Most Popular Article in South Africa, October 2016
In a previous article we considered the Pretoria High
Court's decision in Halstead-Cleak v Eskom Holdings
Limited  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
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
"...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
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
The Consumer Protection Act, 68 of 2008 (the "CPA"), came into effect on 31 March 2011 and is likely to have certain far-reaching implications for the promoters of promotional competitions, especially competitions which are conducted using SMS or MMS technology.
Following on from our article in last month’s Law Update (Issue 228) regarding the recently established consumer protection website, www.consumerrights.ae, this is the first in a series of three articles which will consider the UAE’s Consumer Protection Law which was introduced in 2006 (the "Law") and its implementing Regulations which were enacted in 2007 (the "Regulations").
Set out below are answers to questions that you should be asking yourself in light of the provisions of the Consumer Protection Act No. 68 of 2008 (CPA), which are currently in force and those which are due to take effect on 1 April 2011.
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