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IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, MTHATHA
Case no: 4368/2022
In the matter between:
S[...] T[...]
o.b.o. A[...] M[...] T[...] Plaintiff
and
KING SABATA DALINDYEBO LOCAL MUNICIPALITY Defendant
___________________________________________________________________
JUDGMENT
___________________________________________________________________
APPELS AJ:
Introduction
[1] The Plaintiff has instituted a delictual claim for damages on behalf of her
minor child, a two -year female. The minor child sustained injuries after having been
allegedly electrocuted on 6 June 2022 by electricity transmitted by a transformer
owned and operated by the Defendant (“the transformer”).
[2] It was the Plaintiff’s case that the Defendant is a licensee as defined in the
Electricity Regulation Act 4 of 2006 (“ERA”) and that the Defendant was deemed
negligent by virtue of the provisions of Section 25 of ERA.
[3] The parties reached an agreement on the separation of issues of liability and
quantum. Accordingly, it was ordered, in terms of rule 33(4) of the Rules of this
Court, that the matter proceed on the issue of liability only and that the issue of
quantum be determined at a later stage, if necessary.
[4] Therefore, this judgment deals with the issue of liability only.
The facts
[5] On 6 June 2022, the minor child and other children of the neighbourhood
were playing in Thole Street, Ngangelizwe, Mthatha, near t he transformer. Moments
later, the minor child was found lying underneath the transformer, unresponsive, with
burn wounds on both her forearms and hands. She was thereafter admitted to
hospital where she received medical treatment for burn wounds, includin g a skin
graft operation.
[6] The transformer was a step -down transformer, utilised by the Defendant to
convert high voltage electricity of 11 000 volts to 400 volts for consumption by
domestic consumers. It was common cause that transformers of this nature are
usually pole-mounted overhead high above the ground to ensure that the electricity
transmitted by the transformer does not pose a danger to members of the public who
may come into contact with it.
[7] It was also common cause that the particular transformer in question was not
pole-mounted high above the ground. Instead, it was installed close to the ground in
Thole Street, approximately 20 meters from where the Plaintiff and her minor child
lived.
[8] It is the Plaintiff’s case that prior to the incident the Defendant was warned
by a local community member that the transformer posed a danger to the members
of the public, but to no avail. In particular, it was alleged ( inter alia ) that the
Defendant left the transformer opened and uncovered and as a result, the
transformer posed a dange r to members of the public and children nearby not
accustomed to the dangers of electricity.
The pleadings
[9] It is alleged that the electrocution resulted from the wrongful and negligent
conduct of the Defendant and/or its officials and employees acting withing the course
and scope of their employment with the Defendant, in that (inter alia), they:
(a) Left the transformer which caused the electrocution unattended for extended
periods;
(b) Failed to warn members of the public about the danger of the transformer
“when open for access by children ” and/or members of the public not accustomed to
the dangers of electricity;
(c) Failed to conduct regular inspection of the transformer to satisfy itself that
the transformer guaranteed a level of safety to members of the public;
(d) Were aware that the transformer was open and that this posed a danger to
members of the public and children playing nearby;
(e) Ought to have foreseen that an open transformer was likely to cause injuries
and loss to third parties; and
(f) Failed to prevent the in juries and or electrocution of the minor child by
exercising reasonable care and skill.
[10] The Plaintiff alleges that in terms of Section 26(1) of ERA 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 to
be 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.
[11] The reference to Section 26 above is a patent error in the Plaintiff’s
particulars of claim, because Section 26 of ERA refers to expropriation. Reference
should have been made to Section 25 of ERA which stipulates as follows:
“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.”
[12] The incorrect reference to the particular provision of ERA is of no
consequence. The deeming provision applies by operation of law once it has been
proven that the Defendant is a licensee and that the Plaintiff’s minor child suffered
damage or injury as a result of electricity generated, transmitted or distributed by the
Defendant.
[13] The Defendant effected an amendment to its plea after the hearing of all the
evidence but before the parties made subm issions. Originally, in the plea filed prior
to the amendment, the Defendant denied that it was a licensee as contemplated in
ERA, and it pleaded no knowledge of the allegations relating to the electrocution of
the minor child and no knowledge about wheth er it was the owner and operator of
the transformer.
[14] The Defendant also denied that it was negligent and pleaded that (in the
event that the court finds that the minor child sustained injuries as a result of the
electricity transmitted by the transformer), the sole cause of injuries sustained by her
was the negligence of the Plaintiff who allegedly failed to adequately supervise the
minor child.
minor child.
[15] Alternatively, it was pleaded that the Plaintiff was contributorily negligent and
any claim which the Plaintiff has against the Defendant should be reduced in
accordance with the Apportionment of Damages Act 24 of 1956.
[16] In essence. almost all the issues on liability were placed in dispute by the
Defendant until the amendment of the plea.
Amendment to pleadings effected on 20 August 2024
[17] On 20 August 2024, three days prior to the date on which the parties
submitted oral argument, the Defendant effected an amendment to its plea. In terms
of the amended plea, where the Defendant previously denied being a licensee i n
terms of ERA, this has now been admitted. It was also admitted that the Defendant is
responsible for the electricity transformer situated in Thole Street.
[18] Where the Defendant previously pleaded no knowledge of the alleged
electrocution and put the Plaint iff to the proof thereof, it has now, in terms of the
amended plea, denied the allegation relating to the electrocution. No material facts
have been pleaded in the amended plea in support of such denial.
Issues in dispute
[19] The following issues were in dispute on the pleadings as amended:
(a) Whether the minor child was electrocuted on 6 June 2022 as a result of
contact with the transformer.
(b) Whether the minor child suffered injuries to both her arms as a result of the
electrocution and was hospitalised at Nelso n Mandela Academic Hospital for a
period of three months from the date of the incident.
(c) Whether the electrocution of the minor resulted from the wrongful and
negligent conduct of the Defendant and its employees acting within the course and
scope of their employment.
(d) Whether the sole cause of the minor child’s injuries was the Plaintiff’s
negligence; alternatively whether the Plaintiff was contributorily negligent and
whether her claim ought to be reduced in accordance with the Apportionment of
Damages Act.
The evidence
[20] Three witnesses gave evidence on behalf of the Plaintiff and two witnesses
were called on behalf of the Defendant.
[21] The Plaintiff, S[...] T[...], an adult female, gave evidence that she lives with
her minor child at their home in Thole Stree t, Ngangelizwe, Mthatha. On 6 June
2022 at approximately between 12h00 and 14h00, the minor child left their home
with another child to play outside in Thole Street with the neighbourhood children.
[22] When the children went to play, she also left her home to go to Gomomo
Street, Ngangelizwe. When she was still at Gomomo Street, a woman by the name
of Ntombefuthi arrived and informed her that her minor child had been “burned”. She
hurried back to her house in Thole Street and on her arrival, she found the minor
child being carried in the arms of her neighbour. She noticed that both forearms and
hands of the minor child were “burned”. She testified that the minor child appeared
to be unconscious because she was not crying and was “just looking at” her.
[23] At first, she took the minor child to Ngangelizwe Clinic where bandages were
applied to her wounds, and she was referred to Nelson Mandela Academic Hospital
for further medical treatment. The Plaintiff was allowed to stay with her minor child in
hospital for approximately one month and one week. She testified that she was told
that the minor child would not heal quickly, that the burn wounds were deep and that
she was required to sign consent documents for a skin graft to be conducted on the
minor child.
[24] She testified that it was explained to her that a patch of skin would be
removed from the minor child’s thigh and transplanted to enable her to heal quicker.
She thereafter agreed and signed the consent papers to give permission for the skin
graft. In total, the minor child stayed in hospital for one month and two weeks.
[25] She testified that she had lived in Thole Street for 25 years and that when
[25] She testified that she had lived in Thole Street for 25 years and that when
she was growing up, the transformer in Thole Street, which was approximately 20
metres from her house, was “ closed up”. However, at some stage on an unknown
date, a new transformer was installed which was not “closed up”.
[26] During the Plaintiff’s evidence -in-chief, the following photographs were
handed into evidence:
(a) A photograph depicting the transformer in Thole Street, marked Exhibit “A”;
(b) Two photographs depicting the burn wounds on the forearms and hands of
the minor child, marked Exhibits “B” and “C”.
[27] She testified that Exhibit “A” was taken on 6 June 2022 after the incident
occurred and that she was pres ent when the photograph was taken. She confirmed
that Exhibit “A” was a photograph of the transformer in Thole Street.
[28] The Plaintiff testified that she took the photographs handed in as Exhibits “B”
and “C” at the hospital on 6 June 2022 and she confirmed that the photographs
depict the burn wounds on her minor child’s hands.
[29] Under cross -examination, she denied that the transformer was ever
enclosed by a fence and that such fence was stolen or vandalised. When it was put
to her that once the Def endant was made aware of the incident (the alleged
electrocution), its officials conducted a site inspection and caused the fence to be
replaced, she confirmed that she had been made aware that the Defendant had
erected a fence around the transformer.
[30] The Plaintiff’s next witness was an adult woman named Ntombifuthi
Siphamla. She testified that she lives in Thole Street, Ngangelizwe, Mthatha and
that on 6 June 2022, she was seated next to her house and saw the minor child
playing amongst other children in Thole Street near the transformer.
[31] Later she heard a loud sound, which she described as sounding like thunder,
and noticed that the minor child was no longer playing amongst the other children.
She then saw the minor child lying down on the ground under the transformer. She
pulled the minor child from underneath the transformer towards the tarred road. The
minor child had sustained burn wounds on her forearms and hands. She screamed
and called out to the neighbour for help. She said the minor child wa s silent and not
and called out to the neighbour for help. She said the minor child wa s silent and not
crying at all. When the neighbour arrived, she went to call the Plaintiff where she
was at Gomomo Street. When she and the Plaintiff arrived at the Plaintiff’s house,
the neighbour was carrying the minor child in her arms.
[32] Under cross -examination she said that when she was sitting outside her
house in Thole Street, the minor child was amongst four children who were playing
near the transformer. She was sitting approximately 15 paces away from where the
children were playing. The loud s ound, which came from the direction of the
transformer, made her notice that the minor child was no longer playing among the
others. .
[33] She testified that she saw the head and shoulders of the minor child sticking
out from under the transformer and the r emainder of the minor child was underneath
it. She dragged the minor child out from underneath the transformer by her
shoulders by holding onto to the minor child’s clothes. The minor child was facing
upwards.
[34] It was put to her that Mr Gwexe, an employee of the municipality, would
testify that he visited the scene a few days after the incident allegedly occurred and
would say that it would be impossible for a two year old child to fit underneath the
transformer because the gap between the ground and the t ransformer was only
15cm in size. She once again confirmed that she saw the minor child underneath
the transformer.
[35] It was also put to her that if she had indeed pulled the minor child from under
the transformer in the way she had explained, she herself w ould have been
electrocuted. She did not have any comment to this proposition, but steadfastly
confirmed that she indeed pulled the minor child from under the transformer.
[36] When it was put to her that if there was a loud sound, the transformer would
have f ailed and there would have been an interruption of electricity supply in the
area, she immediately confirmed that there was indeed an interruption in the
electricity supply.
[37] The nature of the propositions put to the witness suggested that the
[37] The nature of the propositions put to the witness suggested that the
Defendant intends to introduce opinion evidence. Accordingly, the court required the
Defendant’s counsel to clarify whether the Defendant intends to present evidence on
the propositions put to the witness. When the Defendant’s counsel confirmed that
evidence in this regard will be presented, the Plaintiff’s counsel interjected and noted
that, based on the nature of the propositions, the Defendant is required to lead
expert evidence.
[38] The Plaintiff’s counsel also noted that there had not been compliance with
Rule 36(9) and accordingly that the Defendant would not be entitled to call an expert
witness. The admissibility of expert evidence in the absence of compliance with Rule
36(9) is discussed in more detail under the heading “ analysis of the evidence ”
below.
[39] The Plain tiff’s third witness was Siyabulela Fodo, an adult male and a
resident of Thole Street who is a member of the “Street Committee”. He has lived in
Thole Street for five years. He explained that the function of the “Street Committee”
is to resolve and comm unicate problems and concerns of the community to the
Municipality through its councillors.
[40] He testified that the previous transformer which used to be in Thole Street
(prior to its replacement by the current transformer depicted on Exhibit A) was
completely “closed up” and fitted inside a panel. None of the previous transformer’s
parts were exposed as depicted on Exhibit “A”. He also stated that these types of
transformers are normally installed overhead, and pole mounted high above the
ground.
[41] He test ified that the community members of Thole Street raised their
concerns regarding the open transformer to the Street Committee. In turn, he raised
the community’s concerns in two meetings attended by the ward councillor, which he
named as Ms Mathubathuba, a nd with other representatives of the Defendant. He
stated that it was made clear at the meetings that the community requires the
transformer to be closed or covered.
[42] Under cross-examination he stated that he was not sure of the exact date on
which the cur rent transformer was installed and said that it was during or about
which the cur rent transformer was installed and said that it was during or about
November 2021. He stated that the first meeting with the ward councillor during
which concerns regarding the transformer were raised, took place in February 2022
and the second meeting took place in May 2022.
[43] Under cross -examination he denied that a fence was erected around the
transformer when the transformer was installed. He also denied that the alleged
fence was stolen or vandalised. He stated that it was only after the incident on 6
June 2022 that the Defendant erected a barbed wire fence around the transformer.
[44] The first witness, called by the Defendant was Mr Luvuyo Gwexe
(“Mr Gwexe”) who is employed by the Defendant as a supervisor of electricians
within its electrical services d ivision. He testified that he has been employed by the
Defendant since 2005 and that he holds a Diploma in Electrical Engineering which
he obtained in 2019.
[45] According to Mr Gwexe, he conducted a site inspection of the transformer in
Thole Street sometime in June 2022 after he was requested to do so by his
manager, Mr Bantuboxolo Gwadiso (“Mr Gwadiso”). He testified that Mr Gwadiso
informed him that a member of the mayoral committee (“an MMC”) told him that a
child was electrocuted at Thole Street. He co uld not recall the exact date on which
he received the instruction nor the date on which he caried out the site inspection of
the transformer sometime in June 2022.
[46] He could also not recall the exact date on which the current transformer as
depicted on Exhibit A was erected, i.e. when it replaced the previous transformer, but
said that it could have been “before COVID”.
[47] He further testified that the transformer is a stepdown transformer, with the
function of reducing high voltage electricity (11KV) to low er voltage electricity (400
volts) in order for it to be distributed to and used by domestic consumers such as the
residents of Thole Street.
[48] When he arrived at the scene in Thole Street sometime in June 2022, he
observed that there was no fence around the transformer even though a fence was
put around it “ that time of COVID ”. Other than the fact that the transformer was not
enclosed, he did not find anything else amiss. He noted that he could not see any
enclosed, he did not find anything else amiss. He noted that he could not see any
carbonised dark marks on the transformer and that its “ mva insulators ” which he
referred to as the “ blue parts”, were still intact. He reported his observations to his
manager and instructed his team to enclose the transformer by erecting a fence
around it.
[49] Under cross -examination he conceded that it is necessary for the
transformer to be enclosed because it is of the type which is ordinarily pole -mounted
high up from the ground. He also conceded that if these transformers are not pole
mounted, it was necessary for the Defendant to enclose them with a fe nce to ensure
that they do not pose a danger or cause injuries to persons who might come into
contact with it.
[50] When he was asked whether he disputed that the minor child was
electrocuted he said that he cannot dispute it.
[51] The next witness called by the De fendant, Mr Gwadiso, is employed by the
Defendant as a General Manager: Electrical Services. He testified that he holds a
B.Sc degree with a major in physics and applied mathematics and a B.Sc in
Electrical Engineering. He has been employed by the Defend ant since 2014. He is
responsible for the overall management of the electricity division of the municipality.
[52] Mr Gwadiso said that “ approximately within five days ” after the incident
occurred, he received a telephone call from a member of the mayoral com mittee
(“MMC”) informing him that a child was electrocuted by what he referred to as “ one
of our installations ”. He was unable to tell the court the exact date on which he
received the report that the minor child was electrocuted. Upon receiving the repo rt
from the MMC he stated that he contacted Mr Gwexe and requested him to do a site
inspection.
[53] He further testified that after conducting the site inspection, Mr Gwexe
reported to him that the fence which was erected around the transformer was
removed by an unknown person and that no visible signs could be detected that
anybody touched the transformer.
[54] When he received the abovementioned report from Mr Gwexe he decided
that there was no need to investigate further because there was no obvious signs
that t he transformer had been touched, everything was normal and the customers
had electricity.
[55] He thereafter instructed Mr Gwexe to ensure that a fence was erected
around the transformer. He stated that this was the end of the interaction between
himself and Mr Gwexe about the incident.
[56] In August 2022, Mr Gwadiso was contacted by the Defendant’s “ Asset
Division” and he was informed that there was a claim in relation to the alleged
electrocution. He was asked by the Asset Division for information regarding the
incident.
[57] He decided to check the records of the 24 -hour call centre where most
electricity-related co mplaints are reported. He evidently formed the opinion that if
there was an incident on 6 June 2022 emanating from the transformer, there would
have been an interruption of power. He stated that he could find no record of any
customer who complained that there was an interruption in the electricity service. He
stated that this is how he responded to the Asset Division Unit and that he regarded
the matter as finalised.
Analysis of the evidence
[58] The Plaintiff’s evidence that on 6 June 2022 the minor child was uninjured
when she went to play with the neighbourhood children and her evidence that the
minor child later returned, carried in her neighbour’s arms with burn wounds to her
forearms and hands, are unchallenged and undisputed. It is also undisputed that the
minor child was treated in hospital for burn wounds, including a skin graft operation.
There is no reason why I cannot accept her evidence in this regard.
[59] Similarly, no evidence was led by the Defendant to refute the evidence of
Ntombefuthi regarding the place where the minor child was found on 6 June 2022
and that she pulled the minor child from underneath the transformer. There was also
no evidence to dispute that the minor child had b urn wounds on her forearms and
hands when she was so found under the transformer.
[60] The evidence of the Defendant’s witnesses consisted mainly of observations
made by Mr Gwexe during a site inspection of the transformer on an unknown date
made by Mr Gwexe during a site inspection of the transformer on an unknown date
in June 2022 and of the conclusions drawn by Mr Gwadiso based on the information
he received from Mr Gwexe following the site inspection.
[61] These observations and conclusions contained nothing of probative value to
assist the court in making any inferences regarding whether or not the minor child
was electrocuted on 6 June 2022.
[62] Mr Gwexe testified that he did not find any carbonised dark marks on the
transformer, but he never excluded the possibility that the minor child came into
contact with electricity transmitted by the transformer. In fact, he conceded that he
could not dispute that the minor child was electrocuted on 6 June 2022.
[63] It was evident from Mr Gwadiso’s evidence that he came to a conclusion
(although not very clearly expressed in his evidence) that the minor child was not
electrocuted. It appears that he held an opinion that if someone touched the
transformer and was electrocuted or burned by it, there would still be visible signs of
such electrocution a few days after the incident. He also appeared to have
concluded that if there was no record of a complaint of a power disruption emanating
from the transformer on 6 June 2022, there could not have been an electrocution.
Such was his trust in the accuracy of the call centre records that he considered the
matter closed and did not require or make any further investigation into the incident.
[64] The evidence of Mr. Gwadiso was purely in the nature of an opinion. There
was an attempt to qualify Mr. Gwadiso as an expert at the start of his evidence. In
this regard, he was led extensively on his qualifications, training and experience in
the field of electricity. However, any opinions expressed by Mr Gwadiso are
inadmissible opinion evidence for the reasons stated below.
[65] An opinion, whether expressed by a lay pe rson or an expert, on an issue
which the court can decide without receiving such opinion, is in principle inadmissible
because it is irrelevant. 1 In this matter, Mr Gwadiso expressed an opinion on a
matter which the court is able to determine based on th e factual evidence and the
probabilities.
probabilities.
[66] His opinion is of no probative value and of no assistance to the court in
deciding the issues. Mr Gwadiso did not do a site inspection of the transformer.
1 Helen Suzman Foundation v President of the Republic of South Africa and Others; Glenister
v President of the Republic of South Africa and Others [2014] ZACC 32 at para [30]. See also the
explanation in footnote 30.
Instead, he relied on observations relayed to him by Mr Gwexe and on inadmissible
hearsay evidence regarding call centre records of which he had no personal
knowledge. In this regard it should be noted Mr Gwadiso does not work in the call
centre, is not the person to whom a report would have been made and is also not the
person who records the calls that are made to the call centre. He therefore does not
possess personal knowledge of whether there was a report of a power failure at the
call centre. The employees of the Defendant who work in the call centre we re not
called to give evidence nor did the Defendant adduce documentary evidence of the
records of the call centre.
[67] Furthermore, the Defendant did not comply with Rule 36(9) and did not give
notice that it intended to call Mr Gwadiso as an expert witness o r provide any
summary of Mr Gwadiso’s conclusions regarding the events on 6 June 2022. The
Defendant also did not seek the court’s leave to call an expert witness.
[68] The requirements of Rule 36(9) are peremptory. A party is not entitled to
lead expert ev idence without prior compliance with the sub -rule irrespective of
whether there was an objection to the non-compliance.2
[69] Not only was no notice given in terms of Rule 36(9) regarding any opinions
relating to the electrocution on 6 June 2022, at the time when Mr. Gwadiso was
called as a witness, the Defendant did not even plead a denial that an electrocution
occurred. Instead on the pleadings as they stood at the time when Mr Gwadiso gave
his evidence, the Defendant pleaded no knowledge of the alleged electrocution.
[70] The Defendant has therefore not put up any acceptable version to counter
the Plaintiff’s evidence of the events that occurred on 6 June 2022.
[71] There is however one important issue in respect of which there is a factual
dispute where the parti es have two mutually -destructive versions. This issue is
whether the Defendant had at one stage prior to 6 June 2022 erected a fence around
whether the Defendant had at one stage prior to 6 June 2022 erected a fence around
the current transformer and whether that fence was at a later stage, prior to
6 June 2022, stolen or vandalised.
2 Colt Motors (Edms) Bpk v Kenny 1987 (4) SA 378 (T) at 387 F.
[72] The conflicting versions must be weighed up against the inherent or general
probabilities of the matter and a finding must be made. Both versions cannot be
allowed to stand.
[73] In Stellenbosch Farmers’ Winery Group Ltd and another v Martell et Cie
and others the Supreme Court of Appeal laid out the accepted test applicable to a
trial court when faced with a factual dispute, in particular when faced with two
irreconcilable versions.3 A trial court has to come to a conclusion on the disputed
issues by making findings on (1) the credibility of the various factual witnesses; (2)
their reliability; and (3) the probabilities.
[74] The court’s finding on the credibility of a particular witness will depend on its
impression about the veracity of the witness. This findin g will, in turn, depend on
factors, such as the witness’s candour and demeanour, his or her bias, internal
contradictions in his or her evidence; external contradictions with what was pleaded
or put on his or her behalf, and the calibre and cogency of his or her performance
compared to that of other witnesses testifying about the same incident or events.4
[75] A witness’s reliability will depend, apart from some of the factors above, on
the opportunities he or she had to experience or observe the event in quest ion; and
the quality, integrity and independence of his or her recall thereof.5
[76] I found the Plaintiff’s witnesses credible and reliable on all the issues. They
gave clear and direct answers to the questions put to them and did not try to
embellish or exa ggerate. It is also found that they provided a consistent and
plausible version of events. They made concessions where necessary and did not
pretend to know answers to questions which they did not have, nor did they attempt
to convince the court that they saw more than what they did.
[77] All three of the witnesses live in Thole Street and were able to confirm that
when the previous transformer was replaced with the current transformer, it was not
when the previous transformer was replaced with the current transformer, it was not
3 Stellenbosch Farmers’ Winery Group Ltd and another v Martell et Cie and Others 2003 (1) SA
11 (SCA) at para [5].
4 Stellenbosch Farmers’ Winery Group Ltd and another v Martell et Cie and Others , supra at
para [5]
5 Stellenbosch Farmers’ Winery Group Ltd and another v Martell et Cie and Others, supra at
para [5]
enclosed and there was no fence around it. All of them have lived in Thole Street for
several years and had many opportunities to observe the transformer and were able
to provide the court with accurate information regarding whether the transformer was
ever enclosed.
[78] Their evidence also ties in with Mr Fodo’s evidence that it was necessary to
have engagements with the ward councillor to raise the community’s concerns
regarding the transformer. His evidence that he raised concerns regarding the open
transformer in meetings attended by the ward councillor, which he named as
Ms Mathubathuba, and with other representatives of the Defendant on two separate
occasions in 2022 before the incident occurred, was unchallenged. Mr Fodo does
not have a vested interest in the matter and there is therefore no reason why the
court should regard his evidence with caution.
[79] The evidence of the Defendant’s witnesses, however, does not stand up to
the same scrutiny. Even though both Defendant’s witnesses testified that a fence
was once erected around the transformer, they were un able to articulate clearly or
precisely when the fence was so erected. Mr Gwexe only vaguely stated that it was
erected in pre -COVID times. No indication was given as to how he had knowledge
of the erection of the fence. He did not state that he person ally gave instructions to
erect the fence, or that he personally inspected the site and saw that a fence was
erected. He could not give any evidence of the most recent date prior to the incident
when the site was inspected and the fence found intact.
[80] There was some vague suggestion that the fence was removed due to
vandalism or theft without the Defendant’s knowledge, but this was not clearly
articulated in his evidence, nor was there any approximate date given as to when the
fence could have been so removed.
[81] There is no reason why the Defendant’s witnesses should have been so
[81] There is no reason why the Defendant’s witnesses should have been so
vague when giving details about the enclosure of the transformer. Both witnesses
work in management and supervisory positions in the Defendant’s electrical services
division and mu st have had access to the records and files regarding infrastructure
related to the installation of the transformer. Mr Gwadiso could give detailed
evidence about the call centre records and there is no reason why he could not also
have consulted the Defe ndant’s records relating to the erection of the fence to
provide the court with accurate and clear information regarding the date on which it
was erected, the quality of the fence that was erected and whether it was adequate
to safeguard against the risk of injury which the transformer posed.
[82] There are more reasons to generally doubt the veracity and reliability of the
evidence of the Defendant’s witnesses’ testimony. These reasons relate to
contradictions between what was put on the Defendant’s behalf to w itnesses, what
was pleaded and what was established during their evidence.
[83] Firstly, several propositions were put to Ntombefuthi (which one would
assume was in accordance with the Defendant’s counsel’s instructions) which the
Defendant’s witnesses never testified about. For instance, Ntombefuthi was told that
the Defendant’s witnesses will testify that it was impossible for a two-year-old child to
fit underneath the transformer because the transformer is fitted only 15 cm from the
ground. This was never confirmed in evidence by any of the Defendant’s witnesses.
[84] Secondly, and most importantly, the Defendant did not plead that the
transformer was enclosed by a fence to ensure the safety of members of the public
and children playing nearby, nor did it plead t hat the fence which it erected was
stolen or vandalised. Instead, the Defendant pleaded a bare denial to the factual
allegation that the transformer was open which rendered it unsafe for members of
the public and children playing nearby. The absence of m aterial factual allegations
to support the bare denial of negligence in the plea, the introduction of the
allegations regarding the fence for the first time at the trial and the vague and
unsatisfactory manner in which the evidence relating to the erection of the fence was
given during the oral testimony of the Defendant’s witnesses must lead to an
adverse finding regarding their credibility and reliability.
adverse finding regarding their credibility and reliability.
[85] The Defendant’s witnesses are also not unbiased and independent. In fact,
the factual allegations i n relation to negligence implicate the very same witnesses
who gave evidence. Yet, the Defendant did not launch an independent investigation
into such a serious allegation, nor was the court provided with any evidence that a
proper internal investigation was launched with clear findings contained in a written
report.
[86] In the circumstances, I accept the evidence of the Plaintiff’s witnesses that
on 6 June 2022, the minor child was found under the transformer with burn wounds
on her forearms and hands and th at she was hospitalised and treated at the Nelson
Mandela Academic Hospital for such burn wounds.
[87] For the reasons I explained above, I accept the evidence of the Plaintiff’s
witnesses that the transformer was not enclosed by a fence prior to 6 June 2022 a nd
that it therefore posed a danger to members of the public and that this danger was
reported to the Defendant’s representatives prior to June 2022.
The onus
[88] In terms of Section 25 of ERA, there is an onus on a licensee such as the
Defendant, in civil proceedings against it, to provide credible evidence that damage
or injury caused by means of electricity generated, transmitted or distributed by such
licensee was not caused by its negligence.
[89] It is only the element of negligence which the Defendant must disprove. The
Plaintiff still carries the burden of proving all the other elements of the delict.
[90] Therefore, based on a plain reading of Section 25 of ERA, and in
accordance with the general p rinciple that he who alleges must prove, the Plaintiff
must discharge the burden of proving that the minor child was injured as a result of
electricity transmitted or distributed by the Defendant. Only once it is found that the
Plaintiff has discharged th is onus, would such damages be deemed to have been
caused by the negligence of the Defendant in the absence of credible evidence to
the contrary.
The electrocution
[91] There was no direct eyewitness evidence of the alleged electrocution. In the
absence of such direct evidence, a finding that the electrocution happened cannot be
made unless the court is able to draw an inference in this regard from the objective
facts proven by the evidence.
[92] In S A Post Office v Delacy and Another , the Supreme Court of Appeal
said the following regarding the process of inferential reasoning:
“The process of inferential reasoning calls for an evaluation of all the evidence and
not merely selected parts. The inference that is sought to be drawn must be
‘consistent with all the proved facts. If it is not, then the inference cannot be drawn’
and it must be the ‘more natural or plausible, conclusion from among several
conceivable ones’ when measured against the probabilities.”6
[93] It has also been held that “ plausible” in the aforeme ntioned context means
‘acceptable, credible, suitable ’.7 Where more than one inferences is possible, a
court must satisfy itself that the inference sought to be drawn is the most plausible or
probable, even if that conclusion may not be the only one.8
[94] If there are no positive proven facts from which an inference can be made,
what is left is mere speculation or conjecture.
[95] I will now set out what I consider to be the objectively proven facts in this
matter from which inferences may be drawn.
[96] It is an objectively proven fact that the Defendant is the distributor of the
electricity transmitted by the transformer. The evidence showed that the Defendant
operates the transformer for the purpose of distributing electricity to residential areas
for household use.
[97] It has also been proven that in its uncovered state, the transformer poses a
danger to the safety of members of the public who may come into contact with the
electricity transmitted by the transformer. In this regard, the evidence showed that
the transformer ought to be either pole -mounted overhead high up from the ground
where it does not pose a risk to the safety of members of the public or it ought to be
enclosed or covered to protect members of the public from the danger of the
electricity transmitted by the transformer.
6 S A Post Office v Delacy and Another 2009 (5) SA 255 (SCA) at para [35].
6 S A Post Office v Delacy and Another 2009 (5) SA 255 (SCA) at para [35].
7 Ocean Accident and Guarantee Corporation Ltd v Koch 1963 (4) SA 147 (A) at 159B-D.
8 AA Onderlinge Assuransie-Assosiasie Bpk v De Beer 1982 (2) SA 603 (A). Cooper and
Another v Merchant Trade Finance Ltd (474/97) [1999] ZASCA 97 (1 December 1999) para [7]
[98] It is also an objective fact that on 6 June 2022, the transformer was neither
pole-mounted overhead nor was it enclosed to ensure that it did not pose a risk of
harm to members of the public. Moreover, it was clear from the ev idence of both of
the Defendant’s witnesses that if any person comes into contact with any of the live
or electrically-charged parts of the transformer, it could result in injuries.
[99] It has also been proven that on 6 June 2022, the Plaintiff’s minor child was
initially seen uninjured playing with other children near the transformer, but shortly
after a loud sound was heard, she was found lying underneath the transformer,
unresponsive, with burn wounds sustained on both her forearms and hands. The
minor child was hospitalised for more than a month at Nelson Mandela Academic
Hospital where she was treated for burn wounds.
[100] It is from the abovementioned proven objective facts on which I may draw an
inference regarding whether the minor child sustained injuries as a result of
electricity transmitted or distributed by the transformer.
[101] The Defendant’s counsel argued that in order for the court to draw an
inference that the minor child was inj ured as a result of an electrocution or by
electricity transmitted by the transformer, it is essential that the court is provided with
evidence as to how the electrocution occurred. It was argued that if there is no direct
eyewitness who witnessed the ele ctrocution, expert evidence is required to explain
exactly how the electrocution occurred. If no such evidence is tendered, it was
argued, there will not be sufficient objective facts from which the court may draw an
inference that an electrocution occurred.
[102] The absence of evidence of how the electrocution occurred, according the
argument presented by the Defendant’s counsel, is a material deficiency in the
Plaintiff’s case.
[103] In support of this argument I was referred to the cases of Clan Syndicate v
[103] In support of this argument I was referred to the cases of Clan Syndicate v
Peattie and Others NNO and Briers N.O and Others v Salmon N.O and Others
which were both cases dealing with claims for damages caused by fires. 9 Neither of
9 Clan Syndicate v Peattie and Others NNO 1986 (2) 791 and Briers N.O and Others v Salmon
N.O and Others (A63/2022) [2023] ZAWCHC 26 (14 February 2023).
these cases assists the Defendant’s case. I will explain in more detail in the
paragraphs below.
[104] The m ajor distinguishing factor between this case and the two fire cases
referred to by the Defendant is that, in order to decide the issue of negligence, the
courts in the abovementioned cases had to establish the most probable cause of the
fires, i.e. how the fires started . In this matter, the Plaintiff has no onus to prove
negligence, she only has to prove that an electrocution occurred – not how it
occurred.
[105] In any event, the Defendant’s witnesses themselves provided the court with
a theory of how the elect rocution occurred in that it is clear from their own evidence
that people who come into contact with the live electrified parts of the transformer
may suffer electric shock or burns as a result of the electricity transmitted by the
transformer.
[106] I was ref erred to several other authorities by the Defendant’s counsel in
relation to the drawing of inferences in cases based on circumstantial evidence. In
particular, I was referred to R v Blom where it was held that the inference sought to
be drawn ought to be the only reasonable inference to be drawn from the proven
facts so as to exclude reasonable doubt whether the inference sought to be drawn is
correct.10 Accordingly, counsel argued that if the proven facts do not exclude all
other reasonable inferences, then there must be a doubt whether the inference
sought to be drawn is correct.
[107] The obvious flaw in this argument is that in criminal proceedings such as in
R v Blom , the onus is discharged if proof beyond reasonable doubt is adduced,
while in civil proceedings, the standard of proof is a balance of probabilities.
[108] In civil proceedings it is not necessary to prove that the inference sought to
be drawn must be the only reasonable inference, only that it is the most natural or
acceptable inference from amongst several conceivable ones.
acceptable inference from amongst several conceivable ones.
[109] In this matter, the Defendant has not provided the court with an alternative
probable version of its own. Instead, during the trial, the Defendant’s counsel put
10 R v Blom 1939 AD 188 at 202 – 203
certain propositions to the Plaintiff’s witnesses during cross e xamination in an
attempt to poke holes in the Plaintiff’s version. For instance, it was put to
Ntombefuthi that a two -year-old child cannot fit underneath the transformer and that
she herself would have been electrocuted had she pulled the injured minor child from
underneath the transformer. Many of these propositions were never confirmed by
the Defendant’s witnesses in their own evidence. In short, the Defendant’s defence
strategy was to attempt to cast doubt as to whether the electrocution occurred.
[110] In the circumstances, the two probable versions which I am required to
consider is either that an electrocution did occur or that it did not occur. Amongst
these two alternative probabilities, I have to decide which is the “ the more natural, or
plausible conclusion” based on all the objectively proven facts.
[111] Based on the proven facts, it is highly improbable that the minor child
sustained her injuries elsewhere or in any manner other than as a result of contact
with the electricity transmitted by the tran sformer. It is indeed the most natural and
acceptable inference from the proven facts. No other inference seems plausible.
[112] In the circumstances, based on all the objectively proven facts, I find that
there is a sufficient evidentiary basis for the court to conclude that the minor child
was indeed injured on 6 June 2022 as a result of an electrocution caused by
electricity transmitted or distributed by the Defendant by means of the transformer.
Negligence
[113] Since I have found that the minor child’s injuries were caused by the means
of electricity transmitted or distributed by the Defendant and since the Defendant has
admitted in its amended plea to being a licensee as contemplated in ERA, the onus
shifts to the Defendant to adduce credible evidence that the injury was not caused by
its negligence.
[114] The test for negligence was set out in Kruger v Coetzee as follows:
its negligence.
[114] The test for negligence was set out in Kruger v Coetzee as follows:
“For the purposes of liability culpa arises 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; and
(b) the defendant failed to take such steps.”11
[115] It has also been s tated in Lucas & Another v Umhlathuze Municipality
and Another regarding the test for negligence that:
“…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 whet her a reasonable person in the position of the municipality
would have acted differently.”12
[116] It is clear from the evidence that the Defendant’s officials knew or at least
ought to have known that the transformer posed a risk to persons who might come
into contact with it.
[117] The Defendant’s officials were also well aware of what the appropriate steps
were that could be taken in order to safeguard members of the public from being
injured by the transformer. They were aware that the transformer is safest if it is
either pole-mounted overhead high above the ground or enclosed or covered so that
members of the public will not come into contact with the live energised parts of the
transformer.
[118] I accordingly conclude that a diligens paterfamilias in the position of the
Defendant would have foreseen the reasonable possibility of a person being injured
as a direct consequence of coming into contact with the electricity transmitted by the
transformer and would have taken steps to guard against such occurrence.
11 Kruger v Coetzee 1966 (2) SA 428 (A) at 430 E-F.
12 Lucas & Another v Umhlathuze Municipality and Another (Case no. 785/2020) [2021] ZASCA
181 (17 December 2021) at para [9].
[119] The ne xt step of the enquiry into negligence is whether in the particular
circumstances, the Defendant took appropriate steps to avoid injury persons who
may come into contact with the transformer.
[120] The Defendant (as the party bearing the onus of disproving negl igence), had
to adduce clear evidence to show that it took such steps. For the reasons stated
below, I find that the Defendant did not take appropriate steps to guard against the
risk posed by the transformer.
[121] As set out above, the evidence of the Plainti ff’s witnesses that the
transformer depicted on Exhibit A was never enclosed by a fence was accepted and
the Defendant’s version that a fence was erected was rejected. Even if that finding
is wrong, no evidence was adduced that the Defendant conducted reg ular
inspections of the transformer to ensure that the fence (allegedly erected) remained
intact and that members of the public remained protected. Having erected the
enclosure, it would have been expected of a reasonable person in the position of the
Defendant to conduct periodic inspection and maintenance of the fence.
[122] Instead, it appears from the testimony of the Defendant’s witnesses that the
Defendant relied exclusively on the alleged erection of a fence around the
transformer more than three years prior to the incident and that it expected the fence
to withstand the elements and vandalism, without any additional safeguards or
maintenance in the years after erecting the fence. Even if I accepted the
Defendant’s evidence in this regard, the Defendant ’s conduct would still have fallen
short of the standard of care which could be expected of a dilligens paterfamilias.
[123] It is therefore found that no credible evidence was adduced to show that the
Defendant took appropriate steps to guard against the forese eable harm posed by
the transformer. The Defendant has therefore not discharged the onus cast on it and
is deemed negligent by virtue of Section 25 of ERA.
is deemed negligent by virtue of Section 25 of ERA.
Contributory negligence of the plaintiff
[124] There is also some blameworthiness on the Plaintiff’s part for the injuries
sustained by the minor child. A child of only two year’s old requires constant
supervision. The Plaintiff left her home and allowed the minor child to play with other
children in Thole Street when she knew that there was a transformer situated only 20
metres from her house which was not enclosed by a fence.
[125] Although she is also partly to blame for not supervising her minor child
adequately, her lack of supervision in the circumstances of this matter is not the sole
cause of the injurie s sustained by the minor child. The Defendant cannot therefore
escape liability on the basis of the Plaintiff’s contributory negligence.
[126] A defendant faced with a delictual claim may in the plea request
apportionment of damages in terms of Section 1 of t he Apportionment of Damages
Act based on the contributory negligence of the Plaintiff. By comparing the
respective degrees of negligence of the parties, the court can determine the extent to
which each party's negligence caused the injuries in question. In this regard,
Section 1(a) of the Act stipulates as follows:
“1. Apportionment of liability in case of contributory negligence. —(1) (a) Where any
person suffers damage which is caused partly by his own fault and partly by the fault of any
other person, a claim in respect of that damage shall not be defeated by reason of the fault
of the claimant but the damages recoverable in respect thereof shall be reduced by the court
to such extent as the court may deem just and equitable having regard to the degree in
which the claimant was at fault in relation to the damage.”
[127] The Plaintiff has not instituted the claim in her personal capacity but in her
representative capacity on behalf of the minor. The person whose “own fault” is
referred to in Section 1 of the Act is the person who actually suffered the loss – i.e. in
this particular case it is the minor child and not the Plaintiff.
[128] Therefore, unless I find negligence on the part of the minor child, I cannot
order an apportionment of the minor child’s cl aim in terms of Section 1 of the Act on
the basis of the Plaintiff’s negligence as pleaded by the Defendant.
the basis of the Plaintiff’s negligence as pleaded by the Defendant.
[129] In South British Insurance Co. Ltd. v Smit , reference was made to the
decision in De Bruyn, N.O. v Minister van Vervoer, in which it was held that
“a child of under seven years is in law incapable of contributory negligence and that,
consequently, for the purposes of apportioning damages, no fault or ‘skuld’ can be attributed
to such child”.13
[130] The correctness of that decision was later accepted in Van Oudtshoorn v
Northern Assurance Co. Ltd.14
[131] Since the minor child was only two years old at the time of the incident, she
was doli et culpae incapax and I cannot hold that she was negligent. Accordingly,
there can be no apportionment in terms of Section 1 of the Act.
The Order
[132] In the premises, the Plaintiff succeeds on the merits of her claim against
Defendant and the following order is issued:
(a) The Defendant shall pay the Plaintiff’s proven or agreed damages arising
from the electrocution of her minor child, A[...] M[...] T[...], on 6 June 2022.
(b) The Defendant shall pay the Plaintiff’s taxed costs of suit in respect of the
separated proceedings on liability on a party and party basis on Scale C of the tariff
of fees applicable to proceedings in the High Court.
________________________
APPELS AJ
ACTING JUDGE OF THE HIGH COURT
Heard: 29 July 2024 – 30 July 2024 and 23 August 2024
Delivered: 8 October 2024
APPEARANCES:
13 South British Insurance Co. Ltd. v. Smit 1962 (3) SA 826 (AD) supra at p. 836; De Bruyn,
N.O. v. Minister van Vervoer, 1960 (3) S.A. 820 (O).
14 Van Oudtshoorn v. Northern Assurance Co. Ltd., 1963 (2) S.A. 642 (A.D.) at p. 648H.
For the Plaintiff: Mr B Maswazi
Instructed by: MM TSHOZI INCORPORATED
Plaintiff’s Attorneys
Section 2, Nettleton Court
No. 64 Stanford Terrace
MTHATHA
For the Defendant: Ms L. Seegels -Ncube
Instructed by: CLYDE & CO INC
No. 53 Katherine Street
Wierda Valley
Sandton
C/o SMITH TABATA ATTORNEYS
No. 34 Stanford Terrace
MTHATHA