THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case no: 262/2004
In the matter between:
ESKOM HOLDINGS LTD
Appellant
and
JACOB JOHANNES HENDRICKS obo
JACQUES JUSTIN HENDRICKS
Respondent
_____________________________________________________
Coram
:
SCOTT, STREICHER, BRAND, LEWIS
et   MLAMBO JJA
Date of Hearing :
3  MAY 2005
Date of delivery:
27  MAY 2005
Summary:
Child of 11 years climbing pylon supporting high voltage power
lines – negligence of Eskom – failure to take reasonable steps to prevent harm to
the public – especially children – anti-climbing device inadequate in the
circumstances – child attempting to touch glass insulators – shocked – impulsive
behaviour indicative of absence of delictual capacity.
____________________________________________________
JUDGMENT

_____________________________________________________
SCOTT JA/…
SCOTT JA:
[1] On 4 August 1994 the respondent’s minor son (‘Jacques’) who
was then 11 years and 8 months old, sustained serious burns and
other injuries when he ventured too close to a high voltage power
line suspended from one of the appellant’s pylons. To reach the
point where the incident occurred Jacques had to climb to a height
of approximately 14 metres above the ground and in doing so pass
through what was referred to in evidence as an anti-climbing device
(‘ACD’). The manner in which he did this is dealt with more fully
below. The power line carried a voltage of some 66 000 volts.
Perhaps fortunately, the shock caused Jacques to be flung from his
perch. He survived the fall with his clothes on fire. A passer-by had
the presence of mind to cover Jacques with his jacket and so
extinguish the flames.
[2] The respondent, on behalf of Jacques, subsequently instituted
proceedings for damages against the appellant (‘Eskom’), alleging
that the latter had been negligent in various respects. In this court

the debate concerning the issue of Eskom’s negligence was
confined largely to the efficacy of the ACD. Eskom denied liability
and in the alternative alleged contributory negligence on the part of
Jacques.  The court a quo (Jacobs AJ), which was called upon to
decide only the question of liability, found that both Eskom and
Jacques had been negligent and that the latter had been culpae
capax at the time, ie he had had the necessary capacity to incur
delictual liability for negligence. The learned judge apportioned
liability on the basis that Eskom was two-thirds to blame and
Jacques one-third. These findings were all placed in issue in this
court. Eskom’s application for leave to appeal was turned down by
the court a quo, as was the respondent’s application to cross-
appeal. Both parties now appeal with the leave of this court.
[3] It is necessary at the outset to give a short description of both
the pylon and the ACD. The pylon is of the lattice variety and is just
over 21 metres high. It is square at the base, or almost square.
Steel columns at each corner taper inwards as they ascend to a
point about 14 metres above the ground. Thereafter the columns
rise vertically until just below the apex at which stage they slope
sharply inwards to form a point. The pylon has three cross-arms,

one above the other. The lowest is at the 14 metre level. The outer
ends of each support a single power line; in other words, the tower
supports six lines in all. Each is attached at the lower end to a line of
glass (or porcelain) insulators having the appearance of glass rings
which descend vertically from the end of each cross-arm. The result
is that each power line is in the region of about a metre below the
cross-arm from which it derives its support. The four sides of the
tower are braced by cross-beams. All appear to be positioned
diagonally save for three which are below the three metre level and
which are horizontal. The significance of this feature is that the
horizontal beams would facilitate the climbing of the pylon, while the
highest of the three would appear from the photographs that were
handed in to provide a useful foothold for anyone attempting to
tamper with the ACD which is situated at the three metre level. The
three cross-arms are of a similar lattice construction. Another
significant feature is the existence of climbing pegs which were fitted
to at least one of the vertical columns from a point just above the
ACD. Leaving aside the ACD for the moment, it follows from what
has been said that the pylon is readily climbable by an aspirant
climber who would also have no difficulty traversing out to the end of

a cross-arm should he so wish.  Finally, it is necessary to mention
that the pylon was situated about 150 metres from the respondent’s
house and adjacent to the Malibu High School, Blue Downs.
(4)
The ADC fitted to Eskom’s pylons is a standard design. It takes
the form of a horizontal fence of barbed wire and in appearance, at
least, is a formidable barrier. As required by the Code of Practice for
Overhead Power Lines (the NRS Code), it is installed as low as
possible but ‘not less than three metres above the ground’. It is
constructed as follows. A horizontal bar is mounted diagonally at
each corner of the tower so as to extend both outwards and
inwards. In other words, the bar extends both beyond and within the
frame of the tower. Ten grooves are cut into the bar on its upper
side; five on the inside of the frame and five on the outside. These
are cut at an angle outwards, ie away from the corner column to
which the bar is attached. A length of barbed wire is fastened at the
one end to one of the bars and then threaded into the grooves and
drawn from one bar to the next around the structure 10 times before
being fastened to the bar at which the process began. The result is
a horizontal fence with five strands of barbed wire both on the inside
and outside of the tower.

[5] The design of the device would appear to contemplate the
barbed wire being so taut that the angle at which the grooves are
cut would prevent the wire from being pushed out of one of the
grooves. If this were to happen the wire would go slack and the gap
between the strands could easily be increased so as to permit a
person to pass through the device with relative ease. There was
much debate concerning the efficacy of the device in evidence,
which is unnecessary to traverse. What emerged is that while the
design may have been good in theory, in practice it could not easily
be implemented because of the difficulty associated with achieving
the necessary tension on the barbed wire. As pointed out by
Professor Reynders, an electrical engineer who testified on behalf of
the respondent, the reason for this was that when attempting to pull
the wire taut around the tower, the barbs would tend to catch in the
grooves resulting in some slackness. If, of course, the barbed wire
were to be affixed to the bars at each groove, whether by means of
binders (short lengths of wire) or otherwise, the device would not
have this weakness.
[6] Against this background I turn to the events of 4 August 1994.
After returning from school in the early afternoon, Jacques, his

younger brother and younger friend, decided to take the family dog
for a walk. At some stage they found themselves on a footpath that
passes by the pylon. Jacques testified that he then challenged
his companions to a race to see who could first climb the highest up
the pylon.  Possibly what he had in mind at that stage was to climb
up as far as the ACD, but this was not clarified in evidence. He said
that when he reached the ACD, he saw how the wire was spanned
and that it could be pushed out of the grooves.  Using both hands
he pushed it first out of one groove, whereupon it went slack, and
then out of another two. Testifying eight years later, he described
the process as ‘taamlik maklik’. He said he then had no difficulty
climbing through the ACD and, using the climbing pegs, proceeding
up to the first of the three cross-arms. At that stage, as he put it, he
stopped to rest. While sitting there, the glass insulators caught his
eye. He described them as ‘greenish-coloured glass saucers’. Out
of curiosity he traversed out to the end of the cross-arm and
resolved to touch one to feel its texture. Holding on to the structure
with his right hand he reached out to the insulators with his left
when, as he described it, there was suddenly a blue flash and he fell
to the ground. Judging from Jacques’ injuries the experts were

satisfied that what in fact had happened was that his head had
come too close to the power line suspended from the cross-arm
immediately above.  The voltage was such that the current had
‘jumped’ the space between the power line and his head in a
phenomenon known as a ‘flash-over’. For this to have happened, it
was agreed that he must have come within a distance of some 66
mm of the power line.
[7] The ease with which Jacques negotiated his way through the
ACD and proceeded up the tower is largely corroborated by Mr
Henry Plaatjies who was called by Eskom and who was the only
witness to have actually observed the incident. Plaatjies was then a
teacher at the Malibu High School where he taught accounting and
economics. (This was not the school attended by Jacques.) He
testified that on the day in question while standing in the school
grounds talking to a colleague, he observed, as he perceived it, a
child being chased by others. The next thing he saw, he said, was
the one ahead proceeding to climb the tower with the others coming
on behind. Although he looked away at one point while commenting
to his colleague on how dangerous it was and did not see Jacques
actually negotiate his way through the ACD, his overall impression

was that it all happened very quickly and that Jacques’ progress up
the tower was virtually continuous. On seeing the flash and Jacques
fall Plaatjies went to phone an emergency service while his
colleague went to Jacques’ assistance.
[8] Section 26 of the Electricity Act 41 of 1987 provides:
‘26.
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.’
It is common cause that Eskom is an ‘undertaker’ as defined in the
Electricity Act and that Jacques’  injuries were caused by means of
electricity transmitted by Eskom’s ‘plant or machinery’ in the form of
the high voltage power lines. The effect of the section therefore is
that Eskom bore 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 injuries sustained by Jacques. It
was also common cause that in the event of Eskom being found to
have been negligent, its conduct would have been wrongful. In other
words, Eskom owed a legal duty to would-be climbers of its pylons

to act without negligence, ie to take such steps, if any, as may have
been reasonable in the circumstances to prevent them from
suffering harm. (See Gouda Boerdery BK v Transnet Ltd [2004] 4 All
SA 500 (SCA) para 12.)
[9] It was conceded both in this court and in the court below that a
reasonable person in the position of Eskom would foresee that
persons, especially children, might climb Eskom’s lattice-type pylons
and come close enough to the power lines to put themselves in
danger of receiving a shock. This concession was inevitable in view
of the provisions of Regulation 16 of the Electrical Machinery
Regulations (promulgated under the Machinery and Occupational
Safety Act 6 of 1983 and continuing to apply under the Occupational
Health and Safety Act 85 of 1993). The regulation which is of direct
application to Eskom reads:
‘The user shall ensure that all supports of the lattice type which are used to
carry overhead conductors are adequately protected in order to prevent any
unauthorised person from coming into dangerous proximity of the conductors by
climbing such supports, and an inspector may  require a user to protect a
support of any other type similarly.’
(By way of explanation it is necessary to record that the reference to

‘supports of the lattice type’ is a reference to what I have called
‘pylons’ of the lattice type. Similarly the reference to ‘conductors’ is a
reference to what I have called power lines.) A similar provision is to
be found in the NRS Code. It is unnecessary to quote the provision
in full. It is sufficient to note that it requires that pylons of the type in
issue ‘shall be adequately protected to prevent unauthorised
persons from reaching a live conductor’. The installation of the ACD
is, in any event, a clear indication that Eskom was in fact alert to the
possibility of harm to members of the public if they climbed the
pylons.
[10] What remains of the inquiry regarding Eskom’s alleged
negligence, therefore, is what is generally referred to as the second
leg of the inquiry, namely whether a reasonable person would have
taken steps to guard against the danger and, if so, whether the
steps taken by the defendant were reasonable in the circumstances.
What is to be regarded as reasonable must depend upon a
consideration of all the relevant circumstances. It is inappropriate to
place any limitation on these, but the inquiry would ordinarily involve
a consideration of:
‘(a) the degree or extent of the risk created by the actor’s conduct; (b) the gravity

of the possible consequences if the risk of harm materialises; (c) the utility of the
actor’s conduct, and (d) the burden of eliminating the risk of harm.’
See Ngubane v South African Transport Services 1991 (1) SA 756
(A) at 776H-J. Ultimately the court is obliged to make a value
judgment by balancing various competing considerations. But if a
reasonable person would have done no more than was in fact done
there would be no negligence.
[11] Before considering the effectiveness or otherwise of the ACD it
is necessary to deal briefly with a ground of negligence which was
found by the court a quo to have been established and which was
touched upon only in passing in this court. The ground concerned
Eskom’s failure to place a warning sign at the foot of  the tower
indicating the presence of live conductors. The sign envisaged was
the well-known one depicting a flash of lightning. While the Electrical
Machinery Regulations require notices to be displayed in certain
specified circumstances, there is no requirement that a notice be
displayed on pylons. Counsel for the appellant contended that the
reason for this was that as a general proposition it was common
knowledge that pylons carried electricity. He pointed out that where
notices were required by the regulations, the circumstances were

such that there was a danger of accidental contact resulting from a
person not expecting the presence of a bare conductor. He argued
that if the standards adopted in the industry do not require warning
signs in a particular location, the inference may be drawn that this
was not a step which a reasonable person would take to avoid
harm. There is no doubt much to be said for counsel’s contentions,
but for the reasons that follow it is unnecessary to consider further
the question of warning signs.
[12] The debate in this court as to whether Eskom was negligent or
not ultimately centred around whether the ADC it installed on the
pylon in question was one which was reasonable in the
circumstances. As I have indicated, both the NRS code and the
Electrical Machinery Regulations require lattice-type pylons to be
‘adequately protected’. However, neither provides an indication of
what is to be regarded as adequate. Nonetheless, this requirement
of the industry does provide some assistance.
[13] It was emphasized in evidence and argued before us that it
would be virtually impossible to erect a barrier that was
impenetrable. That is no doubt so, but it is not suggested that the
ACD should have been impenetrable.  In the present case, Jacques

was able to pass through the ACD simply by pushing the wire out of
the grooves. He required no tool to do so, not even an ordinary pair
of household pliers. The evidence suggests that the device hardly
retarded his progress up the tower. Some eight years later,
Professor Reynders, who described himself as about to retire, was
similarly able to push the wire out of the grooves and climb through
the device ‘without any difficulty’. The angle at which the grooves
were cut is indicative of a design that was intended to prevent the
device from being dismantled in this way. But whether it was
possible to do so by reason of faulty design or improper installation
need not be decided. The point is that although formidable in
appearance, the device in reality did not constitute an effective
barrier. Nor could it be contended that, although properly installed,
the wire had become slack with the passage of time. Mr Arthur
Gullan, a former employee of Eskom who gave evidence on its
behalf, testified that the wire would not become slack of its own
accord. In the circumstances, the device installed by Eskom cannot
in my view be regarded as having ‘adequately’ protected the pylon
within the meaning of the regulations and the NRS code. If for any
reason the barbed wire could not have been made sufficiently taut,

it would have been a simple matter to affix it to the horizontal bars at
each groove. This could have been done at very little cost and
effort. Perhaps the simplest (but not the only) method would have
been to use binders of the kind that one encounters in an ordinary
fence. In that event, a child, or other aspirant climber, would at least
have had to go to the extent of arming himself with a tool of some
kind to dismantle the device. In my judgment a reasonable person
would at least have ensured that the ACD could not be dismantled
simply by pushing the wire out of one or more of the grooves.
Indeed, it is not without significance that in the case of the devices
fitted to the pylons belonging to the Cape Town City Council, the
strands of barbed wire are made fast to the horizontal bars so that
they can not simply be pushed out of the way.
[14] It follows, therefore, that in my view Eskom failed to rebut the
presumption of negligence. On the contrary, negligence on its part
was established on the evidence. Eskom’s appeal must accordingly
fail.
[15] I turn now to the cross-appeal. The first and, in my view,
decisive issue is whether the court a quo was correct in its finding
that Jacques was culpae capax in relation to his conduct. In Weber

v Santam Versekeringsmaatskappy Bpk 1983 (1) SA 381 (A) this
court affirmed the distinction previously drawn in Jones NO v
Santam Bpk 1965 (2) SA 542 (A) between, on the one hand, the
issue of capacity on the part of a child to commit a wrong and, on
the other, the issue of fault. In doing so, it declined to follow a view
widely held, particularly in academic circles, that there was a need
to introduce a subjective element into the concept of negligence in
the case of children by requiring no more than a degree of care
expected of a child of the age and maturity of the one in question.
Instead, the court in Weber held that the first inquiry, ie as to
capacity, was subjective, while the second, ie as to fault, was
objective. In other words, once a child was found to have the
necessary capacity, its negligence or otherwise, was to be
determined in accordance with the standard of the ordinary (adult)
reasonable person.
[16] Following an exhaustive analysis of the Roman and
subsequent authorities by both Jansen JA and Joubert JA (whose
separate judgments were concurred in by the other three judges)
the court affirmed the rule that infantes (children under seven years
of age) are culpae incapax while, more significantly, children

between the ages of seven and puberty  (12 in the case of girls and
14 in the case of boys) were presumed to lack capacity until the
contrary was proved by the party alleging negligence. (The
existence or otherwise of the presumption was not decided in the
Jones case, supra at 552A-C.) In passing, it is worthy of note that
this gender-based distinction between girls and boys may well be
unjustifiable. The more appropriate cut-off point would seem to be
14 years for children of both sexes, as would appear to be the case
in the criminal law. See eg Rex v K 1956 (3) 353 (A); Attorney-
General Transvaal v Additional Magistrate for Johannesburg 1924
(AD) 421 at 434.
[17] The application of an adult standard in judging the negligence
of a child has been strongly criticized. (See eg J D van der Vyver
SALJ  100 (1983) 575;  Andrew Caiger (1983) 46 THRHR 477;
Boberg The Law of Delict at 679.) Nonetheless, the force of the
criticism is to some extent overcome by the emphasis placed by the
court in Weber on the subjective nature of the inquiry into the
element of capacity. It was stressed (at 389H-400A) that the inquiry
was one of fact. In each case what had to be determined was
whether the child in question had developed the emotional and

intellectual maturity to appreciate the particular danger to be
avoided and, if so, to act accordingly. Jansen JA (at 390H) referred
with approval to the observation by Corbett JA in Roxa v Mtshayi
1975 (3) SA 761 (A) at 766A-B that the enquiry had to be related to
‘the particular acts or omissions complained of in the particular
circumstances’. In the passage referred to, Corbett JA added:
‘It is not capacity in the abstract but capacity in relation to a particular duty
situation that is of relevance.’
In the Weber case Jansen JA (at 400B-E) warned against over-
emphasising the intelligence and schooling of the child as opposed
to the inherent weaknesses associated with tender age and the
propensity of children, however well schooled, to commit irrational
and impulsive acts. (See also the remarks of Joubert JA at 410D-E.)
Experience revealed, Jansen JA said (at 400C-D) that although
children may be able to distinguish between right and wrong, they
will often not be able to act in accordance with that appreciation;
they became so engrossed in their play that they become oblivious
of other considerations and acted impulsively. The learned judge
accordingly warned against ‘placing an old head on young
shoulders’. (400F-G.)

[18] The correctness of the decision in Weber was not challenged
in this court or the court below. The issue to be determined,
therefore, is whether Eskom succeeded in discharging the burden of
rebutting the presumption against capacity. The court a quo dealt
with the issue as follows:
‘I am of the view that Jacques had the necessary delictual capacity on the day in
question. This conclusion is manifested by the evidence of Jacques who
testified that he decided to race his brother to see who could climb the highest.
Jacques was approximately 11 years and 8 months old at the time when the
incident occurred. Jacques was also taught by his parents of the dangers of
electricity although his parents did not deem it necessary to inform him of the
particular dangers associated with the pylon.’
I am unpersuaded that the reasoning of the learned judge justifies
the conclusion to which he came.
[19] From what has been said above, it is clear that the enquiry
must in each case be related to the particular conduct which gave
rise to the loss forming the subject matter of the claim. It is
necessary therefore to return to the facts. There can be no doubt
that Jacques appreciated that by climbing beyond the ACD he ran
the risk of falling and hurting himself. Experience tells one that the

fear of falling from a height is one that develops early in childhood
and the risk of such a fall is unlikely to be one that would be taken
impulsively and without regard to the possible consequences.
Indeed, this much was conceded by Jacques in evidence. Had he
simply lost his footing and fallen Eskom, would, therefore, have had
little difficulty in rebutting the presumption.  But that is not what
happened. The evidence was that while walking the dog and on
coming to the pylon, Jacques and the other two decided to race to
see who could climb the highest. Jacques climbed to the cross-arm
and stopped.  The other two were then still close to the base. It was
at that stage that the glass insulators attracted his attention. They
had nothing to do with the race and the reason for Jacques climbing
the tower. Fascinated by the insulators and disregarding the race,
he then proceeded to traverse out along the cross-arm in order to
touch one of the insulators for no better reason than to feel its
texture. It was this conduct that resulted in his injuries and it follows
that it is in relation to this conduct that his emotional and intellectual
maturity must be assessed.
[20] It is hardly necessary to observe that Jacques’ attempt to
touch one of the insulators was foolhardy in the extreme. Its only

purpose could have been to satisfy his curiosity. His conduct gives
rise to two possible inferences: either he did not appreciate the
danger to which he was exposing himself or its possible
consequence, or his curiosity was so overwhelming that he became
oblivious of the danger and succumbed to an impulse to touch one
of the insulators. The only other possibility is that he was fully aware
of the danger but was unconcerned by it. This is highly unlikely; it
would amount to a conscious disregard for his own life.
[21] Jacques testified that it was only after the event that he learnt
that the pylons supported live electricity wires. This strikes me as
improbable. The most likely inference arising from his conduct
would seem to be that he lacked an appreciation of the  full import
of the danger and became so engrossed in his fascination for the
insulators that he forgot all about the danger of which he may have
been aware.
[22] An analysis of the facts reveals, therefore, that Jacques’
conduct giving rise to his injuries was typical of the impulsive
behaviour in which children of tender age sometimes engage and
which Jansen JA had in mind when he warned against placing an
old head on young shoulders. In my view, the very conduct in

question is indicative of an inability on the part of Jacques to act in
accordance with any appreciation he may have had of the danger
involved.
[23] It was established in evidence that at the time of the incident
Jacques was at primary school in grade five and that he had been
taught the dangers of electricity. But there was little, if any, cross-
examination of Jacques himself or his parents to determine his
intellectual and emotional maturity at the time, nor was any
evidence led to rebut the inference of childish impulsive behaviour
that arose from his conduct or, for that matter, to assist in the
determination of the issue of his maturity. In all the circumstances, I
am
unpersuaded
that Eskom succeeded in rebutting the
presumption that Jacques was culpae incapax at the time of the
incident. It follows that the cross-appeal must succeed.
24]
The following order is made:
(a)
The appeal is dismissed with costs, including the costs
of two counsel.
(b)
The cross-appeal is upheld with costs, including the
costs of two counsel.

(c)
The order of the court a quo is altered so as to read as
follows:
(a)
The defendant is held liable for the damages, if
any,  that  the plaintiff’s minor son, Jacques, is
found to have suffered in consequence of the
electric shock the latter sustained on 4 August
1994;
(b)
The defendant is ordered to pay the plaintiff’s
costs of suit occasioned by the hearing on the
merits, such costs to include the qualifying fees
of those  experts  who  testified at the trial on
behalf of the plaintiff.
_____________
D G SCOTT
JUDGE OF APPEAL
CONCUR:

STREICHER
JA
BRAND
JA
LEWIS
JA
MLAMBO
JA
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