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[2019] ZAKZPHC 82
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Msomi v Eskom Holdings SOC Limited (8650/2016) [2019] ZAKZPHC 82 (13 June 2019)

JUDGMENT
(13
JUNE 2019)
GYANDA
J
In this matter the plaintiff sues the defendant for
damages arising out of
injuries
he
sustained as a result of coming into contact with an overhead
electric cable whilst he was driving a tractor during the course
and
scope of his employment on a road in the Braemer area.
At the commencement of
the proceedings before me and by agreement between the parties and in
terms of the provisions of Rule 33(4)
the issues of liability
and quantum were separated and the trial before me proceeded only on
the issue of liability, the issue
of quantum to stand over for
decision at a later stage.
Various
bundles
of documents were handed in, more especially in the form of
photographs, being Bundles A, B, C, D and a single photograph,
Exhibit
E.
The plaintiff led the
evidence of two
witness
es,
Lindokuhle Eugene Msomi (the plaintiff himself) and a
witness
,
Senzeni Nkonyeni, who was his superior at the Department of
Agriculture where he was employed.  The defendant led the
evidence
of two
witness
es,
Siphiwe Cyprian Ngcobo and Devon Naradmuni.
At the conclusion of all
the evidence before me the issue that had to be determined is
firstly, bearing in mind the provisions of
the Electricity Regulation
Act 4 of 2006, more especially Section 25 thereof, which reads –
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.”
Based on the provisions
of Section 25 upon which the plaintiff based its claim on one of its
legs, the other being on the basis
of damages arising out of delict
for the failure on the part of the defendant to take proper steps to
remove the cause of danger
that caused the plaintiff’s
injury.
From the tenor of the
cross-examination by counsel for the plaintiff and the defendant it
appears to me that at the conclusion of
the evidence it is not
disputed that the incident in fact occurred as testified to by the
plaintiff on 25 January 2016, that
he was driving his tractor in
the course and scope of his employment upon this road in the Braemer
area when he came into contact
with a low hanging electric cable.
The
first issue to be determined is whether or not this cable was a cable
that was constructed or provided by the defendant in the
course of
its provision of electricity in the area.  This I say on the
basis of the manner in which the plaintiff pleaded
its claim, more
especially in
paragraph
5.4 of its pleadings, where it pleaded –
“
5.4.
The electrical wiring was at the time of the incident the property of
the defendant.
5.5.
The electrical wires hung loosely over the road allowing members of
the public and the plaintiff to easily come
into contact therewith.
5.6.
Access to the wires was unrestricted and safety measures protecting
the public and in particular the plaintiff,
were not implemented.”
Mr Naidoo, for the
plaintiff, argued that inasmuch as on a reading of Section 25 the
onus
is on the defendant and there is a presumption of
negligence on the part of the defendant which the defendant may rebut
by the
production of credible evidence to the contrary, that in these
circumstances it did not matter whether the cable in question was
one
which was erected or supplied by the defendant.  He argued,
however, that from the evidence before me, more especially
in light
of the evidence that the electrical pole depicted in
Exhibit
E, which bears a tag on it, was identified by the plaintiff and his
witness
as
being an Eskom pole bearing an Eskom tag the Court should find that
it was indeed an Eskom pole and that it was therefore provided
by
Eskom.  There is, however, the gainsaying evidence of the
defendant’s
witness
,
Mr Siphiwe Cyprian Ngcobo, to the effect that all three of those
poles that are depicted in
Exhibit
E
were not supplied or installed by the defendant as part of its
electrification programme and were in fact poles used for
the
purposes of illegally taking electricity from the legal source that
the defendant had supplied across to those persons who
were living on
what has been termed as the right side of the road which had not been
electrified by the defendant.
Mr Ngcobo in fact
testified that the first of the three poles visible on
Exhibit
E
was in fact not even a treated pole but rather an ordinary gum tree
or some other tree pole that had been erected.
He disputed that
the pole, that had been identified by the plaintiff’s
witness
es
as being an Eskom pole was in fact installed there by Eskom.
He testified that if
regard be had to the manner in which the cables were connected to
that pole it was not in the fashion that
the cables are connected by
the employees and the contractors employed by Eskom whose method was
to use what was called a pigtail
and that the apparatus used on the
pole at present, although it was a type of pigtail, was not of the
type that was used by Eskom
and the manner in which the cable was
tied to that pigtail was not the manner in which Eskom, its employees
or subcontractors tied
off the electricity cable.
In dealing with the
calibre of the
witness
es
that testified Mr Ngcobo gave his evidence, in my view, in a
forthright manner and had very little or no criticism that could
be
levelled against him in the quality of the evidence he gave before
me.  The plaintiff, on the other hand, appeared for
some
unfortunate reason to try and give his evidence in a fashion that
would indicate that the defendant’s
witness
in the form of Mr Ngcobo was trying to manipulate the evidence in the
manner in which photographs were taken and in refusing to
give him
certain copies.  These photographs are available before the
Court.
There is a dispute in the
evidence between Mr Msomi and Mr Ngcobo as to whether, on
the date of the inspection by Mr Ngcobo
and Mr Msomi, an
offending pole and part of the cable lay at the side of the road or
not.  Mr Ngcobo in fact produced
the photograph,
Exhibit
C1,
which indicates the cable running across the road at a fairly
substantial height as being the offending cable which Mr
Msomi
pointed out to him at the inspection and which he photographed.
Mr Msomi denies that he pointed out this cable.
There is also a dispute
as to whether the inspection in question occurred on 26 January as
testified to by Mr Msomi and his
witness
,
Senzeni Nkonyeni or whether it was on the 29
th
as
testified to by Mr Ngcobo.  Mr Ngcobo testified that it was
on the 29
th
.  Although his camera did not have the
facility to record the date when the photographs were taken he had
emailed the photographs
to his superiors and the dates when he had
done those emails substantiated his view that it was in fact the
29
th
.  What is more, he used a vehicle that belonged
to Eskom and the use of that vehicle, especially the mileage thereof,
is logged
on a regular basis.  From the log sheets which were
provided in evidence to the plaintiff it was apparent that on 26
January
2016 he was not in the area but was in an area called Marina
Beach.  This was independent evidence supporting his version
that he was not present on the 26
th
of January as alleged
by the plaintiff and his witness.
As against this evidence
we have the evidence of Senzeni Nkonyeni.  She testified to
seeing an Eskom vehicle leaving the scene
on the 26
th
, as
she was arriving there and she confirmed the evidence of Mr Msomi
that the pole and the cable lay at the side of the road
on the
verge.  She, like Mr Msomi, testified to the fact that she had
grave difficulty in trying to obtain copies of the photographs
from
Mr Ngcobo.  If she attempted to get copies of the
photographs on the 26
th
as she appeared to be testifying
this was not possible because on Mr Ngcobo’s evidence he
had not been at the scene
and had not taken any photographs.  In
any event, Mr Ngcobo testified that Ms Senzeni Nkonyeni had
never been in contact
with him and had never requested any
photographs and that when he had printed the photographs he gave a
complete set of the photographs
that he had printed to the plaintiff
himself.
The plaintiff, again in
my view, dishonestly said that he was demanding a copy of the
photographs because he wanted to give them
to his attorney at the
time.  Bearing in mind that he only obtained the services of an
attorney after the meeting with the
defendant’s representatives
on 8 February he could not have wanted the photographs for his
attorney.  Whilst he
was testifying he realised that he had
erred on his evidence and he amended his evidence by saying that he
wanted to show his family
as to how the accident had occurred.
He was, in my view, being dishonest.
Senzeni Nkonyeni, because
of her camaraderie or relationship with Mr Msomi was, in my
view, merely trying to support his version.
There was no need
for Mr Ngcobo to lie about the photographs or refuse to give the
photographs to anybody who requested them on
behalf of Mr Msomi.
On 8 February it is
common cause that the parties had a meeting at the offices of the
Department of Agriculture.  Minutes of
that meeting are recorded
and contained in
Exhibit
C19, which
minutes have been acknowledged as correct by Mr Msomi when he
testified.  Mr Msomi gave the impression that at
that meeting
these representatives of the defendant had agreed to compensate him
and it was only the issue of the amount that had
to be determined.
This is gainsaid by the contents of those minutes, once again casting
a poor reflection on the credibility
of Mr Msomi.
What is clear is that Mr
Ngcobo and the representatives of the defendants correctly advised
the plaintiff that he was entitled to
seek the assistance of an
attorney for the purposes of instituting a claim for damages which
are recorded in the minutes.
Turning now to whether
the defendant can be said to be negligent based on the provisions of
Section 25 or whether the defendant
has succeeded by the evidence
placed before me of establishing that there is credible evidence to
the contrary.  The evidence
before me is, although it has not
been categorically accepted by the plaintiff, it cannot be disputed
by the plaintiff that the
offending electric cable, if I may refer to
it as such, was not a cable that belonged to the defendant and it was
in fact a cable
that was used to access electricity illegally by some
third party.
I am in full agreement
with the submissions by Mr Aboobaker that Section 25 cannot be
interpreted to be applicable to situations
other than the legal
supply of electricity.  It cannot apply to a situation that
represents an illegal connection of electricity
by a third party
unrelated to the defendant.
It has to be accepted
that the electricity in question is generated in the sense of being
supplied by Eskom.  It is the only
authority that supplies
electricity so to that extent Section 25 would be applicable.
But, the offending cable was part of
cables used to illicitly access
electricity by those who were not entitled to electricity.
Mr Ngcobo gave evidence
that at the time there were only two paying customers of Eskom that
were registered and he named them for
the record.  Other than
those two customers who had sought and obtained electricity supplied
by Eskom directly to them the
other users in the area were illegally
accessing electricity.
It has been contended on
behalf of the plaintiff that inasmuch as it was apparent to the
defendant’s representatives that
there was a large scale theft
of electricity and illegal access to electricity by means of these
illegal cables the defendant ought
to have taken more adequate steps
to have prevented the occurrence occurring that caused the
plaintiff’s
injury and damages.
Both the defendant’s
representatives testified that they were obliged in terms of the law
to carry out an annual inspection
and that that annual inspection was
in terms of the international standards.  Mr Naidoo argued that
bearing in mind that the
defendant was aware of this rampant
violation where electricity was being stolen and that there was an
opportunity for persons
getting injured by the theft of electricity
as electricity, it is well known, can cause injury and damage to
persons the defendant
ought to have taken more decisive steps by
having more inspections than the single annual inspection and they
should have taken
steps to have removed the illegal electrical
connections by, for example, shutting off completely the power to the
area.
The
defendant’s
witness
es
testified in detail about their attempts to try and remove the
illegal connections, about how their employees have been attacked
and
chased, threatened and even shot at by residents in that area.
Communication with the councillors and the elders in the
area have
not proved fruitful in any way in attempting to solve the problem to
the extent that when their employees notice illegal
connections which
in their view appear to be safe they do not take steps to immediately
disconnect it but report the offending
connection and it is logged on
their list of offending connections to be dealt with in due course.
Mr Naradmuni, who
testified for the defendant, also testified about the challenges that
faced the employees of Eskom in the form
of threats of assaults and
attacks upon the employees, threats by the community to burn the
facilities and infrastructure belonging
to Eskom when services are
terminated.  And, that in spite of meetings with councillors and
agreements being concluded, when
they went to go and act in terms of
the agreement the councillors themselves adopted the position that
“you disconnect at
your own risk, I cannot guarantee your
safety in leaving here if you do so”.  To that end
Mr Naradmuni has indicated
that there is only one solution and
that is to connect everybody to electricity free of charge but that
is the problem of the Department
of Energy which provides the
funding.  The funding required by Eskom to be able to have
full-time armed escorts available
for their employees, even when they
are conducting normal routine maintenance, has become astronomical in
the light of the budget
restraints and Eskom’s reduced
funding.  All of that he placed before the Court and much of it
is in the public domain
in any event.
In the light of this
background, to ask that the employees of Eskom do more than one
annual inspection and take more decisive steps
to prevent an
occurrence of injury or damage in my view is asking too much because
the area concerned is not the only area in the
country or in that
particular municipal area that has been experiencing the same
problems.  Mr Naradmuni also testified to
similar problems being
experienced in all of the informal settlements surrounding Umzinto
which forms part of that service area.
One would expect then
that these employees on almost a daily basis present themselves in
these areas to conduct inspections and
disconnect illegal connections
in the light of the fact that they know that they would be facing
retaliation, violence, assaults
and even killings by those
inhabitants if they attempted to disconnect the electricity.
And, if they shut off the power to
the area they cannot even go
anywhere near the area without being attacked.  Repercussions
for that sort of behaviour have
also been in the public domain.
Protests are then bought onto the roads and into the cities.  It
is never-ending and
it appears from the evidence of Mr Naradmuni that
the only solution is to electrify everybody.
Turning to the particular
incident in question, Mr Naidoo argued that the defendant ought to
have foreseen the possibility that
illegal connections would result
in injury to the residents of the area and people who are travelling
in the area and therefore
owed a duty of care to those people to
ensure that illegal connections did not cause them injury or harm.
He referred the
Court to the decision of HOLMES JA in
Kruger v
Coetzee
1966 (2) SA (A), especially at page 430 where that court
stated that –
“
For
the purposes of liability
culpa
arises if-
(a)
a
diligens
paterfamilias
in the position of the
defendant –
(i)
would foresee the reasonable possibility of
his conduct injuring another in his person or property and causing
him patrimonial loss;
and
(ii)
would take reasonable steps to guard
against such occurrence; and
(b) the defendant failed
to take such steps.”
In
this particular instance one should examine the evidence of the
plaintiff himself.  The plaintiff testified that he went
along
this route a number of times.  He noticed the cable.  The
cable was never a source of danger.  On the
day
in question
he did not see the cable
and it contacted with him and the tractor that he was driving.
He could not explain how that on
that particular day the cable was
now lower than it was on previous occasions.  He surmised and
speculated that it might have
come lower as a result of somebody
knocking the pole or some such accident which caused the cable to be
lowered.  But, the
cable was lower on that day when he contacted
it and met this unfortunate accident.
How
would the defendant know of the fact that this cable was hanging
low?  In the evidence of the defendant’s
witness
,
Mr Ngcobo, he testified that because it is an illegal connection the
defendant would only become aware of an illegal connection
being a
source of danger if it was reported to them or if an incident occurs
and then they go and take steps.  The defendant
would have been
blissfully unaware of this illegal cable causing a potential danger
to anybody, more especially the plaintiff in
this case.
What
is more this was an illegal connection.  It was not a cable as
contended for by the defendant in its plea that belonged
to the
plaintiff.  In fact, Mr Ngcobo testified that when he
photographed the cable and he showed the Court the kink or mark
on
the cable and he said that he was able to see the wires within which
were exposed when the cable snapped and that it was the

multi-coloured wires and that this was in fact a Telkom cable, not
even an Eskom cable that was used for the illegal connection.
It is
so that the public expect people to be protected against damage and
injury caused by the supply of electricity but the public
cannot
expect Eskom to prevent damage and injury caused to the people by the
illegal theft of electricity of which Eskom is unaware,
of which they
cannot become aware of until they are informed or until an incident
occurs.
In the
light of all of the challenges that face the employees of Eskom it is
incredible to impose upon them a duty then to go on
a more regular
basis to terminate or disconnect illegal connections to ensure the
safety of the people in the area.  They
can do no more than they
are doing at present.  They have testified in the evidence of Mr
Naradmuni and Mr Ngcobo that
the police cannot help, they are
themselves undermanned and under resourced and they cannot
provide assistance.  The
cost of having permanent armed guards
to escort them every time they conduct normal maintenance is
astronomical and, because of
the current economic position of Eskom,
unaffordable.  It is in those circumstances not possible for
Eskom to take steps that
Mr Naidoo suggests they should or ought to
have taken in the circumstances.
In the
light of this particular case it is quite clear that even bearing in
mind and accepting the plaintiff’s evidence, even
the plaintiff
himself was unaware of the danger being caused by this cable until
the incident occurred.  He was travelling
this route on a daily
basis and it presented no problem to him before.  It would be
unreasonable in the circumstances to expect
that Eskom would in those
circumstances be aware of this cable hanging low and being a source
of danger, firstly because nobody
reported it and secondly, because
until the incident with the plaintiff there was no other incident
that they were aware of or
was reported to them.  One must
accept the evidence of Mr Ngcobo in that regard.
In the
circumstances it cannot be said that the defendant reasonably foresaw
that there was this low hanging cable that was illegally
connected
that may possibly cause damage or injury to another person or
property, that in the circumstances they were obliged to
take
reasonable steps and that they failed to take reasonable steps
because they were simply unaware of the existence of this cable
until
the incident occurred.  That is the evidence before me.  It
cannot be unreasonable, bearing in mind the steps that
they take to
ensure that dangerous connections are not left unattended.
In any
event, as Mr Aboobaker properly argued, this was not an act on the
part of Eskom that caused the injury to Mr Msomi, it was
the act of
the person who was illegally stealing the electricity who pulled the
cable across the road from the legal supply that
caused the injury to
Mr Msomi.
For
all of these reasons I am satisfied that the plaintiff has failed to
prove its case against the defendant and –
THE
PLAINTIFF’S CLAIM IS DISMISSED WITH COSTS
.
TRANSCRIBER’S
CERTIFICATE
This
is, to the best abilities of the transcriber, a true and correct
transcript of the proceedings,
where audible
, recorded by
means of a mechanical recorder in the matter:
LINDOKUHLE
EUGENE MSOMI
v
ESKOM
HOLDINGS SOC. LIMITED
CASE
NUMBER

: 8650/2016
COURT
OF ORIGIN

: PIETERMARITZBURG HIGH COURT
TRANSCRIBER

: KERRY DICKINSON
DATE
COMPLETED

: 13 SEPTEMBER 2019
NUMBER
OF CDS

: 1 x CD
NUMBER
OF PAGES

: 15
_____________
Kerry
Dickinson
CONTRACTOR
Sneller Recordings (Pty)
Ltd • P O Box 1193 • Pietermaritzburg • 3200
Tel 033 3425256 •
Fax 033 3941190
IN
THE KWAZULU-NATAL HIGH COURT
PIETERMARITZBURG
REPUBLIC
OF SOUTH AFRICA
CASE
NUMBER

: 8650/2016
DATE

: 13 JUNE 2019
LINDOKUHLE
EUGENE MSOMI
versus
ESKOM
HOLDINGS SOC. LIMITED
BEFORE
THE HONOURABLE JUDGE GYANDA
ON
BEHALF OF APPLICANT
: ADVOCATE V M NAIDOO SC
ON
BEHALF OF DEFENDANT
: ADVOCATE ABOOBAKER SC
INTERPRETER

: NOT REQUIRED
CONTRACTOR
Sneller Recordings (Pty)
Ltd • P O Box 1193 • Pietermaritzburg • 3200
Tel 033 3425256 •
Fax 033 3941190