By Andries Cornelissen B. Proc, Practical Legal Training, Accredited and Certified Mediator, International Accredited and Certified Mediator London School of Mediation, Certified and Accredited Conflict Coach, Practicing Associate: The Association of Arbitrators, Certified and Accredited AHI Representative
The Greek philosopher Plato once said:
“Excellence is not a gift, but a skillset that takes practice. We do not act rightly because we are excellent, in fact, we achieve excellence by acting rightly.”
The Cambridge Dictionary explains that to act rightly one should act in way that is considered to be morally good, acceptable, or fair.
Tiger Brands is recalling 20 million Koo & Hugo’s canned vegetables products manufactured between 1 May 2019 and 5 May 2021 due to a defective side seam weld of some cans. This may cause a leak, which could result in secondary microbial contamination of the content.
Tiger Brands explained that, despite only a very small number of cans indicating a side seam weld defect, they opted to recall all cans manufactured during the specified period.
One could argue that Tiger Brands decided to protect their brand integrity and that they acted “rightly” as Plato would say, before consumers were negatively affected.
Yet I cannot help but wonder to what extent the possibility of consumers’ civil claims impacted their decision making, especially with the 2018 Enterprise Listeria outbreak still fresh in everyone’s minds.
This left me with a question: What would a consumer’s rights be in such a scenario?
The answer to this question, however, is not that forthcoming. The law on food is exponentially complex.
Food law can be described as the intersection of all the various laws concerning:
- Food science
In South Africa there is no single food law to regulate all of the above. There are various Acts and Regulations governing the process from agricultural growth to processing and distribution thereafter.
These Acts and Regulations are constantly being revised and updated. Let’s consider the field of food safety for example. A manufacturer must strictly comply with food safety regulations and protocol. Such regulations are complex and they set forth rigid criteria to which a manufacturing plant must comply.
Historically, a consumer had to prove negligence or breach of contract (expressly or implied) on the part of any entity within the supply chain. This was a task of great difficulty because an event could have occurred at any point from production to sale. Each entity usually blamed the other and the onus was on the consumer to prove which entity was negligent or in breach of contract.
The Hero for the consumer came with the introduction of the Consumer Protection Act.
The major difference between the Common Law position and Section 61 of the Consumer Protection Act is that Section 61 imposes a no-fault liability on any:
If such damage is caused wholly or partly because of:
- Unsafe goods
- Product failure
- Defect or hazard
- Inadequate instructions or warnings associated with the use of any goods.
Any entity in the supply chain may now be held accountable irrespective of whether the harm resulted from any negligence on the part of the producer, importer, distributor or retailer.
The consumer therefore has the legal right to hold all persons in the supply chain liable for such damages.
The Consumer Protection Act further provides that every consumer has a right to receive goods:
- That are reasonably suitable for the purposes for which they are generally intended for
- Are of good quality
- Are in good working order
- Are free of any defects
- Will be useable and durable for a reasonable period of time having regard to the use to which they would normally be put and to all the surrounding circumstances of their supply and
- Comply with any applicable standards set under the Standards Act, 1993 (Act No. 29 of 1993) or any other public regulation.
The following dispute resolution mechanisms are available to consumers in terms of Section 69 of the Consumer Protection Act, which reads:
“A person contemplated in s4(1) may seek to enforce any right in terms of this Act or in terms of a transaction or agreement, or otherwise resolve any dispute with a supplier, by:
referring the matter directly to the Tribunal, if such a direct referral is permitted by this Act in the case of the particular dispute;
referring the matter to the applicable ombudsman with jurisdiction, if the supplier is subject to the jurisdiction of any such ombudsman;
if the matter does not concern a supplier contemplated in paragraph (b):
referring the matter to the applicable industry ombudsman, accredited in terms of s82(6), if the supplier is subject to any such ombudsman; or
applying to the consumer court of the province with jurisdiction over the matter, if there is such a consumer court, subject to the law establishing or governing that consumer court;
referring the matter to another alternative dispute resolution agent contemplated in s70; or
filing a complaint with the Commission in accordance with s71; or
approaching a court with jurisdiction over the matter, if all other remedies available to that person in terms of national legislation have been exhausted.”
The Consumer Protection Act therefore empowers the consumer by setting out redress options where a right has been infringed when the value chain fails them.
Andries Cornelissen from Legal Hero