In a recent judgment delivered by the Makhanda High Court, the court addressed two separate applications instituted against the Enoch Mgijima Local Municipality ('the municipality'). Both cases related to their negligence in two incidents of electrocution caused by exposed electrical cables in February 2020. The first application was instituted by Zine Fanti, on behalf of her minor son, Yomelela Fanti, and the second application was by Mxolisi Masayimane, both residents of Aloe T, squatter camp in Komani (Queenstown).
Zine Fanti's Case
On 17 February 2020, Yomelela Fanti, then a 7½-year-old boy, suffered severe bodily injuries and disfigurement to his left hand after coming into contact with a live electrical cable while out playing with other children. Zine Fanti, Yomelela's mother, did not immediately pursue legal action because she was unaware of her right to sue. She mistakenly believed that the police investigation would be conducted on her behalf and automatically lead to some form of legal resolution. In June 2023, after learning from some community members about a possible claim against the municipality, she sought legal advice. On October 6, 2023, a formal notice was served on the municipality, and shortly after, a lawsuit was filed for R15 million on behalf of her son and R5 million for her personal emotional distress.
Mxolisi Masayimane's Case
Two days after Yomelela's incident, on 19 February 2020, Mxolisi Masayimane was similarly electrocuted by live electric cables at the same squatter camp, resulting in permanent disability to his left arm. Like Zine Fanti, Masayimane did not initially realize he had grounds for a legal claim and only became aware of this possibility in May 2023 after discussions with other residents. He filed his claim shortly thereafter, seeking R15 million in damages for medical expenses, lost earning capacity, and emotional distress.
Municipality's Defence
The municipality raised several legal defences. First, it argued that both claims had been submitted too late in terms of the Institution of Legal Proceedings Against Certain Organs of State Act, which requires notice within six months of the incident. They also argued that the claims had prescribed, meaning they were no longer valid because too much time had passed since the accidents. The municipality further claimed that the delay had caused significant prejudice to their ability to defend the case, as key witnesses' memories may have faded, and some records of the alleged electrocutions may no longer be available.
Plaintiffs' arguments
It was argued on behalf of both Fanti and Masayimane that they had not known about their right to sue the municipality until mid-2023 and that they acted as quickly as possible after learning of their rights. It was also argued on their behalf, that the municipality could not reasonably claim to be prejudiced by the delay, as the incidents had been reported to the local Ward Councillor and the police shortly after they occurred. Fani and Masayimane further asserted that the municipality should have kept the records related to the complaints about the exposed cables, particularly given that two electrocutions occurred within days of each other.
Court's Decision
The court recognised the challenges faced by Fanti and Masayimane as inexperienced and disempowered litigants, who only became aware of their legal rights much later. The court also noted that the municipality should have retained records of the electrocutions and that its claims of prejudice were not convincing. The court reasoned that since the municipality had been able to file a detailed defence, it was still in a position to investigate and respond to the claims effectively.
The court accordingly granted condonation and allowed both claims to proceed despite the late filing of the required notices. The court also rejected the municipality's argument that the claims had prescribed, particularly in the case of Yomelela Fanti, who is a minor and for whom different prescription rules apply.
Conclusion
The court's ruling allowed both Zine Fanti and Mxolisi Masayimane to pursue their claims against the municipality for the injuries suffered due to the exposed electrical cables. The court emphasised that the right to access justice must be balanced with the municipality's desire for finality in litigation, and in this case, it found that the interests of justice required the claims to proceed.
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