'You can sue Eskom'

2008-01-22 23:03

Llewellyn Prince

Cape Town - A legal expert has said that South Africans can successfully claim damages from Eskom for losses as a result of the wave of power failures.

Johan Theron of lawyers Jan S de Villiers, said on Tuesday that in a report of the National Energy Regulator of South Africa (Nersa), it had been found the power failures from November 2005 to March 2006 in the Western Cape had been caused by "blatant negligence" in respect of procedures, maintenance and remedial actions, or a lack thereof.

He said Eskom supplied electricity through a licence in terms of the Electricity Act 41 of 1987.

"Section 12 of this act provides that any consumer may institute a claim for damages against a licence holder if such licence holder neglected to fulfil its obligations as set out in the licence.

"A further cause for action is that of breach of contract, since Eskom has a contract with each consumer."

Theron said he had studied various Eskom contracts and it was striking that they all exempted Eskom from liability in respect of damage, unless it has been caused by the parastatal's negligence.

"Damage in this connection is, however, limited to direct damage and does not include consequential damage such as loss of goodwill etc."

He said Eskom, therefore, could be successfully sued and that its explanations, such as "essential maintenance", should not necessarily be accepted.

Will have to borrow more money

The introduction of electricity quotas without the amendment of the act, or of Eskom's licence conditions, also could lead to a continued flood of claims against Eskom.

"I do not believe they have properly considered it in the context of their licence and the act, unless the legislator is contemplating an amendment of the act."

The power supplier's financial director, Bongani Nqwababa, said on Tuesday that Eskom would now have to borrow more money, as Nersa had not granted its requested 18.7% tariff increase. Nersa had approved 14.2%.

Eskom said earlier that power failures would probably continue countrywide until Wednesday.

- Die Burger