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A critical and comparative analysis of the South African and Australian product liability regimes
Mini Dissertation (LLM (Mercantile Law)--University of Pretoria, 2024.
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| Format: | Thesis |
| Language: | English |
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University of Pretoria
2025
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| _version_ | 1867613697902379008 |
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| access_status_str | Open Access |
| author2 | Van Heerden, C.M. (Corlia) |
| author_browse | Van Heerden, C.M. (Corlia) |
| author_facet | Van Heerden, C.M. (Corlia) |
| collection | Thesis |
| dc_rights_str_mv | © 2023 University of Pretoria. All rights reserved. The copyright in this work vests in the University of Pretoria. No part of this work may be reproduced or transmitted in any form or by any means, without the prior written permission of the University of Pretoria. |
| description | Mini Dissertation (LLM (Mercantile Law)--University of Pretoria, 2024. |
| format | Thesis |
| id | oai:repository.up.ac.za:2263/100861 |
| institution | University of Pretoria (South Africa) |
| language | English |
| last_indexed | 2026-06-10T12:40:16.658Z |
| license_str | Other — see source repository |
| provenance_str_mv | Harvested via OAI-PMH from UPSpace — University of Pretoria Institutional Repository |
| publishDate | 2025 |
| publishDateRange | 2025 |
| publishDateSort | 2025 |
| publisher | University of Pretoria |
| publisherStr | University of Pretoria |
| record_format | dspace |
| source_str | UPSpace — University of Pretoria Institutional Repository |
| spelling | oai:repository.up.ac.za:2263/100861 A critical and comparative analysis of the South African and Australian product liability regimes Van Heerden, C.M. (Corlia) u18031219@tuks.co.za Matekwe, Takudzwa UCTD Sustainable Development Goals (SDGs) Product liability Defective goods Consumer protection Consumer Protection Act Australian Consumer Law Mini Dissertation (LLM (Mercantile Law)--University of Pretoria, 2024. Product liability claims involve recovering damages for harm, whether through property damage or personal injury, caused by a defective product. In South Africa, the concept of product liability initially found its roots in common law, either in the law of delict or via contract, which usually takes the form of a breach of warranty or misrepresentation regarding the suitability and non-defectiveness of the product concerned. A delictual claim is based on the negligent causing of harm by the supplier. However, the common law exhibits various shortcomings in terms of the protection afforded to the consumer. One of the main challenges posed by the common law is the requirement that the consumer has to prove fault on the part of the supplier of the defective goods. Due to the lack of knowledge of the supplier’s processes, consumers often cannot discharge this burden, thus leaving them without any sufficient legal recourse. This inadequacy of the common law to facilitate sufficient redress, the constitutional dispensation that came into effect through the introduction of the Constitution of the Republic of South Africa, 1996, and the influence of international consumer standards such as the EU Product Liability Directive and Part 3 to 5 of Schedule 2 of the Australian Competition and Consumer Act (ACL) urged the South African legislature to enact the Consumer Protection Act 68 of 2008 (CPA). In a bid to remedy the shortcomings of the common law, a “strict” product liability regime was introduced and captured in section 61 of the CPA, albeit the South African product liability regime can be regarded as “hybrid” rather than strict due to the defences it affords to suppliers. Product liability under the CPA affords consumers greater protection by no longer requiring a consumer to prove fault on the part of a supplier. It holds the whole supply chain strictly liable for the harm caused by releasing defective goods on the consumer market. However, the statutory strict liability regime came with its practical flaws. One of the flaws in the Act that materialised concerned identifying potential claimants (consumers) for strict product liability under section 61 of the CPA. In the hope that judicial precedence would resolve this lacuna in the Act, the court in Eskom Holdings Limited v Halstad-Cleak 2017 (1) SA 333 (SCA) to some extent unfortunately exacerbated this flaw and provided little guidance to the provision. This dissertation is a critical appraisal of the South African “strict” product liability regime as introduced in section 61 of the CPA. The research seeks to determine whether product liability in section 61 sufficiently protects consumers. The current and the previous positions governing product liability in South Africa will be meticulously examined to determine the sufficiency of the current regime. Lastly, the Australian product liability regime will be considered, in an attempt to find solutions or draw recommendations regarding the shortcomings in the South African product liability laws. Cannon Collins ABSA Mercantile Law LLM (Mercantile Law) Unrestricted Faculty of Laws SDG-12: Responsible consumption and production 2025-02-13T14:24:53Z 2025-02-13T14:24:53Z 2025-04 2024-10 Mini Dissertation * A2025 http://hdl.handle.net/2263/100861 Disclaimer Letter en © 2023 University of Pretoria. All rights reserved. The copyright in this work vests in the University of Pretoria. No part of this work may be reproduced or transmitted in any form or by any means, without the prior written permission of the University of Pretoria. application/pdf University of Pretoria |
| spellingShingle | UCTD Sustainable Development Goals (SDGs) Product liability Defective goods Consumer protection Consumer Protection Act Australian Consumer Law A critical and comparative analysis of the South African and Australian product liability regimes |
| title | A critical and comparative analysis of the South African and Australian product liability regimes |
| title_full | A critical and comparative analysis of the South African and Australian product liability regimes |
| title_fullStr | A critical and comparative analysis of the South African and Australian product liability regimes |
| title_full_unstemmed | A critical and comparative analysis of the South African and Australian product liability regimes |
| title_short | A critical and comparative analysis of the South African and Australian product liability regimes |
| title_sort | critical and comparative analysis of the south african and australian product liability regimes |
| topic | UCTD Sustainable Development Goals (SDGs) Product liability Defective goods Consumer protection Consumer Protection Act Australian Consumer Law |
| url | http://hdl.handle.net/2263/100861 |