Consumer Law

Product Liability in Zimbabwe

LAW OF AGENCY

Compiled by: Clayton Mutseneki

Compiled for: Commercial Law Tutorials

Compilation on: Product Liability in Consumer Law

Overview

A product liability action in negligence can only be brought in respect of products

which are dangerous; defects which make a product work less well, or products
which are simply low quality, are not covered.

In the case of a manufacturer who does not sell the defective product directly to the injured
party, there is no contract between the manufacturer and the injured party. Under the
common law, liability, if any, can arise only in terms of the law of delict. Anyone claiming
delictual damages for product liability must prove fault in the form of intention or negligence
on the other person's part. If, however, the transaction is covered by the Consumer
Protection Act, then the situation is now changed, and the manufacturer may be liable under
the Act. If the transaction is not covered by the Act, then the common-law remedies will
apply, and liability can only arise through the law of delict.

In Zimbabwe product liability law is governed in part by statue in terms of the Consumer
Protection Act [Chapter 14:14] (CPA), which was gazetted on December 10, 2019. In
addition, the common law concept of delict law is recognized in Zimbabwe. Under the law of
delict, product liability claims may be brought by way of aquilian action. This action is
brought where there is monetary loss. Damages may include actual damages which can be
proven (including hospital expenses, loss of earnings and so on) as well as general damages
relating to loss of dignity, emotional harm etc. Under the law of delict, if a manufacturer
produces and markets a product which is defective, and a person can
demonstrate that such an action was wrongful in that it breached the duty of the
manufacturer to the consumer, the manufacturer may be held liable.
Manufacturer/ Expert liability

Where the seller is a manufacturer of the merx or a specialist dealer who publicly claims to
have expertise regarding the merx, Lockie v Wightman & Co Ltd 1949 SR 216 or 1950
(1) SA 361 imposes strict liability on such a seller if defects are found in the merx.

In this case, the plaintiff sued the defendant for the sum of £250 being damages
suffered by her as a result of the death of her horse. The death was caused by
the horse eating fodder containing arsenic. The defendant company were dealers
in produce including horse fodder. The fodder arrived to the Plaintiff packed very
tightly in thick waterproof brown paper, intact and showed no sign of
contamination.

Regulation

Section 10 of the CPA provides that a supplier is prohibited from selling or marketing any
goods or services unless they conform to the mandatory safety and quality standards
prescribed in accordance with law. Section 16 of the CPA provides that the producer,
trademark holder, importer, distributor or retailer of any goods is liable for any harm, caused
wholly or partly as a consequence of, among others, supplying any unsafe goods or products
which have a failure, defect or hazard.

Forum

A liability claim can be brought by the injured person, or their family or dependents in the
case of death. The claim will be brought in either the Magistrates’ Court or the High
Court, depending on the monetary value, by way of action proceedings. In terms of the
CPA, a liability claim can be brought either by the consumer or by accredited Consumer
Protection Advocacy groups. If brought by a Consumer, Section 65 of the CPA provides
that the consumer may bring the claim to the Consumer Protection Commission,
the designated consumer protection organization or directly to the court. A consumer may
approach either the Small Claims Court, the Magistrates Court or the High Court
depending on the value of the claim.
Defenses to a claim by a consumer under CPA

Under delictual law, it would be a defense to a claim to demonstrate that a person had
consented to the harm by assumption of risk (for example, if the harm caused was disclosed
as being possible in terms of a known side effect) or where they can demonstrate that there
was a prior agreement not to claim, through accepting a limitation of liability. In addition, if
it can be demonstrated that the fault was due to someone else’s actions, as would be the
case if a pharmacist sold medication which was passed its sell-by date, then that would be a
defense to the claim.

The CPA contains further defenses which are available to anyone against whom a claim for
product liability has been made.

In addition, prescription is also a valid defense, and the prescription period in Zimbabwe is
three years.

ZIMBABWEAN CASES ON PRODUCT LIABILITY

HB 55-18 HC 279-15 NDABEZINHLE MAZIBUKO BROADWAY SPAR EXPRESS

Delta Beverages Pvt Ltd v Onisimo Rutsito SC 42/13