Product Liability 2009 - Arnold & Porter LLP

Cliffe Dekker Hofmeyr Inc. South Africa
legislation will not be a defence to prevent damages being awarded
against a party.
3.4 Can claimants re-litigate issues of fault, defect or the
capability of a product to cause a certain type of damage,
provided they arise in separate proceedings brought by a
different claimant, or does some form of issue estoppel
prevent this?
Any claimant may, within the law of prescription, claim damages
independent of other similar claims lodged. Each case will be
treated separately. Different claimants could have suffered different
hardships and the facts of each case may also be different.
3.5 Can defendants claim that the fault/defect was due to the
actions of a third party and seek a contribution or
indemnity towards any damages payable to the claimant,
either in the same proceedings or in subsequent
proceedings? If it is possible to bring subsequent
proceedings is there a time limit on commencing such
proceedings?
Yes, defendants can join other defendants to a civil action in the
same proceedings and seek a contribution to the award being made
or claim that such joined defendant is solely liable. The running of
prescription will be interrupted when papers are served on the
defendant to be joined. Therefore, it would be more practical to join
the defendant as soon as possible in the same proceedings because
the running of prescription will then be interrupted. To join a
defendant instead of bringing a separate action against such
defendant will also save legal costs. There may also be some other
advantages to join a defendant as a party to the action.
3.6 Can defendants allege that the claimant’s actions caused
or contributed towards the damage?
Yes, a defendant can plead that the plaintiff’s actions caused the loss
or contributed to the damages suffered. The court can make findings
about the manner in which the plaintiff was negligent and the degree
of such negligence. This will have an effect on the award made, if any,
regarding the amount of damages suffered by the plaintiff.
4 Procedure
4.1 In the case of court proceedings is the trial by a judge or a
jury?
High Court trials are heard by a judge and Magistrate Court trials
by magistrates.
4.2 Does the court have power to appoint technical specialists
to sit with the judge and assess the evidence presented by
the parties (i.e. expert assessors)?
No, courts in South Africa do not have that power.
4.3 Is there a specific group or class action procedure for
multiple claims? If so, please outline this. Is the
procedure ‘opt-in’ or ‘opt-out’? Who can bring such
claims e.g. individuals and/or groups? Are such claims
commonly brought?
In terms of our High Court Rules and our Constitution, actions can
ICLG TO: PRODUCT LIABILITY 2009
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be instituted by groups of people with the same interest in South
Africa, but these are not class actions as known in the USA.
4.4 Can claims be brought by a representative body on behalf
of a number of claimants e.g. by a consumer association?
No. Only if the claimants ceded their right, title and interest to such
body.
4.5 How long does it normally take to get to trial?
It depends in which legal jurisdiction the action was brought. On
average it takes approximately one to one and a half years for a
matter to be brought to trial.
4.6 Can the court try preliminary issues, the result of which
determine whether the remainder of the trial should
proceed? If it can, do such issues relate only to matters of
law or can they relate to issues of fact as well, and if there
is trial by jury, by whom are preliminary issues decided?
A court will hear points in limine and special pleas, for example,
prescription of a claim first before it entertains the merits of the
matter. Parties may also agree to split the merits of the case and
quantum of damages of the claim and hear the merits of the case
first, thus resulting in the saving of legal costs if the claimant does
not succeed in proving the merits of its case.
4.7 What appeal options are available?
An automatic appeal from the lower court (Magistrates Court) to
the Supreme Court is available.
From the judgment of a single judge an appeal to an appeal tribunal
of three judges sitting in the Supreme Court is available. However,
leave to appeal is required from the single judge. If leave to appeal
is not granted, a petition to the Chief Justice will have to be made
to obtain leave to appeal.
A further appeal from the three judges is available to the Appeal
Court.
4.8 Does the court appoint experts to assist it in considering
technical issues and, if not, may the parties present expert
evidence? Are there any restrictions on the nature or
extent of that evidence?
A court will not appoint experts of its own accord. The parties to
the action are entitled to present expert evidence. The nature and
extent of the expert evidence are not restricted but a summary of
such evidence must be made available to the counter party before
the trial commences.
4.9 Are factual or expert witnesses required to present
themselves for pre-trial deposition and are witness
statements/expert reports exchanged prior to trial?
South Africa does not have the deposition procedure.
4.10 What obligations to disclose documentary evidence arise
either before court proceedings are commenced or as part
of the pre-trial procedures?
In terms of our discovery procedure, a party is obliged to make full
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