Summary of Judgment

1. Introduction

These proceedings concerned a delictual action for damages arising from injuries sustained by a minor child through contact with electricity infrastructure. The plaintiff, T.S.M[…] acting on behalf of her minor son, S.B.M[…], sued Eskom Holdings Limited SOC as defendant. Letsemeng Local Municipality was joined by Eskom as a third party, on the basis that the Municipality was alleged (by Eskom) to be the registered owner of the relevant property and/or electricity infrastructure.

The judgment addressed a procedural interlocutory stage in the trial. After the plaintiff closed her case on the merits, Eskom brought an application for absolution from the instance. The court was therefore not deciding final liability or quantum, but whether the plaintiff had presented sufficient evidence to require Eskom to answer.

The general subject-matter of the dispute was whether Eskom bore delictual responsibility for injuries suffered when the minor came into contact with an electrical powerline or conductor, with particular controversy around the precise mechanism of contact (overhead line versus wire on the ground) and the ownership/responsibility for the electrical infrastructure at the place where the incident occurred.

2. Material Facts

The court treated as established on the evidence led thus far that the minor suffered electrical burns to his right hand and arm and to both feet as a result of an electrical shock after coming into contact with a powerline/conductor.

On the plaintiff’s version as supported in evidence, the incident occurred on farm land known as Rorichshoop, described as open land. The minor testified that, while looking for his sister, he had to duck under an overhead powerline hanging low. He did not notice a wire lying on the ground, and he then stepped on the wire, suffering the electrical shock and consequent burns.

The judgment identified a material tension between the pleaded case and the further particulars. In the particulars of claim, the allegation was that the minor came into contact with electrical powerlines suspended above the ground and supported by poles and/or pylons. In the plaintiff’s further particulars, it was stated that the minor had stepped on the electrical powerline with both feet. The court accepted, for purposes of the absolution inquiry, that the evidence supported that the minor stepped on a powerline/conductor with both feet, and it considered the photographs tendered to be consistent with injuries to both feet.

The court accepted that, at the close of the plaintiff’s case, there was no direct evidence proving that the electrical infrastructure at the location belonged to Eskom or that Eskom bore responsibility for those powerlines on that land. The defendant’s position (as advanced in argument) was that the plaintiff had not proved the precise location sufficiently to link the infrastructure to Eskom. It was also common cause on the pleadings that Eskom admitted it was a licensee as defined in section 1 of the Electricity Regulation Act 4 of 2006.

It was also material, from the procedural posture of the case as described by the court, that Eskom had joined the Municipality as a third party, alleging that the Municipality was the registered owner of the property and/or powerlines concerned and that the Municipality’s negligence was the direct cause of the plaintiff’s damages. This reflected a case in which responsibility for the harmful event was, on Eskom’s stance, potentially attributable elsewhere, rather than a concession that Eskom was not a proper party.

3. Legal Issues

The central legal question was whether Eskom was entitled to absolution from the instance at the close of the plaintiff’s case. This required the court to determine whether there was evidence upon which a court could or might (not should) find for the plaintiff on the merits.

A further legal issue concerned the significance of section 25 of the Electricity Regulation Act 4 of 2006, namely whether its deeming provision (presumption of negligence in civil proceedings against a licensee for electricity-caused injury) affected the assessment of whether the plaintiff had met the minimum evidentiary threshold to survive absolution.

The dispute at this stage primarily involved the application of law to fact, with some factual uncertainty (notably as to the ownership/responsibility for the electrical infrastructure and the precise location), and an evaluative judgment about whether the plaintiff’s evidence had crossed the minimal threshold required to continue.

4. Court’s Reasoning

The court began by restating the governing test for absolution from the instance: whether there is evidence upon which a court, applying its mind reasonably to such evidence, could or might find for the plaintiff. The court relied on authority confirming that the threshold is not whether the plaintiff ought to succeed, but whether the evidence is sufficient to require an answer.

Applying this test to the evidence, the court accepted that the plaintiff’s case, as led, established that the incident occurred on the farm land identified as Rorichshoop, and that the minor stepped on a powerline/conductor with both feet. The court noted that the photographs tendered suggested injuries to both feet, and it treated that as supportive of the version that the minor’s feet were involved in the electrical contact.

The court acknowledged the force of Eskom’s criticism that there was, at that stage, no evidence directly proving that the electrical infrastructure at the place of the incident belonged to Eskom or that Eskom was responsible for it. However, the court considered that this deficiency was, to a large extent, addressed by section 25 of the Electricity Regulation Act. The court quoted the section, which provides that in civil proceedings against a licensee arising out of injury caused “in any other manner” by means of electricity generated, transmitted or distributed by a licensee, the injury is deemed to have been caused by the negligence of the licensee, unless there is credible evidence to the contrary. In the court’s view, given Eskom’s admission that it was a licensee, this statutory provision materially supported the plaintiff in meeting the minimum evidentiary threshold at the absolution stage.

The court also relied on Appellate Division authority dealing with cases where defendants deny liability and point to one another as being responsible. In such circumstances, absolution should not be granted at the close of the plaintiff’s case if there is evidence upon which a court could reasonably hold that either the one or the other defendant, or both, may be legally liable. The court considered the present matter to fall within that category, particularly in light of Eskom’s joinder of the Municipality and the contestation over who bore responsibility for the infrastructure.

On that basis, and framed expressly as an interest of justice evaluation, the court concluded that the case should be determined on the full body of evidence that all parties might choose to present, rather than being terminated at the close of the plaintiff’s case.

5. Outcome and Relief

The court dismissed Eskom’s application for absolution from the instance. Eskom was ordered to pay the costs occasioned by the absolution application. The trial on the merits was thereby left to proceed with the defendant’s case (and any further evidence) rather than being concluded in Eskom’s favour at that stage.

Cases Cited

McCarthy Ltd v Absa Bank Ltd 2010 (2) SA 321 (SCA).

Mazibuko v Santam Insurance Co Ltd 1982 (3) SA 125 (A).

Legislation Cited

Electricity Regulation Act 4 of 2006, section 1.

Electricity Regulation Act 4 of 2006, section 25.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court found that, on the evidence led by the plaintiff, there was a sufficient evidentiary basis upon which a court could or might find for the plaintiff, applying the correct threshold for absolution from the instance.

The court further found that the absence of direct proof, at the close of the plaintiff’s case, that Eskom owned or was responsible for the electrical infrastructure was materially mitigated by section 25 of the Electricity Regulation Act 4 of 2006, given Eskom’s admission that it was a licensee and the statutory deeming of negligence in civil proceedings arising from electricity-caused injury.

The court also held that, where responsibility was contested and alternative responsibility was raised through the joinder of a third party, it was appropriate in the interests of justice to allow the matter to be decided on all the evidence rather than granting absolution at the end of the plaintiff’s case.

LEGAL PRINCIPLES

The judgment applied the principle that an application for absolution from the instance at the close of a plaintiff’s case succeeds only if there is no evidence upon which a court, reasonably applying its mind, could or might find for the plaintiff. The inquiry is threshold-based and does not require the court to decide whether the plaintiff should ultimately succeed.

The judgment applied section 25 of the Electricity Regulation Act 4 of 2006, which creates a deeming provision in civil proceedings against a licensee for injury caused by electricity generated, transmitted, or distributed by the licensee: such injury is deemed to have been caused by the negligence of the licensee unless there is credible evidence to the contrary. In this case, the provision was treated as significant to the minimum evidentiary threshold required to defeat absolution, especially given the defendant’s admitted status as a licensee.

The judgment applied the principle that where defendants deny liability and attribute responsibility to one another, a court should be slow to grant absolution at the end of the plaintiff’s case if the evidence could support a finding that either party (or both) may be liable. In such cases, the interests of justice may favour a determination after all parties have presented their evidence.