BEWARE!! THE INCIDENTAL CONSUMER

The New Consumer Protection Act 68 of 2008 (the CPA) came into effect on 31 March 2011. The Act provides protection to consumers. A consumer is generally defined in the CPA as any person to whom good or services are marketed to, by the supplier, in the ordinary course of business and/or any person who has entered into a transaction with the supplier for the provision of goods and/ or services in the supplier’s ordinary course of business.

The CPA further provides protection to and redress for "any person" in a number of its provisions, that is, not only in respect of "consumers" or a "consumer".
The recent case of Halstead-Cleak v Eskom Holdings Ltd 2016 (2) SA 141 (GP) dealt with precisely this point.

The brief facts of this case were as follows: - the plaintiff was Derek Anthony Halstead-Cleak and the defendant was Eskom Holdings Limited. The plaintiff got electrocuted by a low-hanging live powerline when he and his friends were cycling. During the incident, the plaintiff sustained severe electrical burns to his body. The plaintiff accordingly sued the defendant for damages arising from his injuries. The plaintiff based his claim on section 61 of the CPA.

Essentially, section 61 provides that a supplier or producer will be liable for any harm caused as a consequence of either the supply of unsafe goods, a defect in the supplied goods or inadequate warnings provided to the consumer regarding the hazard that is associated with the use of the goods. It does not matter if the harm arose as a result of the negligence of the supplier, the supplier will still be held liable.

In deciding the matter, the court started off by stating that at all times material thereto, the defendant was a licensee in terms of the Electricity Act, which meant that at all times the defendant was responsible for the supply of the electricity in the public and in particular, the defendant was responsible for the powerline in question. The defendant was basically a producer and supplier of the ‘goods’, being electricity in terms of the CPA.

The defendant’s argument was that the reading of the CPA, specifically section 61 read with section 53, was not intended to be applicable to the current facts. It argued that had the plaintiff been electrocuted at his home while performing some or other task involving electricity, then the provisions of the CPA would be applicable. Essentially, the defendant was arguing that the plaintiff was not a ‘consumer’ in terms of the CPA for it to be liable for the damages that were sustained by the plaintiff.

The court rejected this argument, finding that the defendant’s interpretation was contrary to the spirit and purport of the Act. The court explained that the CPA was primarily designed to protect ‘everyone’ against harm caused by defective goods by producers. The provisions of the CPA are not limited to ‘consumers’ in the strict contractual sense but apply to everyone!

This case demonstrates how far the court was willing to go in the protection of consumers against the negligence of suppliers of goods. What this means for the producers, retailers and distributors is that they can no longer simply escape liability for damages caused by their goods simply because the victim was not a party to a transaction or that they do not consider the victim as a ‘consumer’. Producers, suppliers and distributors should now take even more cautionary measures in the production and supply of their goods to ensure that they do not contravene the provisions of the CPA.

Compiled By: Sboniso Kheswa (Candidate Attorney) (PMB Office)
E-mail: sbonisok@tmj.co.za
Tel: 033 341 9100