The Free State High Court in Bloemfontein has overturned an earlier ruling that cleared Eskom of responsibility for electrocuting a minor, ordering the power utility to pay the child's proven or agreed damages. The court found that Eskom failed to provide evidence to rebut a legal presumption that it was negligent in the February 2020 incident. The child, identified as SBM, was electrocuted after stepping on an electric cable on Rorichshoop farm near Koffiefontein.
The court criticized Eskom's conduct after the incident, stating that the power utility failed to present evidence despite its counsel's undertaking to call an employee to testify about the powerline. Instead, Eskom closed its case without presenting rebuttal evidence. Judge Joseph Mhlambi, with judges Johannes Daffue and Celéste Reinders concurring, said Eskom's failure to produce evidence was critical in determining liability.
The judgment found that Eskom's counsel had repeatedly indicated during the trial that the powerline shown in photographs was an Eskom line. The court also considered the child's testimony that he was electrocuted after stepping on an electric cable lying on the ground, resulting in burns to his feet and arm. 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 court considered what happened after the incident, with a man and woman from Eskom visiting the grandmother at her home and advising her not to take Eskom to court. Two Eskom men later visited the grandmother and the child at hospital, repeating the advice. 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 be explained by its belief that it was not responsible for the infrastructure. However, 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.
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 Eskom 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. The judgment set aside the earlier order of absolution from the instance and found that the plaintiff succeeded 100% on the merits, with costs. Eskom admitted that it was a licensee under the Electricity Regulation Act, which 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.
Key points
- Eskom ordered to pay damages for child's electrocution
- Court criticizes Eskom's conduct after incident
- Eskom failed to present evidence to rebut negligence claim
