- The Eastern Cape High Court ordered Eskom to pay R8.2 million in damages and all legal costs.
- Acting Judge A.S. Zono criticised Eskom's handling of settlement negotiations and reserved costs.
- The court ruled that successful litigants should not bear expenses caused by late settlement offers.
An electrocution claim that has already cost Eskom Holdings SOC Limited R8.2 million in damages will now cost the power utility even more after the High Court in Mthatha ordered it to pay the plaintiffs' full litigation costs.
Acting Judge AS Zono found that Eskom's handling of settlement negotiations unnecessarily increased the costs of the litigation. The court ordered the utility to pay the plaintiffs' costs of suit, including reserved costs from an earlier postponement, the costs associated with the hearing on 15 June 2026 and the costs of employing two counsel, all on the higher Scale C.
Liability had already been decided
The case arose from an electrocution suffered by the first plaintiff on 12 July 2022. Liability had already been decided in an earlier judgment, leaving only the assessment of damages and outstanding cost issues.
The matter was scheduled for trial on quantum on 18 March 2026, but did not proceed after Eskom made a settlement offer on the morning of the hearing. The plaintiffs, their legal team, and expert witnesses spent the day considering the proposal, resulting in the matter being postponed with costs reserved.
Settlement left costs unresolved
The matter came back to court on 15 June 2026 after Eskom made a revised settlement offer of R8.2 million, which the plaintiffs accepted in full and final settlement of the damages claim.
Although the parties agreed that the settlement should be made an order of court, they remained at odds over the reserved costs arising from the March postponement and the costs incurred in preparing for and attending the June hearing. Those issues were left for the court to decide.
Court reaffirmed principle on legal costs
Judge Zono explained that the purpose of awarding costs is to ensure that successful litigants are reimbursed for expenses incurred because they were compelled to institute or defend legal proceedings.
The judge said, "The purpose of an award of costs to a successful litigant is to indemnify him for the expense to which he has been put through having been unjustly compelled to initiate or defend litigation."
The court reaffirmed that a successful litigant is ordinarily entitled to recover legal costs unless there are compelling reasons to depart from that principle. The judge found no basis for doing so in this matter.
Judge criticised late settlement strategy
Judge Zono found that Eskom's decision to present a settlement offer only on the morning of the March trial resulted in a wasted court day and unnecessary legal costs.
"A party who, without a reason, waits until the advent of the trial date, makes an unreasonably low offer of settlement should not escape costs of the wasted days when its offer was being considered," the judge said.
The judgment noted that nothing prevented Eskom from making the offer earlier, which would have allowed the parties enough time to consider and negotiate the proposal before significant litigation costs had already been incurred. The court warned against the practice of attempting to settle matters only when trial preparations have already been completed.
Eskom's argument on reserved costs rejected
The court also rejected Eskom's argument that it should not be liable for the costs reserved when the matter was postponed in March 2026.
After interpreting the wording of Eskom's settlement offer, Judge Zono concluded that the utility had intended to tender those reserved costs but later adopted an inconsistent position by opposing them. The judge said, "The defendant's resistance... is an afterthought and is very much opportunistic."
The judgment further held that the plaintiffs were entitled to recover the costs incurred after Eskom's June settlement offer because consultations with experts, preparation of court documents and attendance at court remained necessary before the settlement could be finalised.
Higher standard expected from state-owned entities
Judge Zono said organs of state have a constitutional duty to litigate responsibly and deal candidly with the courts. According to the judge, "It is crucial for the organ of state or state-owned entity to neither be coy nor to play fast and loose with the truth."
The court found that Eskom's conduct unnecessarily occupied judicial resources and justified an award of costs on the higher Scale C. It also ruled that the complexity and value of the matter warranted the costs of employing two counsel.
Making the settlement agreement an order of court, Judge Zono directed Eskom to pay the agreed R8.2 million within 30 days.
In addition to the damages, the utility was ordered to pay the plaintiffs' full costs of suit, including the reserved costs from the March postponement, the costs associated with the June hearing and the costs of two counsel on Scale C.
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