IN THE HIGH COURT OF SOUTH AFRICA. EASTERN CAPE DIVISION GRAHAMSTOWN. CASE NO. 193/2010 IN THE MATTER BETWEEN: versus JUDGMENT MAGEZA AJ:

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1 IN THE HIGH COURT OF SOUTH AFRICA. EASTERN CAPE DIVISION GRAHAMSTOWN. CASE NO. 193/2010 IN THE MATTER BETWEEN: TOMMY LAMONT TOMMY S ELECTRICAL CC FIRST APPELLANT SECOND APPELLANT versus ROCKLANDS POULTRY CROWN CHICKENS (PTY) LTD. ROCKLANDS POULTRY (PTY) LTD. RON FARAGHER UNITED CHIX (PTY LTD. MURRAY PHILLIPS FIRST RESPONDENT SECOND RESPONDENT THIRD RESPONDENT FOURTH RESPONDENT FIFTH RESPONDENT SIXTH RESPONDENT JUDGMENT MAGEZA AJ: 1

2 [1] Appellants herein (as Plaintiff s in the Court a quo), sued the present six Respondents as well as three other Defendants (not party to the present Appeal) for damages arising from injuries sustained as a result of an electrical shock. [For the purposes of convenience, I will refer throughout this judgment to Appellants as Plaintiffs and the Respondents as Defendants]. The parties agreed before the trial commenced to have the question of liability decided independently of the quantum of damages. In the proceedings to decide the issue of liability the Defendants counsel, at the end of the Plaintiffs case, applied for absolution from the instance. This was granted with costs and the six Respondents, as Defendants in the main matter, were granted absolution from the instance. Appellants (Plaintiffs) now appeal this order. FACTUAL BACKGROUND. [2] Briefly,the facts material to this appeal are that the two Plaintiffs instituted action against the nine Defendants for damages pursuant to injuries suffered as a result of an electrical shock while engaged in repair work on power lines on an electrical grid falling under the jurisdiction of the Nelson Mandela Metropolitan Municipality. The Plaintiffs allege that the sole cause of the incident was the negligent conduct of one or more of the nine Defendants in causing the installation of a private electricity generating plant, connecting the same to the main municipal electrical grid without properly isolating its current therefrom and that Defendants failed to avoid the incident when by the exercise of reasonable care, they could and should have done so. [3] The Second Defendant trades as Rocklands Poultry, the First Defendant. The Third Defendant is a shell company which no longer exists. Fourth defendant, Ron Faragher was an employee of Second Defendant. Sixth Defendant, Murray Phillips was employed by the Fifth Defendant who conducts business as a chicken breeder and broiler as does the First and Second Defendants. [4] The collective plea of the afore-going defendants is that Fourth Defendant, on behalf of

3 all of them, employed the services of the Eighth Defendant (Van der Touw) as an independent contractor, to provide the supply of electricity by availing them an electrical generator at a time when the municipal electrical supply had been disrupted. They allege in their plea that the Eighth Defendant delivered and installed the electrical generator on the Second Defendant s property and that the Eighth Defendant took certain steps to operate the private generator and did not act subject to their instructions. [5] Eighth Defendant in turn pleaded that he acted for and on behalf of the Ninth Defendant who had leased the electrical generating plant to the First Defendant. He admits only to having delivered the electrical generator and denies having installed, operated or caused it to be installed or operated in any manner on the property. [6] Plaintiff called several witnesses including a Mr CG Hopewell who testified as an expert electrical engineer. He confirmed that in his view the electrical shock suffered by Plaintiff emanated from a private electrical generator which had been installed and unlawfully connected onto the public municipal electrical grid on which plaintiff was, at the material time, engaged in effecting repairs. This was confirmed by witnesses Smith and Sher who had attended to the emergency together with plaintiff. The evidence detailed that connecting a generator could, by law and on considerations of safety, only be by permission of the municipality. That in the instant case, not only should it not have been connected to the grid but that this conduct was so unusual that Hopewell, in his more than two decades of experience, had neither heard of nor experienced such an incident. [7] It was conceded that whilst it was not unreasonable for Plaintiff to have assumed that such an illegal connection did not exist, Plaintiff should, under the circumstances, have exercised proper and adequate care and should have earthed the circuit differently prior to undertaking work thereon. Without embarking on an extensive analysis of the overall evidence, much of which was of a technical nature, the broad thrust of the testimony of the other witnesses mentioned supported these views. They also readily conceded that plaintiff could have been more cautious in the circumstances. Neither the Plaintiffs nor any of its witnesses had independent knowledge of who had connected the electrical generator to the overhead 3

4 municipal powerlines. [8] At the close of the Plaintiff s case, an application on behalf of First, Second, Fourth, to Sixth Defendants was brought by Mr Eksteen, for absolution from the instance. In support of the application counsel relied on the following: a) the failure to obtain written permission to install the generator did not on its own constitute negligence. Similarly, that failure to comply with the South African Bureau of Standards code of practice did not constitute negligence. b) there was at that stage no evidence that (First, Second, Fourth to Sixth) Defendants had caused a private electricity generator to be installed and operated without isolating the electrical supply from the municipal line on at least one point thereof. c) there was no evidence that the said Defendants had failed to exercise reasonable care to avoid the incident that occurred. d) Plaintiff had by way of introducing into evidence the affidavit of Sixth Defendant, conclusively proved that the Eight Defendant had arrived at the premises and coupled the generator to the main grid and municipal powerline. That having been engaged as an

5 independent contractor the First, Second, Fourth to Sixth Defendants could not be held liable for his conduct as an independent contractor. [9] Mr Euijen for the third party aligned himself with these submissions. In support of the last contention, Mr Euijen submitted that it must be concluded from the evidence that it was Eighth Defendant who had connected the generator in question. [10] In its findings, the Court, after a lengthy evaluation of the evidence, summed up its observations as follows: The plaintiffs also placed several discovered documents before court which were contained in bundle C. The most significant of these documents with regard to this application for absolution, was an affidavit deposed to by the sixth defendant, Mr Murray Phillips, on 28 April The affidavit was deposed to for purposes of the enquiry held by the Municipality to determine the cause of the accident. Therein he stated on oath, that because of the power failure which lasted for ten days, and the dire consequences it would have for the poultry on their farm, the fourth defendant, Ron Farrager, contacted the eighth defendant, Mr Van der Touw, to supply and install a generator. On 11 July 2002 he said, Mr Van der Touw coupled a generator to the distribution board of the farm s electricity supply. According to this testimony, the eighth and ninth defendants were indeed responsible for the installation of the generator. After the generator was switched on, there were problems and Mr Van der Touw did further work on it. There-after it was switched on for a further 30 minutes. Because it did not work properly, it was switched off again. Shortly thereafter, the fourth defendant, Ron Farrager, phoned to advise that a municipal employee had been electrocuted somewhere along the municipal supply line and that the generator 5

6 should be switched off. In his affidavit, Mr Phillips further said that Van der Touw then removed the generator and left. This evidence on oath is at variance with the pleadings of the eighth and ninth defendants. It seems most unlikely that the eighth and ninth defendants would not install their own generator, or at least oversee its installation. and further: All the evidence led by the plaintiffs conformed with the pleadings of the chicken farmers. The only way in which these defendants can possibly be held liable is if the plaintiffs could establish that one, or all of them as principal, could be held liable for the actions of the eighth and ninth defendants as independent contractors, because they did not exercise reasonable care. and finally that: The evidence presented by the plaintiffs, does not support the submission that the first, second and fourth to sixth defendants did not exercise reasonable care. The undisputed evidence was that because of the shortage of electricity they leased a generator. To this end they obtained the services of the eighth and ninth defendants, known in the area, (particularly the eighth defendant) as experts in this field and who operated as independent contractors, installing and leasing generators when requested to do so. The generator in question was their property. The affidavit of Mr Phillips, deposed to almost six years ago, was that the eighth defendant installed the generator. That is the more probable scenario. The chicken farmers therefore discharged their duty of care by leasing and delegating the installation

7 of the generator to the eighth and ninth defendants. [11] Now where an Appeal Court evaluates whether or not to allow an appeal against an order granting absolution at the close of the plaintiff s case, it must, as far as is possible, avoid expressing views that may prematurely curb the free exercise by the trial Court of its judgment on the facts when Defendant s case has been closed. see the comments of Schreiner JA in Gafoor v UnieVersekeringadviseures (Edms) Bpk 1961 (1) AD 335 at 340 D- E. [12] Several factors relating to the affidavit of Sixth Defendant are cause for concern when regard is had to them at the stage of an application for absolution from the instance. Clearly the affidavit weighed heavily in the Court s mind in assessing the merits of the application The first of these factors is that Rule 38 (2) of the Rules of this Court anticipates that witnesses in action proceedings are to be examined viva voce. Where this is not possible and on good cause shown, then a Court may direct the taking of the same by way of an affidavit and on such conditions as may seem meet. The proviso to the rule is that where another party reasonably requires that such witness be cross- examined and the deponent is available, then the said evidence shall not be concluded on affidavit. Plaintiff s argument in opposing the application for absolution was based on this that it needed to test the evidence of all the Defendants Rule 37 (6) relating to pre-trial conferences requires that all admissions be made in the pre-trial minute and signed on behalf of each party. I do not understand it to be the case that Plaintiff made an admission and/or an election to rely on the Sixth Defendant s affidavit in this sense or any other stated sense. 7

8 12.3 In addition, the affidavit was made pursuant to a different investigation, one conducted by the municipality in order to attempt to unearth the cause of the incident. It is an affidavit which was not even made for the purposes of the present trial. It is a document discovered by the defendants in support of their plea. Its author happens to be the Sixth Defendant who is equally mired in the dispute the Court is engaged in resolving. The content of the affidavit is the ipse dixit of a Defendant introducing nothing new to the Court other than an allegation already contained in its plea and collectively those of First, Second, Fourth and Fifth Defendants The contents of the affidavit at the stage of the closure of the Plaintiff s case remain untested in light of its contents not having been placed before Court by way of testimony viva voce under oath and the Defendant cross examined thereon. It is not, standing on its own, testimony providing conclusive proof against the Eighth and Ninth Defendants. [13] The further finding that Plaintiff had not followed safety measures and had flouted them resulting in negligence on its part does not exonerate the responsible Defendant(s) and could at best lead to the possibility of contributory negligence on Plaintiff s part. The finding that, on the available evidence, the Defendants had exercised reasonable care appears to be premature in light of the plea of Eighth and NinthDefendants. It is also instructive that the evidence of a vastly experienced engineer such as Hopewell was that whoever had installed the generator could not have been a competent electrician, let alone an expert. This testimony was not gainsaid. THE LEGAL POSITION.

9 [14] The issue which the Court had to decide was whether there was at the close of the Plaintiff s case evidence on which a reasonable man might hold that the defendants were liable. This is the principle set out in Gascoyne v Paul and Hunter, 1917 TPD 170 approved by the Appellate Division (as it then was) in Rex v Shein, 1925 AD 6 at p9. [15] Erasmus, Superior Court Practice B1 292 summarises the position as follows: When absolution from the instance is sought at the close of the plaintiff s case, the test to be applied is not whether the evidence established which would finally be required to be established, but whether there is evidence upon which a court, applying its mind reasonably to such evidence could or might (not should or ought to) find for the plaintiff. It follows that when absolution is asked for at the end of the plaintiff s case, the court must bring to bear upon the evidence not his own but the judgment of a reasonable man. Renouncing for the time being any tendency to exercise a judgment of his own, he is bound to speculate on the conclusion at which a reasonable man of his conception not should, but might, or could arrive. This is the process of reasoning which, however difficult it is to exercise, the law enjoins upon the judicial officer (Myburgh v Kelly 1942 EDL 202 at 206). [16] In Gordon Lloyd Page & Associates v Rivera 2002 (1) SA 88, the Court held that the test is whether there is evidence upon which a Court applying its mind reasonably to such evidence could or might (not should or ought to) find for the Plaintiff. Moreover, the Court therein emphasised that absolution at the end of the Plaintiff s case will in the ordinary course of events nevertheless be granted sparingly, but when the occasion arises a Court should order it in the interests of justice. [17] It seems to me that where a single Defendant is concerned in a matter, applying these principles may be rendered easier than where a number of Defendants are sued jointly, jointly 9

10 and severally or in the alternative. This is what the Court in Mazibuko v Santam Insurance Co. Ltd 1982 (3) SA 125 (A) at 135D-E contemplated where Corbett JA stated, if at the end of the plaintiff s case there is evidence upon which a court applying its mind reasonably, could hold that it had been established that either the one defendant or the other defendant or both of them were legally liable (it being nevertheless uncertain as to which of the alternatives was the correct one), the court should not grant an application for absolution at the suit of either defendant. [18] I agree with these principles and in my view they find application in the facts of the present matter for the reasons already stated. The commentary of Leveson J in K & S Dry Cleaning Equipment v South African Eagle Insurance 1998 (4) SA 456 (W) at 460 E to 461C is also in point. In distinguishing the case before him from that of Colman AJ in Putter v Provincial Insurance Co. Ltd and Another 1963 (4) SA 771 (W), he stated: There at the end of the plaintiff s case, it was apparent that the damage sustained by him in a motor collision, for recovery of which he had sued, had been due to the negligence of one or other of the parties. But it was uncertain even at that stage as to which was responsible for the damage. Colman AJ considered the English decision of Hummerstone and Another v Leary and Another [1921] 2 KB 664 (CA). He went on to make the point that where there is a single Defendant the reservoir of material from which the Plaintiff s case is drawn is exhausted at the end of his case. There can be no further evidence against the Defendant. The only further evidence would run against the Plaintiff and, he said, it would not be in the interests of justice in that event to continue the case. But where there are two Defendants the learned Judge noted that the Court might not be in a position fairly to assume that it has heard all the evidence which is material to a just decision, so that a different rule must apply.

11 [19] I must emphasise that, in this case, the plea of Eighth and Ninth Defendants is at odds with that of the other Defendants. The second set of Defendants seek to rely on the premise that they had engaged Eighth Defendant as an independent contractor from whom they not only collectively sourced the electrical plant but also engaged as an expert to install it. Eighth Defendant denies these averments and only admits to providing the plant without being engaged to install same. Eighth Defendant pleads a clear denial and the totality of the picture as painted by it suggests that the other Defendants either on their own or through someone else, installed the plant and discovered that it was faulty and returned it without invoicing for the same. In light of the fact that the contractual relationship was one between them as the contracting parties, it is natural that they are best placed to shed light on the detail. Plaintiff does not have knowledge of what occurred as between these two sets of Defendants. Absolution at this stage would naturally deprive the Plaintiff the benefit of such evidence. At this stage of the proceedings, it appears to me, the court is not in a position fairly to assume that it has heard all the evidence which is material to a just decision. - Putter v Provincial Insurance Co. Ltd and Another (supra). [20] In the result I make the following order: (a) The appeal succeeds with costs, such costs are ordered to be paid by the Respondents jointly and severally, the one paying the other to be absolved. (b) The order of absolution from the instance is set aside and replaced with the following: The application for absolution from the instance is dismissed with costs. 11

12 P.T. MAGEZA ACTING JUDGE DHLODHLO DJP: I AGREE A.E.B. DHLODHLO DJP DEPUTY JUDGE PRESIDENT OF THE HIGH COURT. PILLAY J: I AGREE R. PILLAY JUDGE OF THE HIGH COURT. HEARD: 03 MAY 2011 DELIVERED: 19 AUGUST 2011

13 COUNSEL FOR APPELLANTS: INSTRUCTING ATTORNEYS: H.J. VAN DER LINDE SC NETTLETONS 118A HIGH STREET GRAHAMSTOWN (046) COUNSEL FOR RESPONDENTS: INSTRUCTING ATTORNEYS: E.A.S. FORD SC NEVILLE BORMAN & BOTHA 22 HILL STREET GRAHAMSTOWN (046)