No-fault liability (section 61(1))
Section 61 is the provision that most changed the risk picture for producers and retailers. It imposes liability for harm caused by unsafe or defective goods, or inadequate warnings, regardless of negligence.
“Except to the extent contemplated in subsection (4), 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 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.”
A supplier of services who installs or provides access to goods in the course of those services is treated as a supplier of those goods for this purpose (s 61(2)).
The whole supply chain, jointly and severally
Liability is spread across the chain. Where more than one party is liable, the consumer can recover the whole amount from any of them.
“If, in a particular case, more than one person is liable in terms of this section, their liability is joint and several.”
And these rules cannot be contracted out of, and survive even an exemption from the rest of the Act — section 5(5) subjects exempt goods, and the producer, distributor and retailer of them, to sections 60 and 61 in any event (see does the CPA apply?).
What counts as harm, and the time bar
The “harm” section 61 compensates is broad — from death and injury to property loss and the economic loss flowing from them.
“Harm for which a person may be held liable in terms of this section includes— (a) the death of, or injury to, any natural person; (b) an illness of any natural person; (c) any loss of, or physical damage to, any property, irrespective of whether it is movable or immovable; and (d) any economic loss that results from harm contemplated in paragraph (a), (b) or (c).”
The liability is not unlimited. Section 61(4) sets out the defences — for example, where the defect did not exist when the person supplied the goods, or where it is unreasonable to expect a distributor or retailer to have discovered it — and a three-year bar on bringing a claim.
Safety monitoring and recall (section 60)
Section 61 sits alongside a safety-monitoring and recall regime. The National Consumer Commission promotes industry codes for detecting product hazards and, where goods are unsafe, recalling them.
“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… the Commission, by written notice, may require that producer to— (a) conduct an investigation…; or (b) carry out a recall programme on any terms required by the Commission.”
The limit: Eskom v Halstead-Cleak
Strict liability is powerful, but it is not boundless. The Supreme Court of Appeal held that section 61 requires a supplier–consumer relationship: a person harmed by goods they were not a consumer of may fall outside it.
Eskom Holdings Ltd v Halstead-Cleak
“… this loses sight of the fact that there should be a supplier and consumer relationship for Eskom to be strictly liable for harm, as the Act’s purpose is to protect consumers. In this instance the respondent is not a consumer vis-à-vis Eskom as: (a) the respondent did not enter into any transaction with Eskom as a supplier or producer of electricity in the ordinary course of Eskom’s business; and (b) the respondent was not utilising the electricity, nor was he a recipient or beneficiary thereof.”
A cyclist injured by a vandalised low-hanging power line was held not to be a “consumer” of Eskom’s electricity, so his section 61 claim failed. The lesson is not that section 61 is weak — it is that a claimant must still show a sufficient connection to the supply of the goods to a consumer. For suppliers, the practical takeaway is unchanged: manage this risk with proper warnings and instructions, quality control up the supply chain, and product-liability insurance, because this is the one area of the Act you can never disclaim.