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2024
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[2024] ZAFSHC 274
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T.S.M obo S.B.M v Eskom Holdings Limited SOC and Another (3967/2020) [2024] ZAFSHC 274 (5 September 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable/Not
reportable
Case
number: 3967/2020
In
the matter between:
T.
S. M[…] obo S. B. M[…]
PLAINTIFF
And
ESKOM
HOLDINGS LIMITED SOC
DEFENDANT
And
LETSEMENG
LOCAL MUNICIPALITY
THIRD
PARTY
Coram:
Loubser J
Heard:
22, 23, 25 August 2023 and 4 & 7 June 2024
Delivered:
5 September 2024
Summary:
Action instituted on behalf of minor child
electrocuted by powerline lying on the ground – whether
defendant liable on the
evidence and in terms of the provisions of
section 25 of the Electricity Regulation Act 4 of 2006 as a licensee.
ORDER
1.
Absolution from the instance is granted to the
defendant with costs, including the fees of
counsel
on scale B.
2.
Plaintiff to pay the costs of the third party,
including the fees of counsel on scale B.
JUDGMENT
LOUBSER
J
[1]
In this action the plaintiff is acting in her
representative capacity as natural mother and guardian of her minor
son. She is claiming
damages from the defendant arising from injuries
he sustained when he came into contact with an electrical powerline,
which contact
caused him to suffer electrical burns on his feet, arm
and hand. The minor was nine years old at the time of the incident.
[2]
The parties agreed to a separation of the merits
and the quantum of the claim, and subsequently the trial proceeded in
respect of
the merits only. In the process the plaintiff presented
the evidence of five witnesses, whereafter the plaintiff closed her
case.
An application for an order of absolution from the instance was
then launched on behalf of the defendant, which application was
eventually dismissed by the court. When the matter then came before
the court again for further hearing, both the defendant and
the third
party merely closed their cases.
[3]
Before I refer to the evidence that was presented
by the plaintiff, it is apposite to deal first with the pleadings
filed by the
respective parties. In her particulars of claim, the
plaintiff alleged that the incident occurred on 9 February 2020 at or
near
the vicinity of Rorichshoop Farm, Koffiefontein. Responding to a
request by the defendant for further particulars for trial, the
plaintiff stated that the Oppermansgronde Communal Property
Association was the landowner of Rorichshoop Farm at the time of the
incident. It was further stated in this response that the minor had
stepped “on the electrical powerline” with both
feet.
[4]
In its plea the defendant denied that it operated
or utilized the powerlines running across the farm, or that it were
in charge
of or responsible for the powerlines concerned. It
specifically pleaded that the Letsemeng Local Municipality was the
owner of
the farm in question, and that the powerlines on the farm
were therefore the sole responsibility of that municipality.
Subsequently,
the defendant served a third party notice on the
municipality, stating that, should it be found that the defendant is
not liable
towards the plaintiff (not being the owner or being in
control of the powerlines on the farm), the defendant will seek no
relief
against the third party. However, should it be found that the
defendant is liable towards the plaintiff, the defendant will claim
relief from the third party on the basis that the third party was the
registered owner of the farm and/or the powerlines and owed
a duty of
care to the minor. The relief claimed would then be a contribution
based on the degree of negligence found on the part
of the third
party.
[5]
In its plea filed in response to the third party
notice, the municipality denied that it is the owner of the farm
Rorichshoop and
that it is the owner of or in control of the
powerlines which run across the premises.
[6]
Having regard to the allegations made by the
parties in their respective pleadings, it is clear to this court that
the ownership
of the land where the incident occurred and the
ownership of the powerlines on the land and the control thereof, had
become a vital
point of contention between the parties even before
the trial proceedings had begun before this court.
[7]
Significantly, in the pre-trial minute in terms of
rule 37A, the parties have recorded in paragraph 8 thereof that there
is no dispute
regarding the duty to begin or the onus of proof. “In
this regard, the parties record that the plaintiff bears the onus of
proof and will start unless the defendant or third party has lodged a
special plea or wishes to raise a point in
limine
”
,
it is expressly stated in the minute. It speaks for itself that
plaintiff’s onus of proof included the onus to prove the
defendant’s ownership of the land and the powerlines concerned,
or at least its control thereof.
[8]
This brings me to the evidence that was presented
by the plaintiff. The first witness called was Christelle Johnson.
She testified
that she was sent by a firm of attorneys where she was
employed in Koffiefontein to take photographs of the place where the
minor
child was injured by the power cable. She was taken to the
scene by a male person she met at the child’s residence. It was
on a Friday, the date of which she cannot recall. She took
photographs, and handed in an album thereof as exhibit A. The
photographs
show powerline structures that appear to be dilapidated,
with low hanging powerlines. The witness testified that she also saw
a
silver cable that was on the ground, but she did not photograph
that cable. She made a note of the numbers appearing on the
structures,
but it was put to her in cross-examination that those
numbers did not belong to the defendant.
[9]
The next witness was T[…] M[…], the
plaintiff. She confirmed that she is the mother of the injured child,
who was
staying with her mother at Koffiefontein. She never went to
the specific spot where her son got electrocuted, but she knows the
area in general. Her mother lived in a location called Donkerhoek,
and the farmland where the incident happened is on the other
side of
the tarred road.
[10]
The plaintiff then called the minor child to the
witness stand. He testified that on the day of the incident, he and
his friends
went to look for his sister in an area of the farmland
that is about two kilometers from his home. There was a low hanging
power
cable, and when he ducked to pass underneath, he stepped on a
cable that was on the ground and which he did not notice. He
sustained
burns on his feet and his arm. Soon thereafter an ambulance
took him to Pelonomi Hospital.
[11]
The child identified the area depicted in exhibit
A as the place where the incident occurred. A part of a washing
machine is visible
on the photographs, and he told the court that he
and his friends were playing with that part before he stepped on the
cable. When
he was in the hospital, people from Eskom came and told
his grandmother that they should not take Eskom to court, but that
they
need to get a lawyer. The witness further testified that he does
not know who the owner of the property is where he stepped on the
cable, but the name of the farm is Rorichshoop. In cross-examination
he confirmed that the photographs in exhibit A do not show
any cable
that is flat on the ground. His uncle also took photographs of the
spot where he got electrocuted, he testified. However,
his uncle lost
the phone which he used to photograph the spot.
[12]
The next witness was the grandmother of the child
with whom he stayed at Donkerhoek, namely A[…] M[…].
She told the
court that she frequently visited the area where the
accident happened because she used to go there to collect wood. She
saw low
hanging powerlines and a cable on the ground over a period of
more than twelve months. For this reason, she avoided that spot and
rather took a different route. After the incident, a man and a woman
from Eskom visited her at her house and told her not to take
Eskom to
court, but to find herself a lawyer. After the visit two men of Eskom
came to see her and the child at the hospital. They
told her the same
thing, namely, not to take Eskom to court but to go and see a lawyer.
She further testified that when she went
to the area some time later,
the poles of the powerlines and the powerlines itself were no longer
there. She confirmed that the
area is on the other side of the tar
road from Donkerhoek.
[13]
The last witness called by the plaintiff was
Daniel Nhlapo. He is an uncle of the child in question. He also
testified that there
were low hanging powerlines and one lying on the
ground at a place on the farmland across the road. The farm is called
Rorichshoop.
He always only saw one cable lying on the ground in the
area. It is him who took the first witness to the place to take
photographs.
It was during the same weekend that the child got
injured. The photographs shown to him do not show any powerlines on
the ground.
He told the court that the photographs in exhibit A are
not the same photographs taken by the first witness when he
accompanied
her. He also denied that there was a cable on the ground
when he visited the scene together with the first witness. He himself
also took photographs of the scene, but he does not have those
photographs anymore. He does not know to whom that property belongs,
he testified.
[14]
With
this, the case of the plaintiff was closed. The defendant then moved
an application for an order of absolution from the instance.
As
mentioned earlier, this application was dismissed with costs. In
dismissing the application, the court on the one hand acknowledged
that there was no evidence suggesting that the electrical
infrastructure at that place belonged to the defendant, or that the
defendant carried the responsibility for the powerlines on the
farmland. On the other hand, the court referred to the provisions
of
section 25 of the Electricity Regulation Act
[1]
,
which provides that in any civil proceedings against a licensee
arising out of damage or injury caused by induction or electrolysis
or in any 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. In the present case, it
was common
cause that the defendant was a licensee in terms of the said Act.
[15]
The court also took the view that in a situation
where the defendant and the third party pointed to one another as
being the party
responsible for the plaintiff’s damages,
absolution should not be granted at the close of the plaintiff’s
case, because
they could perhaps supplement the abovementioned
shortcomings in the plaintiff’s case when they state their
cases. As we
have seen, this came to nothing since both the defendant
and the third party have closed their cases without further ado. The
court
is therefore only left with the evidence presented by the
plaintiff, and nothing more.
[16]
The
position therefore remains unaltered that there is no evidence
suggesting that the defendant owned the electrical infrastructure
or
carried the responsibility for the powerlines at the place where the
accident occurred. As for the abovementioned section 25,
it must be
accepted that Eskom is not the only licensee in the country in terms
of the Act.
[2]
It
therefore speaks for itself that more is required than a mere
allegation that an entity is a licensee for Section 25 to
find
application. Certainly, it must also be proven that a licensee was
the owner or provider of electricity at the place where
the accident
occurred, and that he had constructed the cable concerned or at least
had carried the responsibility for the safety
and the maintenance of
the electrical infrastructure at that place.
[3]
In the present matter, the plaintiff is not assisted by section 25
where any such evidence is lacking.
[17]
It
was contended on behalf of the plaintiff that there is circumstantial
evidence that call for an answer from the defendant. The
circumstantial evidence consists in the fact that Eskom had inspected
the incident and had advised the plaintiff not to take them
to court,
but rather to consult a lawyer. This is indictive of the fact that
Eskom had realized its liability in the incident but
chose to remain
silent to their own prejudice, it was submitted. I cannot agree. In
my view, it is equally or more probable that
Eskom had found that it
is not liable at all by reason of the fact that the infrastructure
did not belong to them and that they
were not responsible for the
safekeeping or maintenance of that infrastructure. On a balance of
probabilities, that could have
prompted Eskom to advise against
taking them to court and rather to consult an attorney.
[18]
As
far as the exact spot of the incident is concerned, it is true that
there is a measure of confusion in the evidence presented.
What is
equally true, however, is that there is sufficient evidence showing
that the incident occurred on the farmland known as
Rorichshoop
farm more or less opposite the location of Donkerhoek in the
municipal area of Koffiefontein. At the same time, there
is no direct
and convincing evidence that the electrical infrastructure in the
area belonged to the defendant and that it carried
the sole
responsibility to maintain and safeguard that infrastructure in the
course of the provision of electricity to that area.
[19]
It
follows that the claim of the plaintiff against the defendant cannot
succeed. The final question is then whether the court should
simply
dismiss the plaintiff’s claim with costs. I think not, for the
following reasons:
[20]
Firstly,
the claim was instituted on behalf of a minor child who was only
nine
years
old when the incident happened, and a court should always be mindful
of the best interests of all children. If the claim is
dismissed, the
child would not have any further remedy against the defendant
generally, save to appeal against the dismissal. Secondly,
the
present claim cannot succeed because neither the plaintiff nor the
defendant have put forward sufficient evidence to secure
judgement in
their favour. In such circumstances, absolution from the instance
would be an appropriate order, for it would enable
the plaintiff to
re-instate action should additional evidence become available.
[21]
As
for costs, I am of the view that the defendant is entitled to an
order of costs in its favour. As far as the costs of the third
party
is concerned, I am mindful of the fact that, having regard to the
pleadings filed, it was never the case for the plaintiff
that the
farmland known as
Rorichshoop
was the property of the defendant. The Oppermansgronde Communal
Property Association was the owner, the plaintiff alleged.
However,
in its plea, the defendant alleged that the third party was in fact
the owner of the farm in question, and that the powerlines
on the
farm were therefore the sole responsibility of the third party. I am
of the view that, as a consequence, it was not unreasonable
for the
defendant to have joined the Municipality as a third party.
Therefore, the plaintiff should also be ordered to pay the
costs of
the third party.
[22]
The following order is made:
1.
Absolution from the instance is granted to the
defendant with costs, including the fees of
counsel
on scale B.
2.
Plaintiff to pay the costs of the third party,
including the fees of counsel on scale B.
P.J. LOUBSER, J
For
the plaintiff:
Adv.
H. E. De la Rey
Instructed
by:
Honey
Attorneys, Bloemfontein
For
the defendant:
Adv.
C. Snyman
Instructed
by:
Phatshoane
Henney Attorneys, Bloemfontein
For
the third party:
Adv.
M. C. Louw
Instructed
by:
Peyper
Attorneys, Bloemfontein
[1]
Act
4 of 2006
[2]
Lucas
and Another v Umhlathuze Municipality 2021 JDR 3366 (SCA)
[3]
See
in this respect L.E. Msomi v Eskom Holdings SOC Limited [2019]
ZAKZPHC 82