Can you sue Eskom for damage to your appliances during loadshedding?
17 Oct 2023
South Africa has been grappling with a nationwide electricity crisis for years, and it appears to be an ongoing issue with no clear resolution in sight. As Eskom continues to undergo breakdowns and other mishaps, South Africans are stranded without electricity, often several times per day. Besides the significant inconvenience to our daily lives, power cuts are also causing serious financial complications. Among the many problems associated with loadshedding, one particularly significant concern is consequential damages, which occurs when one party suffers damages due to the other party’s breach of contract.
An apparent example of the above is damage to electrical appliances caused by power surges due to loadshedding.
Britelighting published the following: “Loadshedding can cause damage to your appliances in a few ways. The sudden power cuts can cause voltage fluctuations and surges, damaging sensitive electronic components in your appliances. When power is restored, there can be a surge of electricity that can overload your appliances and cause damage to them.”
It is widely believed that loadshedding does indeed cause damage to electrical appliances. For this article, the above statement will act as a hypothetical since establishing whether loadshedding is, in fact, responsible for such damages would require expert opinion and debate.
The key question is what legal recourse you have if your electrical appliances are damaged due to loadshedding. The first possible legal avenue would be in terms of breach of contract. However, due to Clause 19 of Eskom’s standard terms and conditions, Eskom can only be held liable for damage to appliances of its customers arising “from any interruption in the supply, variation of voltage, variation of frequency, any failure to supply a balanced three-phased current or failure to supply electricity”. As such, to succeed with a contractual claim against Eskom, you will need to also prove that loadshedding amounts to negligent conduct from Eskom.
Another possible avenue would be that of delict. To prove a delictual claim, you will need to prove all five elements of delict, being conduct; wrongfulness; fault; causation; and damage. As such, you will be required to prove that loadshedding amounts to negligent conduct of Eskom that causes damages.
Suing in terms either or both breach of contract and delict would, therefore, in all likelihood, be difficult, as both require proof of negligence.
However, as a consumer, you are not restricted to suing in terms of delict. Section 61 of the Consumer Protection Act 68 of 2008 imposes strict liability on suppliers. For a supplier to be liable in terms of section 61, negligence is not a requirement. Thus, section 61 imposes so-called strict liability on suppliers. Section 61(1) states:
Except to the extent contemplated in subsection (4), the producer or importer, 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.
You are only required to prove that you suffered damage or harm caused by goods supplied that were unsafe or by a product failure or a hazard or defect in the goods.
The case of Eskom Holdings Limited v Halstead-Cleak served as a prime example demonstrating the reach of the Consumer Protection Act.
In this case, the Supreme Court of Appeal was tasked to decide whether Eskom should be liable for injuries sustained by a cyclist who collided with a low-hanging cable. The major issue for determination was whether a transaction existed between the cyclist and Eskom at the time of the incident.
In paragraph 21, the Court held:
“Taking into account all the definitions and the wording of s 61, the respondent had to establish that, first, in respect of that incident, the respondent came to harm and, secondly, that Eskom was a producer of electricity. Furthermore, that the harm was caused wholly or partly as a consequence of Eskom selling unsafe electricity in the ordinary course of business, for consideration, or there was a product failure, defect or hazard in the electricity. Taking into consideration that s 61 is a section in Chapter 2 of the Act dealing with ‘Fundamental Consumer Rights’ it is clear that the harm envisaged in s 61 must be caused to a natural person mentioned in s 61(5)(a), in his or her capacity as a consumer. This is the only businesslike interpretation possible. The reason why reference is made to a ‘natural person’ is clearly to distinguish it from ‘person’ which may include a ‘juristic person’ or ‘consumer’ which may also include a ‘juristic person’.”
It is important to note that in the Halstead-Cleak case, the Court ruled in favour of Eskom, finding no transaction between Eskom and the respondent at the time of the incident. However, this case can be distinguished from damage caused to electrical appliances during loadshedding. When you plug in your appliances, there is a transaction with Eskom as you purchase electricity from the utility. Loadshedding occurs during this transaction, and if it leads to consequential damages, it could be attributed to the electricity supplied by Eskom.
It is worth noting that a supplier may escape liability for its negligence – albeit not gross negligence, if its terms and condition specifically condones same, under section 51 of the Consumer Protection Act. However, this does not afford the supplier protection for claims for consequential damages brought under section 61.
Eskom may escape liability had loadshedding been imposed in terms of government regulation. However, the regulations in place, such as the Disaster Management Regulations (finalised on 27 February 2023), seems to seek to manage loadshedding, rather than imposing same.
Considering the above, Eskom might be liable for damage to your electrical appliances due to loadshedding. The outcome of future legal cases will determine how courts handle such claims. One concern is that if one case succeeds in favour of consumers, it could open the floodgates for more litigation against Eskom.
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