THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case No: 785/2020

In the matter between:

ARTHUR RYAN LUCAS
FIRST APPELLANT

ZELNA LUCAS
SECOND APPELANT

and

UMHLATHUZE MUNICIPALITY
FIRST RESPONDENT

OCEAN REST 3 BODY CORPORATE
SECOND RESPONDENT

Neutral citation:
Lucas & Another v Umhlathuze Municipality and Another (Case
no. 785/2020) [2021] ZASCA 181 (17 December 2021)

Coram:
VAN DER MERWE, MOLEMELA, MAKGOKA and SCHIPPERS JJA
and MOLEFE AJA

Heard:

12 November 2021

Delivered:

This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal website
and release to SAFLII. The date and time for hand-down is deemed to be 12h00 on 17
December 2021.

Summary:

Delict – negligence – foreseeability of harm – child fatally
electrocuted when touching metal cage encasing electricity distribution kiosk – kiosk on
private property administered by body corporate – lock affixed to cage by municipality –
whether municipality liable – body corporate responsible for maintenance of common
property – s 25 of the Electricity Regulation Act 4 of 2006 – incident not caused by
negligence of municipality – appeal dismissed.

______________________________________________________________________

ORDER
______________________________________________________________________

On appeal from: Kwazulu-Natal Division of the High Court, Durban (Moodley J sitting as
court of first instance):
The appeal is dismissed with costs.

______________________________________________________________________

JUDGMENT
______________________________________________________________________

Molefe AJA (Van der Merwe, Molemela, Makgoka and Schippers JJA concurring):
[1] This is an appeal against the judgment and order of the Kwazulu-Natal Division of
the High Court, Durban (the high court), dismissing the appellants’ delictual claim against
the first respondent, Umhlathuze Municipality (the municipality). The appeal is with the
leave of the high court.

[2] The facts which gave rise to the claim are these. On 29 June 2013, the appellants’
six-year-old daughter was fatally electrocuted when she climbed onto a metal cage
encasing an electrical distribution kiosk on the premises of a sectional title scheme (the
scheme), which was under the management of the second respondent, the Oceans Rest
3 Body Corporate (the body corporate). As a result of the death of their daughter, the
appellants claimed damages for emotional shock from the municipality and the body
corporate, jointly and severally. They alleged that the municipality and the body corporate
had negligently failed to ensure that the metal cage was properly maintained, and was
not a danger to the residents, thus failing in their ‘duty of care’ to the public. Before the
trial commenced, the appellants and the body corporate concluded a confidential

settlement agreement. As a result, the trial proceeded only against the municipality, and
only in respect of the issue of liability.1

[3] It was common cause between the parties that the distribution kiosk was installed
by the body corporate, and belonged to it. At the instance of the body corporate, the
developer of the scheme had installed five electricity distribution kiosks on the common
property, each of which serviced four sections within the scheme. Electrical wiring leading
to and from the kiosk was laid underground at a depth of between 350mm and 500mm.
The municipality installed prepaid meters in the kiosks which regulate payment but not
the supply of electricity. The municipality supplies electricity to the body corporate from
its mini substation located across the road from the scheme, and provides subterranean
infrastructure to the boundary of the scheme, from which point the body corporate is
responsible for reticulation of electricity to various sections within the scheme.

[4] Prior to 2008 and at the instance of the body corporate, metal cages were placed
over the kiosks. These cages were constructed with metal legs approximately 30cm in
length, which were designed to penetrate the ground and give the cage some stability.
Neither the cage nor its legs were secured to the ground with any form of concrete. At
some stage after the body corporate had installed the cages, employees of the
municipality installed locks onto the cages to safeguard the infrastructure against
vandalism and to prevent interference with the prepaid meters within the kiosks. Following
the fatal electrocution, the municipality, through its employees, identified the cause of the
incident as the electrification of the metal cage. The electrification occurred when one of
legs of the cage made contact with the copper coil of an underground cable connected to
the distribution kiosk. This took place when weight or pressure was placed on the cage,
which had not been earthed.

[5] It was submitted on behalf of the appellants that by placing a lock on the cage and
retaining its key, the municipality assumed a legal duty to ensure that the cage was safe.

1 Issues of liability and quantum were separated in terms of Rule 33(4) of the Uniform Rules of Court.

The high court rejected this contention, and concluded that the affixing of the locks and
retention of the keys by the municipality could not be considered wrongful or contrary to
the legal convictions of the community, and that no negligence could be ascribed to the
municipality. The high court accordingly dismissed the appellants’ claim.

[6] The key question in this appeal is whether the municipality, by virtue of the fact
that it placed its lock on the metal cage encasing the electricity distribution kiosk belonging
to the body corporate, assumed the duty to ensure the safety of the kiosk and metal cage.
And if so, whether the municipality was negligent for failing to ensure the safety thereof.

[7] The appellants relied on s 25 of the Electricity Regulation Act 4 of 2006 (the
Electricity Act), which provides:
‘Liability of licensee for damage or injury – In any civil proceedings against a licensee arising
out of damage or injury caused by induction or electrolysis or in any other manner by means of
electricity generated, transmitted or distributed by a licensee, such damage or injury is deemed
to have been caused by the negligence of the licensee, unless there is credible evidence to the
contrary.’

[8] The municipality is a licensee as envisaged in the Electricity Act and it distributed
electricity to the scheme. It accepted that s 25 placed an onus on it to show that the
incident had not been caused by its negligence. In the result the separated issue for
determination by the high court was whether there was credible evidence produced by
the municipality to show that the injury was not caused by its negligence.

[9] I turn now to consider the appellants’ contention that the municipality was
negligent. In terms of the law of delict, negligence refers to the blameworthy conduct of
someone who has acted wrongfully. A person is blamed for conduct of carelessness,
thoughtlessness or imprudence, because by giving insufficient attention to his/her actions,
he/she failed to adhere to the standard of care legally required of him/her. The standard
used is an objective standard of a reasonable person. The question is whether a
reasonable person in the position of the municipality would have acted differently. A

reasonable person would have acted differently if the cause of damage was reasonably
foreseeable and preventable.

[10] The test for negligence remains as set out in Kruger v Coetzee.2 Applying that test
to the present case, the questions are whether (i) employees of the municipality should
have foreseen the reasonable possibility of the metal cage causing injury or harm; (ii)
persons in the position of those employees would have taken reasonable steps to guard
against that harm; and (iii) those employees failed to take those steps. In the light of
recent authorities, Midgley and Van der Walt made the following observation:
‘When assessing negligence, the focus appears to have shifted from the foreseeability and
preventability formulation of the test to the actual standard; conduct associated with a reasonable
person. The Kruger v Coetzee test, or any modification thereof, has been relegated to a formula
or guide that does not require strict adherence. It is merely a method for determining the
reasonable person standard, which is why courts are free to assume foreseeability and focus on
whether the defendant took the appropriate steps that were expected of him or her.’3

[11] The appellants submitted that a reasonable person in the position of the
municipality, once it knew of the existence of the metal cage and acquired control of it by
affixing a lock thereto, would have ensured that the cage, installed in close proximity to
electrical cables and enclosing an electrical installation, was safe and remained so whilst
it was under lock and key. Furthermore, the municipality should have foreseen that the
cage was of an unsafe design, could therefore become electrified and could cause harm
to any person who touched it. It was also submitted that the municipality was negligent
because it failed to mitigate any risk of the cage becoming electrified by ensuring that it
was earthed.

[12] The appellants did not plead that the municipality acquired control over the cage
installed by the body corporate because it had affixed a lock to the cage. This Court in
Minister of Safety and Security v Slabbert held as follows:

2 Kruger v Coetzee2 1966 (2) SA 428 (A) at 430E-F.
3 J R Midgley and J C Van der Walt in 15 Lawsa 3 ed para 155.

‘A party has a duty to allege in the pleadings the material facts upon which it relies. It is
impermissible for a plaintiff to plead a particular case and seek to establish a different case at the
trial. It is equally not permissible for the trial court to have recourse to issues falling outside the
pleadings when deciding a case.’4
This is subject to the following caveat. This Court has inherent jurisdiction to decide a
matter even where it has not been pleaded, provided that such matter was ventilated
before it. In Van Mentz v Provident Assurance Corporation of Africa Ltd, this Court said
that ‘. . . where it is clear that the appellate tribunal has all the materials before it on which
to form an opinion upon the real issue emerging during the course of the trial it will be
proper to treat the issues as enlarged, where this can be done without prejudice to the
party against whom the enlargement is to be used’.5

[13] There was no prejudice to the municipality because the question of whether the
municipality was negligent by placing a lock on the cage was extensively explored by its
counsel with Mr Gregersen, an electrical engineer called as a witness by the appellants.
Further, Mr Deetlefs, a senior electrician in the employ of the municipality, had testified
that the lock on the kiosk could have been broken as happened in many other cases. The
question thus remains whether a reasonable person in the position of the municipality
would have foreseen the possibility of the metal cage being electrified. As stated, this was
the cause of the fatal accident – one of the legs of the cage had made contact with the
copper coil of an underground cable connected to the distribution kiosk, because the cage
was not earthed. It must be borne in mind that the cage was not installed by the
municipality, nor did it approve its design or installation. As already mentioned, it was
designed and installed by the developer of the scheme, at the body corporate’s instance.
All the municipality did was to take steps to safeguard its infrastructure within the kiosk
(the prepaid meters) against vandalism and prevent interference with meters it had
installed in the kiosk.

4 Minister of Safety and Security v Slabbert [2009] ZASCA 163; [2010] 2 All SA 474 (SCA) para 11.
5 Van Mentz v Provident Assurance Corporation of Africa Ltd 1961 SA 115 (A) at 122; See also Shill v
Milner 1937 AD 101 at 105. See also Colleen v Rietfontein Engineering Works 1948 (1) SA 413 (A) at 433
and Robinson v Randfontein Estates, G.M. Co Ltd. 1925 A.D. 173 at 198.

[14] In terms of section 3(1) of the Sectional Titles Schemes Management Act 8 of 2011
(the Sectional Titles Act), the function of the body corporate is:
‘(l)
to maintain all the common property and to keep it in a state of good and serviceable
repair;
. . .
(p)
to ensure compliance with any law relating to the common property or to any improvement
of land comprised in the common property;
(q)
to maintain any plant, machinery, fixtures and fittings used in connection with the common
property and sections and to keep them in a state of good and serviceable repair;
(r)
subject to the rights of the local municipality concerned, to maintain and repair including
renewal where reasonably necessary, pipes, wires, cables and ducts existing on the land and
capable of being used in connection with the enjoyment of more than one section or of the
common property or in favour of one section over the common property; [and]
. . . .
(t)
in general, to control, manage and administer the common property for the benefit of all
owners.’

[15] The Sectional Titles Act accordingly imposes specific and extensive duties on a
body corporate in respect of the maintenance of the common property. These duties
under the Act do not extend to a local municipality. Furthermore, in terms of s 39 of the
Electricity Supply By-laws of the City of Umhlathuze (the By-laws), it is the duty of the
body corporate to maintain the installation at its expenses.6 The body corporate’s conduct
in instructing its appointed electrician Mr Joseph Davis after the incident, to earth the cage
and the kiosk, is an acknowledgement of that responsibility, and is consistent with s 39 of
the By-laws.

6 Section 39 reads as follows:
‘39.
Customer to erect and maintain electrical installation.
Any electrical installation connected or to be connected to the supply mains, and any additions or
alterations thereto which may be made from time to time, shall at all times be provided, erected,
maintained and kept in good order by the customer at his own expense and in accordance with this
bylaw and the Regulations.’

[16] The role of the municipality was to distribute electricity to the premises of the body
corporate. Consequently, it was important for it to safeguard its infrastructure so as to
enable it to carry out its function. The duty to ensure the safe installation and ultimately,
the safety of the kiosk and metal cage lay with the body corporate in terms of the By-laws
and the relevant provisions of the Sectional Titles Act.

[17] On the facts of this case, a person in the position of the municipality would not
have reasonably foreseen the possibility of the cage becoming electrified and causing
harm. The uncontested evidence is that the municipality only became aware of the
unearthed structure after the fatal incident. On 28 June 2013, a day before the incident,
a report was made to the body corporate of an incident involving a mild shock to a child
caused by the same metal cage. Mr Davis, an electrician engaged by the body corporate,
had tested the cage for voltage during the morning of 29 June 2013 and found that it was
not electrified. Mr Davis conceded that a similar inspection by the employees of the
municipality would not have raised any concern to them. He did not access the locked
cage but requested the body corporate to instruct him should it require him to procure the
key for the lock from the Municipality, which was readily obtainable.

[18] Moreover, a reasonable person in the position of the municipality would not have
foreseen that a leg of the metal cage would penetrate the underground cable, nor that the
cage was unsafe because it was not earthed. Mr Gregersen’s evidence was that the metal
leg which had made contact with the power cable that electrified the cage, ‘is not obvious
if the ground is closed and sealed, you don’t know there are legs on the kiosk’. This was
only detected when the ground around the cage had been excavated. It is thus not
surprising that when testing the metal cage on the day of the incident, Mr Davis found
that it was not electrified. The position would have been no different had that test been
carried out by an electrician employed by the municipality. In addition, Mr Gregersen
testified that one could not determine integrity of the cage or how it was installed by merely
looking at it, and one would assume that anybody with knowledge of electricity, who put
a metal cage around an electrical cubicle, would have earthed the cage since this was a
statutory requirement. Mr Gregersen also stated that a cause of the incident was that the

cage was not secure: it could be rocked backwards and forwards. He said: ‘[i]deally the
security cages should be bolted to a concrete base common to that of the distribution
kiosk, without any legs which are pressed into the earth’. This was not the responsibility
of the municipality, but the body corporate.

[19] The high court was thus correct in finding that there was credible evidence that
negligence could not be ascribed to the municipality.

[20] In the result, the appeal is dismissed with costs.

_________________
D S MOLEFE
ACTING JUDGE OF APPEAL

APPEARANCES
For appellants:

R Pillemer
Instructed by:

A C De Sousa Attorneys, Durban

Honey Attorneys, Bloemfontein

For first respondent:

D Schaup
Instructed by:

Nagesh Maharaj Attorneys, Pietermaritzburg

Webbers, 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:

17 DECEMBER 2021
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not form part of
the judgments of the Supreme Court of Appeal
Lucas & Another v Umhlathuze Municipality and Another (Case no. 785/2020) [2021] ZASCA
181 (17 December 2021)
Today the Supreme Court of Appeal (SCA) handed down judgment dismissing, with costs, an appeal
against a decision of the Kwazulu-Natal Division of the High Court, Durban (the high court).
The issue before the SCA was whether the municipality, by virtue of the fact that it placed its lock on
the metal cage encasing the electricity distribution kiosk belonging to the body corporate, assumed the
duty to ensure the safety of the kiosk and metal cage. And if so, whether the municipality was negligent
for failing to ensure the safety thereof.
On 29 June 2013, the appellants’ six-year-old daughter was fatally electrocuted when she climbed onto
a metal cage encasing an electrical distribution kiosk on the premises of a sectional title scheme (the
scheme), which was under the management of the second respondent, the Oceans Rest 3 Body
Corporate (the body corporate). As a result of the death of their daughter, the appellants claimed
damages for emotional shock from the municipality and the body corporate, jointly and severally. They
alleged that the municipality and the body corporate had negligently failed to ensure that the metal cage
was properly maintained, and was not a danger to the residents, thus failing in their ‘duty of care’ to the
public.
It was common cause between the parties that the distribution kiosk was installed by the body corporate,
and belonged to it. At the instance of the body corporate, the developer of the scheme had installed five
electricity distribution kiosks on the common property, each of which serviced four sections within the
scheme. Electrical wiring leading to and from the kiosk was laid underground at a depth of between
350mm and 500mm. The municipality installed prepaid meters in the kiosks which regulate payment
but not the supply of electricity. At some stage after the body corporate had installed the cages,
employees of the municipality installed locks onto the cages to safeguard the infrastructure against
vandalism and to prevent interference with the prepaid meters within the kiosks. The municipality
supplies electricity to the body corporate from its mini substation located across the road from the
scheme, and provides subterranean infrastructure to the boundary of the scheme, from which point the
body corporate is responsible for reticulation of electricity to various sections within the scheme. It was
submitted on behalf of the appellants that by placing a lock on the cage and retaining its key, the
municipality assumed a legal duty to ensure that the cage was safe. It was also submitted that the
municipality was negligent because it failed to mitigate any risk of the cage becoming electrified by
ensuring that it was earthed.
The SCA held that the role of the municipality was to distribute electricity to the premises of the body
corporate. Consequently, it was important for it to safeguard its infrastructure so as to enable it to carry
out its function. The duty to ensure the safe installation and ultimately, the safety of the kiosk and metal

cage lay with the body corporate in terms of the Electricity Supply By-laws of the City of Umhlathuze
and the relevant provisions of the Sectional Titles Schemes Management Act 8 of 2011.

~~~~ends~~~~