General product obligations

Basic laws

What are the basic laws governing the safety requirements that products must meet?

In terms of the common law, liability for injury caused by a person may arise from culpable conduct (requiring proof of negligence) of the party who has caused the injury. In terms of section 61 of the Consumer Protection Act, Act No. 68 of 2008 (CPA) (www.thencc.gov.za/sites/default/files/consumer%20protection%20act%20final%20april%202009.pdf), a regime of modified strict liability was introduced in terms of which producers, importers, distributors or retailers of any goods are liable for harm caused, wholly or partly as a consequence of the supply of any 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. Liability in terms of section 61 arises irrespective of whether the harm resulted from any negligence on the part of the producer, importer, distributor or retailer. A person’s liability in terms of section 61 is avoided where the defect only came into existence after that person supplied the goods to another person in the supply chain, the defect was wholly attributable to compliance by a person with instructions provided by a supplier of the goods to that person, or where the defect is wholly attributable to compliance with any public regulation.

The registration of products (medicine, scheduled substance or a cosmetic or foodstuff that contains a scheduled substance), medical devices or IVDs (in vitro diagnostic medical devices) is governed by the Medicines and Related Substances Act, Act No. 101 of 1965 (MRSA) (www.hpcsa.co.za/Uploads/editor/UserFiles/downloads/legislations/acts/medicines_and_related_sub_act_101_of_1965.pdf). The MRSA was amended by the Medicines and Related Substances Amendment Act, Act No. 72 of 2008 on 1 June 2017 when the amendment came into operation. Products, medical devices and IVDs must be registered with the South African Health Products Regulatory Authority (SAHPRA) (previously the Medicines Control Council). The sale of unregistered medicines is an offence. In terms of the Foodstuffs, Cosmetics and Disinfectants Act, Act No. 54 of 1972 (FCDA) (www.nda.agric.za/doaDev/sideMenu/fisheries/03_areasofwork/Aquaculture/AquaPolGuidLeg/Legislation/FoodstuffsCosmeticsDisinfectantsAct54of1972.pdf), the sale, manufacture or importation for sale of certain specified foodstuffs, cosmetics and disinfectants is prohibited and contravention of the prohibition is a criminal offence.

The production, acquisition, disposal or importation of certain intrinsically hazardous or toxic substances is regulated by the Hazardous Substances Act, Act No. 15 of 1973 (HSA) (www.emergogroup.com/sites/default/files/file/south-africa-hazardous-substances-act-no-15-1973.pdf). Failure to comply with the HSA constitutes a criminal offence. The CPA applies to consumer protection issues in general, while more specific legislation such as the laws referred to above deal with specific industry-related questions.

In terms of regulations issued under the Occupational Health and Safety Act, Act No. 85 of 1993 (OHSA) (www.acts.co.za/occupational-health-and-/index.html), certain safety standards apply to escalators and elevators conveying passengers or goods. The aviation industry is extensively regulated. In terms of the National Regulator for Compulsory Specifications Act, Act No. 5 of 2008 (NRCSA) (www.nrcs.org.za/siteimgs/downloads/NRCS%20ACT%20Act%205%20of%202008.pdf) product specific specifications and standards apply to a broad range of products (eg, motor vehicles, electrical products and child restraints for use in motor vehicles, etc).

Traceability requirements

What requirements exist for the traceability of products to facilitate recalls?

In terms of the regulations issued under the FCDA, the label of any pre-packaged foodstuff must contain the name and address of the manufacturer, importer or seller. Subject to certain exceptions the country of origin of a foodstuff must be indicated on the label thereof, the ingredients thereof and the date of manufacturing. Containers of foodstuffs must be marked in such a way that the specific batch is identifiable and traceable. Information related to the requirements in respect of the regulations must be kept on record by manufacturers, importers or sellers. In terms of the regulations issued under the MRSA, the immediate container of every medicine in which a medicine, intended for administration to humans, is sold must have a label attached to it with particulars that include the lot number of the medicine, the expiry date of the medicine and the name of the holder of a certificate of registration of the medicine. Medicines for human use must also contain package inserts indicating the name and business address of the holder of the certificate of registration of the medicine, or in the case of a parallel imported medicine, the name and business address of the holder of the parallel importer permit.

Non-compliance penalties

What penalties may be imposed for non-compliance with these laws?

Criminal penalties may be imposed in relation to contraventions of the FCDA, as well as the MRSA and the HSA. The CPA makes provision, in relation to conduct that is prohibited under the CPA, for the issue of compliance notices by the National Consumer Commission (NCC) and the imposition by the National Consumer Tribunal (NCT) of an administrative fine on application by the NCC. In certain circumstances, a court or the NCT may grant an order for interim relief in relation to conduct that is prohibited in terms of the CPA. This does not currently include penalties for failure per se to undertake a recall or other corrective action.

Reporting requirements for defective products

Government notification

What requirements are there to notify government authorities (or other bodies) of defects discovered in products, or known incidents of personal injury or property damage?

The SAHPRA has issued guidelines (Guidelines: Reporting of ADRs) for the reporting of adverse drug events or experiences and adverse drug reactions (ADRs). The NCC has been tasked, by section 60(1) of the CPA, to develop and promote industry-wide codes of practice (codes of practice) making provision for the adoption and application of systems to deal with certain events relating to unsafe goods and product defects. Such systems should make provision for receiving notice of consumer complaints, reports of product failures, defects or hazards, and of goods returns because of product failures, defects or hazards. These systems should also make provision for monitoring and analysing information sources relating to such product events, conducting investigations concerning such events, which include investigations into the nature, causes, extent and degree of the risk to the public, and to notify consumers in relation thereto, and finally for the recall of unsafe goods. The provisions of the CPA do not expressly require that suppliers must notify the NCC if defects are discovered in products or if incidents of personal injury or property damage occur arising from such defects.

No codes of practice have to date been implemented. The NCC has, however, issued Consumer Product Safety Recall Guidelines (the NCC Recall Guidelines). The NCC Recall Guidelines lay down recall procedures in general terms and urge suppliers to adopt recall policies. While it is submitted that the NCC Recall Guidelines are not currently legally enforceable, it is suggested that if a supplier encounters a situation where a product recall may be appropriate, it should report this to the NCC and carry out any recall reporting and implementation in close consultation with the NCC. It should also closely adhere to the procedures set out in the NCC Recall Guidelines.

Notification criteria and time limits

What criteria apply for determining when a matter requires notification and what are the time limits for notification?

The CPA distinguishes between manufacturing defects, design defects, failures, hazard and unsafe goods. Goods are ‘unsafe’ when particular goods present an extreme risk of personal injury or property damage to the consumer or to another person. ‘Defects’ include both manufacturing defects (when a material imperfection in the manufacture of the goods or components renders the goods less acceptable than persons generally would be reasonably entitled to expect in the circumstances) and design defects (when any characteristic of the goods or components renders it less useful, practicable or safe than persons generally would be reasonably entitled to expect in the circumstances). A ‘failure’ means the inability of the goods to perform in the intended manner or to the intended effect.

At the time of writing, all notification to the NCC and recalls subject to the CPA can be described as ‘voluntary’. In terms of the NCC Recall Guidelines, a supplier should, as soon as it becomes aware of a possible safety hazard (the term ‘safety hazard’ is not defined) in a consumer product that may cause injury to a person, conduct an assessment comprising:

  • gathering and assessing the reliability of all available information about the potential hazard;
  • identifying how the problem occurred;
  • conducting a comprehensive risk analysis; and
  • examining means of addressing the safety-related hazard and deciding whether the product can be repaired or modified.

The NCC requires a supplier to contact it when commencing with such an assessment, even though the notification to the NCC is not currently a legal requirement. However, it is nevertheless submitted that when a supplier becomes aware that product defects or failures may be connected with or result in death of, injury to, illness, loss of or physical damage to property, or any resulting economic loss, a supplier should initiate a review of the available information with a view to identifying the possible ‘safety hazard’, bearing in mind the guideline that the NCC should be contacted when such process of identification becomes an ‘assessment’. The requirement that the NCC should be contacted when the assessment is ‘commenced’ implies that the NCC should become involved at a very early stage of the detection and consideration of product safety concerns, even if such concerns were to turn out to be unfounded.

Competent authority

To which authority should notification be sent? Does this vary according to the product in question?

Notification with regard to product recalls generally must be addressed to the NCC. The supplier has the prime responsibility for implementing a recall. A recall should be implemented in accordance with the supplier’s recall policy and after consultation with the NCC. In order for the NCC to be assured that a product safety risk will be effectively mitigated, it requires that the supplier undertakes the following actions:

  • notify the NCC of the recall, which includes providing details of other entities within the supply chain that have been notified of the recall;
  • prepare and submit to the NCC a recall strategy;
  • retrieve the affected product from consumers and from within the supply chain; and
  • report on the recall to the NCC.

A supplier’s recall strategy should include:

  • an explanation of the problem, including the hazard associated with the product and the supplier’s assessment of the risk posed by the product;
  • the number of units supplied in the market;
  • information about any known injuries, the proposed communication with consumers, complaint handling procedures, the manner in which the recalled product will be collected, destroyed or rectified; and
  • relevant contact details.

In the case of foodstuffs, cosmetics, disinfectants and medicines, notifications should be addressed to the Department of Health. ADRs must be reported to the SAHPRA. If a pharmaceutical company receives a report of a suspected adverse reaction to a medicine marketed by another applicant for the registration of that medicine, such report should, in terms of the Guidelines: Reporting of ADRs, be forwarded to the applicant for the registration of that medicine.

Notification information

What product information and other data should be provided in the notification to the competent authority?

In terms of the Guidelines: Reporting of ADRs, an adverse drug reaction report form (ADR Form) is available from the National Adverse Drug Event Monitoring Centre (NADEMC). Applicants may also use their in-house report forms, if such forms include all the necessary data elements in a readable format. Applicants should submit not only the minimum information required for a report but all the relevant information available at the time of initial notification of an adverse drug reaction report. Applicants are encouraged to attach discharge summaries, post-mortem reports, relevant laboratory data and other additional clinical data. The applicant must submit the name (or initials), address, telephone number and qualification of the initial reporter on the ADR Form.

In terms of the NCC Recall Guidelines, notification to the NCC may be effected through use of a Recall Notification Form (RN Form) supplied by the NCC. The RN Form must state that goods are subject to a recall. The nature of the problem or non-compliance must be stated in the RN Form if the goods contain a defect, have a dangerous characteristic, or do not comply with a prescribed consumer product safety standard. Use of the RN Form is regarded as fulfilling the NCC’s notification requirement, although use of such form is not expressly required by the NCC Recall Guidelines. The RN Form requires information regarding the product, identifying numbers relating to the product, points of sale and periods of sale, the life span of the product, the supplier, elements of the marketing chain such as details of the manufacturer and the country of origin, the nature of the defects and hazards, what consumers should do and advertising relating to the recall.

Obligations to provide updates

What obligations are there to provide authorities with updated information about risks, or respond to their enquiries?

In respect of medicines, summary reports must be submitted annually to the NADEMC by applicants for the registration of medicine. These reports must, inter alia, include:

  • the local usage of each formulation for the review period;
  • a concise critical analysis of the reported ADRs for each medicine;
  • the actions taken or to be taken (including actions taken by any other regulatory authority or marketing authorisation holder);
  • a simple risk-benefit statement for ongoing use and monitoring of the medicine; and
  • a line listing that includes the source, patient gender and age, formulation, daily dose, treatment dates and duration or time to onset, adverse reactions, seriousness, outcome and comment.

Owners of food-handling enterprises are required, in terms of the regulations issued under the FCDA, to implement ‘HACCP systems’. This is a hazard analysis and critical point system that identifies, evaluates and controls hazards that are significant for food safety. HACCP systems must comply with the principles as provided for by the Joint Food and Agricultural Organization/World Health Organization Food Standards Programme Codex Alimentarius Guidelines. In terms of the NCC Recall Guidelines, a supplier must furnish the NCC with regular progress reports.

Penalties

What are the penalties for failure to comply with reporting obligations?

Penalties in terms of the CPA are mainly administrative, although a failure to comply with a compliance notice issued by the NCC constitutes an offence. Failure to comply with the FCDA is punishable by a fine or imprisonment and forfeiture of any foodstuff, cosmetic, disinfectant, appliance, product, material, substance or other object in respect of which the offence has been committed. Failure to comply with the MRSA may constitute an offence or result in the compulsory return of undesirable medicines to a manufacturer or importer or the disposal thereof, or in the suspension or revocation of certain dispensing, wholesaling, manufacturing, import or export licences. Recalls in terms of the CPA are currently voluntary. It is nevertheless suggested that any recalls falling within the domain of the CPA should be conducted on the basis of the NCC Recall Guidelines.

Public disclosure

Is commercially sensitive information that has been notified to the authorities protected from public disclosure?

There are three main sources of potential protection against disclosure of information disclosed to the NCC in terms of the NCC Recall Guidelines: the CPA itself, other statutes such as the Promotion of Access to Information Act, Act 2 of 2000 (www.justice.gov.za/legislation/acts/2000-002.pdf), and the rules of legal professional privilege in terms of the common law. It is submitted that the rules of legal professional privilege will not apply in respect of information furnished to the NCC in terms of the NCC Recall Guidelines.

A person may, when submitting information in terms of the CPA to the NCC, NCT, or an inspector or investigator appointed in terms of the CPA, claim that all or part of that information is confidential (confidentiality claim). This confidentiality protection arguably does not apply to information supplied to the NCC on a voluntary basis. Any confidentiality claim must be supported by a written statement explaining why the information is confidential. The NCC, NCT, an inspector or investigator, as the case may be, must consider any confidentiality claim and must notify the claimant whether or not the information claimed to be confidential will be treated as such. When making any ruling, decision or order in terms of the CPA, the NCC or NCT may take into account any information that has been the subject of a confidentiality claim. If any reasons for a decision in terms of the CPA would reveal any information that has been the subject of a confidentiality claim, the NCC or NCT, as the case may be, must provide a copy of the proposed reasons to the party claiming confidentiality at least five business days before publishing those reasons.

A party may apply to a court for an appropriate order to protect the confidentiality of the relevant information within five business days after receiving a notice or a copy of proposed reasons regarding a confidentiality claim. Rule 12 of the NCC Rules deals with processes for the disclosure of ‘restricted information’. In terms of section 107(1) of the CPA, it is an offence to disclose any personal or confidential information concerning the affairs of a person obtained in carrying out any function in terms of the CPA or as a result of initiating a complaint or participating in any proceedings in terms of the CPA. Section 107(1) does not apply to information that is imparted to the NCC for the purposes of the NCC Recall Guidelines, and such information also does not qualify as restricted information.

Use of information in prosecution

May information notified to the authorities be used in a criminal prosecution?

Section 34 of the MRSA provides that no person may, except for the purpose of the exercise of his or her powers or the performance of his or her functions under the MRSA, for the purpose of legal proceedings under the MRSA, when required to do so by any competent court or under any law, or with the written authority of the director general, disclose to any other person any information acquired by him or her in the exercise of his powers or the performance of his functions under the MRSA and relating to the business or affairs of any person. Section 32 of the NRCSA permits any person who was concerned in the performance of any function in terms of the NRCSA, to disclose any information which he or she obtained in the performance of such a function, if such information is required in terms of any law or as evidence in any court of law, or to any competent authority that requires it for the institution, or an investigation with a view to the institution, of any criminal prosecution. The FCDA does not contain comparable provisions. The NCC may refer alleged offences in terms of the CPA to the National Prosecuting Authority and may disclose personal or confidential information concerning the affairs of any person obtained in carrying out any function under the CPA for the purpose of the proper administration or enforcement of the CPA or the administration of justice.

The court has a discretion, both in civil and criminal proceedings, to allow evidence despite the fact that it had been obtained through violation of the constitutional rights of the accused person (FEDICS Group (Pty) Ltd and another v Matus and others; FEDICS Group (Pty) Ltd and another v Murphy and others 1997 4 All SA 14 (C)).

Product recall requirements

Recall criteria

What criteria apply for determining when a matter requires a product recall or other corrective actions?

The NCC requires a supplier to contact it when deciding about the most appropriate strategy to deal with a prospective recall. It is required by the NCC Recall Guidelines that a supplier should notify the NCC when the supplier decides to undertake any one of the following actions to mitigate a product safety-related hazard:

  • calling back or withdrawing products from the market or distribution chain;
  • requesting consumers or other suppliers to return products for refund, replacement or modification, or to contact the supplier to arrange for a replacement product or part to be sent to the consumer;
  • sending a service agent to a person’s home or place of business to repair or modify a product; or
  • making arrangements for a service agent to repair or modify a product when it is next presented for servicing.
Consumer warnings

What are the legal requirements to publish warnings or other information to product users or to suppliers regarding product defects and associated hazards, or to recall defective products from the market?

In terms of section 58 of the CPA, the supplier of any activity or facility that is subject to any risk that could result in serious injury or death must specifically draw the fact, nature and potential effect of that risk to the attention of consumers in a form and manner that meets certain standards including the use of plain language. This obligation also applies to a supplier of any risk or facility that is subject to any risk of an unusual character or nature, or risk of which a consumer could not reasonably be expected to be aware of, or that an ordinarily alert consumer could not reasonably be expected to contemplate, in the circumstances. The provisions of section 58 can arguably not be construed as imposing a general duty on suppliers to notify consumers of product defects that manifest after the supply of the goods. It is, however, submitted that where the supplier, post supply, becomes aware of a product defect that constitutes a risk that may result in serious injury or death, the supplier becomes obliged to warn consumers of the risk.

A person who packages any hazardous or unsafe goods for supply to consumers must, in terms of section 58(2) of the CPA, display on or within that packaging a notice that meets certain standards, including the plain language and transparency requirements of section 22 of the CPA, and any other prescribed standards, providing the consumer with adequate instructions for the safe handling and use of those goods. A person who installs any hazardous goods for a consumer, or supplies any such goods to a consumer in conjunction with the performance of any services, must give the consumer the original copy of any document required in terms of section 58(2), or any similar document applied to those goods in terms of another public regulation.

In terms of the NCC Recall Guidelines, a supplier undertaking a voluntary or compulsory safety-related recall is also responsible for goods supplied outside South Africa and should, therefore, notify in writing any person outside South Africa to whom the supplier has supplied goods, that the goods are subject to a recall. The notification must draw attention to the recall and a defect or dangerous characteristic in the goods or the failure thereof to comply with a prescribed consumer product safety standard. Where a supplier has complied with the notification requirements under section 60(1) of the CPA (ie, in terms of any applicable industry-wide code of practice), it must provide a copy of the notice to the NCC within 10 days of providing the notice.

Recall notices

Are there requirements or guidelines for the content of recall notices?

According to the NCC Recall Guidelines, a product-related communication to consumers must include a clear product description, including the name, make and model, any distinguishing features, batch or serial numbers and the dates when the product was available for sale; a picture of the product; a description of the defect; a statement of the hazard; a section explaining what immediate action the consumer is to take; and relevant contact details. A recall notice should not contain the words ‘voluntary recall’.

Media

What media must be used to publish or otherwise communicate warnings or recalls to users or suppliers?

The NCC Recall Guidelines are not prescriptive as to any particular communication methods, but a supplier should place information relating to a product recall prominently on its website. In terms of the NCC Recall Guidelines, it is important to match the communication to the consumer and communications regarding a recall should, therefore, be directed to the particular consumer demographic for the recalled product using an appropriate communication method.

Time frame

Do laws, regulation or guidelines specify targets or a period after which a recall is deemed to be satisfactory?

There is at this stage no provision prescribing a specific target or period after which a recall is deemed to be satisfactory. The NCC, however, requires that it be furnished with progress reports on the recall. In terms of the NCC Recall Guidelines, a recall can be closed and a final report submitted to the NCC ‘when a supplier has taken all reasonable steps to effectively mitigate the risk posed by the unsafe product’. The regulatory oversight by the NCC ceases and the supplier is no longer required to promote the recall.

Repair and replacement

Must a producer or other supplier repair or replace recalled products, or offer other compensation?

In terms of sections 55 and 56 of the CPA, the consumer may, within six months of the delivery of the goods, require the supplier to repair the goods or may return to the supplier goods that are not reasonably suitable for the purposes for which they are generally intended, are not of good quality, in good working order or free of defects, or will not be usable and durable for a reasonable period of time. To the extent that recalled products fail to comply with the provisions of sections 55 and 56, a producer or other supplier can be required to repair or replace recalled products. Obligations in terms of sections 55 and 56 are only enforceable in terms of enforcement proceedings by the NCC.

Penalties

What are the penalties for failure to undertake a recall or other corrective actions?

Save for the powers of recall granted to the Chief Executive Officer of the board of the National Regulator for Compulsory Specifications (Chief Executive Officer NRCS) arrangements in terms of the CPA are currently voluntary. The authorities can also resort to the powers discussed in question 3.

Authorities' powers

Corrective actions

What powers do the authorities have to compel manufacturers or others in the supply chain to undertake a recall or to take other corrective actions?

If the NCC has ‘reasonable grounds’ to believe that any goods may be unsafe, or that there is a potential risk to the public from the continued use of or exposure to the goods, and the producer or importer of those goods has not taken any steps required by an applicable code of practice, it may, by written notice, require that producer to conduct an investigation into the nature, causes, extent and degree of the risk to the public, or to carry out a recall programme on any terms required by the NCC (mandatory recall). These powers relate only in respect of codes of practice, none of which have been adopted to date. Product recalls in terms of the CPA are therefore for the time being voluntary. The Chief Executive Officer NRCS may, if certain commodities or products do not conform to a prescribed compulsory specification, take action to ensure the recall of the commodity or product.

In terms of the amended section 23 of the MRSA the SAHPRA has the authority, if it is of the opinion that it is not in the public interest that any product, medical device or IVD shall be made available to the public, to direct a person by notice in writing transmitted by registered post or by notice in the Government Gazette, to return any quantity of such product, medical device or IVD which he or she has in his or her possession to the manufacturer thereof or (in the case of any imported medicine) to the importer concerned or to deliver or send it to any other person designated by the council. The SAHPRA may direct that such product, medical device or IVD be dealt with or disposed of in such manner as it may determine. It is an offence for any person to sell any medicine that is the subject of such a notice (unless the notice has been set aside on appeal).

Government warnings

Can the government authorities publish warnings or other information to users or suppliers?

In terms of section 29 of the NRCSA, the Chief Executive Officer NRCS may, if it is necessary in the public interest, reveal any information which he or she considers necessary to prevent the public from being misled concerning any aspect regulated by the NRCSA, the fact that a commodity is not in compliance with a compulsory specification, or the name of a person who does not comply with or does not comply fully with a provision of the NRCSA. This can include the disclosure of the trade name and trademark of a non-compliant commodity or product or details regarding the supplier or retailer of the non-compliant product. The NRCSA issues alerts and orders recalls regarding non-compliant goods which are distributed to the media and posted on the NRCS’s website (www.nrcs.org.za). The NCC publishes consumer alerts (www.thencc.gov.za/consumer-alerts).

In terms of section 22B of the MRSA, the SAHPRA may, if it deems it expedient and in the public interest, disclose information in respect of the prescribing, dispensing, administration and use of a product, medical device or IVD. The Director-General may publish this information or release it to the public in a manner which he or she thinks fit. This information is generally published on the SAHPRA’s website (www.sahpra.org.za/) in the form of ‘safety-alerts’.

Neither the NRCS’s nor the SAHPRA’s websites make provision for the public to post remarks or reports of incidents online.

Government recalls

Can the government authorities organise a product recall where a producer or other responsible party has not already done so?

A wide range of goods are subject to the NRCSA. In relation to these commodities, the Chief Executive Officer NRCS may, if it is suspected on reasonable grounds that a consignment or batch of a commodity or product does not conform with a compulsory specification, issue a directive requiring any person who is in possession or control of the commodity or product, consignment or batch, to keep it in his or her possession or control and to refrain from tampering therewith or disposing thereof, for as long as the directive remains in force. The National Regulator may take action to ensure the recall of a commodity or product and may also direct in writing that the importer of the consignment returns it to its country of origin. The National Regulator also has the power to direct that the consignment or batch of the article concerned be confiscated, destroyed or otherwise dealt with. See question 19. The NCC may, if it has reasonable grounds to believe that any goods may be unsafe, or that there is a potential risk to the public from the continued use of or exposure to the goods, in terms of section 60(2) of the CPA, by written notice:

  • require the producer to conduct an investigation in terms of the applicable code of practice; or
  • carry out a recall programme on any terms required by the NCC, a mandatory recall. This process is not currently in force.

A producer or importer affected by a notice to carry out a mandatory recall may apply to the NCT to set aside the notice. The powers provided for by section 60 only apply in respect of implemented codes of practice. Currently, no such codes of practice are in existence.

Costs

Are any costs incurred by the government authorities in relation to product safety issues or product recalls recoverable from the producer or other responsible party?

Costs are generally not recoverable from the producer or another responsible party by the government authorities in relation to product safety issues or product recalls.

Challenging decisions

How may decisions of the authorities be challenged?

Regulatory legislation may typically make provision for some form of internal review. Decisions of the authorities are, in addition, generally subject to the principles of administrative law. These include principles such as legality, reasonableness, the giving of reasons and principles regarding the abuse of discretion.

Implications for product liability claims

Implications for product liability claims

Is the publication of a safety warning or a product recall likely to be viewed by the civil courts as an admission of liability for defective products?

The question of whether a safety warning or product recall will be viewed by the courts as an admission of liability for defective products will depend on the express wording of the safety warning or the established reasons for the recall.

Can communications, internal reports, investigations into defects or planned corrective actions be disclosed through court discovery processes to claimants in product liability actions?

After the close of pleadings, any party to any action may require any other party thereto, by notice in writing, to make discovery of all documents and tape recordings relating to any matter in question in such action that are or have at any time been in the possession or under the control of such other party. Such notice may, with the leave of a judge, be given before the close of pleadings. It is possible that documents that have been furnished to an authority such as the NCC, in terms of the NCC Recall Guidelines, will constitute documents relating to a matter in question in an action, for example a product liability action in terms of section 61 of the CPA.

Updates and trends

Key developments of the past year

Are there any emerging trends or hot topics in product recall litigation in your jurisdiction?

No updates at this time.