Black v Kokstad Town Council

• Jurisdiction: South Africa
• Judge: Wilson J
• Judgment Date: 09 November 1985
• Hearing Date: 09 November 1985
• Court: Natal Provincial Division

Wilson J:

In this case the plaintiff is a farmer in the Kokstad area who instituted action against the Town Council of the Borough of Kokstad. The action is based on the fact that the F defendant was an undertaker in the sense that that word is used in the Electricity Act 40 of 1958; that the defendant had erected a certain overhead power line over the plaintiff's farm; that this power line was being used for the transmission of electricity generated by the defendant; and that cattle were killed as a result of the power line having fallen on them and G electrocuting them. It is common cause on the pleadings that the defendant is an undertaker as defined in the Act. The only defence pleaded was that the defendant relied on the provisions of s 50 (2) of the Act and that the defendant averred that the plaintiff's loss was caused by casus fortuitus, the facts relied on for this allegation are set out in the pleadings.

H When the matter came before me this morning a notice was filed requesting that I should, in terms of Rule 33 (4), decide as a preliminary issue before any evidence is led whether casus fortuitus is available as a defence to the plaintiff's claim. It was agreed between counsel that this should be decided as a preliminary point and that I would necessarily be seized of the matter subsequently. I accordingly made an order in terms of I the Rule and have now heard argument on this point and this point alone.

Mr McLaren, who appears for the plaintiff, informed me before I made that order that the plaintiff was prepared to accept for the purpose of this argument that the event occurred as a result of casus fortuitus. It was made clear by Mr McLaren and accepted by Mr Van Zuydam that this concession was only for J purpose of this argument, and that in the event of the trial continuing, the plaintiff would not in any way be bound by this concession.

Wilson J

It was also admitted at a pre-trial conference that the A provisions of s 50 of the Electricity Act are applicable. Section 50 reads:

"(1) In any proceedings against an undertaker arising out of damage or injury caused by induction or electrolysis or otherwise by means of electricity generated or transmitted by or escaping from the plant or machinery of any undertaker, it shall not be necessary for the plaintiff to prove that the damage or injury was caused by the negligence of the B defendant, and damage may be recovered notwithstanding the absence of such proof.

(2) In any such proceedings it shall be a defence that the damage or injury was due to the wilful act or to the negligence of the person injured or of some person not in the employ of the defendant or of some person operating the plant or machinery of the defendant without his consent."

The provisions of s 50 have been the subject of a number of C judgments to which I was referred. The first of these was a judgment in this Division in the case of PMB Armature Winders v Pietermaritzburg City...