A cyclist who suffered electrical burns after coming into contact with a low-hanging powerline had not entered into a transaction with Eskom, nor was he the beneficiary of the electricity supplied. There was no supplier-consumer relationship, as required for a product defect claim under s61(1)(b) of the Consumer Protection Act 2008. This was the finding of the Supreme Court of Appeal in Eskom Holdings Limited v Halstead-Cleak.
Section 61(1) creates strict liability for the producer or importer, distributor or retailer of any goods that cause harm as a consequence of:
- supplying any unsafe goods;
- a product failure, defect or hazard in any goods; or
- inadequate instructions or warnings provided to the consumer pertaining to any hazard arising from the use of any goods.
The court interpreted section 61 to protect against harm caused to a natural person, in his or her capacity as consumer. There must be a supplier-consumer relationship for Eskom to be held strictly liable, because the Act’s purpose is to protect consumers, and not ‘any natural person’.
In this case there was no supplier-consumer relationship between the cyclist and Eskom. Further the cyclist’s injuries could not be attributed to a defect or material imperfection in the electricity – electricity being the ‘product’ supplied by Eskom.
The circumstances fell outside the ambit of the CPA and the claim was therefore dismissed. The respondent could pursue his claim for damages under the law of delict.
