IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CASE NO.: 2323/23
Reportable Yes/No
In the matter between:
NOZUKILE MLONYENI Plaintiff
and
ESKOM HOLDINGS SOC LIMITED Defendant
JUDGMENT
Cengani-Mbakaza AJ
[1] The plaintiff instituted an action against Eskom Holdings SOC Limited (the defendant) for damages in the amount of R1 500 000 (One Million Five Hundred Rand), alleging negligence stemming from the bursting of the meter box in her house. According to the plaintiff, the bursting of the electric
box caused deadly and uncontrollable fire that could not be prevented by the electric
breakers.
[2] In the particulars of claim, the plaintiff specifically alleges that the defendant’s
negligence stems from several factors including:
2.1 Failure to display sufficient warning signs near the electric box meter;
2.2 Inadequate inspection and maintenance of electric poles and distribution
cables, compromising public safety;
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2.3 Failure to take reasonable steps to prevent harm or injury to the plaintiff
and property;
2.4 Failure to prioritise and attend to emergency faults after being reported;
2.5 Failure to install mechanisms to prevent cables and electric meter boxes
from posing a danger to the plaintiff’s property and infrastructure, specifically
her two houses.
[3] In its plea, the defendant denies that it breached its legal duty towards the
plaintiff or that any such breach which caused the plaintiff’s damages. The trial
proceeded on the basis that there would be n o separation of issues between the
merits and quantum, in accordance with a pre -trial conference held on 14 February
2024.
[4] The plaintiff’s home (the site) is situated in a rural area and comprises a large
main house with multiple bedrooms as well as s everal rondavels located separately
from the main house. It is common cause that on the day in question, the plaintiff’s
home caught fire causing the house to be reduced to ashes. Due to the wind, the fire
spread to one of the rondavels also destroying it.
[5] The fire resulted in significant losses, notably destroying all the furniture in the
main house, electric appliances and important documents. The cause of the fire is
one of the principal issues in dispute in these proceedings.
[6] The plaintiff testifie d that she had returned from church and went straight to
her bedroom to change into casual attire. While inside the room, she heard a loud
bang coming from the direction of the electric meter box which was located in the
kitchen. She immediately went outsi de and found that the fire had started to spread,
causing the damage depicted in the photo album presented during the proceedings.
[7] She testified that one of the defendant’s personnel arrived at her home soon
thereafter to investigate the cause of the fire. She stated that she informed the
defendant’s personnel that the fire had originated from the bursting of the electric
meter box.
[8] In contrast, a report compiled by Mr Ronaldo Same which was presented as
evidence on behalf of the plaintiff during the trial noted that no one was present in
the house when the fire occurred, and the cause of fire was unknown. In his
conclusion, Mr Same indicated that it was impossible to determine the cause of fire
due to lack of eyewitnesses. He noted however that s trong winds on the day of the
incident contributed to the fire spreading to a nearby rondavel, resulting in significant
damage. He further noted that the Mineral Insulated Cable, referred to here as MCB
did not suffer any stripping.
[9] After the plaintiff’s case was closed, the defendant called Ms Ncebakazi
Dyalvane (Dyalvane) to testify and refute the allegations of negligence against the
defendant. Dyalvane, a senior technical official employed by the defendant testified
that on 10 August 2020, she received a call reporting that a cable at KNRQ003 had
been burnt resulting in a house fire. The cable burning was reported as a fault.
[10] She proceeded to the location where she observed a downed cable and
assessed the damage to the site. During her investigations, she enquired about the
circumstances surrounding the fire. The plaintiff informed her that no one was
present at the site when the fire started. Dyalvane testified that according to the
records the fire was reported on 10 August 2020.
[11] During cross-examination, Dyalvane’s presence at the site was questioned. It
was suggested that she did not attend the scene, and that a male person was the
one who actually visited the site. Another contentious issue was whether the
defendant’s personnel visited the site on the same day or the following day after the
incident. Dyalvane was adamant that to her knowledge, the visit took place on 10
August 2020. With this evidence, the defendant closed its case.
[12] The plaintiff’s case hinges on the prov isions of section 25 of the Electrical
Regulation Act 4 of 2005 (the Act). The relevant provision reads:
‘Liability of licensee for damage or injury
In any civil proceedings against a licensee arising out of damage or injury
caused by the induction or elec trolysis or in any other manner by means of
electricity generated, transmitted or distributed by a licensee, such a damage or
injury is deemed to have been caused by the negligence of the licensee, unless
there is credible evidence to the contrary.’
[13] Given the mutually destructive versions present in this matter, making
credibility findings is essential. As previously noted, determining the cause of the fire
is one of the principal issues. In terms of our law, the approach to mutually
destructive versions is often guided by the case law. In Stellenbosch Famer’s Winery
Group Ltd and Another v Martell et Cie and Others,1 the court held that:
‘The technique generally employed by courts in resolving factual disputes of
this nature may conveniently be summarised as follows. To come to a
conclusion on the disputed issues a court must make findings on (a) the
credibility of the various factual witnesses; (b) their reliability; and (c) the
probabilities. As to (a), the court’s finding on th e credibility of a particular
witness will depend on its impression about the veracity of the witness. That in
turn will depend on a variety of subsidiary factors, not necessarily in order of
importance, such as (i) the witness’s candour and demeanour in t he witness-
box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence,
(iv) external contradictions with what was pleaded or put on his behalf, or with
established fact or with his own extracurial statements or actions, (v) the
probability or improbability of particular aspects of his version, (vi) the calibre
and cogency of his performance compared to that of other witnesses testifying
about the same incident or events. As to (b), a witness’s reliability will depend,
apart from t he factors mentioned under (a)(ii), (iv) and (v) above, on (i) the
opportunities he had to experience or observe the event in question and (ii) the
quality, integrity and independence of his recall thereof. As to (c), this
necessitates an analysis and eval uation of the probability or improbability of
each party’s version on each of the disputed issues. In the light of its
assessment of (a), (b) and (c) the court will then, as a final step, determine
whether the party burdened with the onus of proof has succ eeded in
discharging it. The hard case, which will doubtless be the rare one, occurs
1 2003 (1) SA 11 para 5.
when a court’s credibility findings compel it in one direction and its evaluation of
the general probabilities in another. The more convincing the former, the less
convincing will be the latter. But when all factors are equipoised probabilities
prevail.’
[14] Although the plaintiff relies on the provisions of section 25 of the Act, it
remains relevant to assess the reliability and credibility of the plaintiff as a single
witness in particular on factual issues. Furthermore, the plaintiff’s version should be
evaluated in light of her burden of proof.2
[15] The plaintiff, an elderly lady, testified about the events that occurred five years
ago. The report was compiled immed iately after the incident. Therefore, it would be
unreasonable to assume that she intentionally provided a false testimony.
[16] However, it is possible that she may have made a mistake in her narrative,
particularly when compared to the technical invest igation officer’s account. However,
that mistake does not favour her case. The contradictions in the defendant’s
evidence relate to the gender of the person who visited the site and whether the visit
occurred on the same day as the incident. Despite these contradictions, the essential
elements required to establish the core issues remain unaffected. Therefore, this
discrepancy is immaterial. Notably, the defendant’s personnel reported that the
cause of fire was unknown and that no one witnessed the incident . Therefore, this
technical corroboration is compelling and hard to dismiss.
2 National Employers General Insurance Limited v Jagers 1984 (4) SA 437 (E) at 440 D -G, the court
held:
‘[I]t seems to me with respect, that in any civil case, as in criminal case, the onus can ordinarily
only be discharged by adducing credible evidence to support the case of the party on whom the
onus rests. In a civil case the onus is obviously not as heavy as it is in a criminal case, but
nevertheless where the onus rests on the plaintiff as i n the present case, and where there are
two mutually destructive stories, he can only succeed if he satisfies the court on a
preponderance of probabilities that his version is true and accurate and therefore acceptable,
and that the other version advanced by the defendant is therefore false or mistaken and falls to
be rejected. In deciding whether the evidence is true or not, the court will weigh up and test the
plaintiff’s allegations against general probabilities. The estimate of the credibility of a witn ess
will therefore be inextricably bound up with a consideration of the probabilities of the case and,
if the balance of probabilities are evenly balanced in the sense that they do not favour the
plaintiff’s case any more than they do the defendant’s, the plaintiff can only succeed if the court
nevertheless believes him and is satisfied that his evidence is true and that the defendant’s
version is false.’
[17] Since the cause of fire was unknown, it was imperative to conduct a thorough
investigation. Objectively, a technical report from the experts with requisite expertise
to inve stigate the cause of fire would have been highly valuable in these
proceedings. The use of the word “fault” for reporting purposes does not necessarily
establish on a balance of probabilities that the actual fault was located in the meter
box as alleged by the plaintiff.
[18] The determination of negligence is evaluated based on the reasonable
person standard. Kruger v Coetzee 3, at 430E -G Holmes J described the test as
follows:
‘For purposes of liability culpa arise if-
(a) A diligens paterfamilias in the position of the defendant-
(i) would foresee the reasonable possibility of his conduct injuring another in his
person
or property and causing him patrimonial loss; and
(ii) would take reasonable steps to guard against such occurrence.
(b) the defendant failed to take such steps. This has been constantly stated by
the court for some 50 years. Requirement (a) is sometimes overlooked.
Whether a diligens paterfamiliars in the position of the person concerned
would take any guarding steps at all, and if so, what steps would be
reasonable, must always depend upon the particular circumstances of each
case.’
[19] Given the evidence presented before this court, the presumption in section 25
of the Act is rebutted. The evidence failed to demonstrate that the defendant
neglected to display adequate warning signs near the electric box as alleged in the
particulars of claim. It lacked sufficient detail to establish that the defendant failed to
maintain the electric poles, take reasonable steps to prevent harm o r prioritize and
respond adequately to the emergency fault after being notified.
3 1966 (2) SA 428 (A).
[20] There was no evidence presented to establish on a balance of probabilities
that the defendant failed to install adequate mechanisms to present cables and
electric meter boxes from posing a danger to the plaintiff’s property. In contrast, the
evidence suggests that the cause of the fire was unknown and that the MCB’s failure
to strip indicates that the cable integrity in the meter box was well maintained.
Therefore, the plaintiff’s claim cannot be sustained.
[21] Regarding the issue of costs, a debate arose concerning the wasted costs of
09 April 2025. The defendant’s counsel suggested that the plaintiff’s counsel should
be liable for costs de bonis propriis. While it is t rue that the plaintiff’s counsel arrived
in court very late leading to the delay in the proceedings, his explanation which I find
valid was thoroughly placed on record. The logistical arrangements which he never
anticipated placed him in a difficult positi on. Consequently, in the exercise of my
discretion, I do not find sufficient reason to take the drastic step of awarding costs de
bonis propriis. Furthermore, although the defendant won the case, the circumstances
do not warrant an award of costs.
Order
1. The plaintiff’s claim is dismissed.
2. Each party shall pay its own costs.
________________________
N CENGANI-MBAKAZA
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel for the Plaintiff : Adv SY Malunga
Instructed by : Mr N Titi
Mthatha
Counsel for the Defendant : Adv WJ Botha
Instructed by : Norman Hornby Inc.
C/o Smith Tabata Attorneys
Heard on : 10 April 2025
Judgment Delivered on : 31 July 2025