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[2023] ZAECMKHC 94
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N.X obo Y.X v Eskom Holdings Limited and Another (1568/2018) [2023] ZAECMKHC 94 (29 August 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
FLYNOTES:
CIVIL PROCEDURE – Stated case –
Injuries
from powerline
–
Set
of facts agreed by the parties is small and much is still disputed
– Documents submitted not presented as part of
stated case –
Set of facts agreed entirely insufficient for the question of
negligence by Eskom and municipality to
be answered – Stated
case not fit for purpose – Parties directed to proceed to
trial for determination of liability
– Uniform Rule 33.
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
NOT
REPORTABLE
Case
no. 1568/2018
In
the matter between:
N[…]
X[…] on behalf of Y[…] X[…]I
Plaintiff
and
ESKOM
HOLDINGS LIMITED
First defendant
KSD
LOCAL MUNICIPALITY
Second defendant
JUDGMENT
LAING
J
[1]
This is a claim for damages brought on behalf of a minor, who
sustained injuries after
having been electrocuted by a live
electrical powerline. The matter was presented for adjudication as a
stated case, brought in
terms of rule 33 of the Uniform Rules of
Court.
[2]
A brief outline of the parties’ pleadings follows.
Plaintiff’s
claim
[3]
The plaintiff alleges that her son, Y, had been playing in a tree
when he touched
a loose powerline that employees of either the first
or second defendant had left dangling in the foliage. The incident
occurred
on 19 January 2017, at Ncambedlana, in the Mthatha district.
Y had been seven years old at the time. Both the plaintiff and other
members of the local community had previously alerted the employees
to the danger posed by the powerline, but to no avail.
[4]
It was the plaintiff’s case that section 25 of the Electricity
Regulation Act
4 of 2006 (‘ERA’) imputed negligence to
the first defendant. The plaintiff pleaded, too, that the second
defendant
had a duty to prevent injury to the child and the public in
general. She listed several grounds upon which to assert that the
defendants
had been negligent, averring that they had,
inter alia
,
failed to lead the powerline at a safe height above the ground and
failed to display sufficient warning signs. Their negligence
had
resulted in injuries to Y, who had suffered burns to various parts of
his body.
[5]
The plaintiff claimed the sum of R 5,000,000 for estimated future
medical expenses
and general damages.
First
defendant’s defence
[6]
The first defendant pleaded that it was not the owner or supplier of
the electrical
infrastructure and equipment situated at Ncambedlana,
where the incident happened. It was, consequently, not liable for the
damages
incurred.
[7]
For the remainder of its plea, the first defendant admitted the
provisions of section
25 of the ERA and the duty to lead its
powerlines at a safe height above the ground but denied that its
employees had been negligent.
It put the plaintiff to the proof of
her allegations.
Second
defendant’s defence
[8]
The second defendant pleaded that, on 19 February 2016, at Mthatha,
it entered into
a service level agreement (‘SLA’) with a
service provider described as Deep Blue Sea Investments. It was the
responsibility
of the service provider to refurbish the electrical
infrastructure for certain areas within the district of Mthatha,
including
Ncambedlana.
[9]
At the time of the incident, the infrastructure was under the control
and supervision
of the service provider. The second defendant pleaded
that it was not liable for the damages incurred.
Issues
to be decided
[10]
The question of liability was separated from that of quantum and an
order to that effect was
made at the commencement of trial. The
parties, furthermore, agreed upon a written statement of facts, which
was presented to the
court as a special case for adjudication in
terms of rule 33.
[11]
The court, in terms of the statement of facts, is called upon to
decide: (a) whether the first
defendant is liable for the injuries
caused to Y because of the negligent exposure of the powerline; and
(b) whether the second
defendant is so liable. The parties did not
annex any documents to the statement.
[12]
Before the court can decide the issues described above, it will be
necessary to consider more
closely the provisions of rule 33. It will
also be necessary to determine whether the statement is adequate for
the purposes contemplated
by the parties.
Rule
33
[13]
The relevant provisions of rule 33 state that:
‘
(1)
The parties to any dispute may, after institution of proceedings,
agree upon a written statement
of facts in the form of a special case
for the adjudication of the court.
(2)
(a) Such statement shall set
forth the facts agreed
upon, the questions of law in dispute between
the parties and their contentions thereon. Such statement shall be
divided into consecutively
numbered paragraphs and there shall be
annexed thereto copies of documents necessary to enable the court to
decide upon such questions.
It shall be signed by an advocate and an
attorney on behalf of each party or, where a party sues or defends
personally, by such
party.
(b)
Such special case shall be set down for hearing in the manner
provided for trials or opposed
applications, whichever may be more
convenient.
(c)
…
(3)
At the hearing thereof the court and the parties may refer to the
whole of the contents
of such documents and the court may draw any
inference of fact or of law from the facts and documents as if proved
at a trial.
(4)
…
(5)
When giving its decision upon any question in terms of this rule the
court may give such
judgment as may upon such decision be appropriate
and may give any direction with regard to the hearing of any other
issues in
the proceeding which may be necessary for the final
disposal thereof.
(6)
If the question in dispute is one of law and the parties are agreed
upon the facts, the
facts may be admitted and recorded at the trial
and the court may give judgment without hearing any evidence.’
[14]
A special case is a procedural mechanism that is designed to
facilitate the expeditious disposal
of litigation.
[1]
AC Cilliers (
et
al
)
comments as follows:
‘
When
no questions of fact and only questions of law are in dispute between
litigants, they may utilise the provisions of rule 33(1)-(3)
by
agreeing upon a written statement of facts in the form of a special
case. No further pleadings are required.’
[2]
[15]
The learned writer goes on to remark that litigants are entitled to
invoke the procedure as of
right, provided that the entire dispute is
adjudicated upon by the court hearing the special case.
[3]
[16]
The Constitutional Court dealt with the subject in
Mtokonya
v Minister of Police
.
[4]
It is helpful to quote the relevant text in full:
‘…
From
rule 33(1) and (2)(a) it is clear that what is contemplated in a
special case is that there must be a question of law that
the parties
require the court to decide on the agreed facts and in the light of
their contentions which must be set forth in the
agreed statement.
Rule 33(2)(a) provides that the parties may annex to the statement
“copies of documents necessary to enable
the court to decide
upon such questions.” The reference to “such questions”
in rule 33(2)(a) is a reference to
“the questions of law in
dispute between the parties” which one finds early in the
provision. That, in turn, is a reference
to the question or questions
of law identified by the parties as the questions that they are
asking the court to decide.
…
Rule
33(5) proceeds from this understanding when it says:
“
When
giving its decision upon any question in terms of this rule the court
may give such judgment as may upon such decision be appropriate…”
From
rule 33(5) it is clear that the decision of the court is required to
be “upon any question in terms of this rule”.
As I have
said, the reference to the “question in terms of this rule”
in rule 33(5) is a reference to the question
or questions of law that
the parties have submitted to the court for a decision. A court that
is called upon to decide a special
case under rule 33 is required to
decide the question of law presented to it and has no right to travel
outside the four corners
of the agreed statement and decide a
different question that it wishes the parties had submitted to it to
decide, but did not,
or that it may wish the parties had included as
one of the questions of law they had submitted to it to decide, but
did not.
…
There
is a good reason for this. In terms of rule 33 parties to pending
proceedings agree upon a certain set of facts in the light
of what
the question is that the court is called upon to decide and in the
light of the particular contentions that both parties
will pursue.
So, if a court were to change the question to be decided from the one
that the parties had agreed upon, there would
be prejudice to one or
both of the parties because, for the different questions, one or both
may have wished to add certain facts
to the case or withdraw their
agreement to certain facts. It would, therefore, be fundamentally
unfair to at least one of the parties,
but, possibly, to both, if, in
a special case, the court were to change the question to be decided.
It would be both a serious
misdirection and a gross irregularity for
a court to do so. It is, therefore, important that the court should
study the agreed
statement carefully to identify the question of law
that the parties are asking it to decide, so that it should not
decide a different
question from the question the parties asked it to
decide.’
[5]
[17]
It is clear, from the above, that there are three requirements before
a court can decide a stated
case under rule 33: (a) the parties must
have agreed upon a set of facts; (b) they must have agreed upon a set
of questions of
law to be decided; and (c) each must have advanced a
set of arguments regarding such facts and questions of law. In the
absence
of any one of the requirements, the stated case is deficient
and does not lend itself to expeditious disposal. The parties will
be
unable to rely upon the procedural mechanism provided.
The
special case presented
[18]
Upon closer examination, the statement does not appear to assist to
the degree originally intended.
The relevant contents are set out
below.
‘
AGREED
FACTS
1.
On or about 19 January 2017, at or near Ncambedlana, Brown’s
Farm, Mthatha, the plaintiff’s minor child was electrocuted by
a live wire.
DISPUTED
FACTS
2.
The wire ran through a tree and was left loosely hanging by
employees
of either first and/or second defendant.
3.
The plaintiff, who resides within close proximity of where the
tree
is situated, and other members of the public, had on numerous
occasions complained to the employees of the first and/or second
defendant about the danger which the wires running through the tree
posed to members of the public, the employees of the first
and/or
second defendant failed, refused and/or neglected to take any
precautionary measures to safeguard the members of the public,
more
particularly the minor child.
4.
The plaintiff holds the first defendant liable in terms of section
25
of the Electricity Regulation Act 4 of 2006.
5.
The plaintiff holds the second defendant liable in terms of
the duty
of care from being injured by electrical wires which are within its
control and which are exposed.
6.
The wires are under the control of the first and second defendant.
7.
None of
the facts are expressly denied or admitted by the defendants.
’
[6]
[19]
The statement then proceeds, under the heading of ‘Stated
case’, to list the two
issues to be decided by the court. It
also records the defences, indicating that the first defendant
asserts that the electrical
infrastructure is not its responsibility,
while the second defendant asserts that the infrastructure was not
under its control
and supervision at the time, but rather under that
of the service provider.
[20]
The set of facts agreed upon by the parties is very small. Much is
still disputed. Whether this
is sufficient to decide the questions of
law stipulated remains to be seen.
[21]
Counsel for the first defendant submitted copies of its discovered
documents. Amongst these was
a letter from the National Energy
Regulator of South Africa (‘NERSA’), approving an
application made by the second
defendant to amend its electricity
distribution licence. The application was for the Mandela Park, Joe
Slovo, and Chris Hani, settlements.
The 38 supply areas falling under
the amended licence, as apparent from Schedule 1 to the letter,
included Ncambedlana. A diagram
accompanying the letter purported to
indicate that the first defendant’s electricity supply network
did not extend as far
as the location where the incident took place.
[22]
At the time, neither counsel for the plaintiff nor the second
respondent raised any objection
to the submission of the documents in
question. The difficulty facing the court, however, is that none of
the facts in relation
to the above have expressly been agreed upon.
They do not form part of the statement. The first defendant would
have been required,
in the normal course of trial proceedings, to
have led evidence regarding both the letter and the diagram. The
court cannot rely
on the contents thereof as admissible evidence
without clear agreement to that effect having been recorded in the
statement and
having been presented as part of the stated case. To
illustrate, further, the difficulty facing the court is that the
incident
took place on 19 January 2017. NERSA’s approval was
only given on 6 February 2018.
[7]
It is not apparent whether Ncambedlana fell under the second
defendant’s electricity distribution licence at the time of
the
incident or whether it was only added subsequently. Evidence would be
necessary to clarify this aspect.
[23]
Turning to the second defendant, counsel submitted a copy of the SLA
concluded between the municipality
and Deep Blue Sea Investments.
Similarly, although neither counsel for the plaintiff nor the first
defendant objected thereto,
there was no express agreement about the
nature and extent of the rights and duties that arose under the SLA.
Upon closer inspection,
the SLA merely records that the second
defendant appointed the service provider for the refurbishment of
certain electrical infrastructure
and goes on to describe the service
provider’s primary obligation as follows:
‘
The
Service Provider will in terms of the Specification on the Bid
Document No 55/2015/16 for the refurbishment of Thornhill to
Wellington feeder Hillcrest to Northcrest feeders and Spur, Hillcrest
to Local and Hillcrest to Tech Feeder, Spurs associated equipment
and
Street Lights of R 12,560,761.22 including Vat and contingencies.’
[8]
[24]
The clause in question is so badly drafted as to be almost
unintelligible. The specifications
for the underlying bid are
unknown, the work entailed for refurbishment is unknown, and,
critically, whether the powerline that
caused the injuries to Y was
part of the ‘feeder’, equipment, or streetlights, as
contemplated in terms of the clause
in question, is simply unknown.
Evidence is needed.
[25]
Counsel for the second respondent relied on the common law principle
that a principal is not
liable for the wrongs committed by an
independent contractor or its employees. This was affirmed in
Chartaprops
16 (Pty) Ltd and another v Silberman
.
[9]
[26]
It is apparent from the authorities, however, that there are
exceptions to this. In
Saayman
v Visser
,
[10]
Navsa JA held that the employer may be held liable where he or she
has been negligent in relation to the conduct of the independent
contractor which caused the harm to a third party. Such liability was
not vicarious; it arises where the employer has breached
a duty owed
to those injured.
[11]
The
learned judge relied on
Langley
Fox Building Partnership (Pty) Ltd v De Valence
,
[12]
where Goldstone AJA observed that the answer to the question whether
a duty arises depends on all the facts.
[13]
Goldstone AJA went on to hold as follows:
‘
It
follows from the aforegoing that the existence of a duty upon an
employer of an independent contractor to take steps to prevent
harm
to members of the public will depend in each case upon the facts. It
would be relevant to consider the nature of the danger;
the context
in which the danger may arise; the degree of expertise available to
the employer and the independent contractor respectively;
and the
means available to the employer to avert the danger. This list is in
no way intended to be comprehensive.’
[14]
[27]
Counsel for the second defendant in the present matter also referred
to a full bench decision
of this division in
Nelson
Mandela Metropolitan Municipality v Gaai
.
[15]
In that matter, the court dealt with a situation where the
respondent’s child had drowned in a hole dug by a contractor
appointed by the appellant for a construction project. The court held
that the issue was whether the appellant was liable for the
negligent
omission of the contractor in failing to ensure that the excavated
hole did not pose a danger. In that regard, the court
applied the
three step approach adopted in the
Langley
Fox
matter to ask: (a) would a reasonable person have foreseen the risk
of danger in consequence of the work that he or she employed
the
contractor to perform; (b) if so, then would a reasonable person have
taken steps to guard against the danger; and (c) if so,
then were
such steps duly taken?
[16]
The
court found that the appellant’s appointment of the contractor,
as an expert, was sufficient for it to have avoided liability.
The
respondent had not pleaded that the appellant had breached its duty
it owed to the public by failing to carry out inspections
of the
site, which had not been under its control.
[17]
[28]
The above decision formed the basis of counsel’s argument, in
the present matter, that
the second respondent’s appointment of
the service provider to carry out the dangerous work required meant
that it could
not be held liable for Y’s injuries. The
plaintiff had not pleaded that the second respondent had had a duty
to inspect the
electrical infrastructure in question.
[29]
As attractive as the argument may be, there is no evidence to support
it. The agreed set of facts
is too small to permit the court to make
such a finding. The stated case presented to the court for
adjudication does not indicate
that the exposed powerline formed part
of the ‘feeder’, equipment, or streetlights, contemplated
under the SLA. There
is simply no evidence, in short, to demonstrate
that the powerline was the service provider’s responsibility.
Relief
and order
[30]
The stated case presented by the parties is, upon examination,
inadequate for purposes of deciding
the issues placed before the
court. In
Minister
of Police v Mboweni
,
[18]
Wallis JA held:
‘…
It
is clear therefore that a special case must set out agreed facts, not
assumptions. The point was re-emphasised in
Bane
and others v D’Ambrosi
,
[19]
where it was said that deciding such a case on assumptions as to the
facts defeats the purpose of the rule, which is to enable
a case to
be determined without the necessity of hearing all, or at least a
major part, of the evidence. A judge faced with a request
to
determine a special case where the facts are inadequately stated
should decline the request.’
[20]
[31]
The set of facts agreed upon by the parties is entirely insufficient
for the question of the
first and second defendants’ negligence
to be answered. To attempt to do so would be to stray well beyond the
borders of
the stated case and to rely on assumptions that appear to
have been made by counsel in their respective arguments. This cannot
be done. As much as the statement prepared and submitted to the court
was a genuine effort to curtail proceedings and to dispose
of the
matter expeditiously, it is, regrettably, not fit for purpose. The
leading of evidence seems to be both necessary and inevitable.
[32]
In the circumstances, the following order is made:
(a)
subject to such further directions as may be given, the parties are
directed
to proceed to trial for the determination of liability, the
question of quantum being held over for determination in due course;
and
(b)
there is no order as to costs.
JGA
LAING
JUDGE
OF THE HIGH COURT
APPEARANCE
For
the Plaintiff:
Adv Pitt
Instructed
by:
Nolte Smit
51A Hill Street
Makhanda
6139
For
the First Defendant:
Adv
Maduma
Instructed
by:
Netteltons
118A High Street
Makhanda
6139
For
the Second Defendant:
Adv Conjwa
Instructed
by:
Yokwana Attorneys
10 New Street
Makhanda
6139
Date
of hearing:
29 May 2023
Date
of delivery of judgment:
29 August 2023
[1]
DE
van Loggerenberg,
Erasmus:
Superior Court Practice
(Jutatstat e-publications, RS 7, 2018), at D1-434.
[2]
AC
Cilliers (et al),
Herbstein
and Van Winsen: The Civil Practice of the High Courts and the
Supreme Court of Appeal of South Africa
(Juta, 5ed, 2009), at 1412.
[3]
Op
cit, at 1413.
[4]
2018
(5) SA 22 (CC).
[5]
At
paragraphs [14]- [16]. Emphasis has been omitted.
[6]
Sic.
Emphasis added.
[7]
The
date appears at the foot of the letter, in manuscript.
[8]
Sic.
[9]
2009
(1) SA 265 (SCA).
[10]
[2008] ZASCA 71
;
2008
(5) SA 312
(SCA).
[11]
At
paragraph [18].
[12]
1991
(1) SA 1 (A).
[13]
At
9H.
[14]
At
13A-C.
[15]
[2019]
JOL 45411 (ECG).
[16]
At
paragraph [8].
[17]
At
paragraph [17].
[18]
2014
(6) SA 256.
[19]
2010
(2) SA 539 (SCA).
[20]
Mboweni
,
at paragraph [8].