SOURCES OF LAW AND THEIR EVOLUTION

A distinction should be made, firstly between contractual and delictual product liability, and secondly, within these two areas, between common law and statutory product liability.

Under the common law, product liability ex delicto is clear. The courts deal with product liability under the Aquilian action. Its ordinary requirements must thus be satisfied. Accordingly, all the elements of a delict, that is conduct, wrongfulness, fault, causation and damage, must be present for delictual liability to ensue. As the law on product liability is still in its infancy, much can be learned from comparative law in developing this field, an approach that can be discerned in case law. Be that as it may, the common law on product liability was independently developed by the courts. In light of the difficulty to prove fault on the part of the manufacturer, as well as for various other reasons, it was advocated that product liability should be strict, that is, fault should not be required for liability. The willingness of the Supreme Court of Appeal to investigate this matter was tested in Wagener and Cuttings v Pharmacare Ltd. After thorough consideration, the court was not prepared to recognise strict product liability in principle and thus to become involved ‘in the function of trying to “legislate” judicially in this complex field’. The plaintiff 's remedy was therefore limited to the Aquilian action, which according to the court adequately protects the person against defective products, with the possibility of gradual development of the approach to the res ipsa loquitur maxim and a reversal of the onus of proof. If strict liability had to be introduced, it was a task of the legislature.

The legislature did intervene and introduce strict liability for damage caused by a defective product in section 61(1) of the Consumer Protection Act 68 of 2008 (CPA). The CPA provides that the producer (manufacturer) as well as the importer, distributor or retailer of goods are liable for harm caused to consumers by unsafe or defective goods, irrespective of the presence or absence of negligence; strict liability therefore applies.