Dubula v Nelson Mandela Bay Municipality (2695/2017) [2021] ZAECPEHC 34 (27 May 2021)

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[2021] ZAECPEHC 34
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Dubula v Nelson Mandela Bay Municipality (2695/2017) [2021] ZAECPEHC 34 (27 May 2021)

OF INTEREST
IN THE HIGH COURT
OF SOUTH AFRICA
(EASTERN CAPE
LOCAL DIVISION, PORT ELIZABETH)
Case
No: 2695/2017
In the matter
between:
XOLELWA DUBULA

Plaintiff
And
NELSON MANDELA
BAY MUNICIPALITY
Defendant
JUDGMENT
Govindjee AJ:
Background
[1]
The plaintiff is the mother and legal
guardian of Hlomla Dubula, a six-year-old child (‘Hlomla’).
Hlomla allegedly sustained severe
burn injuries and related harm and
damages when a Consumer Distribution Unit (‘CDU’), licensed by
the defendant municipality,
exploded.
[2]
The
defendant is obliged to comply with health, safety and environmental
standards and requirements in terms of the
Electricity
Regulation Act, 2006
(‘the
Act’).
[1]
The Act provides for
liability for a licensee in the position of the defendant for damage
and injury, as follows:
‘
In
any civil proceedings against a licensee arising out of damage or
injury caused by induction or electrolysis or in any other manner
by
means of electricity generated, transmitted or distributed by a
licensee, such damage or injury is deemed to have been caused
by the
negligence of the licensee, unless there is credible evidence to the
contrary.’
[3]
The claim is based on the defendant’s
alleged breach of its legal duty, through its employees, as follows:
a)
Failure to maintain the CDU or to ensure
that it was in a safe condition for members of the public who were
allowed to use the area
around and close to the CDU;
b)
Allowing the CDU to constitute a danger and
hazard to members of the public in that it failed to enclose the CDU
and failed to prominently
display warning signs, warning the members
of the public of the existence and danger of the CDU;
c)
Failure to take all such steps as were
reasonably required to ensure the safety of the members of the public
traversing the area close
to the CDU.
[4]
It
is alleged that the CDU exploded as a result of the defendant’s
breach of its legal obligations, resulting in the damages claimed
by
the plaintiff. The defendant pleaded that it had complied with all
the requisite health, safety and environmental standards and
requirements stipulated in the Act and denied any negligent conduct
on the part of its employees. Its case was based on the explosion
having been caused as a result of tampering of the CDU, in that an
iron rod had been jammed inside the CDU.
[2]
The parties agreed to the separation of quantum and merits in terms
of Rule 33(4) of the Uniform Rules of Court, and the matter proceeded
on that basis.
Evidence
[5]
Ms Dike, Hlomla’s grandmother, testified
that she had heard an explosion on 4 May 2017. She stepped outside
and observed Hlomla,
who was almost three years old at the time,
walking towards her, dizzy, injured and touching his face with his
skin peeling off.
Hlomla required treatment at hospital. A neighbour,
Ms Mekapi, had informed her that another young child, ‘mentally
disturbed’
as she put it, had put something into the CDU. Officials
from the municipality had visited her some time thereafter in
connection
with the incident.
[6]
Under cross-examination, Ms Dike testified
that the CDU was situated approximately 30 metres from her house. She
had observed for
three to four days prior to the incident that the
unit was approximately 15 centimetres open, but had not reported
this. The witness
explained that she was aware of the dangers of a
CDU. Her husband is employed by the municipality and she generally
reported electricity
problems to him, but had not informed him about
the open CDU.
[7]
The witness accepted that the child
referred to by her neighbour had placed a rod inside the CDU.
Municipal workers attended to the
CDU, and to fix the associated
electricity problem, soon thereafter. During re-examination, the
witness testified that she and the
community had never been contacted
about appropriate measures to look after the CDU.
[8]
Mr Bester, the Deputy Director of the
Electricity Division of the defendant testified that he had been
employed for 44 years. His
work included the CDUs and he was familiar
with its workings. A CDU is planted on a verge next to a property and
is 700 millimetres
high and 450x300 millimetres in diameter. They
have been made according to specification, using stainless steel two
millimetres thick
and consisting of a whole outer casing, for the
past 25-30 years. A CDU consists of two solid plates, one of which
would typically
be facing the street, and two moving plates, covered
by a lid. The unit is designed to be opened only by way of a special
key, which
opens the unit at the top.  It would be difficult for
any municipal official to forget to close the lid, because an open
lid
is clearly visible, and the unit was self-contained and sealed so
that it did not require servicing or maintenance unless there had
been a motor vehicle accident or vandalism. It was, for example, safe
to lean or stand on a closed CDU. All CDUs were planted with
an
affixed aluminium warning sign, or with a danger sign painted on the
unit.
[9]
The Electricity Division would only attend
to the unit if a fault had been reported, for example because lights
in the vicinity were
flickering. In this case, the lid was in a
closed position and still in line with the rest of the unit. A side
panel was forced open
and bent down through vandalism. The warning
sign might also have been stolen or taken off by a member of the
public. No protective
fence was used to enclose CDUs or substations
anywhere in the metropolitan area because of the concern that such an
enclosure would
itself be vandalised.
[10]
Mr Bester confirmed that a person could be
electrocuted if a hand was placed inside an open unit. In this case,
a rod had been inserted,
as indicated on pictures placed before the
court, and had resulted in a short. Despite accepting that vandalism
was a common occurrence,
the municipality’s approach was to replace
vandalised units when these were observed by employees, by chance
when they were in
the area, or when problems were reported, for
example because street lights were not working. Because the units
were self-contained,
regular maintenance or checks did not take place
even in residential areas. The units were placed every 30 to 40
metres apart, servicing
five or six houses so that each street
contained a few of the units.
[11]
Mr Dwane, a qualified electrician,
testified that he had worked for the defendant as an artisan since
2006. His responsibilities included
work on municipal underground and
overhead cables, ensuring electricity supply from substations to
consumers.
[12]
He had received a call from the control
officer that a few houses in Mpofu Street were without electricity.
Protocol had been followed
so that the matter could be investigated.
Upon arrival, a rod was observed protruding from the CDU, which was
burnt out. A side panel
of the CDU had been forced over the bottom
plate so that an opening had been created near the top of the unit.
It was clear that
the top lid had neither been left open, nor had the
side panel dropped down on its own. The substation was then switched
off so that
work on the unit could commence and photographs were
taken with a cell phone. A temporary fix occurred in order to restore
supply
of energy to the community. The damaged inside was replaced a
few days after the incident and the CDU had since been replaced with
a new unit. Prior to this call out, there had been no information
received by defendant suggesting that the CDU was open, as evidenced
from the call centre logs.
[13]
Mr Dwane confirmed that the defendant
relied upon community members to report problems with CDUs, given
that there were thousands
of units all over the city which were
designed to be maintenance- and rust-free. There was a general
challenge with people tampering
with electricity and trying to steal
supply. A separate department informed the community, during public
meetings and using pamphlets
and the like, about the associated
dangers.
[14]
The plaintiff placed reliance on a report
pertaining to the incident, dated 16 May 2017 and signed on behalf of
the defendant’s
Acting Executive Director: Electricity and Energy,
Mr Gadlamba. The recommendation contained in this report is as
follows:
·
‘
Regular inspection to be carried out to
ensure that the CDU’s are in a locked position and all the side
panels are in correct position
and safe condition and that there are
no signs of exterior damaged (sic). Where defects are noted CDU to be
replaced immediately.
·
Investigate ways and means to monitor the
CDU’s against intrusion and damages.
·
Educate communities on dangers of
electricity installations when tempered with, especially young
children (sic).
·
Community members must report damaged or
open CDU to the Call Centre of Cllr office immediately.’
[15]
The witness’ response to this report was:
‘To make this real, we need commensurate staff, because we have
thousands of these…’
[16]
Mr Tyeke, a customer information officer
employed by the defendant, testified that he had been working in this
role since 2007. The
job included public education, customer liaison
and creation of awareness within the community.
[17]
He confirmed that the defendant relied
heavily on community members to report problems with CDUs. Booklets
relating to energy saving,
and including municipal contact numbers
were distributed, together with keychains containing ‘0800’ and
‘041’ contact numbers.
In Motherwell, meetings were held at the
Raymond Mhlaba Centre, which is the biggest hall available. The
defendant would be given
a platform to speak when politicians made
use of that venue. Shopping centres would also be utilised to
disseminate information,
also when ward councillors invited the
defendant to accompany them in communicating with the public. Loud
hailers or whistles were
used to invite people to such gatherings.
[18]
Given
that everyone does not attend such public meetings, radio slots were
utilised as part of the education process.
[3]
Sometimes these slots were late in the evening. Municipal Bay News, a
municipal newspaper, was also employed to distribute information,
and
was delivered with the Express newspaper or left at the entrance of
malls or in the offices of councillors. No booklets or pamphlets
were
presented as supporting evidence and the witness confirmed that the
CDU contained no telephone number for reporting any problems.
[19]
Mr Tyeke testified that the defendant was
obliged to adhere to plans which protect customers and ensure the
effectiveness of the industry,
including consumer / public and staff
safety / education, in terms of its temporary distribution licence
with the National Electricity
Regulator of South Africa (NERSA). A
report was compiled after each public session and submitted to the
infrastructure and energy
standing committee, to be approved by the
mayoral committee and submitted to NERSA and ESKOM. The 2015, 2016
and 2017 reports were
provided, reflecting monthly engagements with
the community and infrastructural issues. The following entry (dated
14 November 2015)
is illustrative of the type of information
contained in the reports:
·
‘
Random walkabout was conducted in the
three informal settlements with the assistance of the ward Councillor
and his structures.
·
The purpose was to educate and show the
dangers of illegal connections, theft of electricity infrastructure
and encouraged to exercise
safety precautions where electricity is
concerned.
·
The community was aware of the dangers of
illegal connection however the extent of the dangers were not clearly
understood as they
have built their shacks under the medium voltage
power lines…’
[20]
The documentation illustrates that some
educational awareness took place in NU 30, Motherwell (but not in
Mpofu Street itself) on
23 November 2016 and a councillor in that
area had reported street lighting issues during January / February
2017.
Analysis
[21]
The
plaintiff’s claim is founded in delict. The well-known elements to
be established are the conduct of the defendant; the wrongfulness
of
that conduct; fault on the part of the defendant (in this case in the
form of negligence); that harm was suffered and that there
was a
causal connection between such harm and the defendant’s conduct
that is the subject of the complaint.
[4]
Delictual liability cannot ensue without the convergence of all these
elements.
[5]
[22]
The
conduct that is the cause of the complaint relates, essentially, to
the failure of the defendant to maintain the CDU in a safe
condition,
its failure to enclose the CDU and to display appropriate warning
signs and to take all reasonable steps to ensure public
safety. It is
convenient to assume that there exists a legal duty on the defendant,
so that it is not free in law to refrain from
any action in respect
of the CDUs.
[6]
The focus may
then turn, somewhat insequentially, to the existence of
blameworthiness (
culpa
)
and causation.
[7]
[23]
In
this regard, the wording of section 25 of the Act is the clear
starting point. That section provides that in civil proceedings
of
this nature, the injury caused ‘is deemed to have been caused by
the negligence of the licensee, unless there is credible evidence
to
the contrary’.
[8]
Deeming
provisions are often used in statutes to give the subject-matter a
meaning not ordinarily associated with it.
[9]
As Trollip JA held in
S
v Rosenthal
:
[10]
'The
words…are a familiar and useful expression often used in
legislation in order to predicate that a certain subject-matter, eg
a
person, thing, situation, or matter, shall be regarded as accepted
for the purposes of the statute in question as being of a particular,
specified kind whether or not the subject-matter is ordinarily of
that kind. The expression has no technical or uniform connotation.
Its precise meaning, and especially its effect, must be ascertained
from its context and the ordinary canons of construction. Some
of the
usual meanings and effect it can have are the following. That which
is deemed shall be regarded or accepted (i) as being exhaustive
of
the subject-matter in question and thus excluding what would or might
otherwise have been included therein but for the deeming,
or (ii) in
contradistinction thereto, as being merely supplementary, ie,
extending and not curtailing what the subject-matter includes,
or
iii) as being conclusive or irrebuttable, or (iv) contrarily thereto,
as being merely
prima facie
or rebuttable. I should add that, in the absence of any indication in
the statute to the contrary, a deeming that is exhaustive is
also
usually conclusive, and one which is merely
prima
facie
or rebuttable is likely to be
supplementary and not exhaustive.’
[24]
As
in
R
v Haffejee and Another
,
[11]
the statutory provision in question is clearly a provision to
facilitate proof of matters which might otherwise be difficult to
prove
in a court of law. In the case at hand, the deeming provision
appears to relate, in particular, to the elements of negligence on
the part of the defendant and causation.
[12]
A CDU that exploded of its own accord due to an electrical fault and
causing injury would be an example of a scenario where the deeming
provision would be of assistance in establishing the requirements of
causation and negligence. The deeming provision is, however,
clearly
rebuttable provided that there is ‘credible evidence’ to the
contrary and the Act does not provide for strict liability
of the
municipality. Although I make no determination in that regard, the
effect in this case appears to be akin to the evidential
aid provided
by a presumption.
[13]
Indeed,
the wording of section 26 of the now repealed
Electricity
Act, 1987
[14]
is almost identical to section 25 of the Act, other than substitution
of ‘presumed’ for ‘deemed’, and the replacement of
‘credible
evidence’ with ‘unless the contrary is proved.’
[15]
[25]
It may be accepted that the defendant bears
the onus to adduce such evidence. It sought to discharge that onus by
relying on the manner
in which the CDU has been constructed, to serve
as a self-contained unit. It may also be accepted that the ‘credible’
evidence
demonstrates on a balance of probabilities that the CDU in
question was vandalised, resulting in an opening in the unit. Another
child placed a rod inside the unit, resulting in the injuries
sustained by Hlomla. Despite these findings, which relate to the
direct
cause of the harm suffered, can it nevertheless be concluded
that the defendant was negligent in the various ways alleged, so that
it is liable to the plaintiff?
[26]
Various
recent decisions of the SCA appear to provide useful guidance in
addressing that issue, and the related issue of wrongfulness.
In
Bakkerud
,
for example, one of the questions to be addressed was whether the
municipality was under a legal duty to repair potholes on the
sidewalk of a busy Cape Town street, or to warn the public of their
existence, and whether its failure to do either was negligent.
[16]
The potholes had been visible for many months and no evidence was
adduced on behalf of the municipality, so that the court concluded
that there was a factual foundation for the finding that there was
culpa
on the part of the municipality in failing to fulfil its legal duty.
[27]
It is normally the case that the plaintiff
must allege and prove the defendant’s negligence by establishing
that a reasonable person
in the position of the defendant:
a.
Would foresee the reasonable possibility
that the conduct (whether an act or omission) would injure another
person’s property and
cause that person patrimonial loss;
b.
Would take reasonable steps to guard
against such occurrence; and
c.
That
the defendant failed to take such steps.
[17]
[28]
For
the defendant to discharge the reverse onus in this situation
requires credible evidence that a reasonable person in the position
of the defendant would not have foreseen the reasonable possibility
that the conduct (in this case an omission) would cause injury
or
patrimonial loss; alternatively would not have taken further
reasonable steps to guard against such occurrence.
[18]
The defendant would also be able to avoid liability by producing
credible evidence that its negligence was not the cause of the
injury.
In
Eskom
Holdings Ltd v Hendricks
,
[19]
(and with reference to the now repealed
Electricity
Act, 1987
)
the SCA framed the position as follows:
‘
The
effect of the section therefore is that Eskom bore the
onus
of proving on a balance of probabilities that it was not negligent
or, if it was, that there was no causal link between that negligence
and the injuries sustained…It was also common cause that in the
event of Eskom being found to have been negligent, its conduct
would
have been wrongful. In other words, Eskom owed a legal duty to
would-be climbers of its pylons to act without negligence, ie
to take
such steps, if any, as may have been reasonable in the circumstances
to prevent them from suffering harm.’
[29]
Whether
the precautions taken to guard against foreseeable harm can be
regarded as reasonable or not depends on a consideration of
all the
relevant circumstances. The question of negligence involves a value
judgment which is to be made by balancing various competing
considerations. These would ordinarily be:
[20]
a.
The degree or extent of the risk created by
the actor’s conduct (or omission)
b.
The gravity of the possible consequences if
the risk of harm materialises;
c.
The utility of the actor’s conduct; and
d.
The burden of eliminating the risk of harm
[30]
If
the defendant can demonstrate that a reasonable person in its
position would have done no more than was actually done, there is
no
negligence.
[21]
The evidence
demonstrates that CDUs are deliberately constructed to be
self-contained so as to require no maintenance or servicing.
An
aluminium warning sign or painted danger sign appears on the units
and a special key is required to open the top of the unit.
It is only
motor vehicle accidents and vandalism that result in the units being
opened, and the warning sign removed. The units are
not enclosed by a
further protective fence because of the likelihood of vandalism.
[31]
Given
the frequency of acts of vandalism in society, it must be foreseeable
to the defendant that failure to conduct regular inspections
could
result in an open unit, which has not been reported by a community
member, causing the type of harm suffered by Hlomla.
[22]
It must further be accepted that injuries related to electricity
transmission or distribution are likely to result in grave
consequences.
Bester’s testimony confirms both these points. By
installing units of the kind described, the defendant would appear to
have gone
a long way to prevent routine instances of electrocution,
but without taking further steps to arrange for systematic monitoring
and
inspection of all units in order to check for acts of vandalism.
Despite the Acting Executive Director’s recommendation to that
effect, the evidence suggests that the units number stretches into
the thousands and that there would need to be an injection of
staff,
with the resultant budgetary consequences, in order to make this
realistic. The court in
Bergrivier
Municipality
has confirmed that municipalities are not given licence to ignore the
fulfilment of their obligations to residents merely by asserting
budgetary constraints.
[23]
Nevertheless, the full bench of the High Court was criticised by the
SCA in that case for being too dismissive of budgetary realities
and
for imposing too onerous a duty on the municipality.
[32]
The
defendant has not stopped there, and has produced credible evidence
to demonstrate its various attempts to continue to educate
the
community about the dangers associated with electricity.
[24]
Those attempts are inevitably fraught with a sense of incompleteness,
particularly if the expectation is that the municipality is
responsible for ensuring that each and every person is actually
reached. To move in that direction would require door-to-door
training
about the dangers of electricity (possibly together with
other civic responsibilities such as responsible water usage), and
possibly
even testing, to ensure compliance. As attractive a
proposition as that may be, it must be accepted that the burden of
eliminating
the risk of harm completely is extremely onerous, in the
least, if not, practically speaking, impossible. Balancing the
various factors,
namely the degree and gravity of the risk with the
utility of the municipality’s actions and burden of eliminating the
risk of
harm, a value judgment must be exercised in favour of the
municipality in this instance. Even if the municipality were
negligent
in any way, I am unable to conclude, given the facts at
hand, that such negligence was the cause of the harm suffered.
[25]
[33]
Hlomla’s
injuries are most regrettable and, without implying negligence on the
part of any family member, could have been prevented.
While accidents
do happen,
[26]
at the level of
the community, there is clearly a need to be alive to the dangers
caused by acts of criminality, and the side effects
on innocent
people, including children. A single call by any community member
advising the defendant of the act of vandalism that
had resulted in
an opened CDU would in all likelihood have resulted in the type of
response that would have prevented the incident.
Yet, for at least
three to four days, if not more, that call was not forthcoming. It is
insufficient to suggest that this is because
there is no telephone
number displayed on CDUs. Families too need to take ownership of
their surrounds, particularly when young children
are allowed to roam
the streets unaccompanied by adult supervision.
[27]
This would add substance to the constitutional rights of children,
including their rights to human dignity, bodily integrity and
to have
their best interests considered, respected, protected, promoted and
fulfilled by those around them, including their immediate
family,
extended family and community.
[28]
Ms Dike was certainly aware of the dangers of an open CDU and it is
unfortunate that she did not think to report that problem to
her
husband, who works for the defendant.
[29]
The defendant cannot be held liable for those failures. They have
succeeded in demonstrating, on a balance of probabilities, that
a
reasonable person in their position would have done no more than what
was actually done, so that there is no negligence on their
part, and
certainly no negligence which was the cause of the harm suffered.
Order
[34]
The plaintiff’s claim is dismissed with
costs.
A.
GOVINDJEE
ACTING
JUDGE OF THE HIGH COURT
Appearances:
Obo
the Plaintiff:
Adv N. Msizi
Instructed
by:
T.M Pitana Attorneys
Obo
the Defendant:
Adv M. Pango
Instructed
by:
Lexicon Attorneys
Heard:
15 & 16 March 2021; 24 May 2021
Delivered:
27 May 2021
[1]
Act 4 of 2006. Section 14(1)(s) of the Act.
[2]
An application for postponement in order to amend the plea to
include the possibility of contributory negligence was refused, with
reasons, during the trial.
[3]
During re-examination, the witness testified that four local radio
stations were utilised, with broadcasts in both English and
isiXhosa. He also indicated, without providing further detail, that
churches and schools were occasionally visited for purposes
of
community education.
[4]
MTO
Forestry (Pty) Ltd v Swart NO
[2017] 3 All SA 502 (SCA).
[5]
FDJ Brand ‘Aspects of wrongfulness: A series of lectures’ (2014)
25
Stellenbosch
LR
451 at 455, as cited in
MTO
Forestry supra
at
para 15.
[6]
See
Cape
Town Municipality v Bakkerud
2000 (3) SA 1049
(SCA) at footnote 5. Also see
MTO
Forestry
supra
at para 14.
[7]
Administrateur,
Transvaal v Van der Merwe
[1994] ZASCA 83
;
1994 (4) SA 347
(A) at 364G. On the intersection between
wrongfulness and fault in the context of a negligent omission, see
Minister
of Safety and Security v Van Duivenboden
2002 (6) SA 431
(SCA) para 12. See
Bergrivier
Municipality v Van Ryn
Beck
2019 (4) SA 127
(SCA) at para 44: without negligence the issue of
wrongfulness does not arise, for conduct will not be wrongful if
there is no
negligence. Also see
Cape
Town City v Carelse and Others
2021
(1) SA 355
(SCA) at para 48. It is well-established that
wrongfulness and negligence are two separate and discreet elements
of delictual liability,
notwithstanding some academic criticism: see
Le
Roux and others v Dey
(Freedom
of Expression Institute and Restorative Justice Centre as amici
curiae)
[2011] ZACC 4
at para 122.
[8]
For similar wording, couched as a ‘presumption of negligence’,
see section 34 of the National Veld and Forest Fire Act, 1998
(Act
101 of 1998). The provision does not create strict liability:
cf
section
61
of the
Consumer Protection Act, 2008
;
Eskom
Holdings Ltd v Halstead-Cleak
[2016] ZASCA 150
at para 17.
[9]
See the minority judgment of Cachalia AJ in
Assign
Services (Pty) Ltd v NUMSA and others
[2018] ZACC 22
at para 92.
[10]
1980 (1) SA 65
at 75G
et
seq
.
[11]
1945 AD 345
at 352-3.
[12]
For an example of a presumption relating only to the negligence
component, see
MTO
Forestry supra
at para 33.
[13]
See
MTO
Forestry supra
at para 25.
[14]
Act 41 of 1987.
[15]
Section 26 of the Electricity Act, 1987 reads: ‘In any civil
proceedings against an undertaker arising out of damage or injury
caused by induction or electrolysis or in any other manner by means
of electricity generated or transmitted by or leaking from
the plant
or machinery of any undertaker, such damage or injury shall be
presumed to have been caused by the negligence of the
undertaker,
unless the contrary is proved.’
[16]
Bakkerud
supra
at para 32.
[17]
Kruger
v Coetzee
1966 (2) SA 428
(A). See
Bergrivier
Municipality supra
at para 48.
[18]
Whether a
diligens
paterfamilias
in
the position of the person concerned would take any guarding steps
at all and, if so, what steps would be reasonable, must always
depend upon the particular circumstances of each case:
Kruger
supra
at 430E-F.
[19]
2005 (5) SA 503
at para 8.
[20]
Cape
Metropolitan Council v Graham
2001 (1) SA 1197
(SCA) at para 7.
[21]
Ibid
.
[22]
For an example of vandalism resulting in injury, in the context of a
claim based on
section 61
of the
Consumer Protection Act, 2008
, see
Eskom
Holdings Ltd
at
para 7.
[23]
See, for example,
Van
Vuuren v Ethekwini Municipality
2018 (1) SA 189
(SCA) at para 25. In that case, access to the slides
leading into a communal swimming pool could easily have been
controlled at
the top of the stairhead by a single official, as
occurred at other public pools. Also see
Carelse
supra
at para 56: the municipality could have taken the reasonable step of
employing access control measures and to ensure that security
arrangements relative to crowd size at the public facility were
adequate. A fence or placing of a guard would have sufficed.
[24]
In
A.F.A.
v Blue Crane Route Municipality
[2017] ZAECGHC 86 at paras 55 and 56, Plasket J (as he then was)
dismissed various suggestions that staff of the municipality had
been negligent, including that the defendant was under a duty to
have educated an eight-year-old girl about the dangers of
electricity,
despite having lived in an electrified house and being
well aware of the dangers of electricity.
[25]
Cf
Hirschman NO & Hirschman v Kroonstad Municipality
1914 OPD 37
, where a municipality’s failure to take any
precautions to avoid accidents on an open, unfenced and unprotected
piece of ground
close to a public street amounted to an act of
negligence.
[26]
See
Stedall
and another v Aspeling and another
[2017] ZASCA 172
at para 37.
[27]
See
Stedall
supra
at
para 36.
[28]
Section 7(2)
read with sections 8(2), 10, 12(2), 28(1)(b) and 28(2)
of the Constitution of the Republic of South Africa, 1996.
[29]
On the duties of grandparents in relation to children, see
SS
v Presiding Officer, Children’s Court, Krugersdorp
2012 (6) SA 45
; Also see section 32 of the Children’s Act, 2005
(Act 38 of 2005), on the duty of care by a person not holding
parental responsibilities,
also in respect of safeguarding a child’s
health and well-being. Those duties should include the extended
family: A Skelton ‘Children’
in I Currie and J de Waal
The
Bill of Rights Handbook
(6
th
Ed) (Juta) 606.