Product Liability 2009 - Arnold & Porter LLP

South Africa
288
Cliffe Dekker Hofmeyr Inc. South Africa
disclosure of all documents, tape recordings and correspondence
relevant to the case and make copies of same available to the other
side. The discovery procedure is usually completed by the time the
first pre-trial meeting is held a few weeks before the trial
commences.
4.11 Are alternative methods of dispute resolution available e.g.
mediation, arbitration?
Yes, but only if the relevant parties agreed to alternative dispute
resolution mechanisms to resolve a dispute. Mediation and
arbitration are well-known dispute resolution mechanisms in South
Africa.
5 Time Limits
5.1 Are there any time limits on bringing or issuing
proceedings?
Yes, certain time limits do exist.
5.2 If so, please explain what these are. Do they vary
depending on whether the liability is fault based or strict?
Does the age or condition of the claimant affect the
calculation of any time limits and does the Court have a
discretion to disapply time limits?
A debt arising from delict or contract prescribes three years after it
originated and therefore action must be instituted within such threeyear
period. Prescription shall commence to run as soon as the debt
is due. A debt shall not be deemed to be due until the creditors have
knowledge (or ought reasonably to know) of the identity of the
debtor and of the facts from which the debt arises. The completion
of prescription will be postponed in the event that the person against
whom the prescription is running is a minor, or is insane, or is a
person under curatorship. It is not within the discretion of the court
to apply time limits. In terms of certain Acts of Parliament, periods
of notice have been prescribed, and limits of time have been fixed
within which actions must be brought.
In terms of the Consumer Protection Bill, the defence of
prescription may also be raised.
5.3 To what extent, if at all, do issues of concealment or fraud
affect the running of any time limit?
Prescription will not commence to run in the event of the
concealment of facts or a fraudulent act, preventing a claimant from
having full knowledge of the facts on which its claim arises.
6 Remedies
6.1 What remedies are available e.g. monetary compensation,
injunctive/declaratory relief?
All these remedies are available in South Africa.
6.2 What types of damage are recoverable e.g. damage to the
product itself, bodily injury, mental damage, damage to
property?
In terms of the Consumer Protection Bill, harm for which a person
may be held liable includes:
the death of, or injury to, any natural person;
an illness of any natural person;
any loss of, or physical damage to, any property irrespective
of whether it is moveable or immovable; and
any economic loss that results from the harm.
Prior to the promulgation of the Consumer Protection Bill, the
following types of damages are recoverable: damages for breach of
contract; damages for pain and suffering; patrimonial damages such
as loss of income; medical expenses; and damage to property.
6.3 Can damages be recovered in respect of the cost of
medical monitoring (e.g. covering the cost of investigations
or tests) in circumstances where the product has not yet
malfunctioned and caused injury, but it may do so in
future?
No, they cannot.
6.4 Are punitive damages recoverable? If so, are there any
restrictions?
No, South African Law does not recognise punitive damages.
6.5 Is there a maximum limit on the damages recoverable
from one manufacturer e.g. for a series of claims arising
from one incident or accident?
There is no maximum limit on the amount of damages recoverable
provided that the damages claimed from the respective parties are
proven by the claimant.
6.6 Do special rules apply to the settlement of
claims/proceedings e.g. is court approval required for the
settlement of group/class actions, or claims by infants, or
otherwise?
Court approval is not a prerequisite for a settlement to be entered
into. However, to ensure that the settlement agreement is
enforceable, it should be made an order of court and in this process,
the court is not entitled to interfere with the terms of the settlement,
unless the court is of the view that the terms of the settlement is not
in the public interest. Regarding claims on behalf of infants, such
claims must be instituted by the guardian of the infant. The High
Court, being the upper-guardian of all minors, will have to sanction
the settlement agreement to ensure that the infant’s interests are
protected.
6.7 Can Government authorities concerned with health and
social security matters claim from any damages awarded
or settlements paid to the Claimant without admission of
liability reimbursement of treatment costs, unemployment
benefits or other costs paid by the authorities to the
Claimant in respect of the injury allegedly caused by the
product. If so, who has responsibility for the repayment of
such sums?
No they cannot.
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