About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 632
|
|
Halstead-Cleak v Eskom Holdings Ltd (26360/14) [2015] ZAGPPHC 632; 2016 (2) SA 141 (GP) (1 June 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
DATE:1/6/2015
CASE
NO: 26360/14
DELETE
WHICHEVER IS NOT APPLICABLE
(1)
REPORTABLE: YES/
NO
(2)
OF INTEREST TO OTHER JUDGES: YES/
NO
(3)
REVISED
29/5/15
DATE
SIGNATURE
In
the matter between:
HALSTEAD-CLEAK,
DEREK
ANTHONY
Plaintiff
and
ESKOM
HOLDINGS
LIMITED
Defendant
JUDGMENT
Baqwa
J
[1]
This is an action arising out of injuries suffered by the plaintiff
in an incident which occurred on 11 August 2013.
The
Parties
[2]
The plaintiff is Derek Anthony Halstead-Cleak an investment
consultant of 16 Porter Avenue, Melrose North, Johannesburg. The
Defendant is Eskom Holdings Limited, a public company incorporated in
terms of the Company Laws of the Republic of South Africa
with its
principal place of business at Megawatt Park, Sunninghill, Sandton,
Johannesburg.
[3]
The Defendant has been the sole supplier of electricity on the
national grid within the borders of the Republic of South Africa
and
a licencee in terms of and/or purposes of the Electricity Regulation
Act, No. 4 of 2006. The defendant has thus been in effect
and
de
facto
in control of all power lines not falling under the control
of any local authority or municipality or Metropolitan municipality.
The
Factual Background
[4]
On 11 August 2013 and at or near poles DN 73/13/1and DN 73/13/2, the
plaintiff, whilst riding a bicycle inadvertently came into
contact
with a low hanging live power line spanning a footpath adjacent to
Bokmakierie Road in the Nooitgedacht area, Gauteng.
During the
incident the plaintiff sustained severe full-thickness electrical
burns to the right forehead and burn wounds to the
chest, arms and
both thighs.
[5]
During the hearing plaintiff called the evidence of one Vincent
Langlois who was a fellow rider on the day of the incident.
Langolois
testified how he and his other colleagues managed to ride under the
overhanging line whilst the plaintiff was the last
one at the rear of
the riding party. He heard a scream and saw the plaintiff being
electrocuted by the overhanging line. He tried
to pull him off using
the handle bars of the plaintiff's bicycle but was himself shocked.
When the other riders attempted to pull
him off the cable, and even
though they were wearing thick winter gloves, they received severe
electric shocks when they touched
him. After the plaintiff's clothing
had already started burning, his fellow cyclists were able to pull
him free using the rubber
tyres and handlebar grips of the bicycle to
release him. He fell to the ground and the flames were put out by
rolling him over.
His fellow cyclists performed cardio pulmonary
resuscitation (CPR) and after a few minutes, the plaintiff who was
not breathing,
began to breathe spontaneously, albeit laboriously.
The
Issues
[6]
The parties agreed to proceed to trial on the limited issue of
whether the defendant is or is not strictly liable in terms of
the
provisions of Section 61 of the Consumer Protection Act, 68 of 2008
(“The CPA attack”).
[7]
The parties agreed further that the delicitual part of the
plaintiff's claim and the issue of the alleged quantum of damages
be
separated and postponed
sine die.
[8]
The parties further agreed that possible contributory negligence on
the part of the plaintiff is not an issue in relation to
the CPA
attack.
The
Pleadings
[9]
Certain facts are common cause either on the pleadings or for
purposes of the limited issue:
9.1 That the plaintiff is
Derek Anthony Halstead-Cleak as described above.
9.2 That the defendant
was and at all times material hereto, a licensee in terms of and for
purposes of the Electricity Regulation
Act 4 of 2006 (“The
Electricity Act”) and that as such the Defendant is, and at all
times material hereto was, responsible
for the power line in
question, namely the power line spanning poles DN73/13/1 and
DN73/13/2 in the Nooitgedacht area of Gauteng,
through which the
Defendant conducted electricity (“The power line”).
9.3 That, for purposes of
the CPA attack, the Defendant was both the producer and the
distributor of the electricity generated through
the power line.
9.4 That at the time of
the incident the plaintiff was riding his bicycle on a footpath and
the power line was hanging in a low-hanging
position such that the
plaintiff was able to come into contact with it.
9.5 That the defendant
was made aware of the incident on 14 August 2013. That employees of
defendant inspected the scene of incident
on that day and found the
power line in the position described
(
supra)
and
that the Defendant immediately switched the power line off and made
it safe.
9.6 The plaintiff has
filed Rule 36 (9) (b) summaries regarding expert witnesses Mr
McKechnie (an Electrical Engineer) and Blumenthal
(a Specialist
Forensic Pathologist).
9.7 The defendant made
the following admission of the aforesaid summaries: “
To the
extent that the contents of the Rule 36 (9) (b) summaries of Mr
McKechnie
and
of
Dr
Blumenthal
are
relevant
to
the limited
issue
on which the
parties have agreed to
proceed,
namely
the
liability
or otherwise
of
the
defendant
in
terms
of
Section
61
of
the
Consumer Protection
Act,
68 of
2008
,
and
for
the purposes
of
that
dispute
only, without being
bound
thereby
should
this
matter
proceed
at any
stage on
any
other
disputes,
the
Defendant
admits
the
correctness
of
the contents of the
summaries in question.”
9.8 The defendant, in
conjunction with its duty to inspect, rectify and/or repair
deficiencies or dangerous situations was reliant
on dangerous
situations being drawn to its attention which was less likely to
occur where the line was not being used to conduct
electricity to a
user thereof. A user was more likely to report an obvious dangerous
situation or an interruption.
9.9 Electricity is a
dangerous commodity especially in the context of inadvertent contact
with live conductors (power lines) by
humans or animals. This was
confirmed in the defendant's training documentation which warns about
the risk of fatal electrocution
and the importance of minimum
clearance to prevent inadvertent contact with live power lines which
minimum clearance ranges from
4.9 to 10.4 metres depending on the
voltage being conducted.
9.10 The photographs of
the plaintiff's injuries in the trial bundle demonstrate a pattern of
burns mainly of an electrical nature
(especially over the head and
neck) and of the “open flame” type from secondary direct
flame due to open fire or ignited
clothing. The appearance of the
injuries are of an “electro thermal nature” falling
within the high voltage realm of
more than 100 volts.
9.11 Also common cause is
the fact that the issue of contributory negligence does not arise for
determination of the defendant's
liability in terms of
Section 61
of
the
Consumer Protection Act.
The
Law
[10]
One of the relevant provisions of the CPA to be considered in this
case is
Section 61
which must be read with
Section 53
in which
certain terms used in
Section 61
are utilised.
Section 53
reads as
follows:
“
53.
Definitions applicable to this Part
(1)
In this
Part,
when
used
with respect
to any
good
s
...
–
(a)
“defect”
means
-
(i) any
material
imperfection
in
the manufacture
of
the good
s
...,
...
that
renders
the
goods
...
less
acceptable than
persons
generally would
be reasonably
entitled
to
expect
in
the
circumstances; or
(ii) any
characteristic of
the
goods
...
that
renders
the goods
...
less
useful,
practicable or
safe
than
persons generally would
be
reasonably entitled to expect in
the
circumstances;
(b)
“
failure”
means
inability
of the goods
to perform
in
the intended
manner
or
to the intended
effect;
(c) “
hazard”
means
a
characteristic that
–
(i) has
been
identified
as,
or
declared
to be,
a
hazard in terms of any
other
law;
or
(ii) presents
a
significant
risk
of personal
injury
to
any person,
or
damage
to
property,
when
the
goods are
utilised;
and
(d) “
unsafe”
means
that,
due to
a
characteristic,
failure, defect or hazard,
particular goods present
an extreme risk of personal
injury or property damage to the consumer
or
to
other persons.”
[11]
Although not the whole of
Section 61
is relevant
in
casu,
the whole section has to be quoted in its entirety in order to
give a contextual meaning to the relevant portions. Consequently what
follows is
Section 61
in its entirety:
“
61. Liability for
damage caused by goods:
(1) Except to
the
extent
contemplated in
section
(4),
the
producer,
distributor
or retailer
of any goods
is liable for any harm,
as described in
subsection (5),
caused wholly
or
partly as
a
consequence of
–
(a) supplying
any
unsafe goods;
(b) a
product
failure, defect or hazard in any goods; or
(c) inadequate
instructions or warnings
provided to
the
consumer pertaining to any hazard arising from or associated with the
use of any goods,
irrespective
of
whether
the harm
resulted
from
any
negligence on
the part
of
the producer,
importer,
distributor
or retailer,
as
the case may be.
(2)
A supplier
of services who, in conjuction with the
performance of
those
services, applies, supplies, installs or
provides access to any goods, must be regarded
as
a
supplier of those goods to the consumer, for the
purposes
of this section.
(3) If, in a
particular case, more than one
person is liable in
terms of this section, their liability is
joint and
several.
(4) Liability of a
particular person in terms of this section does not arise if-
(a) the
unsafe
product characteristics, failure, defect or hazard that
results is wholly attributable to
compliance with
any
public regulation;
(b) the
alleged
unsafe
product characteristic, failure, defect or
hazard-
(i) did not exist
in the goods
at the time it
was
supplied by that person
to another person
alleged to be liable; or
(ii) was
wholly
attributable
to
compliance
by
that person with
instructions
provided by
the
person who
supplied
the
goods
to
that
person,
in
which
case subparagraph (i)
does not apply;
(c) it is unreasonable
to expect the distributor or retailer to have to discover the unsafe
product characteristic, failure, defect or hazard, having
regard to that
person's role in marketing the goods to
consumers; or
(d) The
claim
for damages is brought more than three years after the-
(i) death or injury of
person
contemplated
in subsection
(5)(a);
(ii) earliest
time
at
which
a
person
had
knowledge
of the material
facts about an illness contemplated in subsection (5)(b); or
(iii) earliest
time
at
which
a
person
with an interest
in any
property
had
knowledge
of
the
material
facts about the
Joss or
damage to
that
property
contemplated in subsection (5)(c); or
(iv) the
latest
date
on
which
a
person
suffered any economic
Joss
contemplated
in
subsection (5)(d).
(5) Harm for which
a
person may be held liable in terms of this section
includes-
(a) the death of, or
injury to, any natural person;
(b) an illness of any
natural person;
(c) any Joss of, or
physical damage to, any
property, irrespective
of whether it is movable or immovable; and
(d) any economic loss
that results from harm contemplated in paragraph
(a),
(b) or (c).
(6)
Nothing in this section limits the authority of
a
court to-
(a) assess whether any
harm has been proven and adequately mitigated;
(b) determine the
extent and monetary value of any damages, including economic loss; or
(c) apportion
liability among persons who are found to be jointly and severally
liable.”
[12]
Section 1
defines concepts such as “
consumer”,
“distributor”, “goods”, “market”,
“producer'', “supplier'',
and “
supply”
as follows:
“
5
.
3.
1
“Consumer'':
“
consumer”,
in respect of any particular goods or services, means-
(a)
a
person to whom those particular goods or services are
marketed in the ordinary course of the supplier's business;
(b)
a
person
who has entered into
a
transaction
with
a
supplier in the ordinary course of the supplier's
business, unless the transaction is exempt from the application of
this Act by
section 5(2) or in terms of section 5(3);
(c)
if
the
context
so
requires
or
permits,
a
user
of
those
particular
goods
or
a
recipient
or
beneficiary
of
those
particular
services, irrespective
of
whether
that
user,
recipient
or
beneficiary
was
a
party
to
a
transaction
concerning
the
supply
of
those
particular
goods or services; and
(d)
a
franchise in terms of
a
franchise agreement,
to the
extent applicable in terms of section 5(6)(b) to (e);
5.3.2
“Distributor”:
“
distributor”,
in relation to any particular goods, means a
person
who, in the ordinary course of business
–
(a)
is supplied with those goods by
a
producer, importer or
other distributor;
and
(b)
in turn, supplies those goods to either another distributor or
to a
retailer;
5.3.3
“Goods”:
“
goods”
includes-
(a)
anything
marketed
for
human
consumption;
(b)
any tangible object not otherwise contemplated in
paragraph
(a), including any medium on which anything is or may be written or
encoded;
(c)
any
literature music,
photograph, motion
picture, game, information, data, software, code
or
other intangible
product written or encoded on
any medium, or
a
licence to use any such intangible
product;
(d)
a
legal
interest
in
land
or any
other immovable
property,
other than
an interest
that
falls
within the definition
of
“service” in
this section;
and
(e)
gas,
water and electricity;
5.3.4 “Market”
“
market'',
when used as a verb, means to promote or supply goods or
services;
5.3.5 “Producer'':
“
producer'',
with respect
to any particular
goods
means
a person
who-
(a)
grows,
nurtures,
harvests,
mines,
generates,
refines,
creates,
manufactures
or otherwise produces
the
goods
within the Republic,
or causes
any
of those things
to be done,
with the intention
of making
them
available
for supply
in
the
ordinary course
of business;
or
(b)
by
applying
a personal
or
business
name,
trade mark,
trade
description
or other
visual
representation
on or in relation
to the
goods,
has
created
or
established
a
reasonable
expectation
that the person
is
a person
contemplated
in paragraph
(a);
5.3.6 “Supplier'':
“
supplier”
means a
person who markets any goods and
services;
5.3.7 “Supply”:
“
supply”,
when used as
a
verb-
(a)
in relation to goods, includes sell,rent, exchange and hire in the
ordinary course of business for consideration; or
(b)
in relation to services, means to sell the services, or to perform or
cause them to be performed
or provided,
or
to grant access to any premises, event, activity or facility in the
ordinary course of business for
consideration.
[13]
Another statutory provision that has some relevance is Section 25 of
the Electricity Act which provides as follows:
“
Liability
of licensee for
damage
or injury
In
any
civil
proceedings against
an
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
shall
be presumed
to have
been
caused
by
the
negligence
of the licensee,
unless there
is credible evidence to the contrary.”
Defences
raised by the Defendant
[14]
The defendant contends that the CPA is about consumerism and the
protection of consumers and that had the Plaintiff suffered
the
electrical burns that he did in the course of utilising the supply of
electricity to his home, or otherwise in the course of
his use of
electricity, then the CPA might well have applied. The defendant's
counsel submits further that all analysis of Section
61 itself, let
alone Sections 53 and 61 within the context of the CPA reveals that
the CPA and Section 61 in particular was not
intended to apply to
circumstances such as the present case.
Discussion
[15]
It has been observed worldwide that the design, manufacture and
distribution of products are activities that occupy the centre
stage
for the wealth and welfare of society. As a matter of fact owing to
the unpredictable nature of man-made products this at
times may
result in death, disease or injury for a wide range of parties, for
example workers in factories or along distribution
channels, users of
defective products and third parties like consumers and innocent
bystanders.
See
Van
Eden E: Consumer
Protection
Law in South
Africa
(2013)
367.
[16]
To an extent this is what constituted the reasoning behind
formulation of the CPA. The preamble to the CPA confirms recognition
of the fact,
inter alia
that “
it is necessary
to develop
and employ
innovative
means
to... (b) protect
the
interests of consumers, to ensure accessible, transparent and
efficient redress for
consumers
who
are
subject
to abuse
or
exploitation
in
the market place
and
(c) to give
effect
to
internationally
recognised
custom
rights.”
The preamble then states that the enactment
into the CPA is intended to,
inter alia,
“protect
consumers
against
hazards
to
their
wellbeing
and
safety,
develop effective means of redress for
consumers
...”
[17]
The CPA provides protection to and redress for “any person”
in a number of its provisions, that is, not only in
respect of
“consumers” or a “consumer”. An example
regarding the application of the CPA to “consumers”
as
defined in Section 1, is section (5)(5) which provides that sections
60 and 61 are applicable and even in respect of transactions
exempt
from the provisions of the CPA. The submission therefore, by the
defendant that an innocent third party who is not necessarily
a
“consumer”
stricto
sensu,
who
suffers loss (such as a dependant of a breadwinner who is or may be a
consumer who is killed by a defective product) cannot
claim redress
because he or she is not the consumer would be contrary to the spirit
and purpose of the CPA.
Application
of the CPA: Section 5
[18]
Section 5 provides for the scope and ambit of the CPA. In terms of
Section 5(1) the CPA applies to:
18.1 every transaction
occurring within the Republic (unless it is exempted in terms of the
CPA) Section 5(1) (a).
18.2 the promotion of any
goods or services, or the supplier of any goods or services, within
the Republic, unless the goods or
services have been exempted in
terms of the CPA Section 5(1) (b) (iii).
18.3 it is also clear
from a reading of Section 5(8) of the CPA that the Act applies
“
irrespective whether the supplier is...
a
juristic
person
....organ
of
state,
an
entity
owned
or
directed
by
an
organ
of
state,
a
person
contracted
or licensed
by
an
organ
of
state
to....
supply
any goods
or
services,
or is
a
public-private
partnership,
or is required
or licensed
in
terms of any public regulation
to make the supply of
particular goods or services available to all or
part
of the
public.”
18.4 in terms of Section
5(5) the provisions of Section 61 apply even to exempted transactions
which is indicative of its “wider”
application, thus
affording redress to persons who would not enjoy the advantage of
other provisions of the CPA, and render liable
those producer,
suppliers, promoters and the like who would otherwise not be liable
in terms of any other provisions of the CPA.
[19]
Despite the existence of common cause facts and the admissions by the
defendant regarding certain facts alleged by the plaintiff
it is
necessary to consider certain aspects regarding the application of
the CPA in more detail namely:
19.1 whether “goods”
and/or “services” as defined are involved?
19.2 if so, the capacity
in which the defendant stands in relation to such “goods”
and/or “services”?
19.3 the relationship
occupied by the Plaintiff in relation to such “goods”
and/or “services”.
19.1.1
Regarding the first issue and with reference to Section 1 of the Act
in which “goods” are defined, the definition
is clearly
intended to go under the concepts set out in subsections (a) to (e)
under the definition of “goods”. The
use of the word
“includes” is indicative of this fact. There can be no
doubt however that electricity constitutes “goods”
for
purposes of the CPA as it is clear from subsection (e) which includes
goods, water and electricity as part of the definition.
It can
therefore be accepted that the electricity which caused the
Plaintiff's injuries constitutes “goods” for purposes
of
Section 61 of the CPA.
19.2.1
Regarding the second issue, the following definitions require
consideration:
19.2.1.1 In terms of
Section 1 “producer” with respect to any particular goods
means a person who “
...generates
...
creates,
manufactures
or
otherwise
produces
the goods
within
the
Republic, or
causes
any
of
those things
to
be
done,
with the intention
of
making
them
available
for
supply in
the
ordinary
cause
of
its business;
...”
It is common cause that the defendant generated the electricity (and
therefore the “goods”) for purposes
of this distribution,
and that its intention at all times is and was to supply the
electricity in the ordinary cause of business.
19.2.1.2 “retailer”
with respect to any particular goods, is defined as “
a
person who
in
the
ordinary
cause
of
business,
supplies
those
goods
to
a
consumer.”
Based on the definition of “supplier”
and “supply” dealt with hereunder, the defendant was a
“retailer”
in respect of the electricity supplied to
consumers in general. This does not mean that the “consumer”
has to be the
injured party in this instance as such an
interpretation would not be in accordance with the spirit and purpose
of the CPA.
19.2.1.3 In terms of
Section 1 “supplier” means a person who markets any goods
or services. “market”, when
used as a verb, is defined as
meaning “
to
promote
or supply
any
goods
or services”.
In terms of Section 1 “supply” when used as a verb in
relation to goods, includes sell “
...in
the
ordinary
cause
of business
for
consideration; ...”
Taking all
these definitions into consideration it would appear that the
defendant's claim that the CPA is not applicable has no
merit.
19.3.1
With regard to the third consideration i.e. the relationship in which
the plaintiff stands to the defendant and the “goods”,
the wording of Section 61(5) makes it clear that liability arises not
only in respect of “consumers” as defined in
the CPA or
consumers in the general sense, but to “any natural person”
(Section 61(5)(a)). The plaintiff need not,
therefore be a “consumer”
in the contractual sense as defined in order for the Defendant to be
liable to him.
[20]
Section 53(1) provides that ““
defect” when used
with respect to any goods, component
of any goods
or components,
or in the performance
of
the services,”
refers to any aspect “
that
renders
the
goods
or
the
results
of
the
service
Jess acceptable
than
persons
generally
would be
reasonably
entitled
to expect in
the circumstances”.
[21]
In the context of electricity being conducted along a line which is
not required or used to supply any other consumer, this
constitutes
“
goods or results of the services
less
acceptable than
persons generally would
be
reasonably entitled to expect
in
the circumstances.”
[22]
Further, considering the inherent dangers or characteristics of
electricity, by permitting such a danger to exist, that constituted
“
goods or components Jess
...
safe
than persons
generally
would be
reasonably
entitled
to expect in
the circumstances.”
Logic accordingly dictates that
the defendant cannot introduce a source of danger and thereafter seek
exoneration when injury is
caused as a result thereof.
[23]
It is common cause that the defendant allowed the presence of
electricity in the lines spanning the foot path used by the plaintiff
on the day of the incident. Upon learning of the incident the
defendant rectified the situation by causing electricity to be
switched
off and the lines dismantled. I am fortified to use the same
principle used in the case of
Coppejans v Bosman (34676/2013)
[2014]
ZAGPHC
1833
to
establish liability. In an action based on the
action de pauperie
the defendant had denied liability on the basis that the dog
which had bitten the plaintiff was a stray dog. Yet the defendant had
not only salvaged the plaintiff from the mauling, he took her to
hospital, paid the bill, visited her in hospital and eventually
killed the dog. If the defendant was not guilty he would not have
incurred such expenses for a matter that does not concern him.
The
same applies to the defendant in the present case. Its actions after
the incident reinforce the notion that it had introduced
the source
of danger which led to the plaintiff's injuries for which it would be
held liable.
[24]
Lastly, it is notable that the defendant neither pleaded nor adduced
any evidence to substantiate the non-applicability of
the CPA. The
defendant was content to put this in issue by way of a bare denial
which is not sufficient to rebut the plaintiff's
case.
[25]
Section 61(1) provides for strict liability and it does not matter
whether the harm resulted from any negligence on the part
of the
defendant as a producer, distributor or retailer. In the
circumstances I am satisfied that the plaintiff has succeeded to
prove that the defendant is liable in terms of Section 61(1) of the
CPA.
[26]
Further, I find that the plaintiff is entitled to the costs
consequent upon consulting with his expert witness, Mr Mckechnie
and
Dr Blumenthal, and the costs occasioned by their reports and the
expert summaries drawn on their behalf.
[27]
In the result I make the following order:
27.1 The defendant is
declared to be 100% (one hundred per cent) liable to the plaintiff
for and in respect of the injuries sustained
by the plaintiff on the
11 August 2013 in terms of
Section 61
of the
Consumer Protection Act,
No 68 of 2008
.
27.2 The defendant is
ordered to pay the reasonable taxable party and party costs of the
plaintiff on the High Court scale, such
costs to include:
27.2.1
The reasonable fees of senior counsel
27.2.2
The reasonable costs, fees and/or disbursements occasioned in respect
of the plaintiff's expert witnesses, Mr I Mckechnie
and Dr R
Blumenthal (including preparation of their reports and the drafting
of expert summaries in respect thereof).
27.3 It is ordered that
the taxable or agreed costs payable by the defendant shall bear
interest at 9% per annum calculated from
agreement in respect
thereof, alternatively from the date of affixing of the allocatur of
the taxing master, to date of payment.
_____________________
S.
A. M. BAQWA
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION,
PRETORIA
For
the Plaintiff:
Adv. W. P. De Waal SC
Instructed
by:
Joseph's Inc.
For
the
Defendant:
Adv.
J. F. Mullins SC
Instructed
by:
Mathie Jooma Sabdia Incorporated
Date
of
Judgment:
1 June
2015