In our previous article, we discussed the legalities around loadshedding and answered the question asked by many South Africans: “is load shedding illegal?”
Although load shedding is not technically illegal, there is some recourse available to individuals or businesses that have suffered loss or damage due to load shedding.
There are three major circumstances under which an individual or business may claim for loss or damages caused by load shedding.
Load shedding can cause major inconvenience to individuals and businesses alike. However, damage in various forms can also be a consequence of rolling black outs in the country.
When consumers have a direct contract with Eskom, they may have grounds to claim for damages caused based on breach of contract. However, generally speaking, most consumers don’t have a contract directly with Eskom.
Eskom sells electricity to municipalities which then deliver it to consumers at an increased rate.
Under these circumstances, consumers who have suffered loss or damage as a result of load shedding may have grounds lay a claim founded in delict against Eskom.
A breach of contract happens when a party to a contract does not deliver the services stipulated in the contract.
In cases where a consumer has a direct contract with Eskom, it is possible for them to sue Eskom for breach of contract. However, this will depend on the terms stipulated in the contract.
When Eskom has a direct contract with a consumer, such contracts have standard conditions in place which effectively exempt it from liability for damages caused to consumers. This only applies when damages are not as a result of negligence on Eskom’s behalf.
Clause 19 of Eskom’s standard conditions states the following:
“ESKOM shall take all reasonable precautions to procure and maintain suitable plant for the generation and distribution of electricity calculated to secure to its consumers a constant supply of electricity and shall procure efficient technical staff to control such plant, but ESKOM does not guarantee that the same will always be maintained, and ESKOM shall not be liable for damages, expenses or costs caused to the CUSTOMER 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 unless the said interruption or failure is due to the negligence of ESKOM in failing to carry out its obligations aforesaid.”
In summary, Eskom cannot be held liable for any damage caused by load shedding unless the interruption of power supply is a result of negligence in carrying out its obligations. In order to claim for damages, the consumer will have to provide sufficient proof of negligence.
In our previous article, we explain that load shedding can be seen as a necessity based on Eskom’s obligation to mitigate the risk of a complete national blackout and, therefore, proving breach of contract may be challenging.
However, consumers may be able to prove that Eskom has neglected to effectively maintain the country’s electricity infrastructure, resulting in load shedding as a secondary response to such negligence.
Section 25 of the Electricity Regulation Act 4 of 2006 may apply in such situations. It states the following:
“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.’
With this in mind, it could be argued that clause 19 of Eskom’s standard conditions is unlawful as it requires the consumer to prove negligence in order to claim.
Therefore, consumers who have a contract directly with Eskom may be able to sue Eskom on the basis of breach of contract.
A delict occurs when one party to a contract commits wrongdoing against another party to the same contract. Elements of delict include:
For a consumer to have a claim against Eskom founded in delict, Eskom must have caused damage to the consumer through its conduct. For such a claim to be successful, all the abovementioned elements must be proven.
If a consumer can prove all the elements of delict, they may be able to claim compensation for the loss or damage caused by load shedding. However, the final will be made by the court based on each individual case and its merits.
Although it’s clear that consumers may be able to lay a claim against Eskom for loss or damage caused by load shedding, it’s important to consider the legal costs involved with such proceedings which will likely surpass the claimed amount.
It is advisable for consumers to find out from their respective insurance companies to establish if their damages are covered by their insurer.
Should you feel that you have grounds to take legal action against Eskom due to loss or damage caused by load shedding, it’s advisable to speak to our attorneys.
We provide expert civil litigation services as part of our comprehensive legal services.
Contact us to find out more.
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