Can you sue Eskom for damage to your appliances due to load shedding?

Many South Africans have had to deal with damage to their appliances caused by load shedding.

Although, load shedding is not an insurable risk in an insurance contract, some insurers offer cover for damage to sensitive electronic items caused by power surges.

But what if you are not insured or your insurer refuses your claim? Can you sue Eskom for the damage?

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 load shedding, one particularly significant concern is consequential damages, which occurs when one party suffers damages due to the other party’s breach of contract. An example of this is damage to electrical appliances caused by power surges due to load shedding, Philip Venter, attorney at GoLegal, says.

According to Brite Lighting, load shedding 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.

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What is your legal recourse?

Venter says the key question is what legal recourse you have if your electrical appliances are damaged due to load shedding.

“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, or any failure to supply a balanced three-phased current or failure to supply electricity’.

“Therefore, to succeed with a contractual claim against Eskom, you will have to also prove that load shedding amounts to negligent conduct from Eskom,” Venter says.

“Another possible avenue would be that of delict (the circumstances where you can claim compensation from someone else for harm suffered). To prove a delictual claim, you will have to prove all five elements of delict, being conduct, wrongfulness, fault, causation and damage. Therefore, you will be required to prove that load shedding amounts to negligent conduct from Eskom that causes damages.”

He says suing in terms either or both breach of contract and delict would, therefore, in all likelihood, be difficult, as both require proof of negligence on Eskom’s side.

However, he points out, as a consumer you are not restricted to suing in terms of delict. Section 61 of the Consumer Protection Act (CPA) imposes strict liability on suppliers. “For a supplier to be liable in terms of section 61, negligence is not a requirement and therefore, section 61 imposes so-called strict liability on suppliers.

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Liability for damage

Section 61 deals with the liability of the producer, importer, distributor or retailer of hazardous, unsafe or defective goods that caused the death, injury or illness of any person or loss of or physical damage to any moveable or immovable property.

These parties can also be held responsible for damage or harm caused by not giving consumers adequate instructions or warnings regarding the use of the goods. Consumers do not have to prove that the producer, importer, distributor or retailer was at fault.

Venter says 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 CPA, he says.

“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 its judgment the court said, taking into account all the definitions and the wording of section 61, that the respondent firstly had to establish that the respondent was harmed 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.

ALSO READ: Consumer Protection Act and your rights

Fundamental consumer rights and Eskom

“Taking into consideration that section 61 is a section in Chapter 2 of the CPA dealing with ‘Fundamental Consumer Rights’, it is clear that the harm envisaged in section 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’.”

Venter says 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 buy electricity from Eskom. Load shedding occurs during this transaction and if it leads to consequential damages, it could be attributed to the electricity supplied by Eskom.”

He says it is worth noting that a supplier may escape liability for its negligence, although not gross negligence, if its terms and condition specifically condones this under section 51 of the CPA. 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 load shedding, rather than imposing it.”

Considering this, Eskom might be liable for damage to your electrical appliances due to load shedding, Venter says. “The outcome of future legal cases will determine how courts handle these claims. One concern is that if one case succeeds in favour of consumers, it could open the floodgates for more litigation against Eskom.”