A man who alleged that he was electrocuted by open Eskom cables and seriously injured 16 years ago when he was still a child, told the court that he had only become aware last year that he could institute a damages claim against the electricity giant.
Odwa Mbhiyozo turned to the Eastern Cape High Court, sitting in Mthatha, to hold Eskom liable for the injuries he had suffered as a 13-year-old orphan in 2007.
Eskom, however, raised a special plea and argued that Mbhiyozo’s claim had long since lapsed. It argued that in terms of the law, he had three years from the date of the incident to issue summons for damages against Eskom.
Mbhiyozo’s counter argument was that he was only a child when the incident occurred, and he could not have done anything about the situation. Although he turned 18 in 2011, he was still not aware that he could sue Eskom.
Mbhiyozo told the court that for 16 years he “knew” Eskom was “responsible” for his injuries, but it was only in June last year that he realised he had a remedy in law to sue the electricity giant.
He testified that on January 17, 2007, while in the mealie field with his cousin looking for lost cattle, he was electrocuted by Eskom cables. He was taken to St Mary’s Hospital where he was admitted for three months and thereafter to the Mandela Academic Hospital where he spent seven months. Mbhiyozo said that Eskom had paid his hospital bills.
An official testified on behalf of Eskom that he was on duty on that day and told by colleagues that a person was electrocuted. He went to the scene and saw electricity wires on the ground. He then went to the hospital and noticed that Mbhiyozo was bandaged in the areas where he was electrocuted. He spoke to the plaintiff although it was difficult for him to speak.
He took pictures of the plaintiff in his condition and prepared documentation for investigation by Eskom. The witness told the court that as an Eskom employees he was not allowed to inform the injured persons of their right to institute claims against the utility.
In its pleadings when raising the point of the claim having lapsed, Eskom estimated that the incident happened in 2007, arguing that claim therefore expired in January 2010. However, when it presented its arguments in court, it calculated the date of prescription being 2014 - three years from the date when Mbhiyozo reached the age of 18 in 2011.
“The case (of Eskom) based on the plaintiff's attainment of age of majority was an afterthought and sought to be introduced by ambush,” Acting Judge AS Zono said.
He said when evidence was led on behalf of Eskom, nothing was said about Mbhiyozo’s age at the time of the incident.
It was only during cross-examination that his age was introduced by the plaintiff’s counsel to show that at the time of accident he was a young village boy who left school after having passed the then Standard 5.
Mbhiyozo accordingly lacked cognitive abilities to know the identity of the debtor and the facts giving rise to the debt, the court ruled.
It turned down Eskom’s special plea, which paved the way forward for Mbhiyozo to sue the electricity giant for damages 16 years later.
Pretoria News