SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CASE NO: 2865/2022
In the matter between:
B[...] M[...] obo
K[...] M[...] First plaintiff
A[...] M[...] Second plaintiff
S[...] M[...] Third plaintiff
and
ESKOM HOLDINGS LIMITED Defendant
________________________________________________________________
JUDGMENT
_______________________________________________________________
RUSI J
[1] Section 25 of the Electricity Regulation Act 4 of 2006 (ERA) provides for
the liability of a licensee for damage or injury caused by induction or
electrolysis or in any other manner by means of electricity generated,
transmitted, or distributed by a licensee. In this regard, the section provides that
such damage or injury is deemed to have been caused by the negligence of the
licensee, unless there is credible evidence to the contrary.
[2] On 27 July 2019 in the morning, Ms B[...] M[...]’s children, [KM] who
was then 11 months old, the second and third plaintiffs sustained burn wounds
allegedly caused by electric shock. The incident took place at their home in
Bucula locality, Ngqeleni, Eastern Cape. When the electrocution occurred, the
second and third plaintiffs were preparing to shave their heads using electric
hair clippers. At the time, the first plaintiff, [KM] had been holding onto the
third plaintiff’s knees. Resulting from the incident, [KM], the second and third
plaintiffs were a dmitted at St Barnabas and iSilimela Hospitals for medical
treatment.
[3] It became common cause between the parties that the defendant is the
licensee that section 25 of ERA envisages and that it supplied Bucula locality
with electricity as from June 2019.
[4] Subsequent to the incident, Ms M[...] in personal and representative
capacity instituted an action against the defendant for the injury sustained by
[KM], the second and third plaintiffs. She holds the defendant liable for
damages under several heads in the sum of R14 670 000.00 (fourteen million
six hundred and seventy thousand rand), of which the amount of R750 000.00 is
her personal claim for general damages.
The pleadings
[5] For reasons that will become clearer during the course of this judgment, it
is necessary to reproduce the relevant portion of the plaintiff’s amended
particulars of claim dated 03 June 2022. Apart from pleading the provisions of
section 25 which I have quoted above as the basis of their claim, the plaintiffs
further pleaded, in part, as follows:
‘1. . .
9. In this case there is no credible evidence that the damage or injury to the plaintiffs has
not been caused by the defendant’s negligence.
9.1 On the 26th July 2019, after seeing the fallen poles, the community members gathered
including the plaintiff, the Chief and ward councillor and the members of the
defendant were telephonically called and advised about the fallen poles.
9.2 The members of the Defendant were further advised by the community members to
ensure that the electricity line must not be energized until they come and fix the fallen
lines.
9.3 The members of the defendant failed to come and attend to the electricity line, as a
result of its failure, on the 27 th July 2019 the plaintiffs were electrocuted by energized
electricity lines.
[6] The plaintiffs rely on several grounds of the alleged negligence of the
defendant, including that the defendant:
(a) failed to ensure that its electricity wires did not pose a danger to the members of the
public;
(b) failed to protect homestead owners such as the plaintiffs and K[...] in this incident;
(c) failed to provide precautionary measures to avoid injuries to members of the public,
including plaintiffs and K[...];
(d) failed to act with care and remove the source of danger to members of the public;
(e) failed to avoid high voltage electricity from coming into contact with the second
plaintiff, third plaintiff and K[...] when by exercising reasonable care it could have
and should have done so; and
(f) failed to warn or alert the members of the public about the danger posed by the
electricity pole and uninsulated electricity wires.
[7] In its amended plea dated 31 July 2023, the defendant denied liability for
the claim. Principally, it denied prior knowledge of the fallen poles and asserted
that the said poles were the result of an act of vandalism. The material facts that
the defendant pleaded are as follows:
(a) The defendant can only remove a cause of danger when it has gained knowledge of its
existence, during reports received from members of the public who report any
identified damage seen on the defendant’s infrastructure or during the performance of
routine inspections on its infrastructure when such routine inspections are due;
(b) At the time of the incidents that occurred on 26 and 27 July 2019, the defendant had
not obtained such knowledge in that no report was made to it by members of the
public from Bucula or anywhere; and the defendant’s infrastructure installed at
Bucula Location was not subject to inspection as no inspection was due on that
infrastructure at the time.
(c) The defendant does not plan for sabotage and relies solely on the members of the
community affected by such activities to report them to the defendant to enable the
defendant to set in motion its response to such activities in accordance with the
prescribed timelines.
(d) Sabotage is a criminal offence, and defendant has no duty to prevent and/or
investigate sabotage activities as such duties fall within the mandate of the South
African Police Service in terms of the Constitution Act 108 of 1996.
(e) The defendant had no legal duty to prevent sabotage. The injuries suffered by the
plaintiffs was caused by the sabotage activities committed by saboteurs against the
defendant’s infrastructure on 26 July 2019, which caused the transformer pole to
collapse and the MV line to touch the LV line transmitting electricity to the plaintiffs’
homestead on 27 July 2019, and not as a result of the defendant’s action or omission
as alleged by the plaintiffs.
(f) When the electrocution incident was reported to the defendant on 27 July 2019, the
defendant responded within the prescribed response timelines.
[8] It must be stated at this earliest stage that the plaintiff’s amended
particulars of claim are not a model of the eloquence and precision that Uniform
particulars of claim are not a model of the eloquence and precision that Uniform
Rule 18(4) requires by providing that: ‘Every pleading shall contain a clear and
concise statement of the material facts upon which the pleader relies for his or
her claim, defence or answer to any pleading, as the case may be, with sufficient
particularity to enable the opposite party to reply thereto.’ This Rule requires
that a concise statement of the material facts ( facta probanda) upon which the
plaintiff relies for his/her claim must be pleaded. Facts relevant to prove the
material facts ( facta probantia) accordingly have no place in the pleadings. No
objection was, however, raised by the defendant in terms of the relevant Rules
of Court.
[9] The caution against laxity in the observance of the Rules can never be
overstated. Be that as it may, despite the inelegant manner in which the
plaintiffs’ case has been pleaded, I am satisfied that the hearing of the matter
proceeded on the issues as framed and based on the material facts pleaded by
the parties. Therefore, no prejudice was occasioned to the defendant.
The trial
[10] At the hearing of the matter an application was made for the separation of
the merits of the claim from quantum as envisaged in Uniform Rule 33(4). That
application was accordingly granted.
The issues
[11] As regards the merits of the claim, the parties formulated the issues for
this Court’s determination as follows:
(i) Whether the defendant is liable for the plaintiff’s damages.
(ii) Whether the member(s) of the community contacted the defendant on 26 July 2019
and reported a fallen electric pole in Bucula locality, Ngqeleni.
(iii) Whether or not the plaintiff had a duty to inform defendant on 26 and 27 July 2019
about the aforesaid fallen poles.
(iv) Whether, on 26 and 27 July 2019, as a result of the defendant failing to attend to the
aforementioned fallen poles, [KM], the second and third plaintiffs were electrocuted
and sustained bodily injuries as well as emotional shock and trauma, following the
energization of medium voltage poles/lines by the defendant.
(v) Whether there was negligence on the part of the defendant in failing to ensure that the
fallen electricity pole/line was not energized so that any hazard to the plaintiffs or the
public at large may be prevented.
(vi) Whether the alleged negligence on the part of the defendant caused the bodily injury,
emotional shock and trauma sustained by the plaintiffs, which, by the exercise of
reasonable professional care and skill the defendant could and should have prevented.
[12] Notwithstanding the above formulation of the issues, during the hearing,
the parties still ventilated the separate ground of negligence in the form of
failure to warn the community of Bucula locality regarding the dangers of
electricity by conducting safety education.
[13] For ease of comprehension, it bears mentioning that at the trial of this
matter, the parties made common cause of the fact that the electric poles
referred to in the pleadings fell not on 26 July 2019 but on 27 July 2019. On 26
July 2019, they had slanted. Hence, the poles shall henceforth be referred to as
the ‘slanted poles’, ‘poles’ or ‘transmission poles’ as the context may require.
The incidence of the onus
[14] Once the plaintiffs prove the electricity related harm, the defendant’s
negligence is presumed in terms of section 25 of ERA. The corollary is that the
defendant must present credible evidence establishing that the harm suffered by
the plaintiffs was not caused by its negligence. Since the plaintiffs raise the
separate factual issue that the slanted poles were reported to the defendant on 26
July 2019, as the parties alleging this fact, they bear the burden of proving on a
balance of probabilities that the report was made.
[15] The plaintiffs were the first to adduce evidence. They called three lay
witnesses, namely, Mr Siphiwe Siyalo, a member of the community of Bucula
locality, Ms M[...] in her personal capacity and as the mother of the first
plaintiff, and the third plaintiff, Mr S[...] M[...].
[16] The defendant adduced the evidence of seven witnesses, namely, Mr
Alvir April; Ms Olga Saptoe, Mr Vuyani Mafani, Mr Mlandeli George, Ms
Lauren Dean, Mr Simthembile Gqadushe and Mr Sibusiso Santy. These are all
defendant’s employees who, as their evidence will evince, undertook different
roles in connection with this matter. In the interest of brevity, all the witnesses
shall individually be referred to by their titles and last names.
[17] Other evidentiary matter relied upon during trial included documents
discovered inter partes. Those documents, which were predominantly referred to
during the trial of the matter, are the defendant’s customer call logs, the reports
in relation to the preliminary and final investigations that the defendant’s
employees undertook after the electrocution incident. The documents were
admitted into evidence on the customary basis that there are what they purport
to be without the admission of their correctness. A summary of the evidence all
the witnesses called during the trial proceedings is adumbrated below.
The plaintiff’ s evidence
(a) Mr Siyalo
[18] Mr Siyalo’s testimony may conveniently be summarized as follows: he is
a member of the community of Bucula locality and is self-employed. During the
hearing of this matter, it emerged that he is a builder. On 25 July 2019 his
locality experienced power outage. In the morning of 26 July 2019, it came to
his attention that there were two slanted poles not far from the home of the
plaintiffs. This information came from a local scholar transporter. At the advent
of this report the community, including Ms M[...], gathered near the scene of the
slanted poles. On arrival, they saw the condition of the poles and understood
that they presented a life hazard. The poles were close to falling to the ground.
[19] At the time this occurred, the community of Bucula locality had only had
electricity for a month. The community members that had gathered at the scene
of the slanted poles nominated him to make a telephone call to the defendant to
report the fault. Although he was to use his mobile device to make the call, he
was offered by one of the community members a Telkom SIM card which was
recommended as being the most cost effective in voice call charges. He
accordingly removed his own SIM card and inserted the Telk om one in his
mobile phone, whereupon he made the phone call to the defendant.
[20] The person who answered the call at the defendant’s offices requested
him to provide the transformer number from the poles. He was also requested to
provide the pole number in order for the defendant’s officials to identify the
precise locality of the fault. This came to pass and the defendant’s official
indicated that it would take less than a day to attend to the problem. He
requested the defendant’s employee to block the energy supply to the locality
while the transmission poles were in the slanted posit ion. He understood the
undertaking to attend to the problem in no later than a day to mean that the
defendant’s officials would promptly arrive at Bucula to attend to the fault. He
conveyed the report to the rest of the community members gathered at the
scene, after which they all dispersed.
[21] By the end of the day on 26 July 2019, the defendant’s officials had not
arrived. On 27 July 2019 while he was going about his work in the locality, he
heard that an accident had occurred at Ms M[...]’s home where young children
were electrocuted. He left work and proceeded to Ms M[...]’s home where he
remained until dusk. When he left Ms M[...]’s home, the defendant’s employees
had not arrived.
[22] Asked if the local chief and ward councillor were among the members of
the community that had gathered as the scene of the slanted poles on 26 July
2019, Mr Siyalo testified that they were not. He denied the defendant’s version
that it is the local chief and ward councillor who were designated to report the
slanted poles and not him. Mr Siyalo went further and testified that the
defendant called a meeting with the community on 20 August 2019 and in that
meeting, it rendered safety education concerning the use of electricity. An
attendance register was compiled on which each community member present at
the meeting provided their contact details. He prov ided his personal mobile
phone number 0[…].
[23] Mr Siyalo testified during his cross -examination by Mr Petersen, counsel
for the defendant, that when the community gathered at the scene of the slanted
poles on 26 July 2019, he made observations that the poles appeared as though
they had been damaged by someone. It was suggested to him by Mr Petersen
that the poles were vandalized by unidentified community members.
[24] A considerable amount of time was spent by Mr Petersen in cross -
examining Mr Siyalo regarding what he perceived as external and internal
contradictions in his testimony. Those related to Mr Siyalo’s testimony
regarding the absence of the local chief and ward councillor at the scene of the
slanted poles and the identity of the person who was assigned to phone the
defendant, on the one hand; and on the other, the version to which the plaintiff
committed in its pleadings and witness summaries of evidence contained in the
parties’ joint practice notes. In this rega rd, Mr Petersen confronted Mr Siyalo
with the statement of his own summary of evidence, that of Ms M[...], and what
the pleadings entail on those aspects.
[25] In the relevant portion of the parties’ joint practice note outlining the
summary of evidence of the plaintiffs’ witnesses the drafter provided the
following summary of Mr Siyalo’s evidence:
‘This witness will testify to the effect that on 26 July 2019 at Bucula location, the community
gathered to discuss the issue of electricity outage and electricity pole that had fallen at
Bucula. He will testify that during the gathering, he personally made a phone call to the
members of the defendant to come and inspect the pole that had fallen. He also requested
members of the defendant to ensure that the electricity must not be restored until the
members of the defendant had come to inspect the pole. . .’
[26] Ms M[...]’s summary of evidence regarding the gathering of the
community members and the reporting of the slanted poles is encapsulated as
follows:
‘. . . She will testify that the local community members decided to go report the issue to the
local chief and during this time the members of the defendant were telephonically phoned by
Mr Siyalo. Mr Siyalo was acting on the instructions of the community members.’
[27] Reference was made to another statement of Mr Siyalo’s summary of
evidence which the plaintiffs’ legal representatives filed of record in which the
following is recorded:
‘. . . On 26 July 2019 at Bucula location, some community members gathered after there was
an information that an electricity in the area was not working due to an electricity pole that
had fallen down. In this gathering where B[...] M[...] and our ward councillor Mr Sifici were
among the people who attended, it was agreed that people from Eskom and the local Chief
had to be phoned and advised of the situation. On the same day, 26 July 2019, during the
gathering, I phoned people from Eskom, and I advised them that an electricity pole in Bucula
has fallen down and the electricity is not working. . . We then went to report the incident to
the local Chief as the person who rules over our community. . .’
[28] It was further suggested to Mr Siyalo that it was a fabrication that a call
was made to the defendant on 26 July 2019 reporting the slanted poles. In this
was made to the defendant on 26 July 2019 reporting the slanted poles. In this
regard, it was put to him that the defendant does not have any record of his
personal mobile number and the transformer number connected to a call made
to it on 26 July 2019; and no call was logged for the fault in question.
[29] The defendant’s version as put to Mr Siyalo was further, that, the only
report that the defendant received was on the day electrocution incident. Its
officials arrived at the plaintiff’s homestead on 27 July 2019 and subsequently
investigated the scene where the transmission poles had and the transformer
broken.
[30] To this version, Mr Siyalo responded that he was unaware that the
defendant would generate the record of the call and therefore he had no reason
to fabricate his testimony. It was further postulated that since the transmission
poles appeared to have been vandalized, and the defendant is not liable for the
damages suffered by the plaintiffs arising out of their injury.
(b) Ms B[...] M[...]
[31] Ms M[...] largely confirmed the testimony of Mr Siyalo regarding the
power outage that occurred in Bucula on 25 July 2019, and how it came about
that, on 26 July 2019, the community gathered at the scene of the slanted poles.
[32] According to Ms M[...], when Mr Siyalo made the phone call to the
defendant it was at the special request of the congregated community members.
He stepped aside in order to make the call. The community members had
emphasized during their discussions about the incident that a request should be
made to the defendant not to restore the supply of electricity to their locality
while the poles were in the slanted position lest that posed a danger to them. Mr
Siyalo came back to report to the gathering that he had phoned the defendant ,
and its employees undertook to attend to the problem. The reason why they
resolved to report the fault to the defendant was that they feared that the
electricity might pose a danger to them.
[33] Ms M[...] went on to state that the electricity supply was restored around
18h00 on 26 July 2019. In the morning on 27 July 2019, Mr M[...] was
preparing to shave his younger brother’s head using electric hair clippers. He
had been sitting on a chair holding the hair clippers while his younger brother
plugged them in the socket. When this happened, [KM] was holding Mr M[...]
on his knees. She suddenly heard a sound and saw a flame coming from the
socket. At that same time, [KM] and the second plaintiff had fallen on the floor.
Mr M[...] was still seated on the chair still holding the hair clippers. All of them
were electrocuted. They were subsequently conveyed to St Barnabas Hospital
where they received medical treatment for burn wounds and later transferred to
iSilimela Hospital further treatment.
[34] The contents of the defendant’s final investigation report were put to Ms
M[...] from which it appeared that she confirmed knowledge of the fact that the
transmission poles were vandalized. Ms M[...] denied that she told the
defendant’s investigation committee that transmission poles were vandalized.
[35] Ms M[...] was extensively cross -examined by defendant’s counsel on the
following aspects: the fact that on her version, when her sons used the hair
clippers on 27 July 2019, the community of Bucula, including herself, knew that
there was danger entailed in the use of electricity. She explained, in response,
that, the plaintiffs would not have known of the circumstances in which the
available power supply would be unsafe to use. She further stated that since the
defendant is the one who supplied electricity, it was t he one with the in -depth
knowledge of the technical mechanisms of the electricity. To quote her
verbatim: “one that would be expected to care for the electricity would be the
one that knows about the electricity.”
[36] It was further suggested that she and Mr Siyalo colluded in fabricating
their versions that the slanted poles were reported to the defendant on 26 July
2019 by Mr Siyalo. Counsel embarked on the same exercise has he did with Mr
Siyalo, confronting Ms M[...] with the contents of the afore quoted excerpts of
the parties’ statements of witness summaries.
[37] Nothwithstanding the self -explanatory content of the afore quoted
portions of the witnesses’ summaries of evidence, counsel postulated a number
of hypotheses. Their effect was, in summary that, if Bucula’s local leaders were
among the community that had gathered at the scene of the slanted poles, they
are the ones who would have reported the matter to the defendant. Therefore, so
it was suggested, it is improbable that Mr Siyalo was the one who reported the
matter to the defendant. This proposition was deni ed by Ms M[...] who
maintained that the report about the slanted poles was made to the defendant on
26 July 2019 by Mr Siyalo.
[38] Other than this, the latter part of Ms M[...] cross-examination by counsel,
related to the defendant’s fault reporting call logs from the date of 27 July 2019
until July 2023. The proposition put to Ms M[...] in that regard was that these
records bolster the contention that it could not have been Mr Siyalo who phoned
the defendant but a person that the community designated to make such reports.
That person, according to the defendant, appeared to be a certain Mr Lulamile
Qaba. Mr Petersen acknowledged, however, that the calls identified as having
consistently been made by Mr Qaba specifically related to meter box faults. To
this, Ms M[...] responded that Mr Qaba was the person who made the very first
call to the defendant concerning a fault in her meter box. For reasons unknown
to her since then, the defendant registered Mr Qaba’s contact numbers against
her meter box number.
[39] To Ms M[...] it was further suggested that her young children were
electrocuted after the electricity was restored on 26 July 2019 without the
involvement of the defendant. Furthermore, that, it was expected of the
plaintiffs to know that although the poles were in the slanted position, they still
carried electric current and, therefore, it was unsafe to use the restored electric
supply in those circumstances.
[40] Counsel later put to Ms M[...] that according to the defendant, a report
that was made on 24 July 2019 at 11h20 relating to a jumper fault ‘in the same
area’ (it was later indicated that the fault concerned was in the Masameni area)
but unrelated to the slanted poles at the centre of these proceedings. Further,
that, according to the defendant, the said Masameni fault was corrected by its
employees on 26 July 2019, and the electricity supply in the Masameni area was
restored around 18h25 on that same day.
[41] Mr Petersen had great difficulty indicating with certainty whether or not
the Masameni fault was on the same line as the slanted poles. In his cross -
examination of Ms M[...] on this aspect, he oscillated between the fact that the
Masameni fault ‘was unrelated to the slanted poles’, on the one had; and, on the
other hand, the fact that ‘the Masameni fault and slanted poles were in the same
line belonging to the defendant’. In the end, he generally put to the witness that
‘the Masameni fault which was reported to the defendant was in relation to a
jumper in the same area’.
(c) Mr M[...]
[42] It was Mr M[...]’s evidence that there had been power outage in the
Bucula locality on 25 July 2019. It was brought to his mother’s attention that
two transmission poles located some distance from his home had fallen down.
He did not directly see the fallen poles. The electricity supply was restored later
on 26 July 2019. Mr M[...] who was 18 years at the time of the electrocution
incident narrated that the incident took place when his younger brother who is
the second plaintiff went to plug their hair clippers in the adaptor. He was
holding the hair clippers. As his brother plugged the clippers in the adaptor,
there was a loud bang and he, his younger brother and [KM] who had been
holding his knees at the time fell on the floor. He lost consciousness and
regained it in hospital. He sustained burn wounds on several areas of his body
regained it in hospital. He sustained burn wounds on several areas of his body
including his left hand from which his thumb was amputated.
[43] Mr Petersen pointed to the contradiction in the Mr M[...]’s evidence
regarding the time at which he observed that the electricity supply had been
restored. When cross -examined further regarding the time of restoration of the
electricity supply, Mr M[...] testified that he only noticed the restoration on 27
July 2019 in the morning. If it was restored the night before, he did not see it as
his room has no light bulb. This concluded the case for the plaintiffs. At the
close of the plaintiff’s case the defendant adduced evidence of the above named
seven witnesses. Below is the summary of their evidence.
The case for the defendant
(a) Ms Saptoe
[44] Ms Saptoe testified as the defendant’s East London call centre manager
who has been in the defendant’s employ for 30 years. Her evidence pertained to
the search process that she undertook at the request of the defendant’s legal
representatives in tracing the alleged report of the slanted poles by Mr Siyalo on
26 July 2019. According to Ms Saptoe when a customer phones the call centre,
apart from his/her names, he/she would be requested to provide the transformer
or meter number, his/her contact numbers amon g other identifiers for the
defendant’s record purposes. Once the customer’s details have been registered,
he/she would be issued with a reference number for the phone call. After the
customer provides the details of the fault, a call would be logged, and the
complaint escalated to the technical department so that technicians may be
despatched to the location of the fault. The defendant regards a faulty pole as
one of the emergencies.
[45] It was Ms Saptoe’s evidence further that she used a multi -faceted system
search to trace the disputed phone call of 26 July 2019. In the first facet, she
used Ms Siyalo’s name and surname, without any other identifiers. There were
no results for the call of 26 July 2019. On a different screen she used his
personal mobile number 0[...] without his names. The search in which Mr
Siyalo’s mobile number was used is not depicted on the documents before court.
Ms Saptoe explained that failure to document this latter search was an oversight
on her part. On another pane she used the case identification or reference
number as provided to her by the defendant’s legal representatives. That
reference number relates to the undisputed call of 27 July 2019 which was made
by Mr Qaba after the electrocution incident. This search too yielded no results
for the phone call of 26 July 2019.
[46] Ms Saptoe went on to state that if Mr Siyalo made the phone call and
provided the transformer number, a work order request would have been logged
against the transformer number, and he would have received a reference number
for the call. As the defendant’s employees they would have been able to search
the system against a cell phone number, his name and transformer number.
[47] I put questions to Ms Saptoe to elucidate certain aspects of her search, in
particular, whether she used the transformer number to conduct the search. She
testified that she did not since the defendant’s legal representatives did not
furnish her with the transformer number.
(b) Mr April
[48] Mr April testified as the defendant’s middle manager in its East London
offices. His oversight duties extend to Mthatha Zone which includes Bucula and
Masameni localities. He holds a Bachelor’s Degree in Engineering from the
University of Stellenbosch and a Certificate of Competence from the
Department of Labour. He was certified a competent person in terms of the
General Machinery Regulations of the Occupational Health as Safety Act. 1 His
duties include the corrective and protective maintenance of the defendant’s
infrastructure, such as correcting and preventing electric faults. Electric faults
1 Act 85 of 1993.
include broken electric poles, jumpers and conductors which have made contact
with the ground. These are treated as emergencies.
[49] Mr April diligently gave extensive technical evidence pertaining to the
architecture of the electric infrastructure by means of which the defendant
supplies electricity in the Mthatha zone, in particular, in Bucula and Masameni.
He furthermore testified regarding the investigation meeting that was held with
the community of Bucula on 07 August 2019 subsequent to the electrocution
incident. The person interviewed in that meeting was Ms M[...] who was in the
company of Mr Siyalo. Other members of the investigation committee present
and interviewing Ms M[...] included Mr Santy. Mr Gqadushe was one of the
defendant’s witnesses. The interview took place in English. Since Ms M[...] is
isiXhosa speaking, interpretation was provided to her by one of the committee
members although he could not specify who that was.
[50] The aspects of Mr April’s testimony which are material for the purposes
of the present case may conveniently be summarized as follows: the defendant’s
electricity lines often traverse hundreds of kilometres. Several areas draw
electricity supply from the same line. Bucula and Masameni localities are
among the villages which are supplied by the same line. At the take -off of the
electric supply, Masameni and Bucula share a single circuit breaker. The circuit
breaker (breaker) in simple terms is a form of defe nce or protection which,
when an electric fault occurs, operates as a buffer by tripping and switching the
electric supply off for the affected line.
[51] When a jumper or conductor breaks and makes contact with the ground,
the first line of defence or protection is the fuse which blows and cuts the
electricity supply. If the particular line does not have a fuse, the breaker will
constitute the only available protection. The breaker also serves as a modem
with communicates data to the defendant’s East London office regarding the
power failure. The receipt of such data would impel the immediate despatch of
technicians to attend to the fault.
[52] When the fault takes the form of a broken electric pole without
conductors making contact with the ground, the defendant depends on the
consumers reporting it as there would be no other way of detecting the fault. It
is expected of customers to report such faults.
[53] On 24 July 2019 a report was received by the defendant of a broken
jumper in Masameni. When that jumper made contact with the ground, the
breaker tripped. This resulted in the power outage in the affected villages
including Bucula. Although the Masameni fault was reported on 24 July 2019, it
was only corrected on 26 July 2019. It was Mr April’s surmise in this regard,
without presenting any work ticket records and call logs, that the expectation
would have been that the technical personnel were despatched t o first identify
the nature and extent of the fault and thereafter make arrangements for its
correction. The defendant’s members attended to the fault and corrected it on 26
July 2019.
[54] According to Mr April, the electricity supply was restored to the affected
villages including Bucula on 26 July 2019 at approximately 18h25. The
defendant was never made aware of broken transmission poles in Bucula. Had
that report been made, technicians would have been despatched to attend to the
fault as a matter of urgency.
[55] Mr April’s analysis of the cause of the electrocution was that at the same
time that Ms M[...]’s children plugged the hair clippers in the socket, the
vandalized poles fell and the medium voltage jumper broke away from the
transformer and made contact with the low voltage bundle conductor. This
resulted in a surge of volts being transmitted to the Ms M[...]’s homestead.
When the contact between the said conductors occurred, the fuse took effect as
the line of defence. Had the fuse not operated as designed, the child who was
holding the hair clippers might have died. The electrocution incident was ‘one
in a million’ and unforeseeable in the circumstances.
[56] When a fault is telephonically reported, the reporter (customer) is issued
with a reference number and there would be a record of the call. Since in the
present case no reference number was issued, it is unlikely that the phone call
was made to the defendant. Apart from this, Mr April testified that acts of
vandalism against the defendant’s infrastructure were not uncommon in certain
areas of the Mthatha zone. They are impelled by the community rivalry which is
actuated by disgruntlement with the provision of electricity for certain villages
and not others.
[57] Mr April went on to state that Mr Gqadushe is the one who visited the
scene after the electrocution incident and whose observations formed part of the
defendant’s preliminary investigation report. In the defendant’s final
investigation report, it is recorded that Ms M[...] confirmed to the investigating
committee that the broken poles in Bucula had been vandalized by unidentified
community members and that the matter was subsequently investigated by the
local chief and the South African Police Service (SAPS). The report goes on to
suggest that Ms M[...] informed the committee that the chief and ward
councillor where among the persons who had gathered at the scene of the
slanted poles and whom the community members assigned to phone the
defendant to report the fault.
[58] The outcomes of the final investigation are recorded in the report as
follows: the transformer post was vandalized by members of the public. The
medium voltage jumper made contact with the low voltage bundle conductor.
Ms M[...]’s children were electrocuted. The white phase fuse was blown at the
take-off and the whole village was without electricity supply.
[59] Mr April’s evidence pertaining to the investigation report was challenged
in cross-examination by Mr Rili, counsel for the plaintiff. Counsel suggested to
Mr April that there was no evidence of appropriate interpretation of their
interaction during the investigation for Ms M[...]’s benefit. In response, Mr
April explained that the interpretation of the interaction was adequate and it
appropriately encapsulated what was conveyed to them by Ms M[...] and vice
versa. He could not recall who among the committee members performed the
interpretation task.
[60] Asked whether there were any safety education meetings held with the
Bucula community about dangers of electricity before their locality was
energized, Mr April merely made a general statement that it is highly unlikely
that the defendant would not provide such education. He had difficulty pointing
to official records of such educational meetings. It became common cause that
the defendant held a safety education meeting with the Bucula community after
the electrocution incident. This was on 20 August 2019. In this regards, Mr
April stated that this was pursuant to a routine recommendation that the
investigation committee would make in such circumstances.
[61] Upon questions from the court, Mr April elucidated that the reason for the
power outage in Bucula until 18h00 on 26 July 2019 was the Masameni jumper
fault which occurred on 24 July 2019. When the defendant restored the
electricity supply in Masameni, it was automatically restored in Bucula. There
was no indication from the defendant’s records that the Masameni jumper had
been vandalized.
(c) Mr George
[62] Mr George is a supervisor at the defendant’s call centre in East London.
Ms Saptoe is his line manager. His duties entail the supervision of the call
centre agents. He utilises a performance tracking tool called ‘Total view’. The
tool allows him access to the call centre agents’ daily performance record.
Through the tool, he is in a position to view the daily attendance of call centre
agents and perform an appraisal of their performance. The essence of Mr
George’s testimony was regarding the system that the defendant uses to record
and communicate data received from its customers relating to faults, as well as
the search he performed for the disputed report of Mr Siyalo.
[63] Mr George explained that the defendant uses the ‘Kana’ and ‘Maximo’
systems. He distinguished between the defendant’s registered, unidentified and
non-customers. In this regard it was his evidence that the two data systems
make provision for the recording and generation of information received from
each of these types of customers. The information required from an unidentified
customer entails their personal details and phone numbers. He explained the
entries that appeared on the record of the call centre s earch for the period
spanning 01 July 2019 to 31 August 2019. The search was conducted as being
that of an unidentified customer. It was performed using the personal mobile
number he was provided with. He had no details of the owner of the mobile
number. It is common cause that that personal mobile number belongs to Mr
Siyalo. There were no results found for the phone call that was made on 26 July
2019 using that mobile number.
[64] Among the search results is the undisputed report that was made on 27
July 2019 in relation to the electrocution incident. The information given to the
call centre agent on 27 July 2019 was pole number ‘KPSF026/4’, the metre
number and cell phone number. The description of the incident encapsulates
what is now common cause regarding the fallen poles after the electrocution
incident.
(d) Mr Mafani
[65] Mr Mafani testified as the defendant’s customer relations area manager.
His evidence concerned the safety education that the defendant undertakes
whenever it installs infrastructure in a given area. That education relates to the
dangers of coming into contact with electric poles and low hanging and
overhead electric cables, use of broken cables and appliances. Regarding the
present case, Mr Mafani adduced evidence of the safety education meeting that
was held at Bucula locality on 20 August 2019 after the e lectrocution incident.
He conceded that he did not have in his possession evidence of any safety
education which may have been held in Bucula before the electrocution
incident.
(e) Ms Dean
[66] Ms Dean testified that she is the defendant’s data officer. She is
conversant with the Maximo system which is the defendant’s asset management
tool. She deals with all data received from the defendant’s call centre. Ms Dean
adduced evidence of the record of the data transmitted to her section by the call
center for the purposes of dispatching technicians. She does not verify the
correctness of the information received.
[67] In connection with the present case, the data received from the call centre
related to the call log pertaining to pole number ‘KPS026/4’ for the period
spanning 01 July 2019 to October 2020. She performed an extensive search
using a coding tool referred to as ‘Customer Structured Query Language.’ In
this regard, she extracted the information from the ticket table received from the
customer call center. The ticket table commences on 15 July 2019.
[68] Ms Dean went on to explain that using ‘KPSF026’ as a filter, she
prompted the Maximo system to perform a search for the period “greater than or
equal to 01 to 07 July 2019”. She obtained results for the period of 01 July 2019
to 08 July 2023. She further filtered the search across various fields using the
same KPSF026 number. Those fields were ‘the standard label,’ ‘pole number,’
‘work description’ , ‘ transformer name’ and ‘fault.’ The number used as the
filter did not have to be precise. When she searched in relation to ‘fault,’ the
number ‘KPSF206’ emerged.
[69] For the period of July 2019 to July 2020, she drew the first 3 work orders
which were chronologically arranged in accordance to the date the on which the
work order was made. In a separate column the date on which the customer
phoned the defendant is recorded. The first work order was made on 15 July
2019, the second on 27 July 2019 and the third on 9 January 2020. She found
two reports for pole number KPSF026, the one dated 15 July 2019 and the other
dated 27 July 2019. These would be the dates on which th e customer made the
phone call to the defendant. Ms Dean further explained that she did not include
other columns in the spreadsheet presented to court. There is no idea, then, of
what those columns entailed. Ms Dean’s evidence regarding the work order of
27 July 2019 mirrors the common cause evidence of the preceding witnesses of
the defendant.
[70] The results of Ms Deans search appropriately summarized from the
documents she referred this Court to are as follows:
(a) On 15 July 2019, a report was made by an individual identified as
‘Celiwe’ with contact numbers 078 [. . .] 455. The ‘raw description of her
location’ is KPSF026. The meter number concerned is 372 [. . .] 916.
(b) On 27 July 2019, an electrocution incident was reported. The ‘raw
description of the location’ of the reporter of incident is KPSF025. Two
persons are recorded as having reported the incident, namely, Mr
Maqubela and Mr Qaba. Mr Qaba’s contact number is recorded as 073 [. .
.] 3106. The meter number used is that of Ms M[...], namely, 372 [. . .]
322. Once again ‘KPSF026’ is recorded as the locator of the direction of
the fault.
(c) On 09 January 2020, a report was made by a person named ‘Zodidi’,
with contact number 060 [. . .] 2510. The work ticket is for 10 January
2020. The complaint was about a faulty meter whose number 372 [. . .]
890. In this instance KPSF028 is used as the location finder. The ‘raw
location description’ of the caller is KPSF026-128. For that particular
call, the standard label is recorded as KPSF026. No standard label is
provided for the first two searches.
[71] No explanation was proffered why ‘KPSF028’ would appear in the same
search for ‘KPSF026’ within the period forming the subject of Ms Dean’s
search whereas Ms Dean had given ‘KPSF026’ as the search prompt. Moreover,
although Ms Dean also searched the field “transformer” among others, none of
the search results include transformer details. There was no explanation for this
in the light of the fact that when Ms Dean testified, the evidence before court,
albeit disputed, was that when Mr Siyalo made the call on 26 July 2019 he
provided the call centre agent with the transformer number.
[72] Ms Dean did not, like Mr George, indicate whether or not the customers
listed in the data she received from the call centre are the defendant’s registered
or unidentified customers. She did not explain how Mr George’s distinction
would have impacted her search which covered a wide range of search fields.
(f) Mr Gqadushe
[73] Mr Gqadushe testified that he is the defendant’s senior controller. In 2019
he was the defendant’s principal technical officer whose functions entailed
attending to complaints and electric faults. While on standby duty on 27 July
2019, he was alerted to an incident of a transmission pole that had fallen down
in Bucula and that children had been electrocuted. The alert came from the
defendant’s despatching unit. He proceeded to the scene, and his first stop was
at the take -off of the line which supplies Bucula with electricity where he
performed a preliminary inspection. He observed a blown fuse. At the time of
this observation, there were members of the community nearby. He enquired
from them about the location of the incident and the fallen poles. They directed
him to Bucula locality and informed him that the poles in question had been cut
by protesting community members. These commu nity members refused to
divulge the identity of the person or persons who vandalized the poles.
[74] On arrival at the scene of the fallen poles, he observed that one of the
poles was cut at approximately half a meter above the ground. The low voltage
jumper broke and made contact with the medium voltage conductor. This
resulted in the pole falling, hence the transformer broke. Unsing his mobile
phone he took photographs of the fallen poles depicting the cut which he said
appeared to be by means of a hack saw or chain saw. From there he proceeded
to Ms M[...]’s home where he found members of the public gathered. Ms M[...]
was not present, she only arrived a short while later. He took photographs of the
room where the electrocution occurred. Nothing turns on this latter photograph
as it common cause that the incident occurred in that room.
[75] Upon meeting Ms M[...], he informed her that her children were
electrocuted because someone vandalized the transformer pole. Mr Gqadushe
confirmed that the information he gathered when he respondent to the
electrocution report was subsequently recorded in the defendant’s preliminary
investigation report. The date of the investigation is 30 July 2019. The report
was reviewed on 20 March 2020. It records that the incident occurred due to
vandalism. The vandalized infrastructure is described as ‘transformer pole
number KPSF026-48.’
[76] At the subsequent investigation meeting held on 07 August 2019 where
[76] At the subsequent investigation meeting held on 07 August 2019 where
Mr Santy, Mr April, and Mr Makhondza, the defendant’s crime investigator,
were present, he is the one who gave testimony regarding the vandalization of
the Bucula transmission poles. Mr Gqadushe took this Court through
photographs of the Bucula poles and transformer in its broken state subsequent
to the electrocution incident. Notably, the photograph of the pole in its broken
state does not depict where the pole would have been cut. Mr Gqadushe
confirmed this fact. Asked in cross - examination about the photographs of the
fallen poles depicting the cut, Mr Gqadushe said he no long er has those
photographs as he lost his mobile phone in which they were stored.
[77] Further according to Mr Gqadushe, Mr Makhondza, was part of a
subsequent meeting held on 13 August 2019 with the police. He is the one who
dealt with the matter concerning the vandalization of the Bucula transmission
poles. Mr Makhondza was not called to testify on behalf of the defendant.
(g) Mr Santy
[78] Mr Santy’s evidence may conveniently be summarized as follows: in
2019 he was the defendant’s senior supervisor in charge of the defendant’s
technicians. His functions entailed overseeing the technicians’ performance and
compliance with the defendant’s rules. Although he visited the scene of the
incident, he has no recollection of when that was. He was present at the
investigation meeting of 07 August 2019 which culminated in the defendant’s
final investigation report. At that meeting, Ms M[...] was asked questions
regarding the events of 26 and 27 July 2019. The report correctly reflects her
responses and explanations. One of the reasons why they conduct these
investigations is to ensure that they, as the defendant’s employees, may learn
from the investigations. Therefore, there would be no reason for them to record
false information in their investigation reports.
[79] At the meeting of 07 August 2019, one of them as the defendant’s
officials interpreted what was said and written in English to isiXhosa for the
benefit of Ms M[...]. She confirmed the contents of what was read and
translated to her. Similar to Mr April, Mr Santy could not recall who among
them interpreted the interaction with Ms M[...] from English to isiXhosa and
vice versa.
[80] According to Mr Santy, although information emerged from the
investigation that the fallen poles in Bucula were vandalized, the defendant’s
employees did not report the alleged act of vandalism to the SAPS. Rather
worryingly, Mr Santy testified that since the members of the Bucula locality had
indicated that they were still to conduct further investigation and involve the
SAPS, as the defendant’s officials they did not consider it necessary to follow
through with instituting a criminal investigation into th e alleged vandalism. He
conceded that that ought to have been done.
[81] Asked whether the defendant conducted any safety education in Bucula
before that locality was energized in June 2019, Mr Santy explained that
although he could not produce proof of that safety education, he was certain that
it would have been conducted.
The parties’ submissions
[82] On behalf of the plaintiff, Mr Rili submitted that two aspects, namely, the
defendant’s contention regarding sabotage; and whether the defendant had prior
knowledge of the slanted poles were central to the determination that this Court
should make against the probabilities.
[83] On the score of the alleged vandalism, counsel underscored the fact that
none of those members of the public were called to testify regarding Mr
Gqadushe’s allegations of vandalism. According to counsel, this is compounded
by the fact that none of the photographs which depict the fallen poles after the
electrocution indubitably evince where the poles were cut. Further, that, Mr
Makhondza was not called to testify regarding a report as he may have
compiled, pertaining to the defendant’s own investigation of the vandalism.
[84] Mr Rili took the view that the defendant’s failure to adduce direct
evidence of the vandalism and to call Mr Makhondza as a witness, militate
against the credibility of its version in support of its defence of vandalism.
[85] Dealing with the issue of the defendant’s prior knowledge of the slanted
poles, counsel submitted that the defendant’s version collapses on its witnesses’
testimony regarding the search they conducted for Mr Siyalo’s phone call of 26
July 2019. In this regard, he placed emphasis on the fact that Ms Saptoe, Mr
George and Ms Dean failed to conduct the search against the transformer
number despite Ms Saptoes’ evidence that Mr Siyalo’s request would have been
logged against the transformer. The defendant’s emp loyees’ search, so the
submission went, was ineffective in establishing whether or not Mr Siyalo
called Eskom on the 26th of July 2019.
[86] Mr Rili submitted that the effectiveness of the search for Mr Siyalo’s
phone call of 26 July 2019 depended on two factors, namely, whether the Kana
system did in fact log all the calls received on the 26th of July 2019; and whether
the call centre did in fact transmit all such information to the Maximo system.
Ms Deans evidence, said counsel, is wanting in regard to these factors. Counsel
submitted that absent proof of these factors the search conducted by Ms Dean
was similarly ineffective in disproving the version of Mr Siyalo. The consistent
failure to search the Kana system using the transformer number by two separate
witnesses, said Mr Rili, tilts the scale of probabilities in favour of the version of
Mr Siyalo.
[87] On these bases, Mr Rili submitted that the defendant, being the onus
bearing party, failed to adduce credible evidence to rebut its deemed negligence,
as envisaged in section 25 of ERA.
[88] As regards the defendant’s alleged failure to conduct safety education in
Bucula, counsel submitted that the fact that no proof was presented of such
education is dispositive of the defendant’s negligence based on this ground.
Hence, a finding ought to be made that the defendant reasonably foresaw that
the members of the community who were uneducated in the use of electricity
might suffer electricity related harm without safety education. A reasonable
licensee in the position of the defendant would have taken steps to guard against
the occurrence of 27th July 2019 by educating members of the community about
the dangers of electricity before energising the area and the defendant failed to
take such steps.
[89] Mr Petersen made the following principal submissions on behalf of the
defendant: the plaintiffs were required to present credible and reliable evidence
to show that Mr Siyalo did call the defendant on 26 July 2019. Further, that,
notwithstanding this prior report to the defendant, the defendant failed to attend
to the fault on the same day and/or any time before the poles fell on 27 July
2019. Counsel invited this Court to have regard to Mr April’s evidence that
when the medium voltage jumper came into contact with th e low voltage line,
the protection provided by the defendant’s system took immediate effect within
milliseconds of the contact. From these facts, a finding must be made that the
incident that occurred at the plaintiffs’ house on 27 July 2019 was not
reasonably foreseeable.
[90] On the probabilities as they relate to whether the slanted poles were
reported to the defendant on 26 July 2019, counsel submitted that the plaintiffs’
version was not a consistent, credible and reliable one and that of the defendant
was. He submitted that the plaintiff’s version must therefore be rejected as
improbable and therefore false.
[91] Mr Petersen criticised the plaintiff’s version on the ground that it was
[91] Mr Petersen criticised the plaintiff’s version on the ground that it was
contradictory both as set out in their amended particulars of claim, the parties’
witness summaries in the joint practice note and the witnesses’ respective oral
testimony. In this regard, he pointed out that in the particulars of claim, the
plaintiffs alleged that the community members who gathered at the scene of the
slanted poles included Ms M[...], the local chief and ward councillor, and the
members of defendant were telephonically contacted and advised of the fallen
poles. Whereas in court, both Mr Siyalo and Ms M[...] denied that the local
chief and ward councillor were present on 26 July 2019 when the community
gathered.
[92] Another contradiction, so counsel argued, was regarding whether Mr
Siyalo was given the defendant’s contact numbers and the Telkom SIM card as
opposed to him having been handed a cell phone from which to glean the
defendant’s number. He took issue with the fact that Ms M[...] made no mention
of the Telkom SIM card, and since she was also present at the scene of the
slanted poles, she would have witnessed Mr Siyalo being handed a Telkom SIM
card.
[93] Counsel further placed emphasis on the fact that during the investigation
meeting of 07 August 2019, neither Ms M[...] nor Mr Siyalo specifically
mentioned to the investigating team that the defendant was phoned regarding
the slanted poles. Instead, as the report suggests, they mentioned that the chief
and the ward councillor were nominated to phone the defendant and report the
slanted poles.
[94] According to counsel, these contradictions are material and tend to
undermine the credibility of the plaintiff’s version. By contrast, said Mr
Petersen, the defendant’s witnesses gave credible and reliable evidence
regarding these aspects, supported by the defendant’s final investigation report.
In particular, the integrity and reliability of Ms Dean’s search on the Maximo
system remains unassailable. On these grounds, counsel submitted that the
probabilities favour an inference that Mr Siyalo did not call the defendant and
was not assigned by the community to make the call, but the local chief and
councillor were assigned to but failed to do so.
[95] Regarding Mr Siyalo’s failure to provide the name of the community
member that gave him the Telkom SIM card, counsel submitted that this was
indicative of a witness who tailored his evidence. In counsel’s view, from Ms
Saptoe’s evidence it appeared that most of the phone calls made from Bucula,
and other areas, evidenced that a ‘073’ mobile number was used. For this
reason, a finding must be made that the assertion that a Telkom SIM card was
used to make the call to the defendant was a fabrication.
[96] As regards the contention that the defendant failed to educate the Bucula
community about the dangers of using electricity, counsel submitted that
although no evidence was adduced that prior to the electrocution incident of 27
July 2019, such education was conducted, on Mr Siyalo and Ms M[...]’s own
showing, they knew that the slanted poles posed danger to them. Hence, as the
community that had gathered at the scene of the slanted poles, they resolved to
keep a distance from the poles and to report the fault to the defendant. This is
the same aspect of safety education that Mr Santy said the defendant ordinarily
conducts. Thus, the defendant’s failure to educate on that aspect and on use of
electricity inside the house is not the cause of the plaintiff’s injury.
The legal principles
[97] The defendant’s presumed negligence and its onus to produce credible
evidence to establish that the harm that plaintiffs suffered was not caused by its
negligence, is grounded upon proof by the plaintiffs that they did suffer the
electricity related harm.
[98] As held in Eskom Holdings Ltd v Hendricks ,2 the effect of section 25 of
ERA is that defendant bore the onus of proving on a balance of probabilities that
2 Eskom Holdings Ltd v Hendricks 2005 (5) SA 503 (SCA), para 8.
it was not negligent or, if it was, that there was no causal link between the
negligence and the injuries sustained by the plaintiff. This, however, does not
entail the insulation of the plaintiff’s evidence from the ordinary standards of
assessment of evidence in civil proceedings.
[99] The hallmark of credible evidence is the convergence of plausibility,
reliability, and coherence. In the context of civil proceedings, in order to be
sufficient to support the factual findings to be made in a given case, evidence
must be plausible, reliable, and coherent when measured against the
preponderance of probabilities. 3 The interplay between credibility and the
probabilities, was articulated in Snyman Bpk v Biddulph,4 as follows:
‘[I]t is equally true that findings of credibility cannot be judged in isolation but require to be
considered in the light of the proven facts and the probabilities of the matter under
consideration. . . The proper test is not whether a witness is truthful or indeed reliable in all
that he says, but whether on a balance of probabilities the essential features of the story which
he tells are true.’
[100] Where, such as in the present case, there are two mutually destructive
versions of the dispute, the approach to be followed in resolving the conflicting
versions was articulated in National Employers General Insurance Co Ltd v
Jagers5, as follows:
‘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 in 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 that evidence is true or not the Court will weigh up and test the plaintiff's
3 Stellenbosch Farmers’ Winery Group Ltd and Another v Martell & Cie SA and Others 2003 (1) SA 11 SCA at
14i-15d.
4 Snyman Bpk v Biddulph 2004 (5) SA 586 (SCA) at 589G and 592B.
5 1984 (4) SA 437 (ECD), at 440 D-G; see also Stellenbosch Farmers’ Winery Group Ltd and Another v Martell
& Cie SA and Others2003 (1) SA 11 SCA at 14i-15d.
allegations against the general probabilities. The estimate of the credibility of a witness will
therefore be inextricably bound up with a consideration of the probabilities of the case and, if
the balance of probabilities favours the plaintiff, then the Court will accept his version as
being probably true. If, however, the 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.’
[101] The test for negligence as laid down in Kruger v Coetzee6 is 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.’
[102] Whether a diligens pater familias in the position of the person concerned
would take any guarding steps at all and, if so, what steps would be reasonable,
will always depend upon the particular circumstances of each case. 7 In Lucas
and another v Umhlathuze Municipality and Another ,8 the Supreme Court of
Appeal articulated the standard of negligence as follows:
‘In terms of the law of delict, 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 whether a reasonable person in the position of the
6 Kruger v Coetzee 1966 (2) SA 428 (A) 430E-G.
7 Kruger v Coetzee, supra.
6 Kruger v Coetzee 1966 (2) SA 428 (A) 430E-G.
7 Kruger v Coetzee, supra.
8 Lucas & Another v Umhlathuze Municipality and Another (785/2020) [2021] ZASCA 181 (17 December
2021) para 9;
municipality would have acted differently. A reasonable person would have acted differently
if the cause of damage was reasonably foreseeable and preventable.’9
[103] In the discussion that follows, I deal with the issues that the parties called
me upon to determine.
Discussion
[104] From the evidence led by both parties, the fact that the plaintiffs suffered
electricity related harm is beyond dispute. The present enquiry turns on these
narrow issues:
(a) whether Mr Siyalo was assigned by the community on 26 July 2019 to
report the slanted poles to the defendant, and indeed did so;
(b) whether the defendant committed an omission by failing to attend to the
fault, or as additionally alleged by the plaintiffs, by failing to educate the
Bucula community of the dangers of using electricity; and
(c) whether as the defendant contends, the plaintiff’s injury resulted from the
vandalization of the poles which event would break the chain of
causation.
[105] As the court observed in E.M and Another v Eskom ,10 ‘[e]lectricity in
itself is, although a useful commodity, dangerous. When it is installed, a
peculiar duty to take precaution is imposed on the installers. . .’ The licensees
are expected to maintain proper and stringent supervisory control and data
acquisition mechanisms pertaining to the provision and inspection of their
infrastructure. This entails a credible system of record keeping regarding the
maintenance of their infrastructure, its engineering intricacy and the tracking of
9 Ibid, para 9; see also, Eskom Holdings Ltd v Hendricks (262/2004) [2005] ZASCA 46; [2005] 3 All SA 415
(SCA); 2005 (5) SA 503 (SCA) (27 May 2005), para 10.
10 E.M and Another v Eskom Holdings Limited (39072/2020) [2025] ZAGPPHC 285 (17 March 2025)
(unreported), para 23.
faults, inter alia. Regard must be had to the fact that the consumers of electricity
are ordinarily unable to access the technical evidence required to prove
negligence in cases of electricity‑related harm.
[106] It is for these reasons that where harm arises from the use of electricity,
the licensee’s negligence is, in terms of section 25 of ERA, presumed. Section
25 of ERA shifts the burden to the licensee (the defendant in this case,) to
adduce credible evidence that the electricity -related harm was not caused by its
negligence. This is to ensure that the plaintiffs are not defeated by the technical
complexity entailed in the provision and distribution of electricity.
[107] Conversely, the vandalization of the defendant’s infrastructure by third
parties would break the chain of causation if it were established that it was not
foreseeable; it was the sole cause of the plaintiffs’ harm, it was not preventable
and the defendant responded to it reasonably.
[108] To rebut the presumption in section 25 of ERA, the defendant must
produce technically credible, logically coherent, and contemporaneously
recorded and verifiable evidence showing that the harm was not caused by its
negligence. Generalised assertions of compliance fall short of this threshold.
[109] In the discussion that follows, I deal first with the defendant’s alleged
liability as envisaged in section 25 of ERA. In so doing, first consider the
vandalism contention.
The vandalism contention
[110] The plaintiffs distanced themselves from the allegations of vandalism.
The defendant’s evidence in this regard took the form of its investigation reports
which were admitted in evidence on the customary basis that they are what they
purport to be. Thus, notwithstanding the parties’ agreement that the
investigation reports should form part of the evidence adduced before me, that
agreement cannot be taken as an automatic certification of their reliability items
of evidence.
[111] I did not understand the evidence adduced by the defendant’s witness
regarding the technical cause of the electrocution and the condition of the
infrastructure to be expert opinions and no expert notices were filed as the Rules
envisage. Their evidence will therefore be treated as factual testimony based on
their personal observation and operational experience, and not as independent
expert opinion. The importance of this observation relates to the weight that will
ultimately be accorded to the said witnesses’ conclusions.
[112] Mr Gqadushe is indeed the initial source of the vandalism allegation in as
far as the defendant’s preliminary investigation report indicates. The central
point of contention between the parties in this regard became Ms M[...]’s denial
of the fact that she also informed the defendant’s investigation committee that
the poles were vandalised. That being the case, in the context of its presumed
negligence, in order to rebut the statutory presumption, the defendant is required
to adduce credible evidence of vandalism as the only cause of the harm.
[113] In dealing with the contents of the defendant’s investigation reports, the
following factors are significant: Mr Gqadushe did not state when the poles
were allegedly vandalized. The preliminary investigation report dated was based
on the hearsay statements that according to Mr Gqadushe were made to him by
unidentified community members that certain unidentified persons vandalized
the poles. Although in cross -examination Mr Siyalo stated that when the
community gathered at the scene of the slanted poles that the poles appeared to
have been damaged by someone, he was not asked about the specific features he
observed from the poles on which he based his conclusion.
[114] It ought to be borne in mind that the defendant’s final investigation was
not an independent fact-finding exercise. The report was compiled on 07 August
2019, sometime after the electrocution incident, by the defendant’s own
witnesses in the present trial following their interview of Ms M[...]. It is not a
contemporaneous report, and there is no independent verification of its contents.
[115] This is apart from the fact that Mr April and Mr Santy who were both
present as the investigation committee members made a bald assertion that the
interaction between them and the two interviewees, Ms M[...] and Mr Siyalo
was adequately interpreted to their spoken language (isiXhosa). However,
somewhat disturbingly, neither Mr April nor Mr Santy were able to state who
among them undertook that interpretative exercise. In any event, Ms M[...] and
Mr Siyalo denied that they told the investigation committee members that the
poles were vandalized.
[116] Even though the final investigation report, together with Mr Gqadushe’s
evidence suggests that the defendant’s crime investigating officer, Mr
Makhondza was the one charged with the investigation of the alleged vandalism
incident, and that he met the police on 13 August 2019, Mr Makhondza was not
called as a witness to present the evidence of such investigation. Moreover, it
was not explained how the vandalization was connected to the breaking of the
jumper from the transformer to make contact with the low voltage conductor at
the time it did. Mr Santy’s evidence suggests that the defendant outsourced the
investigation of the vandalism to the community of Bucula merely because they
indicated during the investigation that they were still to hold further
investigative meetings concerning the vandalism matter.
[117] Furthermore, although Mr Gqadushe was able to produce photographs of
Ms M[...]’s house where the electrocution occurred, and the photograph of the
fallen transformer after the electrocution, he was unable to produce evidence of
photographs that depict the cut or cuts on the poles. His explanation that he lost
his mobile phone in which he stored the photographs is confusing – the already
mentioned photographs were taken by him on the same day of his visit to the
scene after the electrocution incident.
[118] The preliminary and final investigation reports are lacking regarding the
timing of the alleged vandalization in relation to the electrocution incident.
Since they were admitted only as what they purport to be, and not for the
correctness of their contents, their probative value depended on internal
coherence and corroboration. The absence of photographs, contemporaneous
notes, or testimony of Mr Makhondza as the investigator responsible for the
vandalism assessment materially weakens the reliability of the reports. They do
not constitute credible evidence capable of rebutting the statutory presumption
under section 25.
[119] In the present case, the trial turned on the factual dispute regarding
whether the slanted poles were reported to the defendant on 26 July 2019 and
the defendant failed to attend to the report. In this regard, the plaintiffs are
required to produce credible evidence that would establish that it is probable
that the slanted poles were reported to the defendant on 26 July 2019. The
defendant, on the other hand, must produce credible evidence to displace the
plaintiff’s version on this aspect. It is to this issue that I now turn.
The disputed prior knowledge of the fault
[120] The defendant’s own evidence reveals that the practice of assigning
intermediaries to report electric faults is commonplace. There does not appear to
be any controversy regarding the fact that there was a gathering of the members
of the community at the scene of the slanted poles.
[121] What is disputed by the defendant is the fact that the local chief and ward
councillor were not part of the gathering as the plaintiffs’ witnesses have
suggested. The defendant further contends that these are the persons which the
community assigned to report the slanted poles. It bases this assertion on what
appears from its final investigation report as information that was conveyed to
its employees by Ms M[...] and Mr Siyalo. Hence, it refutes Mr Siyalo’s version
as a fabrication. I deal first with the contradictions that Mr Petersen pointed out
from the version of the plaintiffs.
[122] The contradictions that defendant’s counsel delineated must be
considered in accordance with their nature, their extent and bearing on other
parts of the witnesses’ evidence. Contradictions per se do not lead to the
rejection of a witness' evidence. 11 Musi J had this to say in his dissenting
judgment in Meiring v S,12 regarding contradictions:
‘[I]n considering the nature, number and impact of contradictions it must always be
remembered that witnesses do not always make a blow -by-blow mental recording of an
incident. In many instances witnesses do not even realise that they would be called upon to
testify and be subjected to cross -examination about an incident. It is important when
assessing the impact of a contradiction to weigh it up against the other evidence tendered in
the particular case. Contradictions should not be evaluated without placing them in their
proper context.
An all or nothing approach, i.e. two or more state or defence witnesses contradicted each
other therefore the state’s case or the defence’s case should be rejected, or they corroborate
each other therefore their evidence must be accepted, should not be adopted. One witness
should not be crucified for the sins of another. It goes without saying that two witnesses may
11 S v Mkhohle 1990 (1) SACR 95 (A) at 98f – g. Although the principle was laid down in a criminal matter, it
applies in civil proceedings with equal force.
12 Meiring v S (A29/2009) [2011] ZAFSHC 184 (10 November 2011), para 5-6.
see the same incident differently for different reasons, for example, their power of
observation, retention concentration and narration.
When two or more witnesses contradict each other, it might be that the one witness did not
pay proper attention to the incident or because he/she cannot remember exactly what
happened whereas the other witness observed and recalls everything. Proper attention must
be given to the reasons or probable reasons for the contradictions. An all or nothing approach
like a compartmentalized approach is flawed, unhelpful and inimical to the holistic approach
that ought to be followed.’
[123] I respectfully align myself with approach adopted by the learned judge. It
was suggested that Mr Siyalo and Ms M[...]’ s viva voce evidence is
diametrically at odds with the version they committed to in the pleadings and
the parties’ summary of witness evidence outlined in the afore quoted excerpts.
This relates to the presence of the local chief and the ward councillor at the
scene of the slanted poles.
[124] Subject to what I say hereafter on this aspect, it bears emphasis that a
joint practice note serves a specific purpose in the context of judicial case
management. It serves to aid the expeditious disposal of litigation in the sense
that the parties delineate in it the issues for the court’s determination, inter alia.
Through the summaries of the evidence of witnesses, the judicial case
management judge is able to gauge the duration of the trial and the issues raised
by the parties’ pleadings. The parties, o n the other hand, are better placed to
identify and collect the necessary and relevant evidence for trial purposes.
[125] It is in the pleadings that the parties’ respective cases are made, and issues
identified. Those pleadings pave the way for evidence to be adduced at trial.
Although a joint practice note constitutes agreements reached by the parties in
the pre-trial process, it cannot, as a primary function be taken as a means to later
the pre-trial process, it cannot, as a primary function be taken as a means to later
measure the consistency and credibility of a party’s version. This is not to say a
party would be barred from challenging the witnesses’ evidence on the ground
of inconsistency where the deviation is material as there would then be external
contradictions in the witness’s testimony.
[126] Suffice it to state that in the present case, both from the summaries of
evidence of Mr Siyalo and Ms M[...]; and the plaintiffs’ amended particulars of
claim, it is readily discernible that the local chief and the ward councillor were
not among the persons that were gathered at the scene of the slanted poles, so is
the fact that it is Mr Siyalo who made the call to the defendant.
[127] Against this background, it is difficult to comprehend what the
defendant’s counsel aimed to achieve by making reference to the joint practice
note and the summaries of the evidence of Mr Siyalo and Ms M[...] as the
plaintiffs’ witnesses.
[128] It is so, however, as Mr Petersen pointed out, that from the defendant’s
investigation report, it appears that Mr Siyalo and Ms M[...] informed the
investigation committee members that the local chief and ward councillor were
assigned by the congregated community members to phone the defendant.
[129] I have already made a finding regarding the weakened probative value of
the investigation report. On the score of who made the report to the defendant
on 26 July 2019 regarding the slanted poles, regard must be had to the fact, as
correctly pointed out by Mr Petersen, that, in the defendant’s final investigation
report, neither Ms M[...] nor Mr Siyalo stated whether or not the report was
ultimately made to the defendant.
[130] Significantly, it does not appear, from that same report that the two
interviewees were asked by the defendant’s investigation committee members to
confirm whether they had knowledge of the fact that the local chief or ward
councillor ultimately reported the slanted poles to the defendant on 26 July
2019. If anything, this is a material lacuna in the investigation report, as
opposed to a contradiction, and it is inextricably linked to the identity of the
person who ultimately made the court.
[131] Be that as it may, the material fact as pleaded by the plaintiffs on this
aspect is that Mr Siyalo made the report to the defendant on 26 July 2019. To
this the defendant pleaded the denial of prior knowledge of the fault. In his
evidence, Mr Siyalo repeated this fact and stated, additionally, that when he
called the defendant’s ‘offices’ the call centre agent requested him to provide the
transformer number of the faulty infrastructure.
[132] Even if there are inconsistencies in the version of the plaintiffs, they do
not automatically render their evidence unreliable. Regard must still be had to
other corroborative evidence, the objective probabilities and the defendant’s
ability to contradict their version with contemporaneous records.
[133] I readily accept that Mr Siyalo did not provide the Telkom SIM telephone
number that he allegedly used in phoning the defendant on 26 July 2019, nor
did the plaintiff call the community member who provided him with the SIM
card. His explanation was that he had no reason to keep record of the Telkom
number, nor did he know that the defendant was recording the calls. That being
the case, his evidence regarding the fact that he was assigned by the community
members to phone the defendant has been corroborated by Ms M[...]. It does not
appear to me that the plaintiffs were expected to do more than they did in the
circumstances of the present case, in establishing that on a balance of
probabilities, the slanted poles were reported to the defendant.
[134] The defendant, on the other hand, is the party with the exclusive control
over call logs and fault reporting records. Hence it should have been able to
adduce credible evidence of those records. It is from those records that the
report itself, whoever the caller was, will be recorded. Afterall, the defendant’s
report itself, whoever the caller was, will be recorded. Afterall, the defendant’s
own version is to the effect that any person is entitled to report a fault. Notably,
multiple employees of the defendant searched for the disputed report using
various search methods. It was indicated by counsel for the defendant that the
search for the disputed phone call was conducted during the hearing of this
matter, some three years after the electrocution incident.
[135] The starting point on this score must logically be that considering Mr
George’s evidence regarding registered and unidentified customers, Mr Siyalo
phoned the defendant as an unidentified customer. His evidence was that he
provided the call centre agent with the transformer. I hold the view that the
transformer number is a precise and unique identifier of the defendant’s
infrastructure. It must have been against this background that Ms Dean included
“transformer” among her search fields using ‘KPSF026’ as the search filter.
Furthermore, Ms Saptoe testified that the transformer number is one of the
identifiers that the customer would be asked for when she/he reports a fault and
it is one of the filters they would use to conduct the search for the call log. I
interpose to mention that Ms Saptoe’s evidence differs from the evidence of Mr
George to the extent that she made no distinction between the various types of
the defendant’s customers.
[136] I made an observation earlier on that it was not explained, in the context
of Ms Dean’s evidence, what impact the distinction between a registered and
unidentified customer would have had on her search for Ms Siyalo’s call. It was
not explained how the Kana and Maximo systems handle unidentified or
unregistered customers. I may add that although Mr George further testified that
he has access to all the call centre agents’ daily performance track record using
the performance tracking tool called ‘Total View’, no objective evidence of this
fact was adduced, nor was any evidence adduced of the functionality and
operational pattern of the call centre system on the date of the disputed call. The
court only has the witness’s say-so in this regard.
[137] I note that the ‘KPSF026’ number which was used in Ms Dean’s search
differs from the ‘transformer pole’ number that is recorded in the defendant’s
preliminary investigation report, namely, ‘KPSF026 -48’. It bears mentioning
that Ms Dean’s results using ‘KPSF026’ are muddled. From her search report,
‘KPSF026’ is described as the location finder. It is unsurprising that this number
is linked to the two other unrelated faults, locations, and infrastructure, namely,
faulty meters.
[138] There was, furthermore, no explanation why the transformer pole number
recorded in the preliminary investigation report as ‘KPSF026 -48’ was not used
in conducting the search despite the fact that Ms Dean’s search was an extensive
one covering a wide range of filters which included ‘ transformer name’. Apart
from this, no explanation was proffered why the infrastructure concerned in
these proceedings was recorded in the defendant’s preliminary report as
‘KPSF026-48 and not ‘KPSF026/4’.
[139] Significantly, the Bucula community had recently been energized when
the incident occurred. The slanted poles were visibly hazardous. It is inherently
probable that community members would attempt to report the hazard. It is,
furthermore, probable that a rural community member using a borrowed SIM
card might not be captured on the defendant’s system. Hence, it was important
the Ms Dean, Ms Saptoe and Mr George elucidate how the Kana and Maximo
Systems would handle such a customer. With that said, the cleare st from of an
identifier, viz, the transformer number recorded in the preliminary investigation
report, was not used in conducting the search by any of the defendant’s
witnesses.
[140] I must point out that even though Mr Siyalo did not provide that
transformer number during trial, this detail of the infrastructure concerned is
known to the defendant. Hence it is recorded in its preliminary investigation
report. There is no reason why the transformer pole number thus recorded was
not used to conduct the search for the disputed call.
[141] It is rather odd that Ms Saptoe and Mr George used Mr Siyalo’s personal
mobile number even though it was not the number he used to call the defendant,
and despite Ms Saptoe’s evidence that it was possible to conduct the search
using the transformer number. It certainly must have been clear to the
defendant’s employees that the search using that cell phone number which, on
the evidence of Mr Siyalo is unrelated to the report of 26 July 2019 would
produce no results.
[142] It is indeed an ever -present possibility in fact finding proceedings that
witnesses would tend to reconstruct the scene after the event. On the facts of the
present matter, I am unable to make the finding that this is what the plaintiffs’
witnesses did. It is, in any event, inherently improbable that the community
would simply ignore the slanted pole despite their acknowledgement of the
danger it posed to their lives. In the light of the lacunae in the version of the
defendant as to the search of the report by Mr Siyalo, the absence of a logged
call cannot be treated as being conclusive in disproving that a call was made.
[143] On the totality of the evidence, I make the finding that the plaintiffs have
proven, on a balance of probabilities, that a report was made on 26 July 2019 to
the defendant concerning the slanted poles. It ought to follow that the defendant
had actual knowledge of the potentially dangerous condition of the slanted
poles. This leads me to the element of foreseeability.
Foreseeability
[144] What is or is not reasonably foreseeable in any particular case depends on
the facts. Foreseeability is fundamental in electricity distribution. Electricity is
inherently dangerous, and energizing compromised infrastructure creates a
foreseeable risk of harm.
[145] The defendant is required to produce credible evidence showing that the
harm was not caused by its negligence. In this regard, the defendant was
required to adduce evidence that is reliable, technically coherent including
contemporaneous records. The explanation given regarding why the fault
occurred must be logically consistent with engineering principles and physical
evidence.
[146] Rather surprisingly, even though Mr April testified regarding the report
dated 24 July 2019 concerning a broken jumper in Masameni, which the
defendant’s employees corrected on 26 July 2019, none of the records and call
logs produced at the trial of this matter make reference to this incident. Yet, the
undocumented Masameni fault is not an insignificant aspect in the chronology
of the events leading to the electrocution incident.
[147] Mr April’s evidence was that the broken jumper in Masameni was the
reason why Bucula was out of electricity supply from 25 to 26 July 2019. When
the supply of electricity was restored in Masameni around 18h25 on 26 July
2019, it was automatically restored in Bucula as the two villages share the 30km
power line. The defendant asserts that the harm that the plaintiffs suffered as a
result of electrocution was not reasonably foreseeable. However, the slanted
poles constituted a manifest hazard on the newly ene rgized Bucula line. From
the evidence of Mr Santy, the defendant’s own policies classify compromised
poles as emergencies requiring prompt response.
[148] The evidence concerning the Masameni jumper fault is disturbingly
equivocal. The shifting positions adopted by defendant’s counsel in
cross‑examining plaintiffs’ witnesses regarding this aspect underscore the
absence of a coherent factual foundation in the defendant’s version. An
irresistible inference is that the defendant’s unsupported assertions regarding the
undocumented Masameni fault are a ruse calculated to obfuscate the true facts
regarding the plaintiffs’ report of the Bucula fault on 26 July 2019.
[149] I may add that Mr April had testified that the defendant has become
aware of the rise in the incidence of vandalism in some of the Mthatha zone
areas. Therefore, the defendant’s contention that no inspection was due on the
Bucula infrastructure does not assist it. A reasonable licensee must ensure that
its inspection intervals are adequate to detect hazards inherent in newly installed
infrastructure, particularly in rural areas where environmental and third‑party
risks are elevated. The defendant produced n o evidence of the inspection
schedule applicable to Bucula, nor of any risk‑based assessment justifying the
absence of inspection. In the absence of such evidence, the defendant has not
shown that its inspection regime met the standard of reasonable care required to
rebut the statutory presumption.
[150] The defendant’s employees knew that the Masameni jumper fault caused
the power outage in Bucula as the two villages share the power line. As a result,
when the supply of electricity was restored in Masameni, the Bucula line was
automatically energized on 26 July 2019. The defendant’s employees reasonably
foresaw that restoring electricity supply to compromised infrastructure creates a
risk of harm.
Failure to take reasonable steps
[151] A reasonable licensee would have taken reasonable steps to prevent the
plaintiffs’ harm. The defendant failed to take such steps. The defendant did not
attend to the hazard on 26 or 27 July 2019 before the electrocution occurred
despite the undertaking to do so. The failure to de‑energize the line or despatch
technicians within a reasonable time constitutes a breach of the duty of care.
[152] For all foregoing reasons, I come to the conclusion that the defendant
failed to adduce credible evidence to discharge the onus imposed on it by
section 25 of ERA of proving, on a balance of probabilities, that the harm
suffered by the plaintiffs was not due to its negligence.
[153] There was no agreement between the parties that if the defendant is found
to have acted negligently then wrongfulness and causation would not need to
be determined. The defendant specifically disputed that the injuries suffered by
the plaintiffs were caused by any negligent conduct on its part. It behoves me to
deal with these latter two elements of delictual liability.
Wrongfulness
[154] It is trite that negligent conduct in the form of an omission is not regarded
as prima facie wrongful. Its wrongfulness depends on the existence of a legal
duty to act in order prevent the harm. The imposition of this legal duty is a
matter for judicial determination involving the criteria of public and legal policy
consistent with constitutional norms. A negligent omission causing loss will
only be regarded as wrongful, and therefore actionable, if public or legal policy
considerations require that such omission, if negligent, should attract legal
liability for the resultant damage.13
[155] Electricity is an inherently dangerous commodity which is operated by
means of a highly technical system. The law places a duty on the licensees that
ERA envisages, to ensure proper provision and safe use of electricity. The
exclusive control over this risk‑creating commodity rests with the licensee. The
commodity’s technical faults, whether internal or external are intrinsically
known to the licensee. Therefore, engineering safety protocols are
indispensable. There is invariably an imbalance in so far as the consumer’s
13 Hawekwa Youth Camp and Another v Byrne 2010 (6) SA 83 SCA at para [22], Roberts and Another v MEC,
Department of Police, Roads and Transport, Free State Province (1447/2017) [2019] ZAFSHC 3 (7 February
2019), paras 39 and 40.
understanding of the technical mechanisms of electricity. The right-thinking
members of the community would denounce the defendant’s neglect of the
safety protocols applicable to the provision and distribution of electricity, and its
failure to fulfil its legal duty of care despite its knowledge of the of the dangers
inherent in the use of electricity.
[156] On the facts of the present case, I have no difficulty finding that the
defendant had the legal duty to take reasonable steps to prevent the harm. It
breached this legal duty; therefore, its negligent omissions were wrongful.
Causation
[157] The last element to consider is causation. The enquiry into causation is
two pronged. In the first prong, the question is whether the negligent act or
omission caused the harm giving rise to the claim (factual causation). The
plaintiffs must prove that ‘but for’ the negligence of the defendant, they would
not have suffered the harm. The second prong, which follows if the first
question is answered in the affirmative, is whether the negligent act or omission
is linked to the harm sufficiently closely or directly for legal liability to ensue or
whether the harm is too remote (legal causation).14
[158] Put another way, the plaintiffs must show that the defendant’s negligent
failure to attend to the slanted poles was a factual and legal cause of the
electrocution. The evidence establishes that the poles were slanted on the
morning of 26 July 2019. Despite the report by Mr Siyalo, the fault was not
14 Lee v Minister of Correctional Services 2013 (2) SA 144 (CC) para 38.
attended to. The shared line was energized around 18h25 on the same day while
its Bucula portion was compromised. When the poles fell on 27 July 2019, the
medium voltage line and the low voltage lines made contact. The electrocution
occurred at that point.
[159] From the explanation posited by Mr Santy, the fuse operated after the
electrocution. Furthermore, it operated as protection to the transformer and not
protection against electrocution. In these circumstances, the defendant’s safety
device cannot operate as an intervening act breaking the chain of causation. The
defendant’s failure to de‑energize or attend to the hazard materially contributed
to the chain of events leading to the electrocution. Moreover, the harm was a
foreseeable consequence of the defendant re -energizing the compromised
infrastructure in Bucula locality.
[160] Even if vandalism were established on the evidence, and it has not, the
question would remain whether such conduct constitutes a novus actus
interveniens breaking the chain of legal causation. To constitute a novus actus ,
the secondary act must not be reasonably foreseeable. If it is reasonably
foreseeable that it may occur, at the time of the initial wrongful act, the
secondary act cannot be considered as a novus actus. 15 In the context of
electricity distribution, the possibility of third‑party interference with
infrastructure is a known risk. A reasonable licensee is expected to anticipate
and guard against the consequences of compromised equipment. Significantly,
the energisation of a line in circumstances where poles were slanted or unstable
remains a sufficiently direct and foreseeable cause of the electrocution. The
alleged vandalism would therefore not constitute a novus actus interveniens
even if proven.
Conclusion
15 Van der Merwe v Road Accident Fund (584/2023) [2025] ZASCA 28 (28 March 2025), para 25; OK Bazaars
(1929) Ltd v Standard Bank of South Africa Ltd, para 33.
[161] I make the finding that the plaintiffs’ witnesses to be credible and
consistent on the material aspects of their evidence. Their accounts were
internally coherent and aligned with the probabilities. By contrast, the
defendant’s witnesses gave evidence that is inconsistent with lacunae in the
documentary evidence relied upon by the defendant. This is quite apart from the
absence of Mr Makhondza whose evidence was crucial in relation to the
vandalism allegation. All of this undermines the credibility of the defendant’s
evidence. The plaintiffs’ versions ought to prevail where the two versions
conflict.
[162] The result is that the defendant has failed to adduce credible evidence to
rebut the presumption of its negligence. The defendant must accordingly be
found liable of the plaintiffs’ claim. I consider is necessary, for the sake of
completeness, to deal with the defendant’s alleged failure to conduct safety
education as the separate ground of negligence relied upon by the plaintiffs.
Failure to conduct safety education
[163] In this regard I was called upon to determine whether the defendant’s
failure to conduct safety education before the electrocution incident would
succeed as an independent ground of negligence.
[164] Central to this enquiry is the test as laid down in Kruger v Coetzee :16
whether the harm was reasonably foreseeable; a reasonable licensee would have
taken steps to prevent it; the defendant failed to take those steps; and those steps
would have prevented the harm. The plaintiffs bear the onus of proof in this
regard in accordance with the ordinary common law principles. Section 25 of
ERA finds no application as the statutory presumption does not impose on the
licensee the duty to conduct safety education.
16 Supra, footnote 6.
[165] The plaintiffs pleaded that the defendant was negligent in failing to
provide precautionary measures and warnings to the Bucula community,
including safety education about the risks associated with electricity
infrastructure. In defence, the defendant pleaded that the safety education would
not have prevented the harm suffered.
Foreseeability
[166] As mentioned, electricity is inherently dangerous, and the defendant, as
licensee, is required to anticipate that newly energized rural communities may
lack technical knowledge about the risks posed by compromised infrastructure.
The evidence establishes that Bucula locality had received electricity only a
month prior to the electrocution incident. This was underscored by Ms M[...]’s
assertion that “one that would be expected to care for the electricity would be
the one that knows about the electricity.”
[167] On the facts, an inference could reasonably be drawn that the defendant
foresaw that community members would not appreciate the danger posed by
slanted poles or the implications of energizing compromised lines. Although the
presumption of negligence in section 25 of ERA does not impose a statutory
duty on licensees to conduct safety education, the question is therefore whether
a common‑law duty arises to do so.
[168] The defendant’s duty as the licensee extends beyond the technical
maintenance of its infrastructure. It also includes the taking of reasonable
measures to prevent electricity related harm. This is informed by the dangerous
nature of electricity; the licensee’ s exclusive knowledge of its technical risks;
and the vulnerability of consumers lacking such knowledge. On its own
showing, the defendant convened a safety‑education meeting with the Bucula
community on 20 August 2019. This demonstrates that it recogn izes the import
and necessity of such measures.
Breach of duty
[169] The evidence establishes that no safety education was provided to the
Bucula community before the incident. The defendant’s own witnesses
confirmed that the first safety‑education session occurred only after the
electrocution. Given the community’s lack of experience with electricity, and
the defendant’s knowledge of the risks posed by compromised infrastructure, a
reasonable licensee would have implemented basic safety education measures
upon energizing the area. In keeping with Mr Santy’s evidence, these include
warnings about the dangers of slanted or fallen poles; instructions not to use
electricity when infrastructure appears compromised; information on how and
when to report faults, inter alia. The defendant’s omission constitutes a breach
of the duty of care.
Wrongfulness
[170] The plaintiffs’ allegation that the defendant was negligent in failing to
provide safety education engages the wrongfulness inquiry applicable to
omissions. The question is whether public or legal policy imposes a positive
duty on the defendant to act. While the defendant exercises control over a
dangerous resource, the evidence establishes that the community already
appreciated the danger posed by the slanted poles. In these circumstances, the
omission to provide additional education was not causally conne cted to the
harm, and imposing a positive duty would not serve the normative purposes of
the law of delict. The omission is therefore not wrongful. Therefore, failure to
conduct safety education as a separate ground of negligence collapses at this
point. The question that remains is that of costs.
Costs
[171] Mr Rili submitted that costs of two counsel are warranted in the present
case when regard is had to the value of the claim and the length of the trial. Mr
Petersen opposed this view arguing that the matter is uncomplicated and there
was no need for the employment of two counsel. Mr Petersen further submitted
the present matter warrants costs on scale A.
[172] The award of costs is a matter for the court’s discretion which it exercises
in accordance with what is fair between the parties. The test regarding costs
consequent upon the employment of two counsel is whether the employment of
two counsel was a wise and reasonable precaution on the part of the litigant. 17
The factors relevant to that determination include the length of the hearing, the
volume of evidence (oral or written) dealt with by counsel, the presence or
absence of scientific or technical problems and their difficulty if they were
present, the importance and complexity of questions of law and fact involved
and the number of authorities quoted.18
[173] Although the present case does not involve complex issues of law, it
engaged complex factual issues of a technical nature falling in the domain of
engineering and data analysis. I have considered the value of the plaintiff’s
claim and the length of the hearing. It cannot be said that the plaintiff’s
employment of two counsel was extravagant or overcautious. Costs of two
counsel are, therefore, warranted.
[174] The default position in terms of Rule 67A which regulates the scale of
costs is that, in the absence of a contrary indication, counsel’s costs will be
recovered on scale A, unless the application of a higher scale is justified by
careful reference to clearly identified features of the case that mark it out as
unusually complex, important or valuable. Run-of-the-mill cases, which must be
17 Burroughs Machines Ltd v Chennile Corporation of SA (Pty) Ltd 1964 (1) SA 669 (W) 677F – 678A-B;
Broom v The Administrator Natal 1966 (3) SA 505 (D) 529; Cf De Klerk v Steven -Lee Properties (297/12)
[2013] ZASCA 54 (04 April 2013), at paragraph 21.
18 Motaung v Mukubela and Another, NNO 1975 (1) SA 618 (O) at 631B-C.
the vast majority of cases in the High Court, do not warrant an order on the B or
C scales.19
[175] Although litigation relating to electricity related harm is commonplace in
this Court, the present case, as I have already found, involved complex technical
issues and is of a substantial value. That being the case, it does not warrant the
highest scale of costs. Costs shall be taxable on scale B.
Order
[176] In the result, I make the following order:
1. The defendant is held 100 percent liable for the plaintiffs’ damages
resulting from the electrocution incident that occurred on 27 July 2019 at
Bucula locality, Ngqeleni, Eastern Cape.
2. The defendant shall pay the plaintiffs’ costs of suite. Such costs, which
shall include costs of two counsel where so employed, shall be taxable on
scale B referred to in Uniform Rule 67A.
___________________
L. RUSI
JUDGE OF THE HIGH COURT
Appearances:
For the applicant : Adv. M Rili
Adv. A Msindo
Instructed by : N. Mhlauli Attorneys Inc.
19 Mashavha v Enaex Africa (Pty) Ltd 2025 (1) SA 466 (GJ), para 16.
Mthatha
For the respondents : Adv. F Petersen
Instructed by : Lulama Prince Inc.
c/o Clayton Mkhululi Manxiwa & Co
Mthatha
Date heard : 28 & 29 February 2024; 22 -26 April 2024
23 September 2024; 26 November 2025
Date delivered : 08 September 2026