The Respondent, Mr Halstead-Cleak, came into contact with a low hanging power line whilst cycling. He suffered electrical burns as a result. At the time of the incident, the power line was not supplying or required to supply electricity to anyone. However, after sustaining severe electrical burns, the Respondent issued a summons against Eskom for the damages that he had suffered from the power line.
The matter was heard in the South Gauteng High Court, in which the Respondent averred that Eskom was a “producer” or “supplier” of electricity or a “service” in terms of the Consumer Protection Act 68 of 2008 (The Act). Furthermore, the Respondent also averred that he was a “natural person” in terms of section 61(5) of the CPA and that he had suffered injuries, which constituted “harm”, as envisaged in terms of section 61 of the CPA, due to the alleged supply of unsafe goods and/or defective goods, or a hazard in goods resulting in injuries sustained by a consumer.
The South Gauteng High Court found Eskom strictly liable in terms of section 61 of the CPA for the damages that the Respondent had suffered. Eskom appealed against the decision and the matter was heard before the Supreme Court of Appeal (The SCA).
The SCA stated that the CPA’s purpose is to protect consumers. Thus, the High Court had lost sight of the fact that Eskom, as a “producer”, could only be held strictly liable in the instance that a supplier and consumer relationship existed between Eskom and the Respondent. The SCA reiterated that the CPA is restricted to a supplier and consumer relationship and that section 61(1)(b) provides for liability due to a product failure or defect or hazard in any goods supplied, by a supplier, to a consumer.
In this instance, the Respondent was not a consumer in relation to Eskom for various reasons. First, the Respondent did not enter into any transaction with Eskom, as a supplier or producer of electricity, in the ordinary course of Eskom’s business. Second, the Respondent was not utilising the electricity, nor was he a recipient or beneficiary thereof.
The SCA also reiterated that section 61(1)(c) provides for strict liability in the instance that inadequate instructions were given to a consumer who entered into a transaction with Eskom. However, in these circumstances, the Respondent and Eskom were not in a consumer, producer or supplier relationship in respect of the electricity that caused the harm to the Respondent.
Furthermore, the SCA found that the harm sustained by the Respondent had not occurred as a result of the electricity, itself, failing. This was also not a matter where the electricity had a defect or where the electricity was unable to perform in the manner that it was intended to perform. The electricity did not suffer from any material imperfection in its manufacture. Likewise, the electricity did not have the characteristic that rendered it less useful or safe than a person would generally expect in the circumstances. Finally, it was clear that the Respondent was not utilising the electricity when he was harmed.
As a result, the SCA upheld Eskom’s appeal, owing to the fact that the Respondent was not a consumer that was entitled to the protection of Part H of Chapter 2 of the CPA.
This case provides a clear interpretation of the CPA and the application of section 61 in particular.
Written by Lyndsey Strachan and supervised by Anja van Wijk, 11 September 2018