Menu Search through site content What are you looking for?

Strict liability under the Consumer Protection Act: Update

  • Legal Development 07 October 2016 07 October 2016
  • Africa

Supreme Court of Appeal overturns Pretoria High Court decision of Halstead-Cleak v Eskom Holdings Limited.

Strict liability under the Consumer Protection Act: Update

In a previous article we considered the Pretoria High Court's decision in Halstead-Cleak v Eskom Holdings Limited [2015] JOL 33332 (GP), in which it was found that Eskom was strictly liable in terms of the Consumer Protection Act ("CPA") for injuries suffered by the Plaintiff, who had been riding a bicycle and had suffered serious burn injuries after inadvertently coming into contact with a low hanging live powerline. This article can be accessed here.

We concluded that the High Court's interpretation and application of the CPA, and specifically its finding that Eskom was strictly liable in terms of section 61 of the CPA, were incorrect. Our view was that the facts in the case did not constitute a 'transaction' for the purposes of the CPA, and that the CPA was therefore not applicable.

On 30 September 2016 the Supreme Court of Appeal handed down a unanimous judgment, in which it overturned the Pretoria High Court decision, and remitted the matter to the trial court for a determination of whether Eskom was liable to the Plaintiff in terms of the law of delict (our common law). The SCA's judgment can be accessed here.

The SCA's findings are based on an examination of the CPA as a whole, and the Legislature's intention in bringing the law into force. The court stated that

"[f]rom the definitions, the Preamble and purpose of the Act, it is clear that the whole tenor of the Act is to protect consumers. A consumer is a person who buys goods and services, as well as persons who act on their behalf or use products that have been bought by consumers. … These purchases are made by way of transactions. The Act must therefore be interpreted keeping in mind that its focus is the protection of consumers" (emphasis added).

The SCA took the same view which we expressed in our previous article, finding that the CPA is limited in its application to harm caused by goods that are supplied in terms of a transaction. It found that, 

"…the respondent was not a consumer that was entitled to the protection of Part H of Chapter 2 of the Act. Furthermore, the circumstances of this case clearly fall outside the ambit of a consumer – supplier relationship to which the Act applies."

The SCA decision in confirming that strict liability under Section 61 of the CPA is restricted to the "ambit of a consumer/supplier relationship" is welcomed, as the effect of the lower court decision was to override our common law of delict, which requires proof of fault in order to establish liability.

In our previous article, we briefly commented on the scope of section 61 of the CPA. We will shortly be publishing a more comprehensive commentary on the scope and effect of this section.


Stay up to date with Clyde & Co

Sign up to receive email updates straight to your inbox!