Abstract:
Should Eskom and municipalities be held liable for loss resulting from load shedding? In essence, this is the question this dissertation answers or at least sheds some light on. This dissertation looks at the possibility of holding Eskom and municipalities delictually or contractually liable for loss resulting from load shedding. It does this by first discussing the delictual elements and thereafter determining whether these elements are present in the current circumstances in which Eskom and municipalities find themselves. It also looks at the relevant forms of breach of contract which may be present under the circumstances. It discusses their applicability to Eskom’s Standard Conditions of Supply for Small Supplies with Conventional Metering. It also discusses the applicability of these forms of breach to the relevant electricity supply by-laws which, in essence, provide the terms and conditions relating to the agreement for the supply of electricity between municipalities and consumers. The nature of electricity supply contracts are discussed throughout the dissertation in brief. It is found that electricity in itself is a very unique thing where the supply and sale thereof cannot be separated. The dissertation also deals with some interesting legislation which has the effect of municipalities and Eskom having to prove that they were not negligent in causing loss to consumers. Furthermore, the dissertation looks at related topics, briefly discussing class actions, pure economic loss, the “once and for all” rule, mitigation of loss, prescription, concurrent actions and possible infringement of constitutional rights. It considers the types of loss which might be claimed for as well as alternatives to instituting claims for damages. In the end, the conclusion is reached that all claims must be assessed with due regard to the circumstances surrounding each claim. It also comes to the conclusion that, in general, Eskom can be held delictually and contractually liable for load shedding. The assessed contract contains provisions which are contrary to national legislation and thus inoperative. It is, however, doubtful if such liability would succeed since courts would in all probability deny such claims for fear of opening the flood gates. It might be harder and even impossible to hold municipalities delictually liable. However, municipalities might be contractually liable as it is clear that by-laws, which regulate the supply of electricity to the consumer by the municipality, are often inoperative since these are in conflict with national legislation. This dissertation does not proclaim to provide all the answers relating to claims resulting from load shedding. It is, however, hoped that it will provide some insight into the considerations that need to be taken into account whilst raising some thought provoking questions.
