Pietermaritzburg City Council v PMB Armature Winders

• Jurisdiction: South Africa
• Judge: Miller JA, Cillié JA, Viljoen JA, Galgut AJA and Nicholas AJA
• Judgment Date: 28 March 1983
• Citation: 1983 (3) SA 19 (A)
• Hearing Date: 07 March 1983
• Court: Appellate Division

Miller JA:

This appeal is against a judgment delivered by D DIDCOTT J in the Natal Provincial Division, upholding the respondent's contentions concerning the meaning and effect of s 50 of the Electricity Act 40 of 1958. The judgment is reported under the name PMB Armature Winders v Pietermaritzburg City Council at 1981 (2) SA 129 (N). Two questions were considered and resolved by the Court in terms of Rule 33. (See at 130E.) E Subsequent to delivery of the judgment resolving the questions in respondent's favour, the Court a quo made an order by consent for payment to the respondent of the sum of R1 176,88, being the agreed amount to which the respondent would be entitled (if the rulings given by DIDCOTT J were correct) as compensation in respect of damage done to its equipment by F electricity transmitted by the electrical plant and machinery of the appellant. The latter order was made without prejudice to the appellant's right to appeal to this Court. Although the appeal was noted against the latter order, the true issues on appeal are the two questions resolved by the Court a quo in terms of Rule 33.

Section 50 of the Act reads as follows:

G "50. Liability of undertaker for damage or injury.

(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 defendant, H 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 not in the employ of the defendant or of some person operating the plant or machinery of the defendant without his consent."

It was common cause in the Court a quo and in this Court, (a) that the appellant was for purposes of the Act an "undertaker" as defined in s 1 thereof and (b) that the damage suffered by respondent was not caused by induction or electrolysis. The questions to be answered are:

Miller JA

1.

Whether, the damage not having been caused by induction or electrolysis, the respondent's claim fell within the provisions of s 50 (1)? (The appellant's contention is that the general words "or otherwise" in s 50 (1), following as they do upon the specific words "induction or electrolysis", should be given a A restricted rather than their ordinary, wide meaning. The ejusdem generis rule is invoked in support of such contention.)

2.

Whether, in effect, s 50 (1) provides (subject to the provisions of s 50 (2)) for absolute liability of an undertaker, as the respondent contended, or, as the B appellant contended, merely shifts the onus on to the undertaker to prove the absence of negligence?

I shall deal first with the second of these questions. A question similar to it came before MALAN J in Botes v Potchefstroom Municipality and Another 1941 TPD 149. It arose from the provisions of s 49 of the Electricity Act 42 of 1922, which for all practical purposes are identical with the C provisions of s 50 of the Act now under consideration. MALAN J rejected an argument that absolute liability was imposed by s 49 (1) and concluded that, upon a proper construction of the relevant section, its effect was "to transfer the incidence of onus under the common law" (at 154). It is noteworthy that MALAN J accepted that the ordinary meaning of the words used in D the section was that the undertaker was to be placed "in the position of an insurer". He concluded, however, that acceptance of the ordinary meaning would have consequences "so absurd" that "such an intention coule hardly be ascribed to the Legislature". DIDCOTT J firmly (and in my opinion rightly) declined an invitation to follow the decision of MALAN J, which he held was wrong.

E In argument before us, Mr Shaw, for the appellant, also relied on anomalies which he said would flow from a finding that the section saddled an...