Overview

Botswana is not a developed consumer manufacturing-oriented economy. Botswana’s approach to product liability is dual in that statutory legislation and the law of delict regulate it.

Regulatory

The Consumer Protection Act puts liability on suppliers for any damage caused by supplying unsafe goods and any product failure, defect or hazard in any goods, where the supplier had prior knowledge of the potential damage, product failure, defect or hazard. A supplier shall not supply or offer to supply goods which do not conform to the mandatory safety standards for the class of goods set by the Botswana Bureau of Standards or other international bodies recognized by the Botswana Bureau of Standards.

It is important to note that the Consumer Protection Act came into operation in 2018. Therefore, the law of product liability under the Act is in its early stages. Claims of product liability are instituted through the law of delict and in that case a consumer can bring an action for negligence against a supplier or manufacturer.

The Competition and Consumer Authority established by the Competition Act is responsible for the administration of the Consumer Protection Act. Its duties include:

• investigating complaints from consumers;
• obtaining warrants to search, seize and cause the testing of products on the market; and
• referring unresolved complaints to the Consumer and Competition Tribunal.

The Tribunal may make a decision and order compensation and damages.

A supplier can escape liability when:

• the unsafe product characteristic, failure, defect or hazard that results in the damage is wholly attributable to noncompliance with the product manual instructions; or
• the claim for damages is brought outside the period prescribed under the Prescriptions Act from the date the alleged damage took place or when the consumer had prior knowledge of the potential damage to the goods; or
• the damage is caused by mishandling of the product by the consumer.