In the world of freight and logistics, packaging matters, but as a landmark 2022 case before the Consumer Goods and Services Ombudsman (CGSO) showed, even when goods are presented inadequately packed, the legal responsibilities of freight operators do not disappear.
The 2022 case involving six loose, unpacked car batteries has become an important reference point for understanding how the Consumer Protection Act (CPA) is applied to freight damage disputes in South Africa.
Here’s what happened, what the Ombudsman ruled, and why the case reshapes how freight companies should manage risk, packaging, and liability.
The Case: Six Car Batteries, No Packaging, and a R24,000 Claim
In 2022, a customer consigned six car batteries with a freight organisation. The batteries were totally unpacked, exposed, and not secured for road transport.
When the batteries arrived damaged, the customer refused to pay the freight bill and demanded R24,000 in compensation.
When the freight organisation pursued him for the unpaid freight charges, the customer took the matter to the CGSO, asking them to rule in his favour.
Despite the inadequate packaging and the customer’s choice not to insure the goods, the CGSO found against the freight company.
Why? The answer lies in the Consumer Protection Act — specifically Sections 65 and 51.
Section 65: The Duty of Reasonable Care
Section 65 of the CPA states that once a supplier takes possession of a consumer’s goods, the supplier must exercise the degree of care, skill, and diligence that a reasonable person would use when handling someone else’s property.
The Ombudsman interpreted this to mean:
The courier is responsible unless it can prove that it exercised reasonable care and that the damage did not result from its handling. This is not a strict liability test, but rather a negligence-based test with the burden on the supplier.
What Counts as “Reasonable Care”?
In freight terms, reasonable care means taking all practical steps to prevent foreseeable damage, including:
- Secure loading,
- Safe stowage,
- Proper handling,
- Maintaining chain-of-custody, and
- Following written Standard Operating Procedures (SOPs).
It also requires:
- Trained staff, and
- Documented evidence of how goods were handled.
Evidence that proves reasonable care includes:
- Standard Operating Procedure (SOP) records
- CCTV or route tracking
- Training logs
- Loading photos
- Signed waybills
- Packaging notes
- Tamper-seal records
- Delivery notes
- Comprehensive Incident reports
Under Section 65, once the freight company takes possession, the burden shifts onto the freight company to produce this evidence. If they can’t — they lose.
Section 51: You Cannot Contract Out of Negligence under the CPA
Section 51 of the CPA prohibits any term or condition that: Waives consumer rights, avoids a supplier’s statutory duties, or overrides any section of the Act.
In this case, the courier’s contract contained liability limitation clauses, but the Ombudsman ignored them. This is because a freight company cannot use its T&Cs to escape its legal duty to take reasonable care. Any clause that tries to exclude liability for negligence is invalid under the CPA.
Two major issued arise out of this case:
Issue One: Reasonable Care and Burden of Proof
The CGSO ruled that unless the courier could prove that it exercised reasonable care and the damage was not caused by its handling, then the courier would be liable.
This test case underscores a critical principle:
In freight disputes, evidence wins — not assumptions.
If the courier cannot show what happened, the CPA favours the consumer.
Issue Two: Contracting Out of Liability
While freight organisations cannot contract out of negligence, the CPA still allows them to set fair, clearly disclosed compensation limits.
Example clause (CPA-compliant):
“Our liability for loss or damage is limited to the cost price of the goods or R5,000 per waybill, whichever is lower, unless a higher value is declared and the corresponding fee is paid. This limit does not reduce any rights the consumer has under the Consumer Protection Act, including our obligation to exercise reasonable care while the goods are in our possession.”
Decline liability where the consumer created the risk
A supplier may refuse liability if it can prove that it exercised reasonable care, and the loss resulted from factors outside its control, such as:
- Inherent product defects,
- Inadequate packaging,
- Excluded dangerous goods,
- Non-compliant freight, etc.
These exclusions are legal only if they are clearly disclosed and don’t override CPA rights.
Waivers: When the Consumer Accepts the Packaging Risk
Getting the customer to sign a waiver acknowledging that the goods are inadequately packed and are therefore consigned at their own risk is fully legal under the CPA — if done correctly.
It must show that:
- The goods are poorly packed,
- The customer has been told of the risk,
- The customer accepts that specific packaging-related damage is at their own risk, and
- The courier still handles the goods with reasonable care.
Why allowed?
Because this does not remove the courier’s legal duty.
It simply records that the consumer created a risk through their packaging.
This is fully compliant with Section 49 disclosure requirements.
What Freight Companies Should Learn From This Case
This 2022 ruling shows that freight organisations must:
✔ Handle goods with verifiable reasonable care
✔ Document everything
✔ Train drivers and loaders
✔ Enforce packaging standards
✔ Use waivers when packaging is inadequate
✔ Avoid illegal “no liability” clauses
✔ Use CPA-compliant compensation limits
In short:
If you cannot prove reasonable care, the CPA will treat you as negligent — even if the consumer’s packaging was poor and they did not specifically request insurance