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[2018] ZAKZPHC 1
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Eskom Holdings Limited v Grundy (AR380/2017) [2018] ZAKZPHC 1; 2018 (4) SA 242 (KZP) (16 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
REPORTABLE
16
February 2018
CASE
NO:
AR
380/2017
In
the matter between:
ESKOM
HOLDINGS
LIMITED
Appellant
and
DEAN
JONATHEN
GRUNDY
Respondent
ORDER
The appeal is dismissed
with costs.
JUDGMENT
Delivered
on: 16 February 2018
Ploos
van Amstel J
(Jappie
JP and Nkosi AJ concurring)
[1]
The
appellant (‘Eskom’) appeals against an order made by
Marks AJ, directing it to remove certain overhead power lines
and
ancillary equipment from a particular portion of a farm owned by Mr D
J Grundy in the Kokstad area. Eskom also applied for
condonation of
its failure to make written application for a date for the hearing of
the appeal timeously. Its attorney provided
a satisfactory
explanation, the application was not opposed and condonation was
granted at the hearing of the appeal.
[2]
The farm is described in the title deed as Portion 1 (Fernill Annex)
of the Farm Kruis-Fontein no 215, Registration Division
ES, Province
of KwaZulu-Natal; in extent 143, 4691 hectares. Mr Grundy bought the
farm from Mr MC Mackenzie on 14 October 2009
and it was transferred
to him on 24 March 2010. I refer to it herein, where appropriate, as
‘the farm’.
[3]
The case made by Mr Grundy is that a number of overhead power lines,
supported by wooden poles, run over a particular portion
of the farm,
which he identifies by means of co-ordinates, a satellite image and a
topographical map. It is common cause on the
papers that the power
lines were erected there by Eskom, who owns them. Mr Grundy wants the
power lines to be moved from that portion
of the farm as he cannot
operate a centre pivot irrigation scheme under or near them. He asked
Eskom in 2009 (when he was renting
the farm) to move them, but it
wanted him to pay the cost of doing so. An Eskom employee told him
that Eskom had the right to conduct
electricity over the farm in
terms of a so-called ‘wayleave’ agreement. When Mr Grundy
later asked Eskom for a copy
of the wayleave agreement he was told
that Eskom could not find it. He says Eskom nevertheless persisted in
its stance that it
had erected the lines with the agreement of the
owner at the time and would only move the lines if he paid for it.
[4]
Mr Grundy’s case is simply that he owns the farm over which the
power lines run; that Eskom has no permission to have
its equipment
on his land; and that he wants Eskom to remove it from the area which
he wants to irrigate. It was undisputed before
us that this is a
natural incidence of his ownership of the land, and that it was up to
Eskom to establish its entitlement to have
its equipment there.
[5]
The first basis on which Eskom claims the right to have the power
lines on the farm is a servitude. It claimed that it acquired
a
servitude by acquisitive prescription on the basis that it had openly
and as though it was entitled to do so, exercised the rights
and
powers which a person who has a right to such servitude is entitled
to exercise, for an uninterrupted period of thirty years.
It relied
in this regard on
s 6
of the
Prescription Act 68 of 1969
.
[6]
The question therefore arose as to when the power lines were erected.
The deponent to Eskom’s answering affidavit is Ms
Liza Brown, a
chief legal adviser employed by it. She referred to a written
‘Agreement to Grant Wayleave’, which she
said was
concluded on or about 21 June 1979 between Eskom and a Mr AMC
MacKenzie, in terms of which Eskom was granted the right
to erect an
overhead power line on a farm referred to as Remainder of
Kruisfontein A134, which is adjacent to Mr Grundy’s
farm. She
claims that the power line which Eskom was granted the right to
construct on the adjacent farm is highlighted in pink
on a copy of
the first page of the agreement and that the power line which Mr
Grundy wants to be moved is highlighted in blue.
She then states that
it is important to note (presumably from the sketch) that in 1979,
when Eskom was granted the right to erect
a power line on the
adjacent farm, the power line which Mr Grundy wants to be moved had
already been erected on what is now his
farm.
[7]
Ms Brown’s statement that the power lines on Mr Grundy’s
farm had already been erected by 1979 elicited an objection
in the
replying affidavit that this was hearsay evidence and inadmissible.
The point was also made that the sketch on the 1979
agreement
reflected power lines which Eskom intended to erect in the future,
and that it did not purport to reflect existing power
lines.
[8]
Marks AJ approached the matter on the basis that there was no
evidence on the papers as to when the power lines on Mr Grundy’s
farm were erected, and that therefore Eskom failed to establish a
servitude acquired by prescription. I am not persuaded that she
erred
in this regard. I do not agree with counsel’s submission that
the available evidence justifies the inference, as a
matter of
probability, that the power lines in question had already been
erected when the 1979 agreement was concluded. Eskom only
has itself
to blame for not providing admissible and reliable evidence as to
when the lines were erected. It is not entitled to
expect that such
an inference, which is tenuous at best, should be drawn as a matter
of probability when it failed to put up evidence
which may reasonably
be expected to be available.
[9]
The finding of the court below that the acquisition of a servitude
was not established can therefore not be disturbed. It is
not
necessary therefore to consider whether the use by Eskom of the land
on which the power lines were erected was
nec
precario
.
See in this regard
Pezula
Private Estate (Pty) Ltd v Metelerkamp
.
[1]
[10]
The second basis on which Eskom claimed a right to have its lines on
the farm is a so-called retrospective wayleave agreement.
The facts
here are briefly as follows. In January 2011 Mr Grundy asked Eskom to
provide electricity to his new dwelling house on
the farm. Eskom
agreed to do so and on 14 February 2011 he signed a written
electricity supply agreement on what appears to be
a standard Eskom
document. Eskom’s case was that in terms of clause 1 of the
supply agreement its standard conditions were
incorporated as part of
the agreement, and that clause 8.1 of the standard conditions
provides for all existing lines on the farm
to be regarded as part of
the servitude granted in connection with the new line. Therefore, so
the argument went, even if Eskom
did not have either a servitude or a
wayleave agreement pertaining to the lines which Mr Grundy wanted
moved, by signing the supply
agreement pertaining to his home he
granted Eskom a servitude pertaining to all the existing lines on the
farm.
[11]
The electricity supply agreement provides in clause 1 that Eskom’s
standard conditions of supply ‘which is annexed
hereto as
annexure A’ shall constitute part of the agreement. Counsel for
Eskom accepted that if the conditions were in fact
not annexed to the
agreement then they were not incorporated and did not form part of
it. See, by way of comparison,
Cape
Group Construction (Pty) Ltd t/a Forbes Waterproofing v Government of
the United Kingdom.
[2]
I turn to the evidence in this regard.
[12]
The document put up by Eskom, which contains the standard conditions,
does not bear Mr Grundy’s signature or initial.
There is no
evidence from Eskom that it was attached to or accompanied the
agreement. Nor is there any evidence that it was the
invariable
practice at the time to attach the conditions to every supply
agreement.
[13]
Mr Grundy says he has no recollection of the conditions being shown
to him, discussed with him or signed by him. He says to
the best of
his recollection the only document that was shown to him was the
supply agreement which he signed. Counsel for Eskom
sought to counter
this by submitting that the wording of the document which Mr Grundy
signed provides the evidence that he received
the standard
conditions. Clause 1 of that agreement recorded that the standard
conditions which were annexed to the agreement would
form part of it.
And above Mr Grundy’s signature appear the words ‘Signed
by Customer’ and below that, in a smaller
font, ‘I
acknowledge receipt of Annexures A & B’.
[14]
Counsel submitted, relying on the
caveat
subscriptor
rule, that a party to an agreement cannot escape provisions in it by
claiming that he signed the document without reading it. That
is
generally correct. See the discussion in this regard in
Christie’s
Law of Contract in South Africa.
[3]
The learned authors say that the true basis of the principle is the
doctrine of
quasi-mutual
assent. The party concerned signifies his intention to be bound by
the terms of the agreement whether or not he read them. In
George
v Fairmead (Pty) Ltd
[4]
Fagan CJ said ‘When a man is asked to put his signature to a
document he cannot fail to realise that he is called upon to
signify,
by doing so, his assent to whatever words appear above his
signature’. But this applies to the terms of the contract.
It
does not apply to matters of fact stated in the agreement, such as a
recordal that another document was attached to it. If in
fact it was
not so attached, then it cannot be deemed or agreed to have been so
attached. This does not mean that an acknowledgment
in a written
agreement that a particular document was received by a party or
attached to the agreement has no evidential value.
All it means is
that if the party concerned was not aware of the acknowledgment in
the agreement, then he cannot be held to it
in the way that a party
can be held to a contractual term which he had not bothered to read.
Whether or not the document was attached
to the agreement remains a
question of fact. If it is found that the document was in fact not
attached, then a printed acknowledgment
above a party’s
signature that it was attached has no further value. Conceivably an
estoppel may arise, but not on the facts
of this case.
[15]
Eskom is the party who sought to rely on its standard conditions. It
did not put up an affidavit from the person who signed
the agreement
on its behalf, nor did it produce a copy of the conditions which was
signed or initialled by Mr Grundy. It relied
solely on the printed
words in the agreement to the effect that the conditions were annexed
to it, and that Mr Grundy acknowledged
having received them. In the
light of Mr Grundy’s evidence that he has no recollection of
such conditions and that to the
best of his recollection he was only
given the supply agreement itself, I do not consider that Eskom
established that its standard
conditions formed part of the supply
agreement.
[16]
Even if the standard conditions were incorporated in the supply
agreement, then it seems doubtful that Eskom could rely on
clause
8.1.1 as constituting agreement by Mr Grundy for it to retain the
existing lines on the farm. The supply agreement was signed
in
February 2011, some time after Mr Grundy had been communicating with
Eskom with regard to the removal of the power lines which
restricted
his farming operations. The agreement describes the premises where
the supply of electricity was required as the house
and borehole on
the farm. It allows in clause 3 for its termination on one month’s
notice by either party, except in the
first five years. The
conditions are headed ‘Standard conditions of supply for small
supplies with conventional metering’.
Clause 8 is headed
‘Right(s) of way’. It provides for a right of way along a
route mutually agreed to by the parties.
Tucked away at the end of
clause 8.1.1 is a provision that the ‘customer shall also grant
to Eskom the right to retain any
existing line(s) and/or cable(s) on
the property’. It may well be said that Mr Grundy could not
reasonably have expected
a clause in the conditions in which he gave
permission to Eskom to retain the power lines on the farm, which he
had been asking
it to remove. In the context of the case such a
clause would have been unusual and unexpected. If Eskom wanted to
include such
a clause in the agreement it may well have been obliged
to draw Mr Grundy’s attention to it. In the light of the
conclusion
to which we have come on the other issues we need not
express a firm view on this aspect of the matter.
[17]
The appeal is dismissed with costs.
________________
Ploos
van Amstel J
Appearances:
For
the Appellant
:
A J Dickson SC (with him W J Pietersen)
Instructed
by
:
Mcleod & Associates
c/o
Redfern & Findlay Attorneys
Pietermaritzburg
For
the Respondent
:
A R Duminy
Instructed
by
:
Venns Attorneys
Pietermaritzburg
Date
Judgment Reserved:
31 January 2018
Date
of Judgment
:
February 2018
[1]
Pezula Private Estate (Pty) Ltd v
Metelerkamp
&
another
2014 (5) SA 37
(SCA) paras 10 and15.
[2]
Cape Group Construction (Pty) Ltd
t/a Forbes Waterproofing v Government of the United Kingdom 2003 (5)
SA 180 (SCA).
[3]
Christie’s
Law
of Contract in South Africa
,
7
th
ed, (2016) at 205-210.
[4]
George v Fairmead (Pty) Ltd
1958 (2) SA 465
(A) at 472A.