BLOEMFONTEIN – The Full Bench of the High Court in Bloemfontein has upheld an appeal on behalf of a minor child who suffered severe electrocution injuries from a fallen power line near Koffiefontein. The court set aside a previous ruling dismissing the claim, holding Eskom Holdings SOC Limited 100% liable on the merits for proven or agreed damages after the power utility failed to lead evidence to rebut the statutory presumption of negligence.

On 9 February 2020, the minor child, SBM, suffered severe burns to his feet and arm when he stepped on an exposed electrical cable lying on the ground at Rorichshoop farm, opposite Donkershoek location. Evidence presented at trial established that power lines in the area had been hanging dangerously low for over a year.

Following the incident, Eskom officials visited the child’s grandmother, A. Motlhomi, both at home and in hospital, instructing her not to take Eskom to court but to consult her own lawyer. The plaintiff launched a damages action against Eskom, relying on Section 25 of the Electricity Regulation Act 4 of 2006, which creates a legal presumption that electrical injuries are caused by the licensee’s negligence.

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Eskom admitted being a statutory licensee under the Act but issued a third-party notice against Letsemeng Local Municipality, claiming the municipality owned the farm and power lines. At the close of the plaintiff’s case, the trial court refused Eskom’s application for absolution from the instance, citing Section 25. However, after Eskom and the municipality closed their cases without leading any witness testimony, the trial judge dismissed the plaintiff’s claim. The trial court held that Section 25 did not assist the plaintiff, ruling that there was insufficient direct evidence proving Eskom owned or maintained the specific electrical infrastructure where the accident occurred.

Full bench overturns trial court decision

On appeal, Judge J. Mhlambi (with Judges J. Daffue and C. Reinders concurring) held that the trial court misdirected itself. The Full Bench highlighted that during cross-examination, Eskom’s own legal counsel produced photographs taken four days after the incident by an Eskom official, explicitly stating that they depicted “an Eskom line” crossing Rorichshoop farm.

The court noted that ownership of the underlying land was legally irrelevant, as Eskom power lines traverse private and public properties across South Africa. Crucially, the Full Bench clarified that Section 25 explicitly places the legal onus on the licensee to present credible evidence demonstrating an absence of negligence. By closing its case without leading rebuttal evidence, Eskom failed to discharge this onus.

Setting aside the lower court’s judgment, the Full Bench ruled that the most plausible inference was that Eskom was the responsible licensee. The court declared Eskom 100% liable for the minor’s proven or agreed damages and ordered the power utility to pay all appeal and trial costs, inclusive of counsel fees on Scale B.

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