In our common law a manufacturer could not traditionally be held strictly liable (without having to prove fault in a delictual claim, as affirmed in the case of Wagener v Pharmacare Ltd  2 All SA 167 (SCA). This position changed with the introduction of the Consumer Protection Act 68 of 2008 (the “CPA”), more specifically section 61 thereof.
The Supreme Court of Appeal (SCA) , in the recent appeal case of Eskom Holdings Ltd v Halstead-Cleak 2017 (1) SA 333 (SCA) (the “Eskom case”), from the Gauteng Division High Court, had to considerthe issue of strict liability of the producer or supplierin terms of section 61 of the CPA.
In the Eskom case, Mr. Halkstead-Cleak (The Respondent) came into contact with a low-hanging power line straddling across a footpath as he was cycling. He sustained severe electrical burns and issued Summons against Eskom (The Appellant) for damages. The Respondent’s claim was inter alia based on the strict liability of Eskom as a producer and supplier. However, upon inspection of the power lines, conducted by Eskom, it was found that the power lines were vandalised by a third party.
The Court considered the provisions of section 61 of the CPA coupled with the definitions contained in section 53 of the CPA, which provides that:
“the producer or importer, distributor or retailer of any goods is liable for any harm, as described in subsection (5), caused wholly or partly as a consequence of –
a) Supplying any unsafe goods;
b) A product failure, defect or hazard in any goods or;
c) Inadequate instructions or warning 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 ”
Section 61 creates strict liability for a producer, importer, distributor or retailer of goods that caused a “natural person” to suffer harm as the complainant need not prove the element of negligence.
The type of harm that can be suffered by the complainant is set out in section 61 (5) includes “the death of, or injury to or illness of, any natural person; or any loss of, or physical damage to property”.
Section 61 must also be read with the following definitions contained in section 53 of the CPA:
a) “defect”, which is defined as “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”;
b) “failure”, which is defined as “the inability of the goods to perform in the intended manner or to the intended effect”;
c) “hazard”, which is defined as “a characteristic which 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”, which is defined as “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”.
Eskom denied that it was in this context a producer or supplier and further denied that the Respondent was a consumer in terms of the CPA.
The SCA, after analysing the definition of a “consumer” as set out in section 1 of the CPA confirmed that although the court a quo found that, according to section 61 of the CPA, any natural person can suffer harm, this position does not take into consideration that there must be a supplier-consumer relationship between the parties.
The Court accordingly held that the Respondent was not in a supplier-consumer relationship with Eskom as he was not utilizing the electricity as a service provided by Eskom. The Respondent could, therefore, not be provided with the same protection as a consumer set out in section 61 of the CPA.
From the above it can be concluded that, had the Respondent been utilizing defective electrical lines in, for example, his home as a service rendered by Eskom, he would have been classified as a consumer and there would have been a supplier-consumer relationship present between himself and Eskom, which would have afforded him the protection under section 61 of the CPA.
Noori Edros | Associate | Dispute Resolution: Litigation & Arbitration
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