Product Liability 2009 - Arnold & Porter LLP

Cliffe Dekker Hofmeyr Inc. South Africa
7 Costs / Funding
7.1 Can the successful party recover: (a) court fees or other
incidental expenses; (b) their own legal costs of bringing
the proceedings, from the losing party?
Yes, court fees are recoverable on a party to party scale which
provides that the successful party is entitled to recover the court
fees in terms of the High Court Rules as per a taxed bill of costs,
subject to the discretion of a Taxing Master.
In the event that an order as to attorney and client costs is granted
by the court, the successful party will be entitled to recover their
own legal costs according to the Court Rules from the losing party
as per the taxed bill of costs, subject to the discretion of a Taxing
Master. In the event that an order as to attorney and own client is
granted, the successful party will be entitled to recover all legal
costs including the costs of their attorney.
7.2 Is public funding e.g. legal aid, available?
Yes, public funding is provided by institutions such as the Legal Aid
Board, the Legal Resource Centre and certain Legal Aid Clinics.
7.3 If so, are there any restrictions on the availability of public
funding?
Yes. A means test exists for the purpose of determining the
indigence of an applicant for aid. In civil matters the income and
assets of the applicant and/or his/her spouse are both taken into
account to qualify for aid. However, certain restrictions exist
regarding the types of claims and financial assistance is often not
provided for monetary claims for damages based on contract and
delict.
7.4 Is funding allowed through conditional or contingency fees
and, if so, on what conditions?
Contingency fees are allowed in South Africa. However, the
“success fee” may not exceed the normal fee by more than 100%,
provided that, in the case of claims sounding in money, the total of
any such success fee payable by the client to the legal practitioner,
may not exceed 25% of the total amount awarded or any amount
obtained by the client in consequence of the proceeding concerned,
which amount may not for purposes of calculating excess, include
any costs.
ICLG TO: PRODUCT LIABILITY 2009
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7.5 Is third party funding of claims permitted and, if so, on
what basis may funding be provided?
In terms of a judgment in the South African Court of Appeal
delivered in 2004, an agreement in terms of which a person
provides a litigant with funds to prosecute an action in return for a
share of the proceeds of the action was not contrary to public policy
or void. Third party funding is therefore permitted. Funding may
be provided by way of any legitimate means.
8 Updates
8.1 Please provide, in no more than 300 words, a summary of
any new cases, trends and developments in Product
Liability Law in South Africa.
The common law principle, that negligence must be proved for a
manufacturer to be held liable for a defective product, will change
when the Consumer Protection Bill of 2007 has been promulgated.
Manufacturers and retailers will be held strictly liable with the
promulgation of the Bill. The third draft of the Bill was approved
by the Cabinet on 5 December 2007 and it is anticipated that the
Bill will become law during 2009. The Bill will introduce liability
for damages caused by goods and will therefore change the
Common Law with regard to liability in South Africa. The Bill will
furthermore promote a fair, assessable and sustainable market place
for consumer products and services and for that purpose, to
establish national norms and standards relating to consumer
protection, provide for improved standards of consumer
information, to prohibit certain unfair marketing and business
practises, to promote responsible consumer behaviour, to provide
for harmonisation of laws relating to the protection of consumers,
to promote a constant enforcement framework relating to consumer
transactions and agreements. Furthermore, the Bill makes
provision for a notification process in the event of a product being
defective.
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