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South Africa

Litigation         

South African law is based on Roman-Dutch law, but its procedures generally follow the English model, except that jury trials were abolished more than 50 years ago.

Product liability in South Africa is based on fault or contract with no strict liability, although a Consumer Protection Bill has been published for comment proposing a measure of strict liability on manufacturers. To succeed, a claimant must prove that the product is defective or faulty and that the defect is wrongful and caused the damage. When a claimant is not able to prove its case, the claim will be dismissed. Although South African courts are sympathetic to the evidentiary difficulties faced by a claimant in these
circumstances and will employ the doctrine of res ipsa loquitur (the facts speak for themselves) when applicable, there is no additional benefit provided to a claimant.

Failure to warn about inherent or hidden dangers in a product gives rise to liability for the manufacturer. When the possibility of damage is foreseeable, then it is necessary to provide warnings on a product label or instructions in a brochure. The manufacturer should know its product and foresee the likelihood of damage, provided that the likelihood of damage is not too remote. The manufacturer is required to warn the ultimate consumer where the product reaches the consumer in its final form, and, in that event, it is not necessary for an intermediary to provide additional warnings. However, an intermediary cannot simply ignore information at its disposal when that information ought reasonably be made available to the next recipient in the chain of supply.

Regulation         

Prescribed safety requirements or minimum standards exist in regard to certain products through standards authorities such as the South African Bureau of Standards (SABS), the Medicines Control Council and other regulatory bodies. If prescribed safety standards exist, then noncompliance may give rise to criminal liability. A claim for failure to recall will, however, be based in delict, and liability follows to the extent that the omission was wrongful. This will be the case only if in the particular circumstances a legal duty rested on the manufacturer to act positively to prevent harm from occurring and there was a failure to comply fully with that duty. Causing damage in breach of a statutory duty is, however, prima facie ("at first face" or self-evident) wrongful.

DLA Piper Africa is an alliance of legal practices, which includes firms with offices around the globe that are affiliated to members of DLA Piper but are not themselves members of it. View a full list of DLA Piper Africa members.

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South Africa

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Note past results are not guarantees of future results. Each matter is individual and will be decided on its own facts.