Automotive product safety and liability in South Africa

Product safety and liability

What are the most relevant automotive-related product compliance safety and environmental regulations, and how are they enforced? Are there specific rules for product recalls?

The National Road Traffic Regulations contain comprehensive provisions prescribing the requirements with which vehicles must comply in order to be operated in South Africa. These include detailed compliance requirements for equipment including lights, windshields and windshield wipers, lights and reflectors, tyres, seatbelts and fuel systems. No vehicle may be registered unless the owner is in possession of a current certificate of roadworthiness issued in respect of that vehicle by a registered vehicle testing station.

In terms of the Standards Act, 8 of 2008, the South African Bureau of Standards is authorised to prescribe standards which, while not automatically compulsory, contain technical specifications or other precise criteria designed to be used consistently as a rule, guideline or definition. It is arguable, in appropriate circumstances, that failure to comply with the prescribed standards in respect of any product would constitute evidence of negligence or even deliberate disregard for the health and safety of consumers and the public at large. Standards have been prescribed, inter alia, in respect of matters such as exhaust emissions and the environmental effects of air conditioners and vehicle paints.

Product recalls are governed by the CPA. The National Consumer Commission, in terms of its powers under the CPA, has developed guidelines to help suppliers plan for and respond to an incident where the recall of potentially unsafe consumer products is required. Suppliers are obliged to notify the Commission when they undertake a recall, preferably before the recall is commenced, but in any event within two days of the supplier initiating the recall. The notice must state that the goods are subject to a recall and set out the nature of the defect or the dangerous characteristic of the goods. In addition, the notice should include an explanation of the problem, including the hazard associated with the product and information about any known injuries or incidents associated with the product and action taken by the supplier to identify and correct the cause of the hazard, including the outcome of any root cause analysis.

Describe the significance of product liability law, and any key issues specifically relevant to the automotive industry. How relevant are class actions or other consumer litigation in product liability, product recall cases, or other contexts relating to the automotive industry?

Under section 61 of the CPA, the producer, importer, distributor or retailer of any goods is liable for any death or injury to persons, or damage to property, caused as a consequence of supplying any unsafe goods, a product failure, defect or hazard in goods, or inadequate instructions or warnings, irrespective of whether the harm resulted from any negligence on the part of the producer, importer, distributor or retailer and even where there is no direct contractual relationship between the plaintiff and the producer, importer, distributor or retailer concerned.

Product liability cases arising from latent defects or poor workmanship in motor vehicles and falling outside the ambit of the CPA are dealt with according to common law delict (tort) principles and depend on whether the manufacturer or supplier was negligent in this regard either for the latent defect or poor workmanship.

As mentioned above, in appropriate circumstances, failure to comply with the prescribed standards in respect of any product would constitute evidence of negligence or even deliberate disregard for the health and safety of consumers and the public at large and may also give rise to consumer claims in terms of the CPA.

Class action litigation is a relatively new area of law in South Africa, as recent legislation has opened the way for class actions to be recognised in South African courts.