the CPA?
In Pieterse and Others v Organic Synthesis (Pty) Ltd and Another (61861/2017) [2024] ZAGPPHC 1195 (14 November 2024) a family wanted to heat their food in little three-legged pots, by using an ethanol gel product they purchased. The gel was contained in tin cups designed to be placed underneath the pots. The flame in one of the pots went out, and while it was being refilled, an explosion occurred. This caused burning ethanol gel to splash onto some family members, resulting in serious burns.
The plaintiffs who suffered burns instituted a claim against the wholesale distributor of the ethanol gel product, based on the strict liability of the wholesale distributor in terms of the CPA for the harm caused by the product.
The defendant raised a defence against the claim of the plaintiffs claiming that the court did not have jurisdiction to hear and adjudicate the plaintiffs’ claim as the plaintiffs had failed to allege and prove that they had first exhausted all the available enforcement remedies as provided for in the CPA to resolve the dispute before approaching the court.
The court reviewed all the remedies available to the plaintiffs in terms of the CPA in respect of the enforcement of their rights and found that no sufficient remedy was provided for by the CPA in terms of which a consumer could enforce its rights against a producer, importer, distributor or retailer of a particular product having suffered harm by the product. Accordingly, because no such sufficient remedy is available, only a court of law can adjudicate the plaintiffs’ claim for the damages against the wholesale distributor resulting from the personal injuries caused by the particular product.
The Pieterse judgment confirms that a consumer may approach a court of law directly without first having exhausted the other remedies provided for in the CPA in respect of a claim for damages as a result of an unsafe or hazardous product.
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