THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 336/11
Not Reportable
In the matter between:

HENDRIK JOHANNES PITZER
Appellant
and
ESKOM

Respondent

Neutral citation:  Hendrik Johannes Pitzer v Eskom (336/11) [2012]
ZASCA 44 (29/03/ 2012).

Coram:

NUGENT, CACHALIA and BOSIELO JJA and PETSE
and BORUCHOWITZ AJJA

Heard:
28 February 2012

Delivered:
29 March 2012

Summary:  Negligence – failure to take reasonable precautions against
foreseeable risk – action for damages against undertaker, as defined in
Electricity Act 41 of 1987 – qualified electrician injured in a live chamber of
an electrical substation – undertaker failing to rebut presumption of
negligence.

______________________________________________________________
ORDER
______________________________________________________________
On appeal from: South Gauteng High Court, Johannesburg, (Moshidi
J) sitting as court of first instance):
The following order is accordingly made:
1. The appeal succeeds with costs.
2. The order of the court a quo is set aside and the following order
substituted:
‘It is declared that the defendant is liable for fifty per cent of
the plaintiff’s proven or agreed damages.’
______________________________________________________________
JUDGMENT
______________________________________________________________
BORUCHOWITZ AJA (NUGENT, CACHALIA and BOSIELO JJA
and PETSE AJA concurring):
[1] On 14 July 2006 the appellant was injured by an electric shock
sustained inside a live chamber of an electrical substation operated by the
respondent (Eskom) at a complex in Vanderbijlpark. Arising from this
incident he sued Eskom for damages in the South Gauteng High Court,
Johannesburg, alleging that it had been negligent in various respects. Eskom
denied liability. The trial proceeded on the issue of liability only. At its

conclusion, Moshidi J, dismissed the claim, holding that the appellant’s injury
was caused solely by his own negligence and that there had been a voluntary
assumption of risk. With the leave of the court a quo the appellant appeals
against this judgment.

[2] A live chamber is an enclosed room or area in which a high voltage
electrical apparatus is housed. The live chamber in which the appellant was
electrocuted is located inside a high voltage yard. In terms of regulations
issued by Eskom access to such a yard is strictly controlled, and the door to
every live chamber is required to be closed at all times and the key thereto
kept under the control of a designated official. The appellant, who is a
qualified electrician, was aware of these requirements as he had completed a
course presented by Eskom relating to the regulations.

[3] During the week ending 14 July 2006, the appellant was employed by a
private electrical contracting company to carry out electrical work in a control
room which is located outside the high voltage yard.  He was being assisted
by Mr Msibi.  At that time certain structures were being painted within the
yard under the auspices of an independent contractor. The painting contractor
was given access to the high voltage yard through a gate closest to the control

room, and was permitted to use a private lock in order to open and close this
gate.

[4] At the time the high voltage yard was under the control and supervision
of Mr Fourie, a principal technical official employed by Eskom. His duty was
to ensure that the requirements of the regulations were complied with and that
the electrical substation was properly secured at all times.

[5] The appellant testified that at about 11h00 on 14 July 2006 he was
approached by Mr Fourie who informed him that he was going fishing. Fourie
then left the substation in his Eskom vehicle. When the appellant later
emerged from the control room he noticed that the main gate to the high
voltage yard was open. The appellant knew, by virtue of his training, that the
gate should have been closed and locked, unless work was being performed
under supervision inside. He therefore decided to close the gate, but before
doing so he wanted to satisfy himself that all the painters had vacated the
yard.

[6] Upon entering the yard the appellant observed that the door to the live
chamber on the first floor of the southern blockhouse was open. In order to
satisfy himself that no one was in the blockhouse, he went up the stairs and

approached the live chamber. He then entered the live chamber where he
noticed certain electrical equipment lying on the floor in a partially
dismantled state. It was at that stage that the appellant sustained an electric
shock and was rendered unconscious.  He was taken to the hospital by his
assistant, Mr Msibi.

[7] The appellant explained that he entered the live chamber because he
believed that it was either dead or decommissioned. His belief was reinforced
by the following factors: the door to the live chamber was open when it
should have been closed, the bottom doors to the blockhouse were open and
painters were seen using the cubicles, one of the rooms in the southern
blockhouse was burned down and equipment used to generate electricity lay
in a dismantled state on the floor of the live chamber.

[8] Mr Fourie conceded that he left the premises at about 11h00, but there
is a conflict in the evidence as to the means by which he did so.  He said that
he left the yard through the gate being used by the painters, who were at that
time preparing to leave, and that he assumed that they would lock the gate.
At the time he left, so he said, the other gates to the yard were locked.
Fourie’s evidence in this regard is neither credible nor probable. Pitzer’s
testimony that he entered the high voltage yard is corroborated by Mr Msibi.

Their versions were also not challenged in cross-examination and nor, as one
would have expected, was it put to them that Mr Fourie had left the high
voltage yard through the gate that was used by the painting contractor.

[9] Mr Barry Leslie, a protection specialist employed by Eskom, gave
expert evidence. He examined the live chamber immediately after the incident
and identified flash marks on a meter panel approximately three meters from
the door. He also found burnt paint and the residue of clothing on a horizontal
bar. He concluded from this that the appellant would have been some three
meters into the live chamber and in close proximity to the live equipment
when he was electrocuted.

[10] The aforegoing is, in broad terms, a summary of the relevant evidence.
The appellant’s version was corroborated in material respects by the
testimony of his assistant, Mr Msibi. No countervailing evidence was adduced
by Eskom as to the circumstances giving rise to the appellant’s injury.

[11] There is a presumption of negligence that operates in favour of the
appellant. Section 26 of the Electricity Act 41 of 1987 (the Act) provides:
‘In any civil proceedings against an undertaker arising out of damage or injury caused by
induction or electrolysis or in any other manner by means of electricity generated or
transmitted by or leaking from the plant or machinery of any undertaker, such damage or

injury shall be presumed to have been caused by the negligence of the undertaker, unless
the contrary is proved.’

[12] Eskom is an ‘undertaker’ as defined in section 1 of the Act. It is
common cause that the appellant’s injuries were caused by electricity
transmitted by Eskom’s apparatus in the live chamber. The effect of the
section is to cast upon Eskom the onus of proving on a balance of
probabilities that it was not negligent or, if it was, that there was no causal
link between that negligence and the injury sustained by the appellant. (See
Eskom Holdings Ltd v Hendricks 2005 (5) SA 503 (SCA) para 8).

[13] Counsel for Eskom, rightly, conceded that the trial court’s finding that
there had been a voluntary assumption of risk by the appellant was
unsustainable. It was submitted, however, that Eskom had discharged the
evidential onus of establishing an absence of negligence on its part.

[14] Two general propositions were advanced on Eskom’s behalf. Firstly,
that a diligens paterfamilias in the same position would not have foreseen the
possibility that a trained electrician, such as the appellant, would enter a live
chamber and injure himself by coming into contact with live equipment.
Secondly, on the assumption that such harm was reasonably foreseeable, that
Eskom had taken all reasonable steps to guard against such occurrence. In this

regard, Eskom had ensured that the live chamber was specifically housed in a
separate blockhouse structure located on the first floor away from other
activities at ground level, the keys thereto were subject to strict control and
access to the chamber was only permitted if authorised by a permit.

[15] It was also argued that the appellant’s injury was caused entirely by his
own negligence. He was only required to perform work in the control room
outside the high voltage yard and had no instruction or authority to enter the
yard. He knew the dangers of electricity and particularly the dangers
associated with live chambers, but despite such knowledge entered the live
chamber and touched or placed himself in close proximity to the high voltage
equipment. It was submitted that a reasonable person in the position of the
appellant would not have entered the live chamber before first ascertaining
whether it was in fact decommissioned. Moreover, the appellant’s stated
reason for entering the yard and the live chamber was contradictory, illogical
and suspicious. If he really believed that the chamber was not active there
would have been no reason for him to conclude that he had a duty to enter the
yard and close or lock the door of the live chamber. He also had no key with
which to lock the chamber.

[16] Finally, it was submitted that even if the gate to the high voltage yard
and the exit door to the live chamber were open, this was not the cause of the
appellant’s injury. The direct cause was his own negligence in entering the
live chamber.

[17] Of the three requirements that are necessary for liability under the
Aquilian action, only fault (culpa) and causation are in issue. Wrongfulness is
not in contention. The parties accept that as the operator of a high voltage
system, Eskom was under a legal duty to take reasonable measures to prevent
injury to persons entering the high voltage yard and that a failure to do so
would be actionable.1

[18]    The test for determining negligence is that formulated by Holmes JA in
Kruger v Coetzee 1966 (2) SA 428 (A) at 430E-F:
‘For the purposes of liability culpa arises if–
(a) a diligens paterfamilias in the position of the defendant–
(i) would foresee the reasonable possibility of his conduct injuring another in
his person or property and causing him patrimonial loss; and
(ii) would take reasonable steps to guard against such occurrence; and
(b)   the defendant failed to take such steps.’

1   See, for example, Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 (3) SA 138 (SCA)
paras 11‐13 and cases cited.

[19]  I think there can be no question that Mr Fourie must have foreseen, or
at least ought reasonably to have foreseen, that some person, albeit that he or
she may have been a trespasser, might enter the yard and be exposed to the
danger of electrocution if the gate to the yard was left open while it was not
under supervision. The very purpose for which there was a gate, and for
which Mr Fourie’s instructions were to keep it locked, was to prevent that
from occurring. It was submitted on behalf of Eskom, however, that even if it
was foreseeable that some person might be exposed to the risk of
electrocution, it was not foreseeable that harm might come to a person in the
position of Mr Pitzer, a trained electrician.

[20] Whether foreseeability of harm to someone suffices for negligence, or
whether it requires foreseeability of harm to a person in the position of the
appellant, is a matter that has evoked considerable debate over the years.  It is
not necessary to enter that debate in this case. I will assume that the
reasonable foreseeability of harm to a person in the position of the appellant
namely, a person qualified and experienced in the risks associated with
electricity, is required for Mr Fourie (and hence Eskom) to be held liable.

[21] In my view, Mr Fourie should reasonably have foreseen that even a
qualified electrician might come to harm if the entrances to the premises were

left open. Indeed, I think that one might expect that such a person particularly
will appreciate the risks of leaving the premises open and will take steps to
prevent that happening, if necessary by entering the premises to close and
secure open doors. Nor do I think that his or her qualification, in itself, is any
guarantee that he or she will not come to harm. He or she will not necessarily
have intimate knowledge of the apparatus on the premises; he or she will not
be aware of dangers that might have been left in existence by incomplete
work; he or she will not necessarily be aware of the layout of the apparatus
and where the danger points are. The fact alone that the appellant found
himself being electrocuted seems to me to demonstrate amply that even
qualified electricians are subject to risk.

[22] We were referred by counsel for Eskom to the decision of this court in
Kruger v Carlton Paper of South Africa (Pty) Ltd 2002 (2) SA 335 (SCA).  In
that case a maintenance electrician came into contact with a live terminal
connected to a transformer.  The court identified the issue before it as follows:
‘During argument before us it became clear that the question for decision had narrowed to
whether the defendant ought reasonably to have foreseen the possibility of the plaintiff, a
qualified and trained electrician of experience, who was well aware of the dangers of
electricity, coming into contact with the NEC terminal in the enclosure and injuring

himself, and whether the defendant ought reasonably to have taken steps to insulate the
terminal.’2

[23] It went on to make the following findings:
‘The salient facts which were available to the defendant as a reasonable person at the
relevant time to enable it to decide whether there was any real danger of the plaintiff
coming into contact with the terminal, were the following:
(a)
The plaintiff was a qualified and trained electrician.
(b)
He was aware of the danger of coming into contact with the live terminal and how
he had to conduct himself in the enclosure. He knew that it was dangerous to get
close to the terminal and that it was not required of him to get close to it.
(c)
At the commencement of his employment with the defendant in 1988 he had been
inducted while working under the supervision of a senior electrician and would
have been told of the dangers inherent in working in proximity to an electrically
live apparatus, in this case, the NEC.
(d)
From 1988 to 1994 when the accident occurred, he had worked without incident
and had not complained that working in the NEC enclosure constituted any danger
to himself.’3

And it concluded as follows:
‘Having regard to all the above factors I consider that a reasonable person in the position of
the defendant would not have foreseen that the plaintiff would either squeeze between the

2 Kruger v Carlton Paper of South Africa (Pty) Ltd para 9.
3 Kruger v Carlton Paper of South Africa (Pty) Ltd para 13.

terminal and the wall or get so close to the terminal as to cause him to come into contact
with it.’4

[24] What is or is not reasonably foreseeable in any particular case is a fact
bound enquiry. I think it is clear from the abovementioned excerpts alone that
it was by no means only because the plaintiff in that case was an electrician
that the court concluded that harm to a person in his position was not
foreseeable. The facts that founded that decision were more complex than
that. Where questions that fall to be answered are fact bound there is seldom
any assistance to be had from other cases that do not share all the same facts.
That seems particularly apposite in this case, in which the facts are materially
distinguishable.

[25] In my view, it was indeed reasonably foreseeable to Mr Fourie that if
the premises were left open the appellant might enter and accidentally be
electrocuted.  It needs to be borne in mind that the precise or exact manner in
which the harm occurs need not be foreseeable: only the general manner of its
occurrence. (Sea Harvest Corporation (Pty) Ltd & another v Duncan Dock
Cold Storage (Pty) Ltd & another 2000 (1) SA 827 (SCA) para 22). That
being so, he was obliged to take reasonable steps to avoid it occurring. What

4 Kruger v Carlton Paper of South Africa (Pty) Ltd para 19.

was called for in that regard was no more than to lock the gate as his duties
required.  His failure to do so was in my view negligent.

[26]  Turning to the question of causation, the test is ‘whether but for the
negligent act or omission of the defendant the event giving rise to the harm in
question would have occurred’ (Minister of Police v Skosana 1977 (1) SA 31
(A) at 35C-D. See too Siman & Co (Pty) Ltd v Barclays National Bank Ltd
1984 (2) SA 888 (A) at 915B-H; International Shipping Co (Pty) Ltd v
Bentley 1990 (1) SA 680 (A) at 700F-H).

[27] That the gate to the high voltage yard and the exit door to the live
chamber were open at the relevant time can admit no doubt regarding
causation. Logic dictates that had they been closed the appellant would not
have had access to the substation and the incident would not have occurred. It
is indeed so that the appellant’s explanation for entering the live chamber is
suspicious, but nothing material turns on that aspect. It was Eskom’s duty to
ensure that only authorised persons had access to the yard and that the
substation was properly secured as required under the regulations. Eskom’s
designated official, Mr Fourie, was required to see to it that all doors and
gates to the substation and, especially to the live chamber were closed and
locked. Clearly, he did not comply with his obligations. The reason as to why

the door to the live chamber was left open remains unexplained. There was
thus a causal link between Eskom’s conduct in failing to properly secure the
yard and the live chamber and the appellant’s injury. But whether Eskom’s
conduct was the sole cause of the appellant’s injury is another matter.

[28]   What remains is whether the appellant was contributorily negligent.
Objectively viewed the appellant would have had no valid reason to assume
that it was safe to enter the live chamber. The factors upon which the
appellant relied were at best superficial. The appellant never knew for a fact
whether the blockhouse and live chamber had been decommissioned. A
reasonable person in the position of the appellant ought to have made such
enquiries before entering the live chamber. He was undoubtedly negligent in
either touching or standing in close proximity to the high voltage equipment
which injured him.

[29]   On an overview of the proven facts, I find that both parties were equally
at fault in relation to the damage caused and that the appellant’s damages
should be reduced by fifty per cent.

[30]   The following order is accordingly made:
1. The appeal succeeds with costs.
2. The order of the court a quo is set aside and substituted with the
following:

‘It is declared that the defendant is liable for fifty per cent of
the plaintiff’s proven or agreed damages.’

_____________________
P BORUCHOWITZ
ACTING JUDGE OF APPEAL

Appearances:
Appellants:

J J WESSELS SC
Instructed by Malcolm Lyons & Brivik,
Cape Town
Matsepes Inc, Bloemfontein

Respondent:                            M DU P VAN DER NEST SC

Instructed by Webber Wentzel,
Johannesburg
McIntyre & Van Der Post, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form
part of the judgment.

Hendrik Johannes Pitzer v Eskom (336/2011) [2012] ZASCA 44 (29  March 2012)

The Supreme Court of Appeal (SCA) upheld an appeal against an order made
by the South Gauteng High Court, Johannesburg. The appellant, Hendrik
Johannes Pitzer, was injured by an electric shock sustained inside a live
chamber of an electrical substation operated by the respondent, Eskom. As a
result the appellant instituted action for damages in the court a quo. Moshidi J
dismissed the claim holding that the appellant’s injuries were caused solely as
a result of his own negligence and that there had been a voluntary
assumption of risk.
The appellant claimed that the entrance to the live chamber should have been
closed and that the respondent was, as a result, negligent and therefore
liable. The SCA held that it was reasonably foreseeable to the respondent that
if the premises were left open the appellant might enter and accidently be
electrocuted. The Court found that the person acting on behalf of the
respondent was negligent in not performing his duties in this regard.
The SCA further held that a causal link exists between Eskom’s conduct in
failing to properly secure the dangerous premises and the appellant’s injuries.
However, the SCA found the appellant to be contributorily negligent as some
of his actions did not accord with those of a reasonable person.
For the reasons above the SCA made the following order:
1. The appeal succeeds with costs.
2. The order of the court a quo is set aside and the following order
substituted:
‘It is declared that the defendant is liable for fifty per cent of the
plaintiff’s proven or agreed damages.’