An intro to the legal situation for product liability in Zimbabwe. Prepared in association with Honey & Blanckenberg, a leading law firm in Zimbabwe, this is an extract from The Pharma Legal Handbook: Zimbabwe, available to purchase here for USD 99.
1. What types of liability are recognized in your jurisdiction?
Zimbabwe has recently passed a Consumer Protection Act [Chapter 14:14] (“the CPA”), which was gazetted on 10 December 2019.
In addition, the common law concept of delict law is recognised in Zimbabwe. Under the law of delict, property liability claims may be brought by way of aquilian action. This action is brought where there is patrimonial loss (G Feltoe A guide to the Zimbabwean Law of Delict, Chapter 2).
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 and the like.
2. How do these types of liabilities apply to the manufacturers of medicines and devices?
Under the delictual law, 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 could be held liable (Max Loubser et al The Law of Delict in South Africa 2009).
Section 10 of the CPA provides that a supplier is prohibited from selling of marketing any goods of 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, amongst others, supplying any unsafe goods or products which have a failure, defect or hazard.
3. Does potential liability extend to the manufacturer only or could claims extend to corporate executives, employees, and representatives?
There is a need to prove causation – namely that the person involved caused the harm, either directly or indirectly.
In terms of Section 16 of the CPA, producers can be found liable for harm caused by their goods. The CPA defines ‘goods’ as anything marketed for human consumption. Because medicines and devices are produced for human consumption, the above liabilities apply to producers of medicines.
This is in line with the provisions of South African law, which is persuasive in Zimbabwe, and which imposes strict liability on the part producers, importers, distributors or retailers.
4. How can a liability claim be brought?
A liability claim would be brought by the injured person, or his family or dependents in the case of death. The claim would 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 organisation or directly to the court. The Court that a consumer may approach are either the Small Claims Court, the Magistrates Court or the High Court depending on the value of the claim.
5. What defences are available?
Under delictual law, it would be a defence 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, it may be a defence to claim, 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.
In terms of Section 17 of the CPA, defences available to anyone against whom a claim for product liability has been made are as follows:
- the unsafe product characteristic, failure, defect or hazard that results in harm is wholly attributable to compliance with any public regulation;
- the person proceeded against did not at any time supply the product to another;
- the alleged unsafe product characteristic, failure, defect or hazard –
- did not exist in the goods at the time it was supplied by that person to another person alleged to be liable; or
- was wholly attributable to compliance by that person with instructions provided by the person who supplied the goods to that person, in which case subparagraph (i) does not apply;
d. it is unreasonable to expect the distributor or retailer to have discovered the unsafe product characteristic, failure, defect or hazard, having regard to that person’s role in marketing the goods to consumers.
In addition, prescription is also a valid defence, and the prescription period in Zimbabwe is three years.