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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 39072/2020
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
DATE : 17/3/25
SIGNATURE
In the matter between:
E[...] M[...] First P laintiff
M[...] M[...] N[...] Second Plaintiff
and
ESKOM HOLDINGS LIMITED Defenda nt
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the parties/their legal
representatives by e -mail and by uploading it to the electronic file of this matter on
Caselines . The date and f or hand -down is deeme d to be 17March 2025.
Summary: An action for damages arising from the fatal electrocution of a doli
incapax minor child. The minor child was electrocuted by a vandalised and live
wire exposed power line s. The plaintiffs relied on section 25 of the Electricity
Regulation Act to establish wrongfulness on the part of the defendant. In the
alternative, the plaintiffs alleged , but failed to prove , a breach of a duty of care
owed. Section 25 finds no application where the damage was caused by
vandalised installation. Resultantly, credible evidence was presented to
disprove deemed negligence. Having failed to establish foreseeability and
causal connection , the plaintiffs faile d to discharge the onus of proof resting
on them . Held: (1) The action is dismi ssed with costs.
JUDGMENT
MOSHOANA, J
Introduction
[1] This action was to proceed on both merits and quantum. Midstride , this Court
ruled , in terms of rule 33(4) of the Uniform Rules of Cour t, that the issues be
separated and the matter to proceed on the issue of merits only . This ruling was
occasioned by the fact that no rule 38(2) affidavits were available for the
purpose of experts testimony . Such simply implied that the quantum leg of this
action was not ripe for determination . This action involved two legal questions,
namely ; (a) does section 25 of the Electricity Regulation Act finds application,
and if so, was credible evidence presented to disprove the deemed negligence;
(b) did the defendant breach its duty of care o wed or not.
[2] In seeking to address the above mentioned legal questions, this Court received
evidence from a total of four witnesses. Each party presented two witnesses in
support of their case. With regard to section 25 applicability, the defendant bore
the onus to prove that it was not negli gent. With regard to the alleged breach of
the owed duty of care, the plaintiffs bore the onus to prove that (a ) the damage
was reasonably forese eable; the defendant proceede d to act despite the
foreseeable damage ; and (c) failed to prevent the damage foreseen.
Pertinent background facts and evidence adduced
[3] On or about 25 August 2018, at the corner of Ngubane and Dladla Streets,
D[...], N[...] , a 7 year old, R[...] E[...] J[...] N[...] (the deceased) suffered a fatal
electrical shock when he came into contact with exposed live electrical power
line. The biological father of the deceased, Mr E[...] M[...] (Mr M[...] ) and the
biological mother of the deceased, Ms M[...] M[...] N[...] (Ms N[...] ), instituted the
present action , seeking damages for the emotional shock occasioned by the
loss of the deceased. At the trial of this action, the plaintiff tendered the
testimony of Mr Thabo Kodisa and Mr M[...] . The defendant, Eskom Holdings
Limited (Eskom) , tendered the evidence of Mrs Refiloe Moira Gumede (Mrs
Gumede) and Ms Mapula Mashapo (Ms Mashapo).
Mr Thabo Kodisa
[4] At the time of the incident, he was 17 years of age. On the day in question, he
was informed by a neighbour that the deceased was electrocuted. The
deceased left the home situated at 1[...] D[...] Street, D[...], N[...]
unaccompanied going to buy sweets. He lived in the same house with the
deceased. After being so informed by the neighbour, he rushed to the scene.
There he encountered a number of community members and the deceased
was lying on the ground. He was still breathing with difficulties. An ambulance
was summoned but delayed to arrive at the scene. He then opted to drive the
deceased to the nearest hospital.
[5] At the hospital, the deceased, who was still alive at the time, was attended to
by the nurses. After a while, he was informed by the nurses that the deceased
could not make it and had passed on. When led by counsel of the plaintiffs, he
was shown a photograph appearing at page 36 of bundle B. In relation thereto,
he testified that the photograph depicted the state of the power lines as at the
date of the incident. Page 36 depicted exposed burned power lines. He testified
that the power line was in that stat e for the past 5 -6 years prior to the fatal
incident.
[6] On his return to the scene, he encountered Eskom technicians , who were busy
attending to the power line in question. He was also shown a photograph
appearing on page 45 of bundle B. The photograph depicted the same power
line and the wires were neatly aligned in a Polyvinyl chloride (PVC) pipe. The
power line remained like that ever since and no other incidents happened
thereafter . Prior to the incident, he used to see Eskom technicians working on
the power line in question. He however could not see what kind of work is being
performed by the technicians. Everytime the technicians worked on the power
line in question, the colours of the wires would change.
[7] During cross -examination, he was directed to his sworn statement, where he
stated that there were no visible burn marks on the deceased. He testified that
he did not see any burn marks on the hands of the deceased. When confronted
about the names of the people who reported the fault on the power line in
question, he mentioned about three names. He also testified that, at a particular
stage, he was still young to have known the names of members of the
community who allegedly reported the fault. He could not deliver any comment,
when it was put to him that Eskom went through their records and could not find
any fault reporting for the power line in question.
[8] He testified that he does not know who the photographer was of the
photographs depict ed on pages 33 36 of bundle B. However, he testified that
the pictures were taken before the incident in 2018. In 2015, he was still young
to take thigs seriously. He used to hear from people that during rainy days, they
will observe sparks from the power line in question. As members of the
community they would go around in order to avoid passing around the power
line. He was directed to page 42 of bundle B, and a version wa s put to him that
the photograph depicts the power line in question, with an indication that the
wires were skinned for illegal connection purposes. He, in retort, testified that
he knows nothing about illegal connections. He could not deliver any comment,
when it was put to him that page 42 of bundle B depicted the scene on the day
of the fatal incident. When the Court sought clarity about the sparks he testified
about, he stated that the sparks were like a lightning. He confirmed that the
photographs were taken after 2018.
Mr E[...] M[...]
[9] He is the first plaintiff in the action. On the day in question, he received a call
from the second plaintiff, Ms N[...] , informing him of the passing of the
deceased. From Rustenburg, he drove to Duduza. He, on arrival proceeded to
the scene. It was approximately 15h00 when he proceeded to the scene. He is
an engineer by profession. He inspected the scene and observed exposed
cables and wires. He was directed to the photographs. He was the
photographer, but he disowned the photograph appearing on page 36 of bundle
B. He never encountered the Eskom technicians when he visited the scene. On
one of the pictures, he identified a pole and testified that it is the pole in
question.
[10] He testified that he took the photographs on the 27th August 2018 and some
were taken in the late evening. He could not comment to the version that on 27
August 2018, the power line was fixed and a PVC was installed as depicted on
page 45 of bundle B. He confirmed that the photograph on page 33 is different
from that on page 42. He agreed with the version that page 42 depicts how the
scene looked after the fatal incident. He testified in re -examination that he took
page 42 on 25 August 2018 and page 33 was taken on 27 August 2018. He
also testified that he he ard that Eskom technicians came and fixed the power
line in question.
Mrs Gumede
[11] From 1 August 2018, she assumed a supervisory position at Dunnottar CNC.
On the day in question, she received a call from a technician informing her
about the incident. She could not wait for the relevant stakeholders and she
proceeded to the scene. On arrival, she encountered two technicians, who
were attempting to fix but she stopped them so that an investigation be
conducted before. She received reports from members of the public as to what
transpired. She also visited the home of the deceased on the adv ice of the
community members. She is unaware as to who reported the incident to
Eskom.
[12] The photograph at page 42 was taken by one Yetang , a Health and Safety
officer at Eskom. She confirmed that the photograph depicts how the power line
looked when she first encountered it on the day in question. She observed that
the power line was vandalised and the wires were exposed. To her knowledge
vandalising is occasioned by two instances; either copper theft attempt or illegal
connections. She confirmed that page 45 depicts the power line after being
fixed and the photograph was taken on 27 August 2018. Prior thereto, the
power line was temporarily fixed and was tied with cable ties. She did not
partake in the compilation of the investigation report. The report contained
some incorrect information, as she did not provide additional information as
recorded in the report. She had never seen the power line in question prior to
the fatal incident. She confirmed that page 42 depicts a luminium and not
copper cables . She also testified that when community members gain ed
knowledge that Eskom officials are around, they remove the illegal connections.
She testified at length about how fault reporting happens and the process
thereafter. She never became aware of any fault reporting with regard to the
power line in question. She, with reference to documents appearing on pages
92-98 of bundle B, testified about the inspections that take place on a three -
year cycle.
[13] She was cross -examined at length. The cross -examination was not on point.
With reference to page 42, she testified that she does not see a joint but only
exposed wires. She testified that members of the public are educated by
Eskom with regard to the dangers of electricity and the importance of fault
reporting. She was referred to documents which confirms the public awareness
programmes by Eskom. She testified that illegal connection is terribly rife and it
is difficult to control or police. She confirmed t hat what appears on page 42 is a
sign of vandalising and it is unfortunately committed by community members.
She surmised that given the state of the power line as depicted on page 42,
there could have been an illegal connection.
Ms Mapula Mashapo
[14] She is a Senior Technician Officer (STO). Her duties relate to operating,
maintenance and inspections. She confirmed that page 45 of bundle B
represent the power line in question after it was fixed. She together with a team
of approximately 15 Eskom offi cials conducted what is known as Configuration
Management Lead (CML ) inspection during February 2017. At that time she
saw the power line in question and it had at the time, a steel casing around the
pole. At that time, the power line was safe and not posing any danger.
[15] If, in 2017, the power line appeared as depicted on page 42, the team would
not have left it unattended. On the day of the fatal incident, she was informed
by a colleague about the incident but was not summoned to the scene. In
relation to page 42, she testified that regard being had to the ferrules, it
appeared that something was connected to the power line. Based on her 15
years experience, what is depicted on page 42 was caused by an illegal
connection. She was directed to the investigation report . She testified that she
did not review the report . Some of the contents of the report are not corre ct in
relation to her. She, with reference to the uncontested documents in bundle B ,
testified about the inspection procedures and how schedule work orders are
dealt with. During 2017, she went to maternity leave and some of the reporting
forms were changed during that time. S he only observed that change on her
return when a colleague completed one such form.
[16] Page 42 indicates that various units may have been illegally connected since a
white flex cable would melt. When Eskom teams perform inspections,
community members lock them out and at times attack them. When she has
regard to page 42, the power line posed a danger. The state in which the power
line was , could not have been anything effected by Eskom employees. She
believes that there could have been an illegal connection on the power line.
She was directed to page 35 of bundle B, to which she testified tha t ferrules
were not exposed.
Argument
[17] This Court afforded the counsel for the parties an opportunity to submit written
submissions. Indeed, helpful written submissions were submitted by both
counsel. This Court expresses sincere gratitude for such helpful written
submissions. Briefly, Mr Bowles, counsel for the plaintiffs, argued that the
provisions of section 25 of the ERA found application. In his submission section
25 finds application even in an illegal connection situation. On the other hand,
Ms Slabbert, counsel for Eskom argued , with reliance to case law authorities,
that section 25 finds no application in instances of illegal connection. She
further su bmitted that the plaintiffs remain with the onus to prove a breach of
the alleged duty, in an instance where section 25 finds no application. She
further submitted that the plaintiffs failed to discharge that onus. On the
inspection aspect, she submitted that even if this Court finds that negligence
was proven, there is no causal link between the damages suffered and the
negligence. She further submitted that on application of the foreseeability test,
Eskom could not have foreseen that the vandalism, which was only discovered
by it after the fatal incident, would lead to the electrocution of the deceased.
Particularly because the state of vandalism was not reported to Eskom.
Ultimately, she submitted that, since Eskom is not liable, the action must be
dismissed with costs. On the issue of costs, Mr Bowles submitted that this is a
case where costs must not follow the results
Evaluation
[18] This matter turns , to a greater degree, sharply on the proper interpretation of
section 25 of the Electricity Regulation Act (ERA)1. The pleaded case of the
plaintiffs suggests a two -pronged claim. On the one hand, the plaintiffs rely on
the provisions of section 25 of the ERA. On the other hand, they rely on a
breach of duty of care. They alleged that the defendant Eskom owed them a
duty of care and such duty of care was breached.
[19] For the purposes of this judgment, the proper place to start is section 25 of the
ERA. The section provides as follows : -
“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 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 .”
[20] Regard been had to the above statutory provisions, the key question that arises
in this case, is whether, Eskom is liable to be held negligent for a power line
1 Act 4 of 2006.
that has been vandalised to a point of it posing danger to the public. Differently
put, Eskom generates a power line in the safest manner, but the safety gets
compromised by vandal s to a point that the installed power line becomes
unsafe and pose a danger. In my view, where vandalis m enters the fray, section
25 finds no application. Such is the case when the words, generated,
transmitted or distributed by a licensee are given textual; contextual; and
purposive meaning. In my view anything that is generated, transmitted or
distributed by somebody else other than a licensee cannot be attributed to a
licensee.
[21] Once the power line is vandalised , by for instance theft of copper cables or in
order to enable an illegal connection, it assumes a different power line from the
one as installed by the licensee. The mischief that section 25 seeks to preven t,
arises in a situation where a person installs electricity structure, knowing fully
well that electricity , although useful, is dangerous , but does not install it in a
manner that prevents the inherent danger s of electricity. It is apparent to this
Court that the deeming negligence provisions must have been influenced by
what the House of Lords said in Donoghue v Stevenson (Donoghue )2. Lord
Buckmaster had the following to say: -
“The general principle of these cases is stated by Lord Summer in the
case of Blacker v Lake & Elliot, Ltd . (1), in these terms: “The breach of
the defendant’s contract with A to use care and skill in and about the
manufacture or repair of an article does not of itself give any cause of
action to B when he is injured by reason of the article proving to be
defective.”
From this general rule there are two well -known exceptions: (1) In the
case of an article dangerous in itself ; and (2) where the article not in
itself dangerous is in fact dangerous by reason of some defect or for
any other reason and this is known to the manufacturer. Until the case
of George v Skivington (2) I know of no further modification of the
general rule. As to (1), in the case of things dangerous in themselves,
there is, in the words of Lord Dunedin, “ a peculiar duty to take
2 [1932] AC 562
precaution imposed upon those who send forth or install such
articles when it is necessarily the case that other parties will come
within their proximity ” : Dominion Natural Gas Co., Ltd v Collins &
Perkins (3). And as to (2), this depends on the fact that the knowledge
of the danger creates an obligation to warn, and its concealment is in
the nature of fraud . In this case no one can suggest that ginger -beer
was an article dangerous in itself, and the words of Lord Dunedin show
that the duty attaches only to such articles, for I read the words “a
peculiar duty” as meaning a duty peculiar to the special class of subject
mentioned.
[22] In my considered view, t he decision of Dominion Natural Gas Co. Ltd v Collins
& Perkins (Dominion )3, perspicuously makes the point of strict liability , as
contemplated in section 25 of the ERA. Briefly , the facts in Dominion were as
follows. In order to obtain a way -leave for their main, the railway company
engaged the natural gas company to install a gas apparatus to provide natural
gas on the premises of a railway company. The gas company installed a
regulator to control pressure and their employees negligently made an escape -
valve discharge into the building instead of into the open air. As a result the
building exploded and fatally injur ed one of the employees of the railway
company. Lord Dunedin had the following to say, which aptly, in my view, sets
the tone of section 25 of the ERA:
“There may be, however, in the case of any one performing an
operation, or setting up and installing a machine, a relationship of duty.
What that duty is will vary according to the subject -matter of the things
involved. It has, however, again and again been held that in the case of
articles dangerous in themselves, such as loaded firearms, poisons,
explosives, and other things ejusdem generis , there is a peculiar duty
to take precaution imposed upon those who send forth or install such
articles when it is necessarily the case that other parties will come
within their proximity. The duty being to take precaution, it is no excuse
to say that the accident would not have happened unless some other
3 1909 A.C 640
agency than that of the Defendant had intermeddled with the matter. A
loaded gun will not go off unless someone pulls the trigger, a poison is
innocuous unless someone takes it, gas will not explode unless it is
mixed with air and then light is set to it. Yet the cases of Dixon v Bell , 5
M. & S., 198, Thomas v Winchester , 6 N.Y., 397, and Parry v Smith , 4
C.P.D., 325 are all illustrations of liability enforced. On the other hand ,
if the proximate cause of the accident is not the negligence of the
Defendant, but the conscious act of another violation, then he will
not be liable. For against such conscious act of violation no
precaution can really avail.
… For the safety -valve by its very existence was meant to work from
time to time; and the frequency of its working would seem to depend on
causes which might be quite independent of negligence, e.g., sudden
pressure of gas, and also accumulation of dirt which would prevent the
portcullis closing tight. When the valve did work, gas was necessarily
emitted, and it would seem both an easy and a reasonable precaution
that that emission should be led to the open air, where it would be
harmless, rather than put into the closed chamber where it might
become a source of danger . That being so, have the Defendants
been able to show affirmatively that the true cause of the accident
was the conscious act of another violation, i.e. the tampering with
the machines by the Railway Company’s workmen.
… Accordingly their Lordships hold that the Defendants, the Gas
Company, have failed to show that the proximate cause of the
accident was the act of a subsequent conscious violation, and
that, there being initial negligence found against them, the
Plaintiffs are entitled to recover .”
[23] This Court takes a view that electricity in itself is , although a useful commodity,
dangerous. When it is installed, a peculiar duty to take precaution is imposed
on the installer s. A peculiar duty to take precaution simply implies that
negligence would automatically arise if the installation happened without taking
precaution. In George v Skivington (2) (Skivington )4 a sale of a noxious
hairwash was involved, and a claim made by a person who had not bought it
but who had suffered from its use, based on its having been negligently
compounded was allowed. Smith L.J. in Heaven v Pender (2) (Pender )5, stated
the following, which, in my view, buttresses the point made in this judgment. He
said: -
“A duty to take care did arise when the person or property of another
that, if due care was not taken , damage might be done to the other.”
[24] In this Court’ s view, in order for the provisions of section 25 to arise, the
electricity must have been compounded negligently at the time of installation. In
Amos v New Brunswick Electric Power Commission (Amos )6, the Supreme
Court of Canada laid down the principle that those who transmit dangerous
element such as electricity are bound to exercise the greatest possible care
and to use every public precaution for the protection of the public. Th e view
propagated in this judgment was affirmed by the Supreme Court of Appeals in
Lucas & Another v Umhlathuze Municipality and Another (Lucas )7, when her
Ladyship Madam Justice Molefe AJA, as she then was, writing for the majority,
said: -
“[13] …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 and 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
4 (1886) L.R 5 Ex.1
5 (1883) 11 QBD 503.
6 [1977] 1 S.C.R 500
7 (Case no. 785/2020) [2021 ZASCA 181 (17 December 2021)
prepaid meters) against vandalism and prevent interference with its
meters it had installed in the kiosk.”
[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 .”
[25] In the present matter, the non -vandalised power line did not pose any danger.
That being the case, section 25 would only apply if the non -vandalised power
line, due to it having been negligently compounded by Es kom, had caused the
damage. It became common cause that what caused the fatal incident was the
vandalised power line as depicted in a photograph appearing in page 42 of
bundle B. The vandalism was clearly not caused by Eskom but by the unknown
members of the community, either attempting to steal copp er wires or making
an illegal connection.
[26] The conclusion this Court reach es is that the deemed negligence contemplated
in section 25 does not arise , since the fatal incident or damage was not caused
by a negligent installation of electricity by Eskom. Logic dictates that had the
power line not been vandalised, the fatal incident would not have happened.
The fatal incident happened because the power line was vandalised by
community members. Like in Lucas , the liability rested on the shoulders of the
community members, as it did rest on the body corporate. It cannot be said that
the structure as depicted on page 42 of bundle B is the structure installed by
Eskom. The safe structure that was installed by Eskom was disfigured to a
point of leaving it in an unsafe state. On the basis of the above stated, there is
credible evidence that Eskom was not negligent. It did not breach its peculiar
duty when it installed the power line. This Court is in full agreement with the
Court in Msomi v Eskom Holdings SOC. Limited (Msomi )8, when it stated the
following:
“I am in full agreement with the submission by Mr Aboobaker that
Section 25 cannot be interpreted to be applicable to situations
other than the legal supply of electricity. It cannot apply to a
situation that represents an illegal connection of electricity by a
third party unrelated to the defendant. It has to be accepted that the
electricity in question is generated in the sense of being supplied by
Eskom. It is the only authority that supplies electricity so to that extent
Section 25 would be applicable. But, the offending cable was part of
cables used to illicit access to electricity by those who were not entitled
to electricity
[27] As a parting shot, in Eskom Holdings Ltd v Hendricks (Hendricks )9, it was
conceded that Eskom had failed to install the pylon in accordance with the
prescribed method, as such section 25 was applicable . Such a concession
rendered it unnecessary for the SCA to inquire into the foreseeability leg.
Having not installed the pylon in accordance with the prescripts , it was
foreseeable that such negligence would cause damage . In the present matter, it
was not conceded that when Eskom installed the power line, it did that contrary
to the prescribed or legislated method. Accordingly, Hendricks is distinguishable
from the present matter .
[28] I now turn to the next leg of the plaintiffs’ case. This is the case where the
plaintiffs allege that Eskom owed them a duty of care. In my view, this is a case
not necessarily covered by section 25 of the ERA. In a typical section 25
situation , since negligence is deemed, there is no onus on the part of the
plaintiff to establish negligence, which as defined in Lucas , it means conduct
that is embraced by carelessness, thoughtlessness or impudence, because of
8 (8650/2016) handed down on 13 June 2019 (KZNHCP)
9 2005 (5) SA 503 (SCA)
giving insufficient attention to such conduct. The onus lies fully on the shoulders
of the licensee to demonstrate that it did not conduct itself carelessly,
thoughtlessly or imprudently.
[29] However, where the situation contemplated in section 25 does not arise, like in
the present instance, and a party alleges some other duty of care outside the
situation contemplated in section 25 , as discussed in this judgment, the onus
remains with the plaintiff. The old adage of s/he who alleges must prove finds
application. In this matter, it is common cause that the fatality arose as a result
of the vandalised power line. When regard is had to the pleaded case, the
plaintiffs alleged negligence on the part of Eskom, in that it failed in its duty to
ensure that (a) all live electrical power lines and or cabling or electrical wires or
uncovered electrical wires are; (i) not left unattended; (ii) are not left uncovered;
(iii) are properly maintained and or inspected; (iv) are not left at any place or
area where it is within reach of members of the public more particularly minor
children; (v) are disconnected from the electrical power supply; (vi) are not
raised or covered sufficiently to ensure that it is not within reach of the public,
and more particularly minor children; (vii) are properly secured; and (viii) are not
in an area where members of the public more particularly minor children have
access to or are able to gain access. It was not placed in dispute that all the
above are duties of care to be exercised by Eskom.
[30] However, Eskom disputed that it breached any of the alleged duties nor acted
inconsistent with it s owed duties . As correctly held in Dabula v Nelson Mandela
Bay Municipality (Dabula )10, the normal situation calls for the plaintiff to allege
and prove negligence11. As already held, section 25 situation is not applicable
to the present situation, the plaintiffs bore the onus to allege and prove the
breach of the duty of care. This Court is quick to remark that the witnesses of
the plaintiffs were very poor and failed to acquit themselves with any measure
of distinction in proving on the balance of probabilities the alleged breach. On
the uncontested evidence, the state of the power line was only encountered by
10 (2695)/2017) [2021] ZAECPEHC 34 (27 May 2021.
11 Dabula para 27.
Eskom after the fatality. The power line was indisputably vandalised and
gravitated from a safe power line, observed in 2017 to an unsafe power line. All
of these outside the knowledge of Eskom.
[31] The immediate question that must arise is whether Eskom owed the community
members a duty to prevent vandalism of its infrastructure. Having failed in its
duties, vandalism happened, which culminated in the fatal injury. In order to
address this pertinent question a return to Kruger v Coetzee (Kruger )12
becomes inevitable.
[32] The question s to be asked and answered must be formulated as follows: (i)
Should Eskom or its employees have foreseen the reasonable possibility of the
vandalised power line causing fatal harm to th e deceased ; (ii) would a
reasonable person in the position of Eskom and its employees have taken
reasonable steps to guard against that fatal harm; and (iii) did Eskom and its
employees fail to take reasonable steps.
[33] The first leg, popularly known as a foreseeability test, on the facts of this case
cannot arise. On the evidence presented, Eskom and its employees only
became aware of the unsafe power line as vandalised after the fatal injury. The
plaintiffs led inadmissible evidence that the vandalised power line was reported
to Eskom long before the fatality. The witness who testified about the alleged
reporting did not himself report but he only heard that there was reporting. This
Court finds it hard to believe that the power line stood in the vandalised state
for a solid period of 6 years. Six years is a long time. It is equally hard to
believe that for six years , members of the community were saved from any
fatality , clearly posed by the vandalised power line , and only on the seventh
year did the fatality occu r. The coincidence is too good to be true.
[34] There is indisputable evidence from Eskom’s witnesses that in 2017 , an
inspection was conducted and the power line looked safe. The policy of Eskom
is to inspect its installed power lines on a three year cycle. Also , there was
12 1962 (2) SA 428 (A) at 430E -F
indisputable testimony that Eskom educates members of the community about
the dangers of electricity and also encouraged them to report any incident that
poses danger emanating from the installed electricity.
[35] Vandalism of Eskom’s infrastructures, either for copper wires theft or the illegal
connections , is rife. It is at alarming proportions , given the rate of
unemployment and th e unaffordability of electricity as an indispensable
commodity. In almost all the townships and squatter camps in South Africa,
there is a scourge of illegal connections. The illegal connections are difficult to
be policed or controlled by Eskom and its officials. When Eskom officials seek
to correct the situatio n of illegal connections , they are threatened. With regard
to constant inspections, it is difficult to observe how constant inspections would
have led to Eskom and its employees foreseeing any vandalism. Often times,
the illegal connections or any form of vandalisms are done nicodemously.
Access to places where illegal connections have been made is denied to
Eskom officials by members of the community.
[36] Lord Atkin in Donoghue stated that “ you must take reasonable care to avoid
acts or omissions which you can reasonably foresee would be likely to injure
your neighbour .” Sherstobitoff J.A , writing for the majority , in City of Saskatoon
v Smith and others (Smith )13 dealing with the aspect of warning and notification
to customers, admirably stated the following: -
“[14] The first question is whether such a notification or warning to its
customers was necessary given the ordinary common sense would
tell all reasonable persons who have problems with their
electricity supply that they should notify the supplier, just as any
person who purchases a defective product or service knows to
contact the supplier to remedy the defect or to direct the
complaint to the appropriat e person to provide a remedy …”
[37] It is not the case of the plaintiffs that they were not made aware that they must
report any fault. On the contrary, their case is that they heard from some named
13 2008 SKCA 157
persons who, for reasons unknown to this Court, failed to testify, that the
vandalised power line, which ultimately caused the fatal damage, was reported
to Eskom. Obviously, this critically invaluable evidence of reporting is
inadmissible. Clearly, if the vandalism was for illegal connection purposes,
members of the community would not report such to Eskom. Eskom testified,
and its evidence was not controverted in any manner or shape , that, faults,
when reported , are recorded and attended to. There were no records unearthed
by Eskom evidencing any reporting made before the fatal incident . Neither did
the plaintiffs provide any collateral evidence of reporting to Eskom the
vandalised power line. On the preponderance of probabilities, the vandalised
power line was not reported to Eskom. The inadmissible evidence of reporting
is rejected by this Court. Equally, this Court rejects, as false, the testimony that
the vandalised power line was like t hat for the past six years. It is simply
improbable that Eskom officials would not have observed such blatant and
unsafe vandal ised power line during the uncontested 2017 inspection.
[38] For all the above reasons, this Court concludes that Eskom would not have
reasonably foreseen that members of the community would vandalise the
power line , which would eventually fatally injure the deceased. Even if this
Court were to accept that failure to perform inspection is a form of negligence
on the part of Eskom, the fatal injury was not caused by such negligence. There
is no causal connection between the failure to routinely inspect and the fatal
injuries which admittedly were caused by the exposed live wires, exposed as a
result of vandalism. Nevertheless, this Court is unable to question the policy
decision of Eskom to only inspect after three years . In Smith , the following true
statement of law was stated: -
“[20] The Supreme Court per Cory J, elaborated upon the distinction
between policy and operations as follows, in Brown at para 38:
38 In distinguishing what is policy and what is operations, it
may be helpful to review some of the relevant factors that
should be considered in making that determination….;
and ca n be summarised as follows:
True policy decisions involve social, political and
economic factors. In such decisions , the authority
attempts to strike a balance between efficiency
and thrift, in the context of planning and
predetermining the boundaries of its undertakings
and of their actual performance. True policy
decisions will usually be dictated by financial,
economic, social and political factors or
constraints. The operational area is concerned with
the practical implementation of the formulated
policies, it mainly covers the performance or
carrying out of a policy. Operational decisions will
usually be made on the basis of admin istrative
direction, expert or professional opinion, technical
standards or general standards of
reasonableness.”
[23] Again, it was an error of law on the part of the trial judge to find
that the failure to notify or warn electricity consumers to report
problems constituted a part of the “operational implementation” of the
policy. The implicit decision not to so notify was part of the policy
itself and thus not a decision capable of rendering the City liable
in tort .”
[39] Accordingly, this Court concludes that the policy decision of Eskom not to
inspect as regular as it may be expected, but to only conducted such
inspections on triennial basis is incapable of rendering Eskom liable. This Court
accepts that Eskom is the biggest supplier of electricity in South Africa.
Conducting annual inspections in the whole country , for instance, will put a
huge financial strain on Eskom. The education programmes, if heeded to , will
certainly go along way in reducing or avoiding fatalities. It cannot be gainsaid
that illegal connect ions pose a biggest threat to the safety of the public. A stop
on it, will secure the safety of the public. Even if it can be said that , given the
rifeness of vandalism, Eskom attracts an additional duty of care, it is not
reasonably foreseeable for Eskom that the vandalism would cause a damage to
the very members of the public who vandalise Eskom’s infra structure . Also, it is
not foreseeable that members of the public , with the abundance of educational
programmes , would irresponsibly ignore to report a palpably dangerous
situation posed by the vandalis m. In this particular instance, i n 2017, the power
line was secured by steel pipe, yet same was vandalised. Vandalism must
simply come to an end.
[40] Having failed to establish the first leg of foreseeability, it shall only be academic
for this Court to consider the other legs. Having become aware of the
vanda lism, Eskom acted , and the power line has been incidents free since
then. It is important to acknowledge that after the incident , Eskom, within a
period of less than 72 hours , did the following: (a) temporarily fixed the
vandalised power line to avoid overnight recurrence of the fatalities; and (b)
secured the power line with a PVC pipe which stood incident free for seven
years. The incontestable testimony of Eskom that once a vandalised power line
is encountered, an official must wait until the vanda lism is fixed and rendered
safe, lends credence to the unchallenged testimony that in 2017 , the power line
was safe.
[41] Having failed to establish wrongfulness , in the form of negligence, the plaintiffs
have failed to establish the alleged breach of the duty of care. Accordingly, the
plaintiffs’ claim must fail , with an appropriate order as to costs.
[42] For all the above reasons, I make the following order :
Order
1. The action is dismissed.
2. The plaintiffs to jointly and severally, the one paying absolving the
other, pay the costs of the defendant on a party and party scale to
be taxed or settled at scale B .
GN MOSHOANA
JUDGE OF THE HIGH COURT
DIVISION, PRETORIA
APPEARANCES
For the Plaintiffs: Mr R G Bowels
Instructed by: Tiaan Smuts Attorneys , Pretoria
For Defendant : Ms K Slabbert
Instructed by: Malebye Motaung Mtembu Inc, Pretoria
Date of hearing: 10-12 March 2025
Date of judgment: 17 March 2025