South Africa’s biggest consumer foods maker, Tiger Brands, has recalled products produced by its Enterprise unit after the government traced the source of a listeria outbreak that has killed almost 180 people and sickened nearly 1,000 to its Enterprise manufacturing facility. Tiger Brands said it has suspended operations at both Enterprise manufacturing facilities in Polokwane and Germiston.
South Africa’s laws governing products liability closely parallel those found in many US jurisdictions. While the country has long-recognized that a manufacturer of unfit food can be held civilly liable in negligence, legislation introduced almost decade ago codified strict products liability principles applicable to every entity in a product’s supply chain. Further, South Africa also holds entities in a supply chain criminally liable for making contaminated or unfit food available to consumers.
Prior to enacting legislation in the early 2000’s, South African manufacturers of food could be held civilly liable under principles similar to those common in US tort law. Specifically, claimants alleging injury caused by unfit food could demonstrate that an entity was negligent in its manufacture of the product. The Muzik v. Cansone Del Mare case is a well-known example of a food-poisoning litigation where the court found in favor of a victim claiming a restaurant’s negligent preparation and service of seafood caused his serious injuries. The restaurant, Cansone Del Mare, served Muzik contaminated mussels which made him severely ill and led to his hospitalization. He subsequently sued the restaurant, and was awarded damages including his medical bills, lost wages, and loss of enjoyment of life because his fear of being poisoned again prevented him from enjoying a previously-loved food.
A few years after Muzik, South Africa provided foodborne illness claimants a powerful avenue of recovery when it enacted the Consumer Protection Act No. 68 of 2006 (CPA). Section 61 of the CPA establishes broad strict liability principles, specifically holding everyone in the supply chain of a product—manufacturers, importers, distributors, and retailers—liable for any harm their product causes, irrespective of whether or not they behaved negligently. The elements of strict products liability in South Africa is near-identical to the burden in the US: a claimant need only prove that their injury or illness was caused by (1) the supply of an unsafe product, (2) a product failure, defect, or hazard in the product, or (3) inadequate instructions or warnings. 61(1)(a)—(c).
If a claimant prevails in demonstrating her burden, the responsible parties are held jointly and severally liable for, “the death of, or injury to, any natural person; an illness of any natural person…and any economic loss that results from,” that death, injury, or illness. 61(5)(a)—(d). While initially appearing to be broad-sweeping legislation, Section 61 may also limit the liability of so-called “passive retailers”—entities who merely obtain pre-prepared food to sell to consumers. The relevant language bars liability if, “it is unreasonable to expect the distributor or retailer to have discovered that the unsafe product characteristic, failure, defect or hazard, having regard to that person’s role in marketing the goods to consumers.” 61(4)(c).
Finally, despite its many similarities to US product liability laws, South Africa also holds entities criminally liable for making contaminated or unfit food available to the public. The Food, Cosmetics and Disinfectants Act 54 of 1972 makes it a criminal offense for any person to, “sell, manufacture or import for sale, any foodstuff which is contaminated, impure or decayed, or is, in terms of any regulation deemed to be harmful or injurious to human health.” (2)(1)(b)(i). If the criminal offense is committed by an employee of a food service establishment, such liability attaches to the employer unless he can demonstrate that he took all reasonable measures to prevent the act or omission that led to the offense. (8)(1).
 Section 53 of the CPA defines a “defect” as, “(i) any material imperfection in the manufacture of the goods or components, or in performance of the services, that renders the goods or results of the service less acceptable than persons generally would be reasonably entitled to expect in the circumstances; or (ii) any characteristic of the goods or components that renders the goods or components less useful, practicable or safe than persons generally would be reasonably entitled to expect in the circumstances.”
 Simply forbidding the particular act or omission is insufficient to avoid liability. (8)(2).