What constitutes defective software?
The Act is aimed at protecting consumers from hazards to their well-being and safety and to develop effective means of redress for consumers who buy defective or unsafe products, including software.
The Act gives consumers the right to demand safe, good quality goods from suppliers and this right is enforced through a compulsory 6 month warranty of quality on all products sold, and strict liability for suppliers across the supply chain for any and all loss caused by defective, unsafe or failed products.
Software sold to consumers must comply with the following requirements and standards:
- It must be reasonably suitable for the purposes for which it is generally intended or for a specific purpose if the consumer has specifically informed the supplier that he or she is buying the software for that specific purpose, and the supplier normally deals in that software or is knowledgeable about its use;
- The software must be of good quality, in good working order and free of any defects;
- The software must be useable and durable for a reasonable period of time, having regard to the use to which it would normally be put and to all the surrounding circumstances of its supply; and
- The software must comply with any applicable standards set under the Standards Act, 1993 (Act No. 29 of 1993), or any other public regulation.
What is regarded as a defect?
A defect could either be:
a) a material imperfection in the development of the software which renders it less acceptable to consumers; or
b) a characteristic that renders it less useful, practicable or safe.
There is no longer any distinction made between latent and patent defects and software will still be regarded as defective under the Act if the failure or defect could have been detected by the consumer before they took delivery of the software.
The quality of the software will be judged against the reasonable expectations of consumers in general and not just against those of the particular consumer.
Goods must be judged against the reasonable expectations and standards that existed at the time they were supplied and not against newer and/or better goods that have subsequently become available from the same or any other producer or supplier.
In determining whether software is defective, the courts will take into account all the surrounding circumstances, including the following:
- the stated purposes for the software;
- the manner in which the software was marketed, packaged and displayed;
- the use of any trade description or mark on the packaging of the software;
- the inclusion of any instructions or warnings with respect to the use of the software;
- the range of things that might reasonably be anticipated to be done with or in relation to the software; and
- the time when the software was developed and supplied.
Must software come with a ‘warranty of quality’?
Every sale of software must be backed up by a 6 month warranty from the supplier that the software will meet the necessary quality and safety requirements and standards. If not, the consumer can return the software to the supplier, and the supplier must either repair or replace the software or refund the price paid.
The 6 month warranty does not apply to software that is sold “as is”, i.e. in a specific condition, when the consumer has been advised of that condition and has agreed to buy the software anyway. A consumer will also lose their warranty protection if they have altered the software contrary to the instructions that accompany it.
If the consumer opts to have the software repaired by the supplier, a further 3 month warranty must be given on the repair. If the failure, defect or unsafe feature has not been sorted out, or a new problem appears within that 3 month period, the supplier must then replace the software orrefund the consumer.
The 3 month repair warranty will be void if the consumer has subjected the software to any misuse or abuse. The warranty also does not apply to ordinary wear and tear.