The parents of a 6-year-old girl, who was electrocuted and died after she climbed on to a metal cage encasing an electrical distribution kiosk on the premises of a sectional title scheme in Richard’s Bay, KwaZulu-Natal, have lost their bid for a second time to hold the municipality liable for their loss.
Arthur and Zelna Lucas initially turned to the Durban High Court to claim damages from the Umhlathuze Municipality as well as against Ocean Rest 3 body corporate. The body corporate, meanwhile, entered into a confidential settlement with the parents.
Following a damages trial, the parents lost their case against the municipality, as the high court found that it could not be held liable.
The Lucas couple subsequently turned to the Supreme Court of Appeal, insisting that the municipality should be accountable for their damages.
The child was electrocuted in June 2013, after she climbed on to the housing complex’s electrical distribution kiosk. The parents alleged that the municipality and the body corporate had negligently failed to ensure the metal cage did not pose a danger to residents. They argued that both entities failed in their “duty of care” to the public. As the body corporate agreed to settle, the parents pursued their claim against the municipality only.
The body corporate installed the distribution kiosk. The scheme’s developer had installed five electricity distribution kiosks on the common property; each servicing four sections.
Electrical wiring, leading to and from the kiosk, was laid underground. The municipality installed prepaid meters in the kiosks, regulating payment but not electricity supply.
The municipality supplies electricity to the body corporate from its mini substation across the road and provides subterranean infrastructure to the boundary of the scheme, from where the body corporate is responsible for reticulation of electricity.
At the insistence of the body corporate, metal cages were later placed over the kiosks. The municipality then installed locks on to the cages to safeguard the infrastructure against vandalism and prevent interference with the prepaid meters within the kiosks.
Following the child’s death, the municipality identified the cause of the incident as electrification of the metal cage. It occurred when one of the legs of the cage made contact with the copper coil of an underground cable connected to the distribution kiosk.
This took place when weight or pressure was placed on the cage, which had not been earthed. It was argued, on behalf of the parents, that by placing a lock on the cage and retaining its key, the municipality assumed a legal duty to ensure that the cage was safe.
The high court rejected this contention, and concluded that affixing locks and retention of the keys by the municipality could not be considered wrongful, and that no negligence could be ascribed to the municipality. The high court dismissed the claim.
On appeal, counsel for the parents maintained that the municipality should have foreseen that the cage was of an unsafe design, and therefore could become electrified and cause harm to any person who touched it.
But five SCA judges said the Sectional Titles Act imposed specific duties on a body corporate in respect of common property maintenance. The duties under the act do not extend to a local municipality.
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