Advertise with

Recalling defective products in line with the Consumer Protection Act
Recalling defective products in line with the Consumer Protection Act

Recalling defective products in line with the Consumer Protection Act


Dec 9th, 09:53

Pieter Conradie, Director, Dispute Resolution, Cliffe Dekker Hofmeyr

The Consumer Protection Act, No 68 of 2008 became operational on 1 April 2011 (Act) and changed the way in which manufacturers, retailers, producers and importers (suppliers) will conduct themselves with regard to defect products in general and the recall of unsafe products. Are you aware of the steps to be taken when you receive information that your product has been manufactured or assembled with a device which caused the product to be unsafe, or do you want to wait until it’s too late and face the music of monetary claims without your insurance being in place?

In terms of the Act the suppliers are liable for any harm caused as a consequence of supplying unsafe goods, a product failure, defect or hazard in any goods or 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 supplier.

Safety monitoring and recall falls within the jurisdiction of the Consumer Commissioner who may recall a product and compel a supplier to supplement warnings. Failure to adhere to rulings by the Consumer Commissioner and which results in damages caused may result in criminal liability. Safety monitoring, investigations, notification of the public and recall of goods are dealt with in s60 of the Act. Safety recall guidelines were published on 3 June 2012.

Those guidelines prescribe reporting requirements in respect of product recalls and regulate the internal procedures which must be followed in the event of a product found to be unsafe.

With the introduction of strict liability, the curtain has opened and the stage has been set for litigation and businesses must be fully aware of this and take the necessary precautions to protect themselves.

Suppliers must be alert and have proceedings in place to recall a product when it is discovered that the product has a defect which may harm a consumer if used as intended. Suppliers must know how the safety recall guidelines operate. If the supplier of a certain product falls within a certain industry, for example, the vehicle industry, then the supplier must be fully aware of the industry codes dealing with safety monitoring and recall and the requirements thereof.

Do not ignore the public guidelines until it is too late. Review your product recall procedures and take out insurance against damages suffered caused by a product recall. A product recall may cripple a supplier. A supplier may be faced with damages claims from the consumer when the product is recalled. Apart from damages claims, the supplier will also suffer damages as it may have to work overtime to fix the defect on the product before it is returned to the consumer, or replace the defect part or remanufacture the entire product.

Suppliers are obliged to recall unsafe defect products but the Consumer Commissioner may also recall a product when it becomes aware of such unsafe product being distributed in the market. When a supplier recalls, it is obliged to give the Consumer Commissioner notice of such recall within two days after the recall occurred.

In certain instances, for example, the motor industry where there is regular service of a motor vehicle, suppliers may decide not to give notice of an unsafe product whilst waiting for a regular service to take place and then to replace the defect product/device, without informing the owner of the vehicle of the defect. This is called 'silent recall'. A manufacturer may find that a 'silent recall' may be too late as drivers and passengers of motor vehicles may have already been injured or killed prior to the regular service date. Suppliers may be charged with murder or culpable homicide if a consumer is injured and the supplier failed to recall the product. 

Related Activity

Motorola solutions expands enterprise AndroidTM Portfolio 19
Motorola solutions expands enterprise AndroidTM Portfolio
New innovations include multiple mobile computers, new suite of enterprise features and next generation of cross-platform development tools
Retailers start to wonder: Is there a Santa Claus? 13
Retailers start to wonder: Is there a Santa Claus?
If you think kids get apprehensive about what they’ll get for Christmas you should see the average retailer.
Rémy Martin 1738 Accord Royal launched for festive season 12
Rémy Martin 1738 Accord Royal launched for festive season
Rémy Martin is giving South African cognac lovers a reason to celebrate this festive season, with the long-awaited launch of Rémy Martin 1738 Accord Royal.
SPAR Eastern Cape dives into Kowie River Mile 12
SPAR Eastern Cape dives into Kowie River Mile
Following the success of the inaugural Kowie River Mile in Port Alfred last year, SPAR Eastern Cape has announced that it will dive in as title sponsor of the event on December 29.

Related News

Verimark slides on lower profit
28/05/2013 - 10:00
Johannesburg - Shares of Verimark Holdings drop 4.5 percent to 126.40 rand after the South African retailer of “as seen on TV” products says full-year profit dropped by more than two-thirds, as a weaker rand weighed on sales and margins.

South African consumers still upbeat
20/09/2012 - 08:18
Cape Town - South African consumers are maintaining an upbeat attitude, according to an index which shows consumer confidence has kept a positive year-on-year outlook.

Massmart boasts 15.2% sales growth
25/11/2011 - 09:31
Johannesburg - Retailer Massmart Holdings [JSE:MSM] reported at its annual general meeting on Wednesday that for the first 21 weeks of the 2011 financial year total sales growth was 15.2% and comparable sales growth 8.8%, with year-to-date sales inflation running at 0.8%.

Tiger Brands still looking hard at Africa
24/11/2011 - 09:02
TIGER Brands , SA’s largest food producer, was still "looking hard" for acquisitions in Africa, CEO Peter Matlare said yesterday, even after the company spent R2,1bn on the continent last year.

CPA 'plain language' poser
16/11/2011 - 08:28
The Consumer Protection Act's requirement that information about products and services be presented to consumers in "plain and understandable" language, is challenging lawyers to find a legally acceptable consensus on how such language can be defined and applied in a way that complies with the law.