Andy: [00:00:03] Hi guys. Welcome back to our Product Liability podcast series. I'm really so excited to be recording with everybody in the in the same room today. I think the last time I was joined by Wesley and Marie. But today we have a very special guest as well. Joining us, Joel, welcome to our podcast series today.

Joel: [00:00:22] Thanks, Andy. It's great to be here.

Andy: [00:00:23] Thanks, guys. So today's discussion will be around the Consumer Protection Act and the various mechanisms that consumers can use to enforce their rights. I think, Wes, would you like to just kick start us on and just inform our listeners on the various mechanisms that are available in terms of the Consumer Protection Act?

Wesley: [00:00:41] So, Andy, in terms of, uh, having your complaint heard as a consumer, um, the process really isn't as straightforward as we'd want it to be because there are various different avenues that consumers can go to to have their complaints dealt with. And those avenues really depend on the dispute that needs to be resolved. The industry in which the product we're talking about arises, and the actual type of the product that we're talking about. But generally, the first step is for consumers to approach an alternative dispute resolution body. And there are loads of them, and they're all mentioned in the Consumer Protection Act, some of these alternative dispute resolution bodies. So for instance, you could have an ombud with jurisdiction. So for example you have the Consumer Goods and Services Ombud or you have the short term Insurance Ombud. We also have industry specific regulators, and it's worth knowing who your industry specific regulator is because there really are regulators for each industry. For example, you have the national regulator for compulsory specifications or for health products, you have the South African Health Products Regulatory Authority. And as I say, it all really depends on the nature of the product that we're dealing with and which industry that product is found. Um, and then if these, uh, alternative dispute resolution bodies can't resolve the dispute, only then can consumers go to the National Consumer Commission.

Andy: [00:02:11] Sure. Thanks. So just for my own understanding, and perhaps just to sum it up for our listeners, it seems like it really just depends on the nature of the dispute and the industry that that dispute would be in.

Wesley: [00:02:22] That's exactly right. Andy.

Andy: [00:02:24] Perfect.

Joel: [00:02:25] Just to clarify, I think it's also important to point out that the National Consumer Commission doesn't investigate.

Joel: [00:02:30] Individual complaints anymore, but only investigates endemic harmful business practices and trends. And they focus on issues of policy. So the commission may decline to investigate a particular individual matter, and they likely to refer the consumer to another regulatory authority for assistance and right Wes.

Wesley: [00:02:48] Yeah, Joel.

Wesley: [00:02:48] That's that's also exactly right. And just to follow on from that, uh, maybe what I can just touch on is what happens when the Consumer Commission actually accepts a complaint. And that can be one of three things. So the first is that the commission will issue a non referral notice. The second is that the commission will refer the complaint to another better suited regulatory authority or ombud. And then the third is that the commission will actually investigate the matter itself.

Andy: [00:03:21] Sure. So it's just to before you continue what is the non referral notice. What would that mean for our listeners.

Wesley: [00:03:28] So just to give a basic definition of what a non referral notice is, it really just means that the Commission has found that there's no real merit in your complaint. And that's that's also for another one of three reasons. And just to list those reasons. So the first would be that your complaint is found to be clearly frivolous or vexatious. So there's there's no real claim there. You're just making a bit of a silly complaint. Um, the the other is that the complaint doesn't have or allege any facts which would give a ground for any remedy that's under the Consumer Protection Act. Um, and that's even if those facts which are alleging are found to be true. And then the last one is that the complaint is actually too old. So even if there was an issue, uh, the complaint can't be referred to the tribunal because it's more than three years after the conduct that's complained of actually took place. And so you can't refer that complaint. So the commission does have a lot of inherent power in deciding how best to deal with complaints.

Andy: [00:04:34] Sure.

Andy: [00:04:34] That's that's quite important. Um, my thinking was just, um, would parties be able to settle at this point or what is the process?

Barr-Mary: [00:04:42] That's a very interesting question.

Barr-Mary: [00:04:44] And because we do know that a normal dispute resolution process parties can very much at any stage decide to settle the matter. However, in product liability disputes, bodies such as the Commission, because they play such an active role, it makes it a bit difficult for parties to decide between themselves that they'll be settling the matter. So usually where the commission has already launched an investigation and it concludes that a prohibited conduct has in actual fact occurred, it may propose a draft consent order. This would basically be a record of an agreement between the parties in respect of an appropriate order that the parties deem necessary, say for the draft consent order, the Commission may issue a compliance notice, which would set out standards and duties that the company or organisation needs to comply with. Or alternatively, the Commission may refer the matter to a consumer court or the tribunal.

Andy: [00:05:42] So why can't a consumer just refer a complaint directly to the consumer court or to the tribunal itself?

Barr-Mary: [00:05:48] So where the commission issues a non referral notice, which Wesley referred to earlier on in response to a complaint, on certain grounds, the complainant may refer the matter directly to the Consumer Court or the tribunal. It is important to note, though, that the tribunal is not the first go to body for an aggrieved consumer. The National Consumer Commission will always be the first go to.

Andy: [00:06:13] So does that mean that despite the fact that a consumer can't refer a complaint directly to a consumer court, do they then have the option of still referring the complaint directly to a tribunal?

Barr-Mary: [00:06:25] So in answering your question, Andy, we need to bear in mind the purpose of these bodies that have been established. So the commission at. South was established to protect the interests of consumers and ensure accessible, transparent and efficient redress for consumers. If consumers were to bypass this particular process that in place and go straight to the tribunal, this will only lead to the tribunal being overburdened by matters that could actually easily been resolved by the Commission.

Andy: [00:06:54] Thanks, Marie. I think that makes a lot of sense. I mean, you wouldn't want to overburden the tribunal when you could easily have the dispute resolved by the NCC. So, yeah, thanks for just clarifying that. Um, but I think it can be quite confusing for consumer just to know which body to approach. I mean, there's just so many mechanisms and various mechanisms, bodies that the consumers can approach. So where would you start as a consumer?

Joel: [00:07:21] Well, the CPA doesn't provide a specific hierarchy, setting out the order in which the different dispute resolution bodies ought to be approached. But section 69 does provide that a court with jurisdiction over the matter may be approached only if all other remedies available to that person in terms of national legislation have been exhausted. So, as we've discussed already, section 69 makes provision for a person approaching a tribunal directly or referring the matter to the applicable ombud, or to the consumer court or ADR agent, or filing a complaint with the commission. But some of our cases have suggested that the Consumer Protection Act has an implied hierarchy, and what that means is that the alternative dispute resolution body should first be approached in an attempt to resolve the dispute before a complaint is filed with the commission. But the point I'm trying to make here is that it's not applied consistently, and our courts have actually held that if a consumer has approached at least one of the internal remedies before rushing to court, that it's been sufficient.

Andy: [00:08:21] Thanks everyone for just explaining the different dispute resolution mechanisms available, and for breaking it down for our listeners to understand that there are different bodies that consumers could approach when they are ultimately faced with a defective product. But I'm just thinking out of interest. You know, you often hear this word prescription in litigation, and I was just wondering whether this actually applies in terms of the CPA and to what extent would it actually be applicable?

Barr-Mary: [00:08:47] So I understand prescription to be a legal concept that refers to a situation where, due to the passage of time, a date is no longer liable to, um, pay off an old debt. The passage of time would be determined on a case by case basis, considering the particular facts at hand. Wesley, I know you've worked on a few couple of matters where prescription was raised. Can you please take us through a prescription in a bit more detail?

Wesley: [00:09:14] I definitely can Mar and yeah, like you say, prescription really decides when people are allowed to bring their claims and in what time period they have to bring their claim before, um, you know, they can't enforce it anymore. And in the ordinary course, we deal with the Prescription Act. And the Prescription Act really sets out all of those time periods for when a claim has to be brought. And it sets out a number of issues as well, including acquiring property through time. So it really does deal with quite a number of issues. Mainly, though, it deals with the prescription of debts and with ordinary dates. It tells us when prescription starts and then when those debts actually prescribe and you can't enforce them anymore. And with ordinary debts, it's usually three years from the time that the debt has fallen due. But then if there is another piece of legislation which gives its own requirements for prescription or its own periods for prescription, then that other piece of legislation actually takes preference. So you really need to know when claims can be brought, either to know when you can bring your claim, or as a manufacturer or producer, to have certainty of when a claim can no longer be brought in respect of a particular product.

Wesley: [00:10:29] But then if there is another piece of legislation which gives its own requirements for prescription and its own periods in which you have to bring a claim, that piece of legislation actually takes preference. And the Consumer Protection Act is one of those pieces of legislation, and it particularly deals with when there is damage, illness or even death caused by a particular product. And the Consumer Protection Act is one of those acts that has its own prescription requirements and its own requirements, particularly in respect of a claim arising from damage, illness or death that's caused by a product. And what the Consumer Protection Act says is that liability doesn't arise when a claim is brought more than three years after certain events, one of those events being death or injury to a person, the second being the time when a person has knowledge of an illness caused by a product, and the third being the time when a person has knowledge of damage that has been caused to their property by that product. And I think there's actually a fourth requirement, which, Joel, you've had some experience dealing with. So maybe you could just touch on that point for us.

Joel: [00:11:41] Yeah. There is an exception in terms of section 6144, which states that the liability in terms of the section doesn't arise if the claim for damages is brought more than three years after the latest date on which a person suffered any economic loss. It's a bit of a strange one, right? Because it seems to be an exception to our once and for all rule. But in effect, it seems to be that the three year period begins to run not when the first loss occurs, but when the last loss occurs. Let's say, for example, in the medical industry, um, in instances where an injury is sustained in 2022. But, um, a medical bill is received in 2024 that later bull means you've suffered economic loss. Right. And so the suggestion is that, um, that medical bill keeps prescription alive.

Andy: [00:12:29] Thanks, Joel. So just to sum it up, and from my understanding, this would mean that even if you were aware of the date of the injury, say, for example, it runs from 2022 and the latest date in which you receive a bill in terms of which you've suffered economic loss would be 2024. That kind of triggers prescription and keeps it alive. In terms of section 61 for subsection D, is that correct?

Joel: [00:12:54] Yeah, exactly. That's what the exception suggests, Andy.

Andy: [00:12:56] Okay, sure. Thanks for sharing guys. I think this has been very informative and it seems like prescription is really important not only for our consumers, but also for manufacturers to ultimately understand when a claim falls within that prescription period and for consumers to ultimately know when to actually bring their claims. So yeah, thanks so much for this very useful and informative session. But I do think given the increase in product liability recalls that have been happening lately in South Africa, I think it would actually be great if we could hear from our listeners on what their concerns are regarding product liability recalls, and perhaps what we could do in our next session is just cover some of the issues and practical issues that they are actually facing within the product liability space. So yeah, I really enjoyed today, and I really hope our listeners enjoyed this podcast, and I look forward to having us all together in our next podcast on product Liability.

Wesley: [00:13:50] Thanks, Andy. It was a really interesting discussion today.

Joel: [00:13:53] Yeah, it's great to be here.

Barr-Mary: [00:13:54] Cheers, guys.