Dlakela v Transkei Electricity Supply Commission

• Jurisdiction: South Africa
• Judge: White J
• Judgment Date: 10 March 1997
• Citation: 1997 (4) SA 523 (TkS)
• Docket Number: 318/92
• Counsel: I V Maleka for the plaintiff P A C Rowan for the defendant
• Court: Transkei Supreme Court

White J:

The trial, on liability only, commenced in Umtata on 27, 28 and 29 March 1995, continued there on 26 and 27 June 1995 and then, at the request of the parties, shifted to Bisho on 26 and 27 February 1997. The reasons for the trial concluding in Bisho were that the presiding Judge had been transferred there and that counsel for the parties, who come from E Johannesburg and Durban, respectively, find it more convenient to travel to Bisho than to Umtata. At the commencement of the hearing in Bisho on 26 February 1997, both parties confirmed that the Court was sitting there at their request, and that they had no objection to the trial proceeding in Bisho. F

On 5 November 1990 the plaintiff, a 40-year-old unemployed mine labourer, was walking from Ngqeleni to Hole-in-the-Wall to register for work on the mines. The defendant's overhead electrical line from Mafini to Coffee Bay crossed his path near Hole-in-the-Wall. A wooden crossarm on pole FDC 440 on this line had broken, causing the live wire (the wire) to drop and G be suspended close to the ground. The plaintiff came into contact with this wire and was severely burned on his arms, hands and chest, for which he claims damages in the sum of R207 500. The plaintiff bases his case on the provisions of s 50(1) of the Electricity Act 40 of 1958 (the Act), and the defendant its defence on s 50(2). Although the Act was subsequently H repealed in the Republic of South Africa, it remained extant in the Republic of Transkei and was in force there at the time of the incident out of which this case arose. Section 50 of the Act reads as follows:

'50(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 I 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 defendant, and damages 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 operating the plant or machinery of defendant without his consent.' J

White J

The defendant admits the prerequisites for absolute liability prescribed by s 50(1), namely that A it is an 'undertaker' as defined in s 1 of the Act and that the plaintiff was injured as a result of induction or electrolysis by means of electricity generated or transmitted by or escaping from its plant or machinery. The only questions for decision therefore are whether the plaintiff was B negligent and whether the provisions of ss 50(2) apply. Counsel for the defendant, Mr Rowan, has made the following submissions:

(1)

The defendant's liability in terms of ss 50(1) is absolute once it has been proved that it is an undertaker and that the plaintiff's injuries were caused by induction or electrolysis arising from electricity generated or transmitted by it. C

(2)

The only defences to the said absolute liability are those specified in ss 50(2).

(3)

The provisions of the Apportionment of Damages Act 34 of 1956 cannot apply to this case if negligence on the part of the plaintiff, albeit only 1%, is proved. This is so D because the defendant's liability is absolute (the prerequisites wherefore have been admitted by the defendant) and it cannot therefore be weighed against the negligence of the plaintiff to assess an equitable apportionment, especially as no evidence has been led to determine the extent of the defendant's negligence. That being so, if the plaintiff is proved to be negligent, his claim must fail in toto. E

Mr Rowan's first submission, that a defendant's liability under ss 50(1) is absolute, is by now trite law - see PMB Armature Winders v Pietermaritzburg City Council 1981 (2) SA 129 (N); Naboomspruit Munisipaliteit v Malati Park (Edms) Bpk 1982 (2) SA 127 (T); F Pietermaritzburg City Council v PMB Armature Winders 1983 (3) SA 19 (A); and Black v Kokstad Town Council 1986 (4) SA 500 (N).

Mr Rowan's second submission is also correct, save that the special defences mentioned in s 50(2) must be read subject to the imperfections or omission in that subsection - Pietermaritzburg City Council v PMB Armature Winders (supra at 25A). G

I am not satisfied that the third submission made by Mr Rowan is correct. Although no authorities were referred to in support of this submission, and very little argument was addressed to the Court thereanent, my prima facie view is that once the special defences come into play the defendant's liability is no longer absolute and that the provisions of the H Apportionment of Damages Act 34 of 1956 will then apply. It was manifestly the intention of the Legislature that in cases of contributory negligence the principles of the Apportionment...