Eskom Holdings Ltd v Hendricks

JurisdictionSouth Africa
JudgeScott JA, Streicher JA, Brand JA, Lewis JA and Mlambo JA
Judgment Date27 May 2005
Citation2005 (5) SA 503 (SCA)
Docket Number232/2004
Hearing Date03 May 2005
CounselL A Rose-Innes SC (with him M W Janisch) for the appellant (heads of argument drawn up by J J Gauntlett SC and M W Janisch). W R E Duminy SC (with him J van der Merwe) for the respondent.
CourtSupreme Court of Appeal

Scott JA:

[1] On 4 August 1994 the respondent's minor son (Jacques) who was then 11 years and eight months old, sustained serious burns and other injuries when he ventured too close to a high voltage power line suspended from one of the appellant's pylons. To reach the I point where the incident occurred Jacques had to climb to a height of approximately 14 metres above the ground and in doing so pass through what was referred to in evidence as an anti-climbing device (ACD). The manner in which he did this is dealt with more fully below. The power line J

Scott JA

carried a voltage of some 66 000 volts. Perhaps fortunately, the shock caused Jacques to be flung from his perch. He survived the fall A with his clothes on fire. A passer-by had the presence of mind to cover Jacques with his jacket and so extinguish the flames.

[2] The respondent, on behalf of Jacques, subsequently instituted proceedings for damages against the appellant (Eskom), alleging that the latter had been negligent in various respects. In B this Court the debate concerning the issue of Eskom's negligence was confined largely to the efficacy of the ACD. Eskom denied liability and in the alternative alleged contributory negligence on the part of Jacques. The Court a quo (Jacobs AJ), which was called upon to decide only the question of liability, found that both Eskom and C Jacques had been negligent and that the latter had been culpae capax at the time, ie he had had the necessary capacity to incur delictual liability for negligence. The learned Judge apportioned liability on the basis that Eskom was two-thirds to blame and Jacques one-third. These findings were all placed in issue in this court. Eskom's application for leave to appeal was turned down by the Court D a quo, as was the respondent's application to cross-appeal. Both parties now appeal with the leave of this Court.

[3] It is necessary at the outset to give a short description of both the pylon and the ACD. The pylon is of the lattice variety and is just over 21 metres high. It is square at the base, or almost square. E Steel columns at each corner taper inwards as they ascend to a point about 14 metres above the ground. Thereafter the columns rise vertically until just below the apex at which stage they slope sharply inwards to form a point. The pylon has three cross-arms, one above the other. The lowest is at the 14 metre level. The outer ends of each support a single power line; in other words, the tower supports six F lines in all. Each is attached at the lower end to a line of glass (or porcelain) insulators having the appearance of glass rings which descend vertically from the end of each cross-arm. The result is that each power line is in the region of about a metre below the cross-arm from which it derives its support. The four sides of the tower are G braced by cross-beams. All appear to be positioned diagonally save for three which are below the three metre level and which are horizontal. The significance of this feature is that the horizontal beams would facilitate the climbing of the pylon, while the highest of the three would appear from the photographs that were handed in to provide a useful foothold for anyone attempting to tamper with the ACD which is H situated at the three metre level. The three cross-arms are of a similar lattice construction. Another significant feature is the existence of climbing pegs which were fitted to at least one of the vertical columns from a point just above the ACD. Leaving aside the ACD for the moment, it follows from what has been said that the pylon is readily climbable by an aspirant climber, who would also have no I difficulty traversing out to the end of a cross-arm should he so wish. Finally, it is necessary to mention that the pylon was situated about 150 metres from the respondent's house and adjacent to the Malibu High School, Blue Downs. J

Scott JA

[4] The ADC fitted to Eskom's pylons is a standard design. It takes the form of a horizontal fence of barbed wire and in appearance, A at least, is a formidable barrier. As required by the Code of Practice for Overhead Power Lines (the NRS Code), it is installed as low as possible but 'not less than three metres above the ground'. It is constructed as follows. A horizontal bar is mounted diagonally at each corner of the tower so as to extend both outwards and inwards. In other B words, the bar extends both beyond and within the frame of the tower. Ten grooves are cut into the bar on its upper side; five on the inside of the frame and five on the outside. These are cut at an angle outwards, ie away from the corner column to which the bar is attached. A length of barbed wire is fastened at the one end to one of the bars and then threaded into the grooves and drawn from one bar to C the next around the structure 10 times before being fastened to the bar at which the process began. The result is a horizontal fence with five strands of barbed wire both on the inside and outside of the tower.

[5] The design of the device would appear to contemplate the barbed wire being so taut that the angle at which the grooves are cut D would prevent the wire from being pushed out of one of the grooves. If this were to happen the wire would go slack and the gap between the strands could easily be increased so as to permit a person to pass through the device with relative ease. There was much debate concerning the efficacy of the device in evidence, which is unnecessary to E traverse. What emerged is that while the design may have been good in theory, in practice it could not easily be implemented because of the difficulty associated with achieving the necessary tension on the barbed wire. As pointed out by Professor Reynders, an electrical engineer who testified on behalf of the respondent, the reason for F this was that when attempting to pull the wire taut around the tower, the barbs would tend to catch in the grooves resulting in some slackness. If, of course, the barbed wire were to be affixed to the bars at each groove, whether by means of binders (short lengths of wire) or otherwise, the device would not have this weakness. G

[6] Against this background I turn to the events of 4 August 1994. After returning from school in the early afternoon, Jacques, his younger brother and younger friend, decided to take the family dog for a walk. At some stage they found themselves on a footpath that passes by the pylon. Jacques testified that he then challenged his companions to a race to see who could first climb the highest up the pylon. Possibly what he had in mind at that stage was to H climb up as far as the ACD, but this was not...

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8 practice notes
  • 2011 index
    • South Africa
    • Juta South African Criminal Law Journal No. , September 2019
    • 16 August 2019
    ...328 © Juta and Company (Pty) Ltd Eskom Holdings Ltd v Hendricks 2005 (5) SA 503 (SCA) ............................. 37FFerreira v Levin 1996 (4) BCLR 441 (CC) ..................................................... 24GGellman v Minister of Safety and Security 2008 (1) SACR 446 (W) ... 240, 37......
  • S v TS
    • South Africa
    • Invalid date
    ...Africa D Attorney-General, Transvaal v Additional Magistrate for Johannesburg 1924 AD 421: referred to Eskom Holdings Ltd v Hendricks 2005 (5) SA 503 (SCA): dicta in paras [15] – [17] Jones NO v Santam Bpk 1965 (2) SA 542 (A): compared Ntanjana v Vorster and Minister of Justice 1950 (4) SA ......
  • Transforming age-related capacity for fault in delict
    • South Africa
    • Juta South African Law Journal No. , May 2021
    • 19 May 2021
    ...761 (A) at 765H.28 Jones supra note 20 at 552B; R oxa supra note 27 at 765H .29 Webe r supra note 6 at 39 0B–C.30 Eskom v Hendrick s 2005 (5) SA 503 (SCA) para 16.31 C J Davel ‘T he delictu al accountability a nd crim inal capa city of a chi ld: How big can the gap b e?’ (2011) 34 De Jure 6......
  • Member of The Executive Council of Gauteng Responsible for Education v Rabie
    • South Africa
    • Transvaal Provincial Division
    • 7 February 2008
    ...SA 740 (E) 742H-743; Haffajee v South African Railways and Harbours 1981 (3) SA 1062 (W) 1065 E-H; and Eskom Holdings Ltd v Hendricks 2005 (5) SA 503 (SCA)). Combrinck J held that a reasonable adult in Christian's position would have foreseen the possibility that he could be injured by part......
  • Request a trial to view additional results
5 cases
  • S v TS
    • South Africa
    • Invalid date
    ...Africa D Attorney-General, Transvaal v Additional Magistrate for Johannesburg 1924 AD 421: referred to Eskom Holdings Ltd v Hendricks 2005 (5) SA 503 (SCA): dicta in paras [15] – [17] Jones NO v Santam Bpk 1965 (2) SA 542 (A): compared Ntanjana v Vorster and Minister of Justice 1950 (4) SA ......
  • Member of The Executive Council of Gauteng Responsible for Education v Rabie
    • South Africa
    • Transvaal Provincial Division
    • 7 February 2008
    ...SA 740 (E) 742H-743; Haffajee v South African Railways and Harbours 1981 (3) SA 1062 (W) 1065 E-H; and Eskom Holdings Ltd v Hendricks 2005 (5) SA 503 (SCA)). Combrinck J held that a reasonable adult in Christian's position would have foreseen the possibility that he could be injured by part......
  • S v TS
    • South Africa
    • Western Cape Division, Cape Town
    • 29 October 2014
    ...child was mature enough to comply with that standard (400B – H). [22] Jones and Weber were followed in Eskom Holdings Ltd v Hendricks 2005 (5) SA 503 (SCA) paras 15 – 17. Scott JA said that the force of E subsequent criticism of Weber in its use of an adult standard in judging the negligenc......
  • Janvos Landgoed v Eskom
    • South Africa
    • Transvaal Provincial Division
    • 7 December 2006
    ...op die een of ander wyse vermeld in artikel 26 van die Elektrisiteitswet, 1987. Die beslissing in Eskom Holdings Ltd v Hendricks 2005 5 SA 503 (HHA) is 'n ooreenstemming met die voorgaande. In hierdie saak het die eiser, die respondent op appèl, se jong seun teen 'n kragpaal van die appella......
  • Request a trial to view additional results
3 books & journal articles
  • 2011 index
    • South Africa
    • Juta South African Criminal Law Journal No. , September 2019
    • 16 August 2019
    ...328 © Juta and Company (Pty) Ltd Eskom Holdings Ltd v Hendricks 2005 (5) SA 503 (SCA) ............................. 37FFerreira v Levin 1996 (4) BCLR 441 (CC) ..................................................... 24GGellman v Minister of Safety and Security 2008 (1) SACR 446 (W) ... 240, 37......
  • Transforming age-related capacity for fault in delict
    • South Africa
    • Juta South African Law Journal No. , May 2021
    • 19 May 2021
    ...761 (A) at 765H.28 Jones supra note 20 at 552B; R oxa supra note 27 at 765H .29 Webe r supra note 6 at 39 0B–C.30 Eskom v Hendrick s 2005 (5) SA 503 (SCA) para 16.31 C J Davel ‘T he delictu al accountability a nd crim inal capa city of a chi ld: How big can the gap b e?’ (2011) 34 De Jure 6......
  • Comment: The requirements for criminal capacity in section 11(1) of the new Child Justice Act, 2008: A step in the wrong direction?
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...sit uation that is of relevance.’ This ruling was more recently reiterated and endorsed by the SCA in Eskom Holdings Ltd v Hendricks (2005 (5) SA 503 (SCA) at paras [17] –[19]).In the same year that Weber v Santam Versekeringsmaatskappy Bpk appeared, Centlivres CJ’s dictu m in R v K (supra)......

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