Court orders Eskom to pay after child’s electric shock

The high court has overturned an earlier ruling that cleared Eskom of responsibility after a minor was electrocuted by a cable lying on the ground, ordering the power utility to pay the child’s proven or agreed damages.

The Free State High Court in Bloemfontein last week found that Eskom failed to provide evidence to rebut a legal presumption that it was negligent.

The court also criticised Eskom’s conduct after the February 2020 incident, when the child, identified as SBM, was electrocuted after stepping on an electric cable on Rorichshoop farm near Koffiefontein.

The judgment set aside the earlier order of absolution from the instance and found that the plaintiff succeeded 100% on the merits, with costs.

The court found that Eskom, despite undertaking to call an employee to testify about the powerline, closed its case without presenting the promised evidence.

Instead, it closed its case without further ado and without presenting rebuttal evidence—  Judge Joseph Mhlambi

Judge Joseph Mhlambi, with judges Johannes Daffue and Celéste Reinders concurring, said Eskom “failed to present evidence” despite its counsel’s undertaking that an employee would testify that the line shown in photographs was located on municipal land.

“Instead, it closed its case without further ado and without presenting rebuttal evidence,” Mhlambi said.

The judgment found that Eskom’s counsel had repeatedly indicated during the trial that the powerline shown in photographs was an Eskom line.

“[Counsel’s] photos were used in cross-examination and in the process, counsel made it clear that the photos depicted an Eskom line,” the judge said.

The court found that the failure to produce evidence was critical because section 25 of the Electricity Regulation Act provides that injury caused by electricity generated, transmitted or distributed by a licensee is deemed to have been caused by the licensee’s negligence unless there is credible evidence to the contrary.

The child testified that he was electrocuted on February 9 2020 after stepping on an electric cable lying on the ground. His feet and arm were burnt. His grandmother testified that she had seen low-hanging powerlines in the area and that a cable remained on the ground for more than a year.

The judgment recorded that a man and woman from Eskom visited the grandmother at her home and told her not to take Eskom to court, but to retain her own lawyer. Two Eskom men later visited the grandmother and the child at hospital and repeated the advice that she should not take Eskom to court but should see a lawyer.

When the grandmother later returned to the area, the poles and powerline were no longer there.

The earlier court had found that Eskom’s actions could also be explained by its belief that it was not responsible for the infrastructure. But the appeal court reached a different conclusion after considering Eskom’s failure to present evidence.

Mhlambi said Eskom “needed to present evidence as its counsel undertook to do, which evidence was never presented, notwithstanding the applicability of section 25 of the act”.

“It was therefore remiss of the court a quo to decide the case against the plaintiff without the defendant’s rebuttal evidence,” he said.

The court found that, based on the statements made by Eskom’s counsel and the evidence before it, “the most plausible inference to be drawn from the accepted facts is that the defendant was the applicable licensee”.

The appeal therefore succeeded, with Eskom ordered to pay the plaintiff’s costs, including counsel’s fees and the costs of the applications for leave to appeal.

The court ordered that Eskom be liable for the damages proven or agreed upon.