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[2024] ZALMPPHC 27
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Thabisang v Polokwane Municipality (4739/2021) [2024] ZALMPPHC 27 (13 March 2024)
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NO: 4739/2021
In the matter between:
THOBELA
THABISANG PLAINTIFF
And
POLOKWANE
MUNICIPALITY
DEFENDANT
JUDGEMENT
KGANYAGO J
[1] The
plaintiff has instituted an action against the defendant claiming
damages he allegedly suffered when
he was allegedly electrocuted.
According to the plaintiff’s particulars of claim, on 18
th
October 2018 he was walking along corner Jorrison and Church streets
in Polokwane when he was electrocuted or electrically shocked
by live
wires that the defendant had left uncovered and exposed at the
traffic lights which the defendant was doing maintenance
or fixing
it. The plaintiff has further stated that the defendant was negligent
in that it had failed to warn the public especially
the plaintiff
about the danger of the traffic lights and/or live wires or to
exhibit the warning signs or danger markings in the
vicinity of the
traffic lights that were being maintained.
[2] The
defendant had defended the plaintiff’s action. The defendant in
its plea had denied any negligence
on its part or on the part of any
of its officials. The defendant had further denied that the plaintiff
or any other person was
electrocuted on the day in question. In the
alternative, the defendant had pleaded that the electrocution of the
plaintiff was
due to the plaintiff’s own negligence. The
defendant has also pleaded that when it conducts maintenance works on
the street
lights, the defendant’s officials or technicians put
in place reasonable measures to caution members of the public about
the maintenance taking place.
[3] The
parties during their pre-trial conference have agreed on separation
of the aspects of merits and
quantum. This court is therefore called
upon to determine the issue of liability first. At the time of the
alleged incident the
plaintiff was still a minor. The action against
the defendant was instituted by Thobela Ditumisho Pheladiwho who was
acting in
her personal and representative capacity as the legal and
natural guardian of the plaintiff. On attaining the age of majority
the
plaintiff has substituted his guardian.
[4] The
plaintiff was the only witness to testify for his case. He testified
that on 18
th
October 2018 he was walking from school to
the taxi rank. On arrival at the robots of corner Church and Jorrison
streets in Polokwane,
he stopped at the robot as it was red. Whilst
he was standing waiting for the robot to turn green, he touched one
of the pole of
the robot. When the touched the pole he got
electrocuted and fell down. He thereafter could not walk, and was
assisted by his fellow
school mates who carried him to the taxi rank.
From the taxi rank his school mates accompanied him to his homestead.
On arrival
at his homestead, his parents took him to the hospital. He
sustained head and chest injuries as a result of the electrocution.
He was admitted to hospital for 6 days. His parents had reported the
incident to the defendant.
[5] The
plaintiff was cross-examined and he stated that at the time of the
incident he was 15 years of age.
The plaintiff stated that when he
was electrocuted he was walking alone and he does not know the names
of the school mates who
have assisted him, but they were wearing the
same school uniform as his. The plaintiff stated that there were live
wires which
were lying around the pole of the robot. The plaintiff
further stated that he did not touch the wires, but the wires looked
like
they were connected to the robot, and some of them were cut.
Further that it appeared as if those wires were coming from the robot
and were not covered, and that they were lying on the pavement. The
plaintiff also stated that there was a hole that was duck next
to the
robot and the wires were not covered. That he fell next to the robot.
Further that there was no sign put to warn people
that there was work
which was being done, despite the street been busy. That concluded
the evidence of the plaintiff and he closed
his case.
[6] The
defendant called Masenyane James Kekana as its only witness. He
testified that he has been employed
by the defendant as the
installation inspector. His work entails inspecting new houses to see
whether the work was done properly.
He remembers the alleged incident
of the 18
th
October 2018 which allegedly took place at
corner Church and Jorrison streets in Polokwane town. On that date it
was reported to
him by his senior Mr Pienaar who has since passed
away that a child has been electrocuted by electricity. He went to
the scene
and on arrival he found that the child was no longer there.
When he checked the area, he found that there was no maintenance that
was taking place there. What he saw was the bricks of the pavement
that have been removed and even up to date, it is still like
that. He
did not see anything that could have caused the electrocution.
[7] When
the defendant does maintenance, they will make sure that the area was
safe by cordoning it. After
they are done with the maintenance they
will remove the danger tapes. On that area he did not see anything
that could have electrocuted
the plaintiff. On 19
th
October 2018 the witness went to the family of the plaintiff in
Seshego in order to see the condition of the plaintiff, and also
to
notify them to report the incident at the offices of the defendant.
On arrival at the plaintiff’s homestead he was told
that the
plaintiff had gone to seek medical attention. The witness stated that
he did not go to the plaintiff’s homestead
to admit liability,
and further that he did not have authority to do such a thing.
[8] The
witness was cross-examined and he stated that he went to the family
of the plaintiff in a representative
capacity as he was sent by his
seniors. The witness conceded that if a robot is damaged, they
sometimes dig a hole in order to
repair it if the stand was damaged.
The witness also conceded that companies like Telkom sometimes dig
holes next to the robots
without the knowledge of the defendant, but
that the procedure is that they must first consult with the defendant
so that they
can show them where to dig in order to avoid damaging
the cables. The witness stated that after visiting the area of the
alleged
incident, he did not write any report as he was not dealing
with robots, but had reported to his manager to report it to the
maintenance
people. He did not know whether the family of the
plaintiff had reported the incident to the defendant after he had
advised them
to do so. That concluded the evidence of the defendant
and it closed its case.
[9]
The
plaintiff’s claim is arising out of the alleged electrocution
when he allegedly touched the pole of the robot at corner
Jorrison
and Church streets in Polokwane town. The robots in Polokwane town
uses electricity which is being supplied by the defendant.
The
defendant is therefore the undertaker as defined in section 1 of the
Electricity
Act
[1]
(Act), and licensee in terms of section 26 of the
Electricity
Regulation Act
[2]
(Regulation). In terms of section 26 of the Regulation, there is a
presumption of negligence that operates in favour of the plaintiff.
Section 26 of the Regulation 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”.
[10] There
is a dispute as to whether the injuries which the plaintiff had
sustained were caused by electrocution
from the pole of the robot at
corner Jorrison and Church streets in Polokwane. The defendant in
their plea had disputed that an
incident took place on 18
th
October 2018 in which the plaintiff was electrocuted, and further
denied that there was any maintenance of the robots that was
taking
place on that date at the spot where the plaintiff was allegedly
electrocuted. Before determining the issue of negligence,
it must
first be determined whether such an incident took place on the date
in question, and on that spot.
[11] The
defendant is obliged to compensate the plaintiff for bodily injuries
caused by or arising out of
electrocution by the robot if it is found
that the defendant was negligent. The casual link that is required is
essentially the
same casual link that is required for Aquilian
liability. The can be no question of liability if it is not proved
that the wrongdoer
caused the damage of the person suffering the
harm.
[12]
In
Grove v
The Road Accident Fund
[3]
Tshiqi JA said:
“
12. Courts have in
the past grabbled with choosing a criterion to be applied to
determine legal causation. In S v Mokgethi &
others, Van Heerden
JA held that there is no single and general criterion for legal
causation which is applicable in all instances.
He suggested a
flexible approach where the court has the freedom in each case to
apply a theory which serves reasonableness and
justice, in light of
the circumstances, taking into account considerations of policy. The
basic question is whether there is a
close enough relationship
between the wrongdoer’s conduct and its consequence for such
consequence to be imputed to the wrongdoer
in view of policy
considerations based on reasonableness, fairness and justice.
[13].
A useful guide is found in Wells & another v Shield Insurance Co
Ltd & others, where Corbett CJ stated:
‘
In
searching some limit lying between direct causation and the vast and
unrestricted field of the causa sine qua non, the Court
must, I think
be guided by consideration of the object and scope of the Act and by
notions of common sense…
The
death or bodily injury for which compensation is claimed must be
causally related to this negligent or otherwise unlawful act
and also
to the driving of the vehicle. Where the direct cause from
culpability is the same act or omission on the part of the
driver in
the actual driving of the vehicle then it would generally be found
that the death or injury was “caused by”
the driving.
Where the direct cause is some antecedent or ancillary act, then it
could not normally be said that the death or injury
was “caused
by” the driving; but might be found to arise out of the
driving. Whether this would be found would depend
upon the particular
facts of the case and whether, applying ordinary, common-sense
standard, it could be said that the casual connection
between the
death or injury and the driving was sufficiently real and close to
enable the Court to say that the death or injury
did arise out of the
driving. I do not think that it is either possible or advisable to
state the position more precisely than
this, save to emphasise that,
generally speaking, the mere fact that the motor vehicle in question
was being driven at the time
death was caused or injury inflicted or
that it had been driven shortly prior to this would not, of itself,
provide sufficient
casual connection. Thus the injury suffered by a
passenger aboard a bus as a result of being assaulted by a bus
conductor could
not be said to arise out of the driving of the bus,
even though the bus was being driven at the precise moment when the
assault
was committed. Similarly, in the illustration already given
of X who stepped off the bus into a hole in the pavement, it could
not be said that the injury arose out of the driving merely because
driving (in the ordinary sense) had taken place immediately
prior to
this.’
[13] The
plaintiff’s version is that of a single witness. According to
the plaintiff when he touched
the pole his school mates were next to
him, and they were the ones that have assisted him after he fell.
These school mates have
seen everything, but neither one of them have
been called as a witness to corroborate the plaintiff’s
version. It is surprising
that the plaintiff has testified that he
did not know their names, even though these are the people who have
taken him home. If
indeed the plaintiff was taken home by his school
mates, logic will tell that the plaintiff’s parents would have
wanted to
know the names of those people who have assisted their
child, and where they came from. Since people who have assisted the
plaintiff
were from the same school with the plaintiff, on his return
to school they would wanted to know how the plaintiff was doing, and
that would have let them knowing each other. It was not explained why
none of the plaintiff’s school mates were called as
a witness.
The only inference to be drawn is that had they been called they were
going to contradict the plaintiff’s version,
or the possibility
is that they don’t exists.
[14] The
plaintiff was allegedly injured in Polokwane CBD where it was
testified that the streets were busy,
but it seems that it was only
the plaintiff’s school mates who have assisted the plaintiff.
The plaintiff has testified that
after the alleged electrocution he
was unable to walk, but it was not explained why an ambulance was not
called to take him to
the local hospital. As per the plaintiff’s
particulars of claim, the plaintiff sustained head injuries, lower
and upper limbs
injury and chest injury. These were serious injuries
which would have needed the attention of the paramedics to
immediately take
the plaintiff to hospital for medical attention and
not just be taken away by school mates to the taxi rank to be
transported home
by taxi. The were shops next to robot were the
alleged incident took place and the shop owners would have assisted
in summoning
paramedics to the scene.
[15] The
defendant has in its plea and throughout the evidence of its witness
denied that the plaintiff was
electrocuted on the day in question.
The plaintiff has testified that his parents had reported the
incident to the defendant, but
no document was submitted as evidence
to show that indeed the incident was ever reported to the defendant.
The plaintiff’s
parents were also not called explain as when
and to whom was the incident reported. The defendant had denied that
was any maintenance
was taking place at the robot in question and
further that there was no hole that was dug on the day in question
next to the robot.
There are shops next to where the robot is
situated, and the shop owners of those shops were best placed to
verify whether on the
day in question there was any maintenance that
was taking place, but none of them was called as a witness to verify
that.
[16] Except
for the evidence of the plaintiff, there are no any other evidence to
corroborate his evidence.
According to the plaintiff’s
particulars of claim, he was electrocuted by live wires that were
left uncovered and exposed.
However, the plaintiff in court testified
that he was electrocuted when he touched pole of the robot, and that
the wires were lying
on the ground around the robot. When the
plaintiff was cross-examined on this discrepancy he was unable to
explain, except to state
that the correct version is that which he
had testified in court. In my view, the plaintiff’s evidence
was not credible and
reliable. There is no sufficient evidence to
prove that indeed the plaintiff was electrocuted on 18
th
October 2018 at the robots of corner Jorrison and Church streets in
Polokwane. It is doubtful whether the alleged incident happened
at
those robots since the defendant’s witness also testified that
he could not find any traces of maintenance taking place
at those
robots. The plaintiff has therefore failed to prove that the
defendant had caused any damage to him, and therefore, there
can be
no question of liability which the defendant can be held liable.
[17] In
the result the following order is made:
17.1 The plaintiff’s
claim is dismissed with costs on party and party scale.
KGANYAGO J
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES:
Counsel for the
plaintiff
: Moyo S
Instructed
by
:
Mashabela Attorneys Inc
Counsel for the
defendant
: Adv Nemukula
:
Adv Tshitamba N7
Instructed
by
: Kgatla Inc
Date
heard
:
22
nd
February 2024
Electronically
circulated on
: 13
th
March 2024
[1]
41
of 1987
[2]
4
of 2006
[3]
[2011]
ZASCA 55
(31 March 2011) at paras 12 and 13