Right to fair value, good quality and safety

  • Sections 53 to 61 of the Act provides statutory warranties for safety and quality.
  • Introduces a general product safety monitoring and recall regime.
  • Extending strict liability to retailers for illness, injury, damage to property and death as a result of defective goods or improper labelling.
  • Specific definitions are applicable to this part – including the definition of “defect”, “failure”, “hazard” and “unsafe”.
  • The Act is designed to ensure the safety of consumers and to provide specifically for informed consent.
  • Product liability and safety law are both areas of law focused on: unacceptable risks of death, injury or damage; prevention of the realisation of those risks; and assuring compensation when or if the risks do realise.
  • The Act establishes a form of modified strict liability of producers, importers, distributors or retailers – for harm caused by or as a result of, the supply of goods which are unsafe, or failed products, or defects or hazards in any goods, and for inadequate instructions or warnings provided to the consumer, irrespective of whether the harm resulted from any negligence on the part of the producer, importer, distributor or retailer.

Section 54: Consumer’s right to demand quality service

  • To timely performance and completion of services;
  • The performance of those services in a manner and quality persons are entitled to expect;
  • Use, delivery and installation of goods free of defects;
  • Return of any property or control over property of the consumer in at least as good a condition as it was when the consumer made it available to the supplier for performing those services.
  • If a supplier fails to perform a service to the standards per the above, the consumer may require the supplier to either remedy any defect in the quality of the services performed or the goods supplied, or refund to the consumer a reasonable portion of the price paid for the services performed and the goods supplied having regard to the extent of the failure.

Section 55: Consumer’s right to safe good quality goods

  • This section does not apply to goods bought at an auction.
  • Every consumer has the right to receive goods that are (a) reasonably suitable for the purposes for which they are generally intended (b) are of good quality in good working order and free of any defects (c) will be useable and durable for a reasonable period of time, and (d) comply with any applicable standards set under the Standards Act, 29 of 1993.
  • Factors to take into account when determining whether the requirements of Section 55 have been met: (a) the manner in which and purposes for which the goods were marketed, packaged displayed, any instructions / warnings, (b) the range of things that might reasonably be anticipated to be done with the goods and (c) the time when the goods were produced or supplied.

Section 56: Implied warranty of quality:

  • If the goods are not suitable for the purposes for which they are intended or otherwise fail to comply with the requirements listed in Section 55, the consumer is entitled to return them at the supplier’s risk and expense and without penalty and obtain a refund or have the items repaired to get a refund of the price paid.  The choice is the consumer’s.
  • The consumer must return them within six months after being delivered;
  • The consumer may claim against any of the entities in the supply chain, in other words the producer, importer, distributor, or retailer of the goods;
  • This section does not apply if the goods fail to meet the necessary standard because they were tampered with after leaving the entity claimed against;
  • If the goods are returned for repair, the supplier will have only one opportunity to repair the same, and if the problem re-occurs, they must be replaced or the consumer refunded;
  • This right ties in with the right to choose and the right to request quotes/estimates for the repair and maintenance of goods.  In terms of this section (implied warranty of quality) where the consumer allows the supplier to repair failed, defective or unsafe goods returned by the consumer within six months of delivery, and within three months after such repair, the failure, defect or unsafe feature re-appears or a further failure, defect or unsafe feature is discovered, then the supplier must either replace the goods, or refund the price paid by the consumer for the goods (the consumer may choose which option (s)he prefers);
  • This implied warranty of quality entrenched in the Act is in addition to any other implied warranty or condition imposed by the common law and any express warranty given by the producer, importer, distributor or retailer.

Section 57: Warranty on repaired goods

  •  All new and re-conditioned parts installed during repairs or maintenance, and the labour involved are automatically warranted for three months after installation (not applicable to goods that are subject to ordinary wear and tear from usage);
  • This section compels a service provider to warrant new or reconditioned parts installed during repair or maintenance work, including labour, for a minimum of three months after installation.  This warranty will be void if the consumer subjected the installed part or goods to misuse or abuse.  Where reconditioned, rebuilt, remade or grey market parts or components (goods) are used in the performance of a repair, service or maintenance work this fact should expressly be disclosed to the consumer by the supplier.

Section 58: Warning – Potentially hazardous activities and facilities

  • The supplier of any activity or facility with which certain types of risks are associated, of an unusual character – or a risk that may result in serious injury or death – must specifically draw the fact to the attention of consumers in accordance with Section 49.  Failure to comply may lead to the imposition of an administrative fine and also liability for damages under Section 61.  The definition of consumer includes the user of goods or recipient of services, irrespective of whether they were party to the transaction or not.  Packagers of potentially hazardous goods must provide the consumer with instructions for safe handling and use for such goods.

Section 59: Safe disposal of certain goods

  • If the disposal of any type of goods, containers or packaging into a common waste disposal system is prohibited by any national legislation the supplier must accept the return of them without charge from the consumer.  The supplier can then return them to the importer or manufacturer.

Section 60: Safety monitoring and recall

  • The Commission has the role of developing industry-wide codes of practice for product failures, defects or hazards and investigating them.  It can warn for public of hazards and give written notice to the producer to conduct an investigation into the degree of risk posed to the public, and to carry out a recall programme.

Section 61: Strict liability for damage caused by goods

  • A producer, importer, distributor or retailer of goods is liable to a consumer on a no-fault basis (without proof of negligence on the part of the supplier of the goods) for any harm, including death, injury, physical damage or associated economic loss which was caused by: the supply of unsafe goods; a product failure, defect or hazard in any goods; or inadequate instructions or warnings provided to the consumer pertaining to the hazard arising from or associated with the use of any goods.
  • For purposes of this section, a supplier includes a supplier who applies, installs or provides access to any goods;
  • If more than one party is potentially liable, the consumer can sue any one of them, as their liability is joint and several.  In other words, if the consumer sues one party (for example, the distributor) and receives payment, the distributor can then sue the other parties for a contribution towards the payment.  A court may also apportion liability among persons who are found to be jointly and severally liable;
  • The type of harm contemplated includes: death, injury or illness of a natural person, and any loss of or physical damage to property irrespective of whether it is movable or immovable, and any economic loss that results from any of these types of physical harm caused;
  • “Economic loss” means indirect financial losses that may result from death, injury, illness and damage to property.
  • The claim for damages must be brought within three years of: the death, injury or the earliest time that the person became aware of the illness and its cause; the earliest time the person became aware of the loss or damage to property; and the latest due date on which the person suffered any economic loss – including loss of earnings, loss of profit or potential profit for any business whose activities might be suspended or affected by the harm, and possible financial support for dependants left behind.  A claim that has prescribed cannot be instituted.

Possible defences available to supplier / any other person in the supply chain

  • Where it is unreasonable to expect the distributor or retailer to have known of the defect or hazard.  In determining what is unreasonable, regard shall be had to the distributors or retailers role in marketing the goods to the consumer.
  • Or that the shortcoming arose from: (a) complying with any public regulation (b) did not exist in the goods at the time they were supplied (c) adequate instructions were given to the consumer and the consumer failed to comply with them.
  • A service provider should furthermore take cognisance of the fact that poorly performed service or maintenance work could cause harm to the consumer through product failure, unsafe, hazardous or defective goods.  This would potentially place the service provider in the supply chain for product liability in terms of this Section.  The use of poor quality parts or components in the performance of service or maintenance work or the use of unskilled and unqualified service technicians should be avoided at all costs.