"HIGH COURT OF LESOTHO
matter of :
ELECTRICITY CORPORATION Defendant
ELECTRICITY CORPORATION Defendant
the Hon. Mr. Justice M.L. Lehohla on the 22nd day of January. 1989
plaintiffs are both represented by the same office of the Legal Aid
and because the defendant is the same persona end is
being sued for
damages arising from a more or less similar circumstances it was
decided to consolidate the two actions into one
for purposes of
saving time and avoiding duplication of testimony.
evidence could be called parties' counsel agreed that in the event
that defendant is held liable in the case of LEKHOABA
quantum should be M20,853.40 made up as follows :
future medical expenses
general damages for disfigurement.
case of MAPHATHE they agreed as follows should the defendant be held
M20,750 total quantum made up of
M750.00 future medical expenses
M20,000.00 general damages.
informed that defendant has paid actual medical expenses incurred so
agreed that medical reports could be handed over from the bar. It was
further agreed to submit a memorandum dated 5.12.88
and signed on
behalf of parties by their respective counsel.
counsel confirmed the above arrangement save that should defendant be
found to be negligent the question of plaintiffs!
negligence too would arise entitling the defendant to ask the court
to find that plaintiffs were partly negligent.
thus be safely said that what appears to be an undisputed point of
contention is the question whether defendant is liable
initial sum claimed by MAPHATHE in her summons was M525,187,90 broken
down as follows :
Medical expenses M387.90
Pain shock and
Loss of general health and amenities of life
out in her declaration that around 7th November 1982 at or near a
place called Motsekuoa in the Mafeteng district she sustained
electric burns and injuries resulting from contact with live wire
above ground across a public foot path in the village.
further set out that defendant Knew or ought to have known of the
fact that the electric line at the place was lying loose and
danger to human life, particular regard being had to the fact that
the Motsekuoa area is considerably populated and the electric
had been in that position for eight days following a lightening
maintained that it was defendant's duty to take reasonable
precautions to avoid harm to other persons particularly in a thickly
inhabited village, and demurs at the fact that defendant failed to
discharge its duty reasonably with the result that plaintiff
defendant's negligence suffered injuries and disabilities consisting
of the right upper arm at shoulder joint.
of her leg below the right knee.
of three toes from her left foot.
on her left hand, neck and trunk
denies liability grounded on the plaintiff foregoing allegations and
pleads in the alternative that if the court finds
acted wrongfully and negligently as alleged, plaintiff contributed
through her negligence to the causation of the
touched the electric wire without ascertainin that it was safe to do
reached up or forward in order to touch this wire when there was no
reasonable cause for her to do so%
failed to ascertain beforehand whether it was safe to touch the
failed to see and avoid the said damage (sic) when it was reasonably
possible to do so.
respect of LEKHOABA the initial sum claimed was M343,349-40 mode up
as follows :
Medical expenses M103-40
Future medical expenses M2246-00
Pain shock and suffering M200000-00
Loss of general health and amenities of life M100000-000
claimed that around December 1976 at or near Maphohloane in the
Mohale's Hoek district, he sustained severe electric burns and
injuries resulting from contact with live wire which lay loose on the
ground in an arable land.
of the allegations claimed to indicate defendant's negligence are as
in Maphathe's case save that in LEKHOABA'S case it
is alleged that
the wires remained posing danger for about 24 hours following a
result of defendant's alleged negligence LEKHOABA claims that he
suffered injuries and disabilities consisting of
of his left arm from shoulder level.
deformity of the right hand with diminished sensation on the ulna
border of the hand and wasting of the small muscles
of the hand
resulting in weakness.
deformity of the left foot. It has a large trophic ulcer over the
loss of left foot through the process of infection and sensitivity.
scar on right foot due to original electric burn.
denies liability in respect of damages suffered by LEKHOABA adopts
the line of defence similar to the one shown earlier
in respect of
evidence led Maphathe told me that she lives Ha Raliopelo in the
Mafeteng district and is aged 33.
7-11-1982 she was at Motsekuoa. When she went past electric lines
they burnt her. Consequently her right leg and arm and part
left foot were amputated.
to the manner that she sustained the burns she said the lines
appeared to have been cut or loose for they were hanging
towards the ground. She said she did not come into physical contact
with them but they burnt her. She however says
immediately she came
near where they were she did not know what happened for she lost
consciousness and only regained it at Scott
when she was undergoing treatment at Scott Hospital that she got to
know a boy called Malefetsane who was also undergoing
there. She said she found this boy there.
testified that on 7-11-82 he was driving cattle when he observed that
wires had fallen. It was when he was going to
pass below a hanging
electric wire that he die not know what had happened to him for after
losing consciousness he regained it
at Scott Hospital. He had gone to
stop an ox from tresspassing on land under wheat at about 8 a.m. when
he met with this misfortune
cross-examination Maphathe stated that she knew that electric wires
were dangerous. On the day in question these wires were
above her head. She was not aware of any leaflets or anouncements
made by the defendant about electric dangers.
she knew that it was dangerous to come near electric wires she said
she did so when she was in hospital. When referred
to the period
before she came to hospital she said she thought that power had been
cut off when she intended going past there.
satisfied that Maphathe knew and appreciated
was dangerous to touch live electric wires.
also elicited in cross examination that she had seen people approach
the wires from opposite direction when she was
But she said she was the first to go under them when she lost
that surely some people must have gone under these wires earlier
between 10 am and 11 am which is around when Maphathe
was in the
vicinity she answered that she believed they had for Malefetsane
P.W.2 came there and he got burnt.
though conceding that the foot path she was following is usually
busy, on the particular day it was not so, because it
being a Sunday
people who usually use that footpath for purposes of going to the
mill were not there because the mill was closed.
estimated that she was about 5 metres away from the lines when she
got affected by the electricity.
adamant that she never touched the electricity wires. Thus she
refuses to incline to the suggestion by the defendant's counsel
what could have caused the accident was that Maphathe walked up to
where the wire was hanging and without thinking of any
to lift it.
referred to paragraph 3 of her declaration that she sustained
injuries resulting from contact with live wire she said she touched
it because it attracted her. Not that she touched it. Asked if it was
possible that she could have pushed the wire upwards to clear
her path she said she was not so tall as to find the wire am
obstruction about her head.
she couldn't touch it even if she tried by streching her arm towards
P.W.2 said he had seen the wire hanging loose on a Saturday a week
before the Sunday
got injured. He had seen cattle and people go safely under it that
previous week. He also had gone safely under it as he
footpath for going to the veld.
'Manthati Putsoa who had remained sitting in Court throughout P.W.2's
giving of evidence testified that P.W.2 is her uncles
son. She knew
the place where P.W.2 got injured and that it was on Sunday when this
occurred. However she had seen defendant's
vehicle go to a place much
below the spot where wires were cut off.
however did not see who was driving that vehicle as she was some
distance away. She testified that she saw one of the people
in that vehicle going up a ladder and up the electric pole. She said
that this fateful Sunday was the fifth day since
she saw three people
who were in the defendant's big truck.
it was defendant's truck because it is the one normally used when
going to repair electric lines. She estimated that the
the vehicle to have been from her stand to the hospital (some 300
adamant that she had seen the defendant's truck on a Wednesday
preceding the fateful Sunday. Asked if someone had been
report about the sagging wires to defendant she said the man who went
was the one who was sent on Saturday when electricity
had shocked a
put to P.W.3 that after P.W.1 had been hurt electricity was turned
off a few minutes after a report had been received. Apparently
defendant's contention that with regard to the dangers posed by
electric lines sagging at Motsekuoa no earlier report was
defendant than the one which came after Maphathe had been injured.
regard to Lekhoaba's case evidence was led by
showing that in December 1976 he was living at Ha Maphohloane in the
Mohale's Hoek district.
fateful day in December that year he had gone to the fields for
purposes of ploughing. He had occasion to chase after an
ox which was
absconding and wanted to stop it from going home. It was while
pursuing this harmless diversion from his regular occupation
ploughing that clay that he jumped over electric wires. He testified
that he got "caught" by these wires and does
what happened afterwards. The only thing he remembers is that when he
came to he realised that he was in hospital at
Mohale's Hoek. He
testified that the wires were lying down because they had been struck
by lightening from the poles. He stated
that he stepped on these
wires as they lay on the ground. He told me that he is now 23 years
old and was about 12 years old in
informed me that he was seeing these wires for the first time when he
jumped over them. It was when he regained consciousness
hospital that he noticed that he had sustained injuries on his feet
and that his arm had been amputated.
said he never knew beforehand that electric wires are dangerous. He
had not seen any at his original home at Thabana Morena.
told him about the dangers of electricity. Asked by Court where he
grow up he said he grew up at Thabana Morena where
apparently at that
time no electricity lines had been installed or laid.
defence counsel's statement that it is impossible for wires to lie on
further denied the statement that if the wires are lying on the
ground then the power gets cut off at Main Station and therefore
becomes impossible for wires to impart any shock or danger to anyone
stepping on them.
put to this witness as follows :
"Mr. Booth the defence witness will say from your injuries i.e.
losing your left arm and left foot getting injured can only
explained by saying you touched the wire with your hand and
electricity got down to the foot - ?
I use my right hand since birth. If I used the right hand it - should
have been the one that got cut or injured.
Mr. Booth will say if it (wire) was hanging in the air it would have
thrown you off not caught you to it if live - ?
It caught me and made me what I am now,
Mr. Booth will say when you get electric shock you lose control of
your muscles. They contract and you get stuck to it - ?
I felt powerless. I felt it had caught me.
But if you step on it your foot cannot grasp it like the hand does,
and if it is in air then you fall out - ?
I don!t understand."
revealed through cross examination that the reference to "claw-hand"
referred to in Lekhoaba's pleadings had nothing
to do with i juries
sustained through electricity for Lekhoaba got shot at in 1982 and
sustained that injury on his right hand.
MATHABISO LEKHOABA testified that she lives at Thabana Morena in a
village at Ha Ngoae. She said P.W.4 is her husband's brother.
at Ha Ngoae in December 1976 when she received a report regarding
P.W.4. She set out for defendant's local branch at Mohale's
after being directed there by the chif of Ha Maphohloane who gave her
a letter addressed to defendant's branch at Mohale's
handed this letter to defendant's employees
there. The workers confirmed to her that wires had come clown the
previous day. Defendant's branch in Mohale's Hoek gave
her a letter
which she in turn handed to Lekhoaba's lawyers after his release from
hospital. The local branch further told her
that it was not competent
to deal with the matter but that' the head office in Maseru was.
cross examination this witness said she didn't remember the person
she saw at Lesotho Electricity . Corporation nor did she
position save that he was in the office.
one is able to make out from this witness's evidence it appears she
only went to Mohale's Hoek and afterwards to Maseru
in the company of
P.W.4 as recently as 1986.
medical report prepared by the consultant surgeon Mr. Siddique
relating to Maphathe is to the effect that she sustained severe
electric burn on 7-11-82 and was admitted at Scott Hospital, Morija.
There she had disarticulation of right upper arm at shoulder
an amputation below the right knee and amputation of three toes from
her left foot. She also had burns on her left hand,
neck and trunk.
transfer to Queen Elizabeth 11 Maseru on 14-1-83 she underwent
multiple manipulations of joints to give them mobility and (a)
knee prosthesis was provided to the right leg. Having been discharged
on 26-5-83 she was re-admitted from.6-8-83 to 7-9-83
and (this) has
been followed up in the clinic on a regular basis.
suffered an extensive injury due to loss of her right arm and right
leg and is totally disabled. She has also suffered intense
psychological trauma during her illness and needed multiple
operations at Morija and at Queen Elizabeth 11 hospital.
surgeon is of the opinion that Maphathe will need the right leg
prosthesis for life. He estimates the cost of this at around
and says it lasts for four to six years. The prosthesis for the right
more complicated and will cost around M3,000 lasting for a longer
period. She will certainly need medical attention on and
not had benefit of a medical synopsis in respect of Lekhoaba but
judging from the one provided in respect of. Maphathe it
would seem a
more or less similar treatment would be required in his case too.
This is an older incident and I am told records
got misplaced with
the passage of time. I do have regard to the fact that he was but a
child when this tragedy-befell him. The
inordinate tardiness that
accompanied his affair was not something of his making. He was a mere
hireling and when this tragedy
befell him he was not in the custody
of his parents. This matter was dogged by his unfortunate station in
life as an employee of
witness who was called on behalf of the defendant was one John Booth
who said he is employed by the defendant as a development
testified that he has access to the records of the defendant and that
none of the records relating to the year 1976 was available.
however had those relating to 1932.
referred me to safety rules pertaining to defendant and showed me a
schematic diagram "AA2" which he said betokens
construction of the power lines
Lesotho carrying up to 33000 KV.
told that there are insulators to which power lines are attached and
a cross pole to which wires are secured. The Court was
told that the
upright and cross poles comply to British Standards known as B.S.
1320 and applied world wide.
power is stored in Maseru and distributed to the main towns by means
of the electric cables covering miles and miles throughout
These power lines are run on direct route basis but at the same time
keep them as close to the road as possible for purposes of
maintenance. The mountain areas however defy this attempt at
power lines close to the roads.
witness further said that the months of November and December are
notorious for thunder storms in Lesotho. He drew attention
fact that Lesotho is the 2nd highest place favoured by lightening
strikes in the world. He pointed out that during live
can be counted up to six strikes per hour on various parts of the
electric system or at least two every day.
lightening strikes it normally makes the insulator break from the
cross-arm and consequently the line falls to the ground.
the ground power trips out for on reaching the ground the wire
earths. This activates the safety devices the effect
of which is to
immediately cut off electricity on the line automatically
on falling hits the ground because of its weight and bounces up again
to about a metre above ground. It will hang about
that distance above
ground before stabilising depending on the tension of the wire.
happens defendant would not know about it of its own accord. It would
not, because when line hits the ground the system
trips in much the
same way as when a healthy line is hit by lightening. This explains
what happens when there is power outage.
Something like four seconds
after bouncing back to resume a sagging position above ground the
line becomes live again.
witness emphasised that it is not possible to distinguish between a
situation where lightening strikes the pole and the wire
touching the ground only momentarily and the situation where the pole
is struck without the wire hitting the ground.
the court's attention to unfavourable economic implications which
would follow if each time there is a power cut occasioned
lightening the entire country has to be in a black out until after
Booth referring to "AA3" testifie that the month of
November 1982 marked an occasion when electric power was interrupted
almost daily because of lightening storms. Usually reports of power
lines dangling dangerously above ground are received from chiefs,
police or members of the public happening to phone. He also said it
would be impracticable to have L.E.C. employees checking the
lines all the time. Apart from being impossible to do so, it would no
doubt be very costly.
policy of the L.E.C. (the defendant) is that when a power line is
reported to have come down it is immediately disconnected.
disconnection is done at the outside within a minute after the
report. The witness stressed that in fact a delay of a minute
represent the worst case of delay in attending to the problem
reported. It makes no difference what time of the day the report
comes; it is attended to immediately because defendant has men on
stand-by twenty four hours a day. The man on stand-by switches
line off and informs the operator who in turn contacts the engineer
on stand by. This engineer would then decide whether to
go and fix
the line there and then or wait until 6 am, if the report came at
how electricity is conducted Booth said like water it follows the
easiest path i.e. the path offering the least resistence
to earth. If
one is holding a wire it will jump to that (wire) to reach one rather
than through air to earth.
line is lying on the ground then power will trip as electricity will
go right into ground through points of contact between
the wire and
earth. The effect of this is to operate the safety devices and it
would. remain inactive for a second or so and try
to come live again
but in doing so would affect the devices at the station with the
result that those manning the station would
be alerted so that they
may go and put the line on
If power is back on and the electric wire is clear of the ground but
someone touches that wire with his hand then electricity
through the hand, arm body and feet and flow into the earth.
touching the wire with his hand would have the muscles of the hand
involuntarily grasping firmly on that wire. But if he
touches it with
the stomach it throws him away from the line.
If it was
possible for electricity to still flow in a wire lying on the ground
then anybody touching it with his feet would be thrown
off it. There
would be no damage to the arm in such a situation, only the feet
would sustain it, for whichever point touches the
earth will be
case was put to Booth who responded by saying a person who got
injured by wire hanging above head level must have grabbed
with that hand and electricity travelled through it, through the arm
body and to the feet. He stressed that the line couldnever
attracted her like would magnet attract another magnetic object of a
comparable size and weight.
the court that a safety distance from a 33 KV line by workers is four
feet. Getting closer than the four feet would give
one a tingling
sensation from the live wire. If this is ignored and one gets nearer
still then one gets electrocuted. In that occasion
have travelled through the air to electrocute the party who failed to
observe the safety distance. This operates
in much the same way as
when lightening travelling through the air strikes an object on the
to "AA3" D.W.1 said when it was learnt that the line was
down at Motsekuoa defendant switched the line off or
circuit. This was to ensure that no power was going from Maseru along
the Mohale's Hoek line that passes through Motsekuoa.
respect of 7th November 1982 it appears from "AA3" that a.t
15.34 an entry was made reading: RESET AND HELD. AND MR.
OPENED MAFETENG LINE BECAUSE H.T. CONDUCTOR IS DOWN AT MOTSEKUOA.
also an entry on that date showing that at 14-30 a report had been
received relating to Matsieng Transformer being either
having been struck by lightening.
to November 6th 1932 D.W.1 says there was "no recording of any
problem in that area of Mafeteng to Mohale's Hoek."
meant by this sentence a look at AA3 for the date 6-11-82 shows that
a 23.30 an entry was made reading: "Mohale's
Hoek Power station
reported power back "on" Phoned Morija charge office and
being had to the testimony of D.W.1 that a problem is usually
attended to as soon after the report has been received as possible
and that if a report is received say at 2 a.m. then the/stand by
engineer may prefer to attend to it at 6a.m. I cannot see what
significance of the expression "Power back "on" as
reported by Mohale's Hoek power station on 6-11-82 at 23.30
that at least some four or so hours earlier than a start was made to
attend to it by switching the line off a report must
received that there was some fault somewhere with regard to power
supposed to be distributed in that area.
report was not received by the head office regarding whatever had
occasioned the restoration of power along the Mohale's Hoek
6-11-82 may be accounted for by this witness's statement in his
evidence-in chief that
"It is possible that a report may have been made but the person
reported to ignored it. But that is highly improbable because
trained that any report of line coming down should be attended to by
switching off that line. If they don't switch it off
I am of
the view that this is more likely than not what happened in the
events that led to Maphathe's wretched fortune
I find it
difficult to accept D.W.1's evidence that says because no record was
made of the L.E.C. vehicle in the Corporation's record
books it is
therefore doubtful that such a vehicle was in the area referred to by
an eye witness who said she saw it on a Wednesday
Sunday of the incident,
I find it
impossible to prefer the evidence of a man who has doubts about a
thing to that of a witness who is positive about what
she saw. This
witness i.e. P.W.3 even volunteered evidence when being
cross-examined that a man had been sent to report not only
sagging wires but about the fact that the sagging wires had injured a
student on a Saturday preceding the Sunday on which
P.W.2 Malefetsane got injured, This adverse answer has been left to
stand at the cross-examiner's peril for he did
not seek to undo it or
water it down by further cross examination.
understandably made much of the costs likely to be involved if
greater safety measures are provided against dangerous consequences
resulting from lightening storms, but I find it illogical that a
country which is reckoned to be the second highest lightening
attraction in the world should compare with the feast likely to be
affected by lightening as far as precautionary measures against
clanger are concerned. While considering this aspect of the matter I
could not help thinking about the damning remarks made
commission of inquiry, regarding the underground railway station fire
that cost many lives due to British Railway company's
maintain proper safety standards against fire because of that
company's eagerness to maximise profits at all costs.
satisfactory answer was provided by the defence as to what would
prevent installations of projecting devices attached to the
some three feet below the
for purposes of catching and containing the wires in case they fall
off from the cross poles due to lightening, especially
in busy areas
and foot paths.
balance of probabilities it seems the version is not unfounded that
with regard to Maphathe's case the wires remained hanging
than four days. Although she knew it to her cost it could not be said
she was unreasonable in her attitude to think that
power had been cut
off from electric lines seen hanging loose for about four days before
they injured her. Furthermore D.W.1 did
mention that beyond certain
safety distance electricity can jump to its victim. Knowing witnesses
who time and again come to testify
about distances it is a matter of
no surprise to me if Maphathe with her standard of education sees no
difference between four
feet and five metres. I say this because not
so long ago did I have occasion to deal with police investigators
whose evidence revealed
their lack of appreciation of dimensions of a
donga 24 feet deep and their estimation of it which was only 3 to 3½
deep. See CRI/T/3/86 Rex vs. Mafole Sematlane (unreported) at
pp. 14 and 15.
defendant appreciates that Lesotho is more prone to lightening
strikes than all electrified countries but one then it would perhaps
be viewed with some favour if defendant could show that the
precautionary measures it has taken on this score are surpassed by
only ten or five countries let alone one. See Colman vs Dunbar 1933
AD. at 157 where Wessels C.J. said
"If the circumstances are such that a person of common sense who
has the custody or control of a certain thing could recognise
is likely to be a danger to other then it is his duty to take
reasonable care to avoid such injury ........... .. Therefore
general practice of the trade is good evidence to show that in the
ordinary experience of men no danger results from what has
also referred to Mckerron's Law of Delict 6th edition at page 235.
The reading of this lends support, to the view expressed
satisfied with the evidence that live electric wires can hurt anyone
if they are floating in, the air and he touches them.
has not precluded a possibility that in the event of lines struck
from the poles by lightening they,can float in
the air half a
centimetre above ground in view of the fact that the terrain above
which they run suspended is not regular but rugged.
If these lines
happen1to be floating a short distance above ground and they are live
there is no suggestion that the current in
them cannot hurt a child
such as Lekhoaba who steps on them thinking they are lying on the
regard to Lekhoaba it is clear that due to his age at the time, he
could not have been negligent. This much Mr. Hoffman for
conceded. As for Maphathe I have formed an opinion that she
contributed some part in the negligence of which I find defendant
reasons judgment was entered for Lekhoaba in the amount of M20,853-40
plus costs save that wasted costs for the date 7-12-88
respect of Maphathe an award of M20,750 less 10% was made to
plaintiff with costs save that wasted costs for the elate 7-12-88
were awarded to defendant.
Plaintiff : Mr. Moorosi
Defendant : Mr. Hoffman.
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