Lucas & Another v Umhlathuze Municipality and Another (785/2020) [2021] ZASCA 181 (17 December 2021)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2021
>>
[2021] ZASCA 181
|

|

Lucas & Another v Umhlathuze Municipality and Another (785/2020) [2021] ZASCA 181 (17 December 2021)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case No: 785/2020
In the
matter between:
ARTHUR
RYAN
LUCAS
FIRST APPELLANT
ZELNA
LUCAS
SECOND APPELANT
and
UMHLATHUZE
MUNICIPALITY
FIRST RESPONDENT
OCEAN
REST 3 BODY CORPORATE
SECOND RESPONDENT
Neutral citation:
Lucas
& Another v Umhlathuze Municipality and Another
(Case
no. 785/2020)
[2021] ZASCA 181
(17 December 2021)
Coram:
VAN DER MERWE, MOLEMELA, MAKGOKA and
SCHIPPERS JJA and MOLEFE AJA
Heard:
12 November 2021
Delivered:
This judgment was handed down
electronically by circulation to the parties’ representatives by
email, publication on the Supreme
Court of Appeal website and release
to SAFLII. The date and time for hand-down is deemed to be 12h00 on
17 December 2021.
Summary
:

Delict – negligence – foreseeability
of harm – child fatally
electrocuted when touching metal cage encasing electricity
distribution kiosk – kiosk on private property
administered by body
corporate – lock affixed to cage by municipality – whether
municipality liable – body corporate responsible
for maintenance of
common property – s 25 of the Electricity Regulation Act 4 of
2006 – incident not caused by negligence
of municipality – appeal
dismissed.
ORDER
On appeal from:
Kwazulu-Natal
Division of the High Court, Durban (Moodley J sitting as court of
first instance):
The appeal is dismissed with costs.
JUDGMENT
Molefe AJA (Van der Merwe, Molemela, Makgoka and Schippers JJA
concurring):
[1]        This is an appeal
against the judgment and order of the Kwazulu-Natal Division of the
High Court, Durban (the high court), dismissing the appellants’
delictual claim against the first respondent, Umhlathuze Municipality
(the municipality). The appeal is with the leave of the high court.
[2]
The facts which gave rise to the claim are these. On 29 June 2013,
the appellants’
six-year-old daughter was fatally electrocuted when
she climbed onto a metal cage encasing an electrical distribution
kiosk on the
premises of a sectional title scheme (the scheme), which
was under the management of the second respondent, the Oceans Rest 3
Body
Corporate (the body corporate). As a result of the death of
their daughter, the appellants claimed damages for emotional shock
from
the municipality and the body corporate, jointly and severally.
They alleged that the municipality and the body corporate had
negligently
failed to ensure that the metal cage was properly
maintained, and was not a danger to the residents, thus failing in
their ‘duty
of care’ to the public. Before the trial commenced,
the appellants and the body corporate concluded a confidential
settlement agreement.
As a result, the trial proceeded only against
the municipality, and only in respect of the issue of liability.
[1]
[3]        It was common cause
between the parties that the distribution kiosk was installed by
the
body corporate, and belonged to it. At the instance of the body
corporate, the developer of the scheme had installed five electricity
distribution kiosks on the common property, each of which serviced
four sections within the scheme. Electrical wiring leading to
and
from the kiosk was laid underground at a depth of between 350mm and
500mm. The municipality installed prepaid meters in the kiosks
which
regulate payment but not the supply of electricity. The municipality
supplies electricity to the body corporate from its mini
substation
located across the road from the scheme, and provides subterranean
infrastructure to the boundary of the scheme, from
which point the
body corporate is responsible for reticulation of electricity to
various sections within the scheme.
[4]        Prior to 2008 and at
the instance of the body corporate, metal cages were placed over
the
kiosks. These cages were constructed with metal legs approximately
30cm in length, which were designed to penetrate the ground
and give
the cage some stability. Neither the cage nor its legs were secured
to the ground with any form of concrete. At some stage
after the body
corporate had installed the cages, employees of the municipality
installed locks onto the cages to safeguard the infrastructure
against vandalism and to prevent interference with the prepaid meters
within the kiosks. Following the fatal electrocution, the
municipality,
through its employees, identified the cause of the
incident as the electrification of the metal cage. The
electrification occurred
when one of legs of the cage made contact
with the copper coil of an underground cable connected to the
distribution kiosk. This
took place when weight or pressure was
placed on the cage, which had not been earthed.
[5]        It was submitted on
behalf of the appellants that by placing a lock on the cage and
retaining its key, the municipality assumed a legal duty to ensure
that the cage was safe. The high court rejected this contention,
and
concluded that the affixing of the locks and retention of the keys by
the municipality could not be considered wrongful or contrary
to the
legal convictions of the community, and that no negligence could be
ascribed to the municipality. The high court accordingly
dismissed
the appellants’ claim.
[6]        The key question in
this appeal is whether the municipality, by virtue of the fact
that
it placed its lock on the metal cage encasing the electricity
distribution kiosk belonging to the body corporate, assumed the
duty
to ensure the safety of the kiosk and metal cage. And if so, whether
the municipality was negligent for failing to ensure the
safety
thereof.
[7]        The appellants relied
on s 25 of the Electricity Regulation Act 4 of 2006 (the Electricity
Act), which provides:
‘
Liability
of licensee for damage or injury
–
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.’
[8]
The municipality is a licensee as envisaged in the
Electricity Act and it distributed electricity to the scheme. It
accepted that
s 25 placed an onus on it to show that the incident had
not been caused by its negligence. In the result the separated issue
for
determination by the high court was whether there was credible
evidence produced by the municipality to show that the injury was
not
caused by its negligence.
[9]
I turn now to consider the appellants’ contention that the
municipality was negligent.
In terms of the law of delict, negligence
refers to the blameworthy conduct of someone who has acted
wrongfully. A person is blamed
for conduct of carelessness,
thoughtlessness or imprudence, because by giving insufficient
attention to his/her actions, he/she failed
to adhere to the standard
of care legally required of him/her. The standard used is an
objective standard of a reasonable person.
The question is whether a
reasonable person in the position of the municipality would have
acted differently. A reasonable person
would have acted differently
if the cause of damage was reasonably foreseeable and preventable.
[10]
The test for negligence remains as set out in
Kruger
v Coetzee.
[2]
Applying that test to the present case, the
questions are whether (i) employees of the municipality should have
foreseen the reasonable
possibility of the metal cage causing injury
or harm; (ii) persons in the position of those employees would have
taken reasonable
steps to guard against that harm; and (iii) those
employees failed to take those steps.
In
the light of recent authorities, Midgley and Van der Walt made the
following observation:
‘
When
assessing negligence, the focus appears to have shifted from the
foreseeability and preventability formulation of the test to
the
actual standard; conduct associated with a reasonable person. The
Kruger
v Coetzee
test
,
or
any modification thereof, has been relegated to a formula or guide
that does not require strict adherence. It is merely a method
for
determining the reasonable person standard, which is why courts are
free to assume foreseeability and focus on whether the defendant
took
the appropriate steps that were expected of him or her.’
[3]
[11]
The appellants submitted that a reasonable person in the position of
the municipality, once it knew of
the existence of the metal cage and
acquired control of it by affixing a lock thereto, would have ensured
that the cage, installed
in close proximity to electrical cables and
enclosing an electrical installation, was safe and remained so whilst
it was under lock
and key. Furthermore, the municipality should have
foreseen that the cage was of an unsafe design, could therefore
become electrified
and could cause harm to any person who touched it.
It was also submitted that the municipality was negligent because it
failed to
mitigate any risk of the cage becoming electrified by
ensuring that it was earthed.
[12]
The appellants did not plead that the municipality acquired control
over the cage installed by the body
corporate because it had affixed
a lock to the cage.
This
Court in
Minister of Safety and Security
v Slabbert
held as follows:
‘
A
party has a duty to allege in the pleadings the material facts upon
which it relies. It is impermissible for a plaintiff to plead
a
particular case and seek to establish a different case at the trial.
It is equally not permissible for the trial court to have
recourse to
issues falling outside the pleadings when deciding a case.’
[4]
This is
subject to the following caveat. This Court has inherent jurisdiction
to decide a matter even where it has not been pleaded,
provided that
such matter was ventilated before it. In
Van Mentz v Provident
Assurance Corporation of Africa Ltd
, this Court said that ‘
.
. . where it is clear that the appellate tribunal has all the
materials before it on which to form an opinion upon the real issue
emerging during the course of the trial it will be proper to treat
the issues as enlarged, where this can be done without prejudice
to
the party against whom the enlargement is to be used’
.
[5]
[13]
There was no prejudice to the municipality because the question of
whether the municipality was negligent
by placing a lock on the cage
was extensively explored by its counsel with
Mr
Gregersen, an electrical engineer called as a witness by the
appellants. Further,
Mr
Deetlefs, a senior electrician in the employ of the municipality, had
testified that the lock on the kiosk could have been broken
as
happened in many other cases. The question thus remains whether a
reasonable person in the position of the municipality would
have
foreseen the possibility of the metal cage being electrified. As
stated, this was the cause of the fatal accident – one of
the legs
of the cage had made contact with the copper coil of an underground
cable connected to the distribution kiosk, because the
cage was not
earthed. It must be borne in mind that the cage was not installed by
the municipality, nor did it approve its design
or installation. As
already mentioned, it was designed and installed by the developer of
the scheme, at the body corporate’s instance.
All the municipality
did was to take steps to safeguard its infrastructure within the
kiosk (the prepaid meters) against vandalism
and prevent interference
with meters it had installed in the kiosk.
[14]
In terms of section 3(1) of the Sectional Titles Schemes Management
Act 8 of 2011 (the Sectional Titles
Act), the function of the body
corporate is:
‘
(l)
to
maintain all the common property and to keep it in a state of good
and serviceable repair;
. . .
(p)
to
ensure compliance with any law relating to the common property or to
any improvement of land comprised in the common property;
(q)
to
maintain any plant, machinery, fixtures and fittings used in
connection with the common property and sections and to keep them
in
a state of good and serviceable repair;
(r)
subject
to the rights of the local municipality concerned, to maintain and
repair including renewal where reasonably necessary, pipes,
wires,
cables and ducts existing on the land and capable of being used in
connection with the enjoyment of more than one section
or of the
common property or in favour of one section over the common property;
[and]
. . . .
(t)
in
general, to control, manage and administer the common property for
the benefit of all owners.’
[15]
The
Sectional
Titles Act
accordingly
imposes specific and extensive duties on a body corporate in respect
of the maintenance of the common property. These
duties under the Act
do not extend to a local municipality. Furthermore, in terms of s 39
of the Electricity Supply By-laws of the
City of Umhlathuze (the
By-laws), it is the duty of the body corporate to maintain the
installation at its expenses.
[6]
The body corporate’s conduct in instructing its
appointed electrician Mr Joseph Davis after the incident, to earth
the cage and
the kiosk, is an acknowledgement of that responsibility,
and is consistent with s 39 of the By-laws.
[16]     The role of the municipality was to
distribute electricity to the premises of the body corporate.
Consequently,
it was important for it to safeguard its infrastructure
so as to enable it to carry out its function. The duty to ensure the
safe
installation and ultimately, the safety of the kiosk and metal
cage lay with the body corporate in terms of the By-laws and the
relevant
provisions of the
Sectional
Titles Act
.
[17]     On the facts of this case, a person in
the position of the municipality would not have reasonably foreseen
the possibility of the cage becoming electrified and causing harm.
The uncontested evidence is that the municipality only became
aware
of the unearthed structure after the fatal incident. On 28 June 2013,
a day before the incident, a report was made to the body
corporate of
an incident involving a mild shock to a child caused by the same
metal cage. Mr Davis, an electrician engaged by the
body corporate,
had tested the cage for voltage during the morning of 29 June 2013
and found that it was not electrified. Mr Davis
conceded that a
similar inspection by the employees of the municipality would not
have raised any concern to them. He did not access
the locked cage
but requested the body corporate to instruct him should it require
him to procure the key for the lock from the Municipality,
which was
readily obtainable.
[18]     Moreover, a reasonable person in the
position of the municipality would not have foreseen that a leg
of
the metal cage would penetrate the underground cable, nor that the
cage was unsafe because it was not earthed. Mr Gregersen’s
evidence
was that the metal leg which had made contact with the power cable
that electrified the cage, ‘is not obvious if the ground
is closed
and sealed, you don’t know there are legs on the kiosk’. This was
only detected when the ground around the cage had
been excavated. It
is thus not surprising that when testing the metal cage on the day of
the incident, Mr Davis found that it was
not electrified. The
position would have been no different had that test been carried out
by an electrician employed by the municipality.
In addition, Mr
Gregersen testified that one could not determine integrity of the
cage or how it was installed by merely looking
at it, and one would
assume that anybody with knowledge of electricity, who put a metal
cage around an electrical cubicle, would
have earthed the cage since
this was a statutory requirement. Mr Gregersen also stated that a
cause of the incident was that the
cage was not secure: it could be
rocked backwards and forwards. He said: ‘[i]deally the security
cages should be bolted to a concrete
base common to that of the
distribution kiosk, without any legs which are pressed into the
earth’. This was not the responsibility
of the municipality, but
the body corporate.
[19]     The high court was thus correct in
finding that there was credible evidence that negligence could not
be
ascribed to the municipality.
[20]     In the result, the appeal is dismissed
with costs.
D S MOLEFE
ACTING
JUDGE OF APPEAL
APPEARANCES
For appellants:
R
Pillemer
Instructed
by:
A C De
Sousa Attorneys, Durban
Honey
Attorneys, Bloemfontein
For first
respondent:

D
Schaup
Instructed
by:

Nagesh Maharaj Attorneys, Pietermaritzburg
Webbers, Bloemfontein.
[1]
Issues of liability and quantum were separated in
terms of Rule 33(4) of the Uniform Rules of Court.
[2]
Kruger v Coetzee
[2]
1966 (2) SA 428
(A)
at 430E-F.
[3]
J R Midgley and J C Van der Walt in
15
Lawsa
3 ed para 155.
[4]
Minister of Safety and Security v Slabbert
[2009] ZASCA 163
;
[2010] 2 All SA 474
(SCA) para 11.
[5]
Van Mentz v Provident Assurance Corporation of Africa Ltd
1961 SA 115
(A) at 122; See also
Shill v Milner
1937 AD 101
at 105. See also
Colleen v Rietfontein Engineering Works
1948
(1) SA 413
(A) at 433 and
Robinson v Randfontein Estates, G.M. Co
Ltd
.
1925 A.D. 173
at 198.
[6]
Section 39 reads as follows:
‘
39.
Customer to erect and maintain
electrical installation
.
Any electrical installation connected or to be connected to the
supply mains, and any additions or alterations thereto which may
be
made from time to time, shall at all times be provided, erected,
maintained and kept in good order by the customer at his own
expense
and in accordance with this bylaw and the Regulations.’