IN THE HIGH COURT OF SOUTH AFRICA 
(GAUTENG DIVISION, PRETORIA)

DATE:1/6/2015
CASE NO: 26360/14

DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED

           29/5/15                                                                         
DATE		   SIGNATURE

In the matter between:

HALSTEAD-CLEAK, DEREK ANTHONY	Plaintiff
and
ESKOM HOLDINGS LIMITED	Defendant

JUDGMENT
Baqwa J
[1]	This is an action arising out of injuries suffered by the plaintiff in an incident 	which occurred on 11 August 2013.

The Parties
[2] 	The plaintiff is Derek Anthony Halstead-Cleak an investment consultant of 16 	Porter Avenue, Melrose North, Johannesburg. The Defendant is Eskom 	Holdings Limited, a public company incorporated in terms of the Company 	Laws of the Republic of South Africa with its principal place of business at 	Megawatt Park, Sunninghill, Sandton, Johannesburg.
[3] 	The Defendant has been the sole supplier of electricity on the national grid 	within the borders of the Republic of South Africa and a licencee in terms of 	and/or purposes of the Electricity Regulation Act, No. 4 of 2006. The 	defendant has thus been in effect and de facto in control of all power lines not 	falling under the control of any local authority or municipality or Metropolitan 	municipality.

The Factual Background
[4] 	On 11 August 2013 and at or near poles DN 73/13/1and DN 73/13/2, the 	plaintiff, whilst riding a bicycle inadvertently came into contact with a low 	hanging live power line spanning a footpath adjacent to Bokmakierie Road in 	the Nooitgedacht area, Gauteng. During the incident the plaintiff sustained 	severe full-thickness electrical burns to the right forehead and burn wounds to 	the chest, arms and both thighs.
[5] 	During the hearing plaintiff called the evidence of one Vincent Langlois who 	was a fellow rider on the day of the incident. Langolois testified how he and 	his other colleagues managed to ride under the overhanging line whilst the 	plaintiff was the last one at the rear of the riding party. He heard a scream and 	saw the plaintiff being electrocuted by the overhanging line. He tried to pull 	him off using the handle bars of the plaintiff's bicycle but was himself shocked. 	When the other riders attempted to pull him off the cable, and even though 	they were wearing thick winter gloves, they received severe electric shocks 	when they touched him. After the plaintiff's clothing had already started 	burning, his fellow cyclists were able to pull him free using the rubber tyres 	and handlebar grips of the bicycle to release him. He fell to the ground and 	the flames were put out by rolling him over. His fellow cyclists performed 	cardio pulmonary resuscitation (CPR) and after a few minutes, the plaintiff 	who was not breathing, began to breathe spontaneously, albeit laboriously.

The Issues
[6] 	The parties agreed to proceed to trial on the limited issue of whether the 	defendant is or is not strictly liable in terms of the provisions of Section 61 of 	the Consumer Protection Act, 68 of 2008 (“The CPA attack”).
[7] 	The parties agreed further that the delicitual part of the plaintiff's claim and the 	issue of the alleged quantum of damages be separated and postponed sine 	die.
[8] 	The parties further agreed that possible contributory negligence on the part of 	the plaintiff is not an issue in relation to the CPA attack.

The Pleadings
[9]	Certain facts are common cause either on the pleadings or for purposes of the 	limited issue:
	9.1	That the plaintiff is Derek Anthony Halstead-Cleak as described above.
	9.2	That the defendant was and at all times material hereto, a licensee in 		terms of and for purposes of the Electricity Regulation Act 4 of 2006 		(“The Electricity Act”) and that as such the Defendant is, and at all 		times material hereto was, responsible for the power line in question, 		namely the power line spanning poles DN73/13/1 and DN73/13/2 in the 		Nooitgedacht area of Gauteng, through which the Defendant conducted 		electricity (“The power line”).
	9.3	That, for purposes of the CPA attack, the Defendant was both the 		producer and the distributor of the electricity generated through the 		power line.
	9.4	That at the time of the incident the plaintiff was riding his bicycle on a 		footpath and the power line was hanging in a low-hanging position 		such that the plaintiff was able to come into contact with it.
	9.5	That the defendant was made aware of the incident on 14 August 		2013. That employees of defendant inspected the scene of incident on 		that day and found the power line in the position described ( supra) and 		that the Defendant immediately switched the power line off and made it 		safe.
	9.6	The plaintiff has filed Rule 36 (9) (b) summaries regarding expert 			witnesses Mr McKechnie (an Electrical Engineer) and Blumenthal (a 		Specialist Forensic Pathologist).
	9.7	The defendant made the following admission of the aforesaid 			summaries:
		“To the extent that the contents of the Rule 36 (9) (b) summaries of Mr 		McKechnie and of Dr Blumenthal are relevant to the limited issue on 		which the parties have agreed to proceed, namely the liability or 			otherwise of the defendant in terms of Section 61 of the Consumer 		Protection Act, 68 of 2008, and for the purposes of that dispute only, 		without being bound thereby should this matter proceed at any stage on 		any other disputes, the Defendant admits the correctness of the 		contents of the summaries in question.”
	9.8	The defendant, in conjunction with its duty to inspect, rectify and/or 		repair deficiencies or dangerous situations was reliant on dangerous 		situations being drawn to its attention which was less likely to occur 		where the line was not being used to conduct electricity to a user 		thereof. A user was more likely to report an obvious dangerous situation 		or an interruption.
	9.9	Electricity is a dangerous commodity especially in the context of 			inadvertent contact with live conductors (power lines) by humans or 		animals. This was confirmed in the defendant's training documentation 		which warns about the risk of fatal electrocution and the importance of 		minimum clearance to prevent inadvertent contact with live power lines 		which minimum clearance ranges from 4.9 to 10.4 metres depending on 		the voltage being conducted.
	9.10	The photographs of the plaintiff's injuries in the trial bundle demonstrate 		a pattern of burns mainly of an electrical nature (especially over the 		head and neck) and of the “open flame” type from secondary direct flame 		due to open fire or ignited clothing. The appearance of the injuries are 		of an “electro thermal nature” falling within the high voltage realm of 		more than 100 volts.
	9.11	Also common cause is the fact that the issue of contributory negligence 		does not arise for determination of the defendant's liability in terms of 		Section 61 of the Consumer Protection Act.

The Law
[10] 	One of the relevant provisions of the CPA to be considered in this case is 	Section 61 which must be read with Section 53 in which certain terms used in 	Section 61 are utilised.
	Section 53 reads as follows:
	“53.	Definitions applicable to this Part
		(1) In this Part, when used with respect to any goods... –
			(a)	“defect” means -
				(i)	any material imperfection in the manufacture of the 					goods..., ... that renders the goods ... less 						acceptable than persons generally would be 						reasonably entitled to expect in the circumstances; 					or
				(ii) 	any characteristic of the goods ... that renders the 					goods... less useful, practicable or safe than 						persons generally would be reasonably entitled to 					expect in the circumstances;
			(b)	“failure” means inability of the goods to perform in the 				intended manner or to the intended effect;
			(c)	“hazard” means a characteristic that –
				(i)	has been identified as, or declared to be, a hazard 					in terms of any other law; or
				(ii)	presents a significant risk of personal injury to any 					person, or damage to property, when  the goods 					are utilised; and
			(d)	“unsafe” means that, due to a characteristic, failure, 				defect  or  hazard,  particular  goods  present  an  extreme 				risk	of   personal	injury	or   property	damage	to   				the consumer or to other persons.”
[11] 	Although not the whole of Section 61 is relevant in casu, the whole section 	has to be quoted in its entirety in order to give a contextual meaning to the 	relevant portions. Consequently what follows is Section 61 in its entirety:
	“61.	Liability for damage caused by goods:
		(1)	Except to the extent contemplated in section (4), the 				producer, distributor or retailer of any goods is liable for any 			harm, as described in subsection (5), caused wholly or partly 			as  a consequence of –
			(a)	supplying any unsafe goods;
			(b)	a product failure, defect or hazard in any goods; or
			(c)	inadequate instructions or warnings provided to the 					consumer pertaining to any hazard arising from or 					associated with the use of any goods,
			irrespective of whether the harm resulted from any negligence 			on the part of the producer, importer, distributor or retailer, as 			the case may be.
		(2)	A supplier of services who, in conjuction with the performance of			those services, applies, supplies, installs or provides access to any 			goods, must be regarded as a supplier of those goods to the 				consumer, for the purposes of this section.
		(3)	If, in a particular case, more than one person is liable in terms of 			this section, their liability is joint and several.
		(4)	Liability of a particular person in terms of this section does not arise 			if-
			(a)	the unsafe product characteristics, failure, defect or hazard 				that results is wholly attributable to compliance with any 				public regulation;
			(b)	the alleged unsafe product characteristic, failure, defect or 				hazard-
				(i)	did not exist in the goods at the time it was 						supplied by that person to another person alleged 					to be liable; or
				(ii)	was wholly attributable to compliance by that 					person with instructions  provided by the person 					who supplied the goods to that person, in which 					case subparagraph (i) does not apply;
			(c)	it is unreasonable to expect the distributor or retailer to have 				to discover the unsafe product characteristic, failure, defect 				or hazard, having regard to that person's role in marketing 				the goods to consumers; or
			(d)	The claim for damages is brought more than three years 				after the-
				(i)	death or  injury of person contemplated in 						subsection (5)(a);
				(ii)	earliest time at which a person had knowledge of 					the material facts about an illness contemplated in 					subsection (5)(b); or
				(iii)	earliest time at which a person with an interest in 					any property had knowledge of the material facts					 about the Joss or damage to that property 						contemplated in subsection (5)(c); or
				(iv)	the latest date on which a person suffered any 					economic Joss contemplated in subsection (5)(d).
		(5)	Harm for which a person may be held liable in terms of this 				section includes-
			(a)	the death of, or injury to, any natural person;
			(b)	an illness of any natural person;
			(c)	any Joss of, or physical damage to, any property, 					irrespective of whether it is movable or immovable; and
			(d)	any economic loss that results from harm contemplated in 				paragraph (a), (b) or (c).
(6)	Nothing in this section limits the authority of a court to-
(a)	assess whether any harm has been proven and 		adequately mitigated;
(b)	determine the extent and monetary value of any 		damages, including economic loss; or
(c)	apportion liability among persons who are found 		to be jointly and severally liable.”
[12]	Section 1 defines concepts such as “consumer”, “distributor”, “goods”, “market”, 	“producer'', “supplier'', and “supply” as follows:
	“5.3. 1 “Consumer'':
		“consumer”, in respect of any particular goods or services, means-
			(a)	a person to whom those particular goods or services are 				marketed in the ordinary course of the supplier's business;
			(b)	a person who has entered into a transaction with a supplier 				in the ordinary course of the supplier's business, unless the 				transaction is exempt from the application of this Act by 				section 5(2) or in terms of section 5(3);
			(c)	if the context so requires or permits, a user of those 				particular goods or a recipient or beneficiary of those 				particular services, irrespective of whether that user, 				recipient or beneficiary was a party to a transaction 				concerning the supply of those particular goods or 					services; and
			(d)	a franchise in terms of a franchise agreement, to  the
				extent applicable in terms of section 5(6)(b) to (e);
	5.3.2 	“Distributor”:
			“distributor”, in relation to any particular goods, means a person 			who, in the ordinary course of business –
			(a)	is supplied with those goods by a producer, importer or other 				distributor; and
			(b)	in turn, supplies those goods to either another distributor or 				to a retailer;
	5.3.3	“Goods”:
			“goods” includes-
	(a)	anything marketed for human consumption;
	(b)	any tangible object not otherwise contemplated in 				paragraph (a), including any medium on which anything is 			or may be written or encoded;
	(c)	any literature music, photograph, motion picture, game, 			information, data, software, code or other intangible product 			written or encoded on any medium, or a licence to use any 			such intangible product;
	(d)	a legal interest in land or any other immovable property, 			other than an interest that falls within the definition of 			“service” in this section; and
	(e)	gas, water and electricity;
	5.3.4	“Market”
			“market'', when used as a verb, means to promote or supply 			goods or services;
	5.3.5	“Producer'':
			“producer'', with respect to any particular goods means a 				person who-
			(a)	grows, nurtures, harvests, mines, generates, refines, 				creates, manufactures or otherwise produces the goods 				within the Republic, or causes any of those things to be 				done, with the intention of making them available for 				supply in the ordinary course of business; or
			(b)	by applying a personal or business name, trade mark,				trade description or other visual representation on or in 				relation to the goods, has created or established a 					reasonable expectation that the person is a person 					contemplated in paragraph (a);
	5.3.6	“Supplier'':
			“supplier” means a person who markets any goods and 				services;
	5.3.7	“Supply”:
			“supply”, when used as a verb-
			(a)	in relation to goods, includes sell,rent, exchange and hire in				 the ordinary course of business for consideration; or
			(b)	in relation to services, means to sell the services, or to 				perform or cause them to be performed or provided, or to 				grant access to any premises, event, activity or facility in the 				ordinary course of business for consideration.
[13] Another statutory provision that has some relevance is Section 25 of the Electricity Act which provides as follows:
	“Liability of licensee for damage or injury
	In any civil proceedings against an licensee arising out of damage or injury 	caused by induction or electrolysis or in any other manner by means of 	electricity generated, transmitted or distributed by a licensee, such damage 	or injury shall be presumed to have been caused by the negligence of the 	licensee, unless there is credible evidence to the contrary.”

Defences raised by the Defendant
[14] 	The defendant contends that the CPA is about consumerism and the 	protection of consumers and that had the Plaintiff suffered the electrical burns 	that he did in the course of utilising the supply of electricity to his home, or 	otherwise in the course of his use of electricity, then the CPA might well have 	applied. The defendant's counsel submits further that all analysis of Section 	61 itself, let alone Sections 53 and 61 within the context of the CPA reveals 	that the CPA and Section  61 in particular was not intended to apply to 	circumstances such as the present case.

Discussion
[15]	It has been observed worldwide that the design, manufacture and distribution 	of products are activities that occupy the centre stage for the wealth and 	welfare of society. As a matter of fact owing to the unpredictable nature of 	man-made products this at times may result in death, disease or injury for a 	wide range of parties, for example workers in factories or along distribution 	channels, users of defective products and third parties like consumers and 	innocent bystanders.
	See Van Eden E: Consumer Protection Law in South Africa (2013) 367.
[16]	To an extent this is what constituted the reasoning behind formulation of the 	CPA. The preamble to the CPA confirms recognition of the fact, inter alia that 	“it is necessary to develop and employ innovative means to... (b) protect the 	interests of consumers, to ensure accessible, transparent and efficient redress 	for consumers who are subject to abuse or exploitation in the market place 	and (c) to give effect to internationally recognised custom rights.” The 	preamble then states that the enactment into the CPA is intended to, inter alia, 	“protect consumers against hazards to their wellbeing and safety, develop 	effective means of redress for consumers ...”
[17]	The CPA provides protection to and redress for “any person” in a number of 	its provisions, that is, not only in respect of “consumers” or a “consumer”. An 	example regarding the application of the CPA to “consumers” as defined in 	Section 1, is section (5)(5) which provides that sections 60 and 61 are 	applicable and even in respect of transactions exempt from the provisions of 	the CPA. The submission therefore, by the defendant that an innocent third 	party who is not necessarily a “consumer” stricto sensu, who suffers 	loss (such as a dependant of a breadwinner who is or may be a consumer 	who is killed by a defective product) cannot claim redress because he or 	she is not the consumer would be contrary to the spirit and purpose of the 	CPA.

Application  of the CPA: Section 5
[18]	Section 5 provides for the scope and ambit of the CPA. In terms of 	Section 5(1) the CPA applies to:
	18.1	every transaction occurring within the Republic (unless it is exempted 		in terms of the CPA) Section 5(1) (a).
	18.2	the promotion of any goods or services, or the supplier of any goods 		or services, within the Republic, unless the goods or services  have 		been exempted in terms of the CPA Section 5(1) (b) (iii).
	18.3	it is also clear from a reading of Section 5(8) of the CPA that the 		Act applies “irrespective whether the supplier is... a juristic person 			....organ of state, an entity owned or directed by an organ of state, a 		person contracted or licensed by an organ of state to.... supply any 		goods or services, or is a public-private partnership, or is required or 		licensed in terms of any public regulation to make the supply of 			particular goods or services available to all or part of the public.”
	18.4	in terms of Section 5(5) the provisions of Section 61 apply even to 		exempted transactions which is indicative of its “wider” application,		thus affording redress to persons who would not enjoy  the  advantage  		of other provisions of the CPA, and render liable  those  producer, 		suppliers, promoters and the like who would otherwise not be liable 		in terms of any other provisions of the CPA.
[19]	Despite the existence of common cause facts and the admissions by the 	defendant regarding certain facts alleged by the plaintiff it is necessary to 	consider certain aspects regarding the application of the CPA in more detail 	namely:
	19.1	whether “goods” and/or “services” as defined are involved?
	19.2	if so, the  capacity  in which  the  defendant  stands  in relation to such 		“goods” and/or “services”?
	19.3	the relationship occupied by the Plaintiff in relation to such “goods” and/or		“services”.
	19.1.1	Regarding the first issue and with reference to Section 1 of the Act in 	 	which	“goods” are defined,	the definition is clearly intended to go under 		the concepts set out in subsections (a) to (e) under the definition of 		“goods”. The use of the word “includes” is indicative of this fact. There 		can be no doubt however that electricity constitutes “goods” for purposes 		of the CPA as it is clear from subsection (e) which includes goods, 		water and electricity as part of the definition. It can therefore be accepted 		that the electricity which caused the Plaintiff's injuries constitutes “goods” 		for purposes of Section 61 of the CPA.
	19.2.1	Regarding the second issue, the following definitions require 				consideration:
		19.2.1.1	In terms of Section 1 “producer” with respect to any 				particular goods means a person who “...generates ... 				creates, manufactures or otherwise produces the goods 				within the Republic, or causes any of those things to be 				done, with the intention of making them available for 				supply in the ordinary cause of its business; ...” It is 					common cause that the defendant generated the electricity 				(and therefore the “goods”) for purposes of this 					distribution, and that its intention at all times is and was to 				supply the electricity in the ordinary cause of business.
		19.2.1.2	“retailer” with respect to any particular goods, is defined as 				“a person who in the ordinary cause of business, supplies 				those goods to a consumer.” Based on the definition of 				“supplier” and “supply” dealt with hereunder, the defendant 				was a “retailer” in respect of the electricity supplied to 				consumers in general. This does not mean that the 					“consumer” has to be the injured party in this instance as 				such an interpretation would not be in accordance with the 				spirit and purpose of the CPA.
		19.2.1.3	In terms of Section 1 “supplier” means a person who 				markets any goods or services. “market”, when used as a 				verb, is defined as meaning “to promote or supply any 				goods or services”. In terms of Section 1 “supply” when 				used as a verb in relation to goods, includes sell “...in the 				ordinary cause of business for consideration; ...” Taking all 				these definitions into consideration it would appear that 				the defendant's claim that the CPA is not applicable has no 				merit.
		19.3.1		With regard to the third consideration i.e. the relationship in 				which the plaintiff stands to the defendant and the 					“goods”, the wording of Section 61(5) makes it clear that 				liability arises not only in respect of “consumers” as defined 				in the CPA or consumers in the general sense, but to “any 				natural person” (Section 61(5)(a)). The plaintiff need not, 				therefore be a “consumer” in the contractual sense as 				defined in order for the Defendant to be liable to him.
[20]	Section 53(1) provides that ““defect” when used with respect to any goods, 	component of any goods or components, or in the performance of the 	services,” refers to any aspect “that renders the goods or the results of the 	service Jess acceptable than persons generally would be reasonably entitled 	to expect in the circumstances”.
[21]	In the context of electricity being conducted along a line which is not required or 	used to supply any other consumer, this constitutes “goods or results of the 	services less acceptable than persons generally would be reasonably  	entitled to expect in the circumstances.”
[22] 	Further, considering the inherent dangers or characteristics of electricity, by 	permitting such a danger to exist, that constituted “goods or components Jess ... 	safe than persons generally would be reasonably entitled to expect in the 	circumstances.” Logic accordingly dictates that the defendant cannot introduce a 	source of danger and thereafter seek exoneration when injury is caused as a 	result thereof.
[23]	It is common cause that the defendant allowed the presence of electricity in the 	lines spanning the foot path used by the plaintiff on the day of the incident. 	Upon learning of the incident the defendant rectified the situation by causing 	electricity to be switched off and the lines dismantled. I am fortified to use the 	same principle used in the case of Coppejans v Bosman (34676/2013) [2014] 	ZAGPHC 1833 to establish liability. In an action based on the action de 	pauperie the defendant had denied liability on the basis that the dog which had 	bitten the plaintiff was a stray dog. Yet the defendant had not only salvaged the 	plaintiff from the mauling, he took her to hospital, paid the bill, visited her in 	hospital and eventually killed the dog. If the defendant was not guilty he 	would not have incurred such expenses for a matter that does not concern	him. The same applies to the defendant in the present case. Its actions after 	the incident reinforce the notion that it had introduced the source of danger 	which led to the plaintiff's injuries for which it would be held liable.
[24]	Lastly, it is notable that the defendant neither pleaded nor adduced any 	evidence to substantiate the non-applicability of the CPA. The defendant was 	content to put this in issue by way of a bare denial which is not sufficient to 	rebut the plaintiff's case.
[25]	Section 61(1) provides for strict liability and it does not matter whether the 	harm resulted from any negligence on the part of the defendant as a producer, 	distributor or retailer. In the circumstances I am satisfied that the plaintiff has 	succeeded to prove that the defendant is liable in terms of Section 61(1) of 	the CPA.
[26]	Further, I find that the plaintiff is entitled to the costs consequent upon 	consulting with his expert witness, Mr Mckechnie and Dr Blumenthal, and the 	costs occasioned by their reports and the expert summaries drawn on their 	behalf.
[27]	In the result I make the following order:
	27.1	The defendant is declared to be 100% (one hundred per cent) 		liable to the plaintiff for and in respect of the injuries sustained 		by the plaintiff on the 11 August 2013 in terms of Section 61 of 		the Consumer Protection Act, No 68 of 2008.
	27.2	The defendant is ordered to pay the reasonable taxable party	and 		party costs of the plaintiff on the High Court scale, such costs to 		include:
		27.2.1	The reasonable fees of senior counsel
		27.2.2	The reasonable costs, fees and/or disbursements 				occasioned in respect of the plaintiff's expert witnesses, Mr 			I Mckechnie and Dr R Blumenthal (including  preparation 			of their  reports and the drafting of expert summaries in 			respect thereof).
	27.3	It is ordered that the taxable or agreed costs payable by the 			defendant shall bear  interest at 9% per annum calculated 		from  agreement in respect thereof, alternatively from the date of 		affixing of the allocatur of the taxing master, to date of payment.

S. A. M. BAQWA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA

For the Plaintiff:	Adv. W. P. De Waal SC
Instructed by:	Joseph's Inc.

For the Defendant:	Adv. J. F. Mullins SC
Instructed by:	Mathie Jooma Sabdia Incorporated

Date of Judgment:	1 June 2015