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Article by listed attorney: Fawzia Khan

Whilst cycling along a footpath, a cyclist came into contact with a low hanging live power line, resulting in him suffering severe burns. The cyclist sued Eskom for damages, using the provisions of strict liability as set out in the Consumer Protection Act (“ the CPA”). Eskom said that the conductors of the power line were vandalized by the theft of stay rods causing the power lines to hang low, thus making it unsafe.  The Pretoria High Court found Eskom in terms of the CPA, to be 100 per cent liable for the cyclist’s injuries and awarded him damages. Strict liability was first introduced in South Africa in 2011 with the promulgation of the CPA. Previously we only had the common law governing product liability, which said there had to be a contractual relationship between the consumer and the supplier or producer of the goods or services and it was necessary to prove fault on the path of the supplier.  Since the coming into existence of the CPA, the concept of strict liability was introduced into law, taking precedence over the common law. Good news for consumers as it meant that there was now no longer any need to prove fault on the part of the supplier.

Eskom however took the matter to the Supreme Court of Appeal. Eskom denied that the incident arose as a result of the supply of unsafe goods or a product failure, defect or hazard in any goods or inadequate instruction or warnings. The Supreme Court of Appeal said that the CPA was designed to offer protection to the vulnerable consumer as well as to promote social and economic welfare of the consumers. The court agreed with Eskom that in the circumstances surrounding the injuries sustained at the time, that the cyclist was not ‘a consumer’. The court found that Eskom did not enter into any transaction with the cyclist hence Eskom was not to be considered as supplier or producer of electricity in the ordinary course of Eskom’s business, nor was the cyclist using the electricity at the time nor was he a recipient or beneficiary of such electricity. The cyclist’s earlier victory against Eskom was thus set aside.

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