Parastatals (state-owned entities) that have a license to generate and/or transmit electricity (licensee) can face civil claims relating to damage and/or injury caused by veldfires, induction, electrolysis or other means where electricity is generated, transmitted or distributed by such a licensee. Section 25 of the Electricity Regulation Act 4 of 2006 (“Act”) becomes the triggering provision relating to the liability of the licensee for such damage or injury. In this article, we look at the provisions of this Section 25. 

Section 25 of the Act provides for the liability of a licensee for damage or injury. This section reads:
“In any civil proceedings against a licensee arising out of damage or injury caused by induction or electrolysis or in any other manner by means of electricity generated, transmitted or distributed by a licensee, such damage or injury is deemed to have been caused by the negligence of the licensee, unless there is credible evidence to the contrary.” 

This statutory provision establishes a presumption of negligence against the licensee when damage or injury occurs during such licensee’s operations. 

This statutory presumption attaches strictly to operations performed under the authority of the licence and requires the damage or injury in civil proceedings to be causally linked to such licensed operations. 

Although the presumption of negligence lowers the threshold for a claimant to establish liability and shifts the burden of proof to the parastatal, the presumption of negligence is rebuttable. This means that while the law assumes negligence, a parastatal faced with civil proceedings of this nature can present evidence to the contrary and so evade liability. 

To do so, will require the licensee to demonstrate that they took all reasonable measures to prevent the harm, which may include evidence of compliance with safety standards and policies, proper maintenance procedures, and risk management practices, etc. 

The presumption of negligence is, therefore, not absolute, with claimants needing to navigate intricate evidentiary burdens, including proving causation and linking the harm directly to a breach of a statutory or regulatory duty. In addition, defences such as vis maior and contributory negligence may limit or exclude liability. 

An example of where the presumption of negligence in Section 25 was not strictly applied is in the unreported case of E.M and Another v Eskom Holdings Limited (39072/2020) [2025] ZAGPPHC 285 [17 March 2025]. This matter concerned a claim against Eskom for damages resulting from an electrocution. The claimants relied on the presumption in Section 25 of the Act, but the Court found that Section 25 did not apply where the damage was caused by third-party vandalism. Additionally, the claimants were also found to have failed to prove foreseeability and causal connection, and the claim was dismissed. 

Ultimately, when sparks fly, the question of who pays isn’t always straightforward. While Section 25 is important to claimants, its effectiveness is not a guarantee, and as was shown in the abovementioned case, the presumption can be rebutted through credible evidence. Interestingly, this case related to a successful defence of vandalism in respect of electrolysis by the licensee. Whether this defence will also be successful in the case of damage arising from a veldfire is yet to be determined by our courts.


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