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[2015] ZAWCHC 158
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Kruger v MEC, Transport & Public Works for the Western Cape and Another (10067/2011) [2015] ZAWCHC 158 (29 October 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
no: 10067/2011
DATE:
29 OCTOBER 2015
In
the matter between:
GERT
HENDRIK JACOBUS
KRUGER
..................................................................................
Plaintiff
And
THE
MEC, TRANSPORT & PUBLIC WORKS
FOR
THE WESTERN
CAPE
........................................................................................
First
Defendant
THE
EDEN DISTRICT
MUNICIPALITY
...............................................................
Second
Defendant
JUDGMENT:
THURSDAY 29 OCTOBER 2015
Schippers
J:
[1]
The plaintiff, a practising attorney in
Pretoria, sues the defendants for damages in the sum of R906 550.00,
sustained when his
property, Portion 5 of the farm Honingklip in the
Langeberg Municipality, Division Riversdale, Western Cape Province,
measuring
some 616 hectares (“Honingklip” or “the
plaintiff’s farm”) was extensively damaged in a fire on
26
December 2008.
[2]
The plaintiff’s claim, as set out in
his particulars, may be summarised as follows.
(a)
In terms of a written agreement between the
first and second defendants (entered into in April 2009), the first
defendant appointed
the second defendant to maintain proclaimed
provincial roads, such as the gravel road between Stilbaai and
Gouritzmond, known as
the R158 road (“the road”),
including the road reserve. The express, alternatively, implied
or tacit terms of
the agreement, were that the second defendant would
maintain, repair, protect and manage provincial roads; the first
defendant,
through its District Roads Engineer, would provide the
necessary funds, plant and professional engineering support; and the
first
defendant would monitor and evaluate the performance of the
second defendant.
(b)
At the material times the first and/or
second defendant was/were the owners or in control of the road as
contemplated in the National
Veld and Forest Fire Act 101 of 1998
(“the Act”). The defendants were under a duty of
care: to prepare and maintain
a firebreak next to the road, and
ensure that it was free from inflammable material and sufficient to
prevent a veldfire from igniting
and spreading from the road; to have
equipment, clothing and trained personnel to extinguish a veldfire
and alert owners and occupiers
thereof; not to create a fire hazard
during the summer holiday season; and to effectively and timeously
extinguish a veldfire originating
on the road.
(c)
On 23 December 2008 a veldfire originated
in the road reserve in the vicinity of the farm, “Buffelshoek
455”.
The fire spread to the plaintiff’s farm and
destroyed 9 km of wire fencing, flowers, fynbos and thatching reed.
The
plaintiff alleges that this fire was caused by the negligence of
the first and/or second defendants or their employees who were
negligent in the following respects. They failed to: prepare or
maintain a firebreak next to the road; extinguish the fire
or do so
at a time when they were able to, and allowed it to burn out of
control; take any steps to prevent the fire from spreading
to the
plaintiff’s farm; ensure that they were properly equipped with
fire-fighting and communication equipment; maintain
and implement a
system of management or control designed to ensure that the fire
would be controlled and extinguished and would
not spread to the
plaintiff’s farm; and call for the assistance of the fire
brigade and other authorities timeously.
[3]
The defendants deny that they or their
employees acted wrongfully or negligently. They also deny that
the fire of 26 December
2008 was a “veldfire” as
contemplated in s 2 of the Act. The defendants plead that in
the event of the plaintiff
proving that a fire spread to his farm
from an adjacent property, the plaintiff or his employees were
negligent in failing to prepare
and maintain firebreaks and regularly
burn the veld on his farm so as to prevent the spread of fires, and
in not having trained
personnel and equipment to prevent the spread
of fires to his farm. They also ask for an apportionment of
damages in terms
of the Apportionment of Damages Act 34 of 1956. The
first defendant alleges that the second defendant was under a legal
duty
to have equipment, protective clothing and trained personnel to
extinguish a veldfire and to take action to contain the spreading
of
the fire to the plaintiff’s farm. The second defendant
denies that it was obliged to maintain the road reserve in
terms of
the written agreement with the first defendant.
[4]
The parties agreed to a separation of the
issues in terms of rule 33(4) of the Uniform Rules of Court, in terms
of which the issues
relating to the defendants’ liability were
to be determined first, and those relating to the quantum of the
plaintiff’s
damages would stand over for later determination.
The
fire
[5]
The
source of ignition of the fire is unknown. The plaintiff
testified that on 23 December 2008 at about 17h45 he was on his
farm,
Driefontein (where he lives for about two months per year), when he
saw smoke in an easterly direction. It looked like
the smoke
was coming from his farm, Honingklip. He immediately went to
Honingklip and got there in about 15 minutes.
But it was not
burning. He travelled east along the road until he reached a
point on the road reserve on the northern side
of the road where he
saw that a fire had burnt in the shape of a rugby ball (as shown at
point X on a map, Exhibit A p 3), but
it was no longer active at that
point. That area can be seen in photo 9 of Exhibit A, taken on
24 December 2008.
[1]
There
was no one else at the scene and no sign that the fire had been put
out. A neighbouring farmer, Mr Paul Zietsman,
who has since
passed away, arrived on the scene about five minutes later.
[6]
Subsequently
other farmers arrived on the scene and there was a discussion about
the fire. However, they could not go into
the veld because the
fire was too intense. When the plaintiff got to the road
reserve he noticed that a strong south-westerly
wind was blowing.
According to the weather station at Stilbaai, on 23 December 2008
there was a strong south-westerly wind
with gusts of up to 60 km/h.
The fire had already burnt in a valley up a ridge, as is evidenced by
photo 20, and the western
and eastern flanks of the fire were
active. The plaintiff said that the fire started in the road
reserve which appears in
photo 9. There is a fence more or less
in the middle of the bushes in photo 9, which appears more fully in
photos 18 and
19.
[2]
The
plaintiff remained on the scene for some one and a half hours, after
which he returned home.
[7]
The plaintiff testified that the road
reserve was a risk. It was overgrown on both sides with
vegetation, grass and flammable
material along the road which is a
reasonably busy route during the holiday season and which links two
holiday towns, namely Gouritz
River Mouth and Stilbaai as appears
from photos 9, 10 and 11 of Exhibit A, taken a day after the fire.
The vegetation in
the reserve was dangerous especially at that time
of year when it is hot, dry and windy. The plaintiff conceded
that the
vegetation in Rein’s Coastal Nature Reserve (“the
nature reserve” or “Buffelshoek”) was also a fire
hazard. He said that he bought the farm Driefontein in 1987,
Honingklip in 2001 and the farm Honing Can, in 2012, all of
which are
shown on the map, Exhibit E. Since 1997 the vegetation in the
road reserve had never been cleared. Initially
he thought that
Hessequa Municipality was responsible for this, but later established
that it was the second defendant’s
responsibility.
[8]
According to the plaintiff, nothing of note
happened on 24 December 2008. That day he noticed that the
western flank of the
fire (which had been burning in the nature
reserve as appears from photo 11 of Exhibit A) was no longer burning,
and there was
no risk to his farm. According to the Stilbaai
weather station, the wind direction was mainly south-westerly, later
the evening
south and south-easterly, and north and north-westerly
during the night.
[9]
As this case illustrates, once a fire
starts, weather conditions are highly relevant to its progress.
Wind, temperature and
humidity play a significant role. On the
morning of 25 December 2008 the plaintiff noticed that the wind
direction had changed
to south-easterly. The plaintiff said
that the western flank of the fire had flared up and started burning
in a westerly
and north-westerly direction, towards his farm.
The plaintiff was alone and had no employees to help him fight the
fire that
weekend. They were on leave from the weekend before
Christmas until 2 January 2009.
[10]
On the morning of 26
December 2008 at about 6h00 the
plaintiff returned to the place he had inspected on 23 December
(point X on p 3 of Exhibit A), after
which he went to Honingklip.
The second defendant’s disaster team had been positioned on the
road near the Honingklip
gate. A number of farmers in the area
had gathered along the road. The western flank of the fire had
flared up and
was burning in a western and north-westerly direction,
as is evidenced by photo 11. They telephoned the fire brigade
at Riversdale,
and subsequently Mr Lukas Van Sittert (“Van
Sittert”) came to the scene. The plaintiff, the Chairman
of the “Duineveld
Kusvereniging”, took a leading role.
They went to the farm of Mr Kippie Horn, where from points A-B on
Exhibit C in
a south-north direction, there was an accessible path of
some 2 m wide. Using a bulldozer at the rear of which two
railway
lines were horizontally attached with chains (Exhibit A photo
7), they flattened the vegetation, thus creating a firebreak of some
14 m – 6 m wide on either side of a 2 m path. The firebreak
appears in photo 8.
[11]
They returned to the road and suggested to
the farmers of the area who had remained on the road, that they
should ignite a back
fire between points A and B on the map on p 3 of
Exhibit A. The plaintiff explained that this is done using a
bundle of dry
thatching reed of 1 to 1.2 m long as a torch which is
lit and then used to ignite flammable material, to cause a fire that
burns
smoothly into the wind, in the direction of the oncoming fire.
The back fire would burn from west to east to meet the oncoming
fire,
burning from the opposite direction i.e. east to west. At some
point the two fires would meet and both would burn out.
However, the farmers told the plaintiff that they were afraid to
start the back fire - the wind could change direction and the
whole
of the Canca valley north of the farms, covered in valuable thatching
reed worth millions of Rands, could burn. The
farmers had
neither the manpower nor equipment, and were unwilling to start the
back fire, unless the second defendant’s
disaster management
team assisted them.
[12]
At the time, a disaster management team was
on the road near the plaintiff’s farm, which appears on a map
of the area (Exhibit
E). The plaintiff said there were
approximately 50 workers and fire fighters, three water tankers, and
two trucks.
Apart from this manpower and equipment, the second
defendant fought the fire with a helicopter, performing bucketing on
houses
and their immediate surrounds to prevent them from burning
down. At about 9h00 on 26
December 2008, the plaintiff and Mr
Ben Hoogenhout (“Hoogenhout”) walked to the person in
charge of the fire fighters
(whom he could not identify, save to say
that it was a strongly built young man with blonde hair) and asked
him to assist them
with the back fire which they wanted to start,
especially with “spotting”. Spotting occurs when
burning material
is lifted by wind, carried through the air, and
deposited on unburnt ground. When it is deposited in a place
where there
is other flammable material, the burning material may
start a new fire. The higher the wind speed, the greater the
likelihood
of spotting. However, the team refused to assist the
plaintiff and Hoogenhout. They were told that the team had been
given a direct order to leave the road and go into the veld only if
there was a threat to human life.
[13]
The
plaintiff and his fellow farmers then regrouped further west.
The fire was fast approaching, as can be seen from the smoke
on
photos 7 and 8 of Exhibit A. These photos were taken from
inside the gate of the plaintiff’s farm, next to the road.
By lunchtime on 26 December 2008 they got a bulldozer which they had
hired in Stilbaai. Using the bulldozer, they created
a
firebreak between points E and F on the map, Exhibit A p 3, to the
west of the plaintiff’s farm.
[3]
At approximately 18h00 they started a back fire on the edge of the
firebreak. The last part of the back fire
was lit around 19h00,
after dark. Even then, the plaintiff and Hoogenhout were in the
minority. He said that it was
difficult to convince the other
farmers to start the back fire and that there had been a discussion
for an hour about it.
By the time that the back fire was lit,
the flames of the main fire were coming over a ridge as appears from
photo 5 of Exhibit
A, and virtually the whole of the plaintiff’s
farm (some 616 hectares) had already burnt. The flames of the
back fire
are visible on photos 5 and 6 of Exhibit A. Some one
and a half hours after they had started the back fire, and shortly
after
dark, the disaster management team came to help the plaintiff
and the farmers. The back fire was effective and the two fires
burnt out later on the night of 26 December 2008.
[14]
As to contributory negligence, the
plaintiff testified that he had made firebreaks of at least 5 m wide
on each boundary of Honingklip,
south, west, north and east; as well
as a firebreak of some 5.5 m in the middle of the farm, running from
south to north.
There is also a firebreak on the eastern
boundary of the plaintiff’s farm and the farm of Mr Kippie Horn
(“Horn”),
as appears more fully in photo 12, taken about
two days after the fire.
[15]
The plaintiff testified that he got to
point X on photograph 3 of Exhibit A at about 18h00 on 23 December
2008. In cross-examination
it was put to him that Mr Deon
Stoffels (“Stoffels”), an employee of the second
defendant, arrived near point X on
p 3 of Exhibit A at about 17h30
that day, and that there was no sign of a fire in the road reserve.
The plaintiff disagreed.
It was also put to the plaintiff that
when Stoffels got to point X, the fire was burning in the valley
north of the boundary fence
of the nature reserve. The
plaintiff replied that it was possible as he had not yet arrived at
point X.
[16]
Mr JG Horn (“Horn”), on behalf
of the plaintiff, testified that he had been farming in the area for
52 years.
He said that in 2008 the relevant road reserve was
overgrown with vegetation and had never been cleaned since he has
been in the
area, and there had never been a veld fire in the road
reserve. Prior to the fire in 2008, he had put up new fences
along
the road on his farm, “Groenkamp”, and had asked
officials of the second defendant to clean the road reserve, but
without
success. Usually they responded that the second
defendant did not have funds. Horn said that there were good
firebreaks
on the farms on either side of the road, which included
the plaintiff’s farm. There were however no firebreaks in
the
nature reserve.
[17]
On 23 December 2008 late in the afternoon,
Horn was one of the farmers who had met along the road. The
head of the fire was
about 150 m from where they were standing.
Horn left that place, drove along the road in the direction of Mossel
Bay, and
got out of his vehicle as he followed the progress of the
fire. On one of these occasions, Van Sittert, accompanied by
his
son, had stopped behind Horn and took photos of the fire.
He told Van Sittert that he wanted to start a back fire in the road
reserve in order to stop the fire. Van Sittert advised him
against it. About 4 km from the place where the farmers
had
met, the fire went behind a hill and came back across the road.
He and Van Sittert had to wait as they could not drive
through the
fire. From there the wind drove the fire to the Gouritz River
mouth where it rained and the fire was extinguished.
[18]
Horn said that on the morning of 24
December 2008 he saw that the fire had flared up on the farms,
Wolwefontein and Melkhoutfontein,
and was burning in a different
direction. He thought that it would not continue burning and
die out before it got to his
farm and the plaintiff’s farm.
He saw aircraft dousing the fire with water, the second defendant’s
trucks were
carrying water and people were suppressing the fire on
the instructions of Van Wyk. Horn and Van Wyk then decided that
they
were going to extinguish the fire the next day.
[19]
The next day i.e. 25 December 2008, Horn
said, the fire returned to the same line where it had started.
Horn, his son and
other farmers of the area went to a house with a
thatched roof belonging to another farmer, and made a huge fire
around it to burn
up combustible material and to protect the house.
They returned to the road later that day. They went to the
second defendant’s
employees on the road and asked them to
assist in making a back fire between the plaintiff’s western
boundary and Horn’s
eastern boundary, so that their new fences
would not burn. The employees said no, they were afraid there
may be a court case.
They wanted to extinguish the fire
directly with fire-fighters and helicopters. Horn then left for
another flank of
the fire to see what was happening there. When
he got there damage was everywhere. All the fences and thatching reed
had
burnt.
[20]
Horn returned to his farm before dark.
He noticed that a small part of his land had been turned into a
firebreak, but there
was nobody around. The farmers and the
second defendant’s employees were at point F on the map at p 3
of Exhibit F,
between his and the plaintiff’s farm; and a back
fire had already been lit. The main fire had just passed
through the
boundary between their farms and the plaintiff’s
farm had already burnt. Shortly after arriving there Horn went
home.
He was angry because when he had asked the second
defendant’s employees to make a back fire, they were not
willing to do
so. When Horn returned to his farm on 26 December
2008, he saw that the back fire had stopped the main fire.
However,
there were still other fires burning in Gouritzmond which
were extinguished only around 2 January 2009.
[21]
Van Sittert, the former Head of Disaster
Management of Hessequa Municipality, testified on behalf of the
plaintiff. Van Sittert
said that prior to December 2008 the
entire fire management function was taken over by the second
defendant.
[22]
Regarding the fire, Van Sittert testified
that he was on duty with a team in Stilbaai on 23 December 2008 at a
fire which burned
on a farm north of Jongensfontein Road, Stilbaai,
which they had put out. They received a call that there was
another fire
at Gouritzmond. The late Mr Gideon Joubert
(“Joubert”), also known as “Terry”, a senior
fireman,
and his team left the scene around 16h47 on 23 December 2008
to attend to the fire at Gouritzmond. Van Sittert remained at
the Jongensfontein fire scene for about 15 minutes until he was
satisfied that the fire had been extinguished, and thereafter made
his way to the Gouritzmond fire. Van Sittert was accompanied by
his son, then 16, who took photographs of the fire.
They drove
along the road and got to a place near the nature reserve after
18h30, where according to Van Sittert the fire in question
had
started - point X on the map on p 3 of Exhibit A. He remained
there for about five minutes. The fire however was
not burning
there at the time, and he did not observe the fire starting in the
road reserve. When Van Sittert made this observation
the fire
was burning in a northerly direction but changed to an easterly
direction.
[23]
Van Sittert testified that they stopped at
various places, got out of the car and took photographs of the fire.
For the first
few kilometres, the fire was far from the road, as
appears from photos 1 and 2 of Exhibit F, but as they continued the
fire came
closer to the road because the wind, which was very strong,
frequently changed direction. He said that photo 9 of Exhibit
F
shows the fire crossing the road reserve in a southerly direction,
which set the veld alight in the nature reserve. They
had to
stop and wait for some 15 minutes because the fire was extremely hot
and there was thick smoke in the road. The wind
changed
direction yet again and they were able to drive through the smoke.
Van Sittert, who had worked in the area for 15
years, said it was the
biggest fire which had burned in the area.
[24]
Van Sittert was a member of the disaster
management team. He was concerned about getting to Gouritzmond
to open the building
which would serve as the Joint Operations Centre
from which the fire would be centrally fought, monitored and
managed. He
referred to a map on p 2 of exhibit A which shows
the area of the fire and where it started - at the word “(BEGIN)”,
which he himself had written for purposes of operational
fire-fighting. He said that the spread of the fire was
indicated
on the map from the first day i.e. 23 December 2008; and
that Mr Deon Van Wyk (“Van Wyk”), the Deputy Head of the
second
defendant’s Fire Services, made changes to the map as
the fire continued, indicating the points which were dangerous and
showing that the fire burned in an easterly direction towards
Gouritzmond and Bito, indicated as the encircled “4” on
the map. Fortunately it rained late on the night of 23 December
2008. This resulted in the extinguishment of a fire
burning
towards a caravan park and Bito. Van Wyk then instructed Van
Sittert that the people who had been evacuated from
those areas,
could return to them. The Joint Operations Centre was also
responsible for receiving any complaints and providing
food and water
to the various fire-fighting teams. Van Wyk, a senior fireman,
decided where fire-fighting teams had to go,
what they were supposed
to do and for how long they had to do duty.
[25]
Van Sittert said that he was familiar with
the concept, “command and control”, in the context of
disaster management.
The response to the fire, and the
monitoring and management thereof was directed from the Joint
Operations Centre, under the control
of the second defendant.
Ms Annelize Lambrecht (“Lambrecht”) was the Head of the
second defendant’s Fire
Services. After the fire in 2008
they did not receive complaints about the actions of persons who were
involved in the fire.
[26]
Stoffels, a fireman employed by the second
defendant, testified on behalf of the first defendant. In 2008
he was a trainee
fireman. On 23 December 2008 he was on duty at
the fire in Jongensfontein, Stilbaai, with his shift leader, Mr
Gideon (Terry)
Joubert, when they were called to the fire at
Gouritzmond. They left Stilbaai at approximately 16h45 in a
Nissan 4 x 4 bakkie
which Joubert drove. At about 17h30 they
got to the road near the crossing depicted on photo 20 of exhibit (in
the vicinity
of point X on the map at p 3 of Exhibit A), and stopped
right opposite the place where the fire could have started.
[27]
Stoffels testified that when they got to
the scene the head of the fire was approximately 1 km away.
Nobody else was present.
The fire was burning up a slope in a
north-easterly direction but had not yet gone over the crest.
It was a hot day and the
wind was very strong. Stoffels said
that he got out of the vehicle and walked to the road reserve.
He looked for a
road to gain access to the fire which was on their
right hand side. Joubert did not get out of the vehicle, he was
on the
phone. Stoffels said that he walked on both the right
and left sides of the road reserve in order to find an entrance road
to the head of the fire - their main focus. He did not see fire
or fire scars in the road reserve, but saw smouldering on
the other
side of the fence, i.e. in the nature reserve. It was not
smouldering right up against the fence, but some 3 m
from it.
He said that he had walked on both sides of the road reserve where a
fire had been smouldering inside the fence,
and where it may have
started. Stoffels told Joubert that he had seen smouldering
inside the fence. Joubert responded
that they should look for a
road to get to the head of the fire. Thereafter they went to a
gate which they thought could
provide access to the fire.
[28]
At the scene, Stoffels said, the fire
turned in an easterly direction as a result of the strong wind.
He and Joubert then
moved back on the road from which they had come.
They wanted to find an entrance road next to the flank of the fire so
that
they could get to the head of the fire. They got to a gate
which they thought was an entrance to an access road. They
opened the gate and drove down a road for about 50 m only to discover
that it was a dead end. They returned to the road and
saw a
house to the east of the fire. By that time their crew
had arrived with a water truck. Joubert instructed
them to
secure the house against the fire. Joubert returned to
Riversdale to fetch water tankers.
[29]
Stoffels said that he and three other
firemen took some 3 hours to protect the house against the fire. At
that stage the wind
was burning in an easterly direction and the fire
was coming towards the house. The fire made a loud noise as
branches crackled.
The wind was extremely strong and blew
sand everywhere. They tried to remove combustible
material surrounding the house
and sprayed water from the truck
around the house. During this time the fire came very close to
the house. They feared
for their lives and saw the house as the
only way to protect themselves against the fire. At some point
they were lying on
their stomachs behind the house because the wind
was blowing smoke, branches and burning material all around them.
The fire
burned along both sides of the house, which was
saved. Stoffels and his team then went to the north-eastern
flank of the
fire where they tried to put out the fire with the
remaining water on the truck. In all this time he was in
regular telephonic
contact with Joubert. Subsequently they were
fetched by persons employed by the second defendant.
The
issues
[30]
The issues which must be decided are these:
(a)
Was the fire a “veldfire” as
contemplated in the Act, and does the presumption of negligence in s
34 of the Act apply?
(b)
Were the defendants under a duty of care to
prevent fires from starting in the road reserve or spreading to the
plaintiff’s
property as pleaded in paragraphs 8 and 9 of the
particulars of claim?
(c)
Was the plaintiff’s property damaged
as a result of the negligence of the first or second defendants as
pleaded in paragraphs
11 and 12 of the particulars of claim?
(d)
Did the fire start in the road reserve?
[31]
In what follows each of these issues are
considered in turn.
Was
the fire a “veldfire” as envisaged in the Act?
[32]
The
plaintiff contends that the fire in question was a “veldfire”
as contemplated in the Act, which would trigger the
presumption in
s 34 that a defendant is presumed to have been negligent in
relation to a veldfire which starts on or spreads
from land owned by
the defendant, unless the contrary is proved.
[4]
The defendants dispute this.
[33]
The
Act defines a “
veldfire
”
as meaning a veld, forest or mountain fire. In
Gouda
Boerdery
[5]
the
Supreme Court of Appeal (SCA) considered this definition and the
historical references to the words “veld” and
“veldfire”. It affirmed the decision in
West
Rand Estates
[6]
in which it was held that the word “veld” generally
conveys the idea of an area covered with veld grass of considerable
extent in its original rough state, but does not include land which
is cultivated or immediately connected with buildings;
[7]
and that it generally denotes an uncultivated and unoccupied portion
of land, as distinct from the portion which is cultivated,
occupied
and built upon.
[8]
[34]
The
SCA in
Gouda
Boerdery
referred to the Act itself to determine whether the property in
question was a veld. Section 12(1) requires owners of land
on
which a veldfire may start to prepare and maintain a firebreak on
their side of the boundary between their land and any adjoining
land.
[9]
As to the
argument raised in that case that a railway reserve constituted
“veld”, the SCA noted that in terms
of the Act, where the
land in question takes the form of a strip of land 20 m wide, it
would mean that the owner would be obliged
to turn nearly the entire
strip into a firebreak, regardless of the use of the land. This
would mean that virtually every
stretch of railway or road reserve in
rural areas would have to be turned into a firebreak, which could
never have been the lawgiver’s
intention.
[10]
[35]
That is the case here. In fact, the
strip of land which would have to be turned into a firebreak is much
less than 20 m.
Mr Richard Hutton (“Hutton”), a
civil engineer in charge of the Regional Roads Management Directorate
of the Department
of Transport and Public Works of the Province of
the Western Cape (“the Department”), testified on behalf
of the first
defendant. Hutton said that the road in question
is a divisional road and that generally, the road reserve for such a
road
has a 20 m proclaimed width. From the edge of the gravel
road to the fence the road reserve is generally 6 m on either side,
which would have to be turned into a firebreak. This, in my
view, is a clear indication that the road reserve in question
cannot
be veld, as contemplated in the Act.
[36]
The
plaintiff’s case is that the fire started in the road reserve.
This, on the authority of
Gouda
Boerdery
,
is not veld. The presumption in s 34(1) does not operate if the
fire which starts on, or spreads from, a defendant’s
property
is not a veldfire on the defendant’s property but becomes one
at a later stage.
[11]
[37]
Inasmuch as the fire did not originate as a
veldfire contemplated in the Act, the presumption in s 34(1)
does not apply.
Wrongfulness
[38]
It
is trite that negligent conduct which gives rise to damages is
actionable only if the law recognises it as a wrongful.
[12]
[39]
The
test for wrongfulness is settled law. In
Country
Cloud
[13]
the Constitutional Court stated it as follows:
“
Wrongfulness
is an element of delictual liability. It functions to determine
whether the infliction of culpably caused harm
demands the imposition
of liability or, conversely, whether “the social, economic and
other costs are just too high to justify
the use of the law of delict
for the resolution of the particular issue”. Wrongfulness
typically acts as a brake on
liability, particularly in areas of the
law of delict where it is undesirable and overly burdensome to impose
liability.”
[14]
[40]
The wrongfulness enquiry, it was held in
Loureiro
,
focuses on,
“
the
[harm-causing] conduct and goes to whether the policy and legal
convictions of the community, constitutionally understood, regard
it
as acceptable. It is based on the duty not to cause harm -
indeed to respect rights - and questions the reasonableness
of
imposing liability.”
[15]
[41]
The
criterion of wrongfulness ultimately depends on a judicial
determination whether it would be reasonable to impose liability
on
the defendant for the damages flowing from the specific conduct,
assuming that all the elements of delictual liability are present.
The judicial determination of that reasonableness, in turn, depends
on considerations of public and legal policy in accordance
with
constitutional norms. Reasonableness in the context of
wrongfulness has nothing to do with the reasonableness of the
defendant’s conduct. Instead, it concerns the
reasonableness of imposing liability on the defendant for the harm
resulting
from that conduct.
[16]
[42]
The plaintiff contends that the defendants
were under a duty not to cause harm (and respect his right to
property) by preparing
and maintaining firebreaks next to or on the
road; ensuring that such firebreak were adequate to prevent a
veldfire or fire from
igniting or spreading from the road; ensuring
that the firebreak was free from flammable material capable of
carrying a veldfire
or fire across it; ensuring that responsible
persons were present at or near the road in the event of a veldfire
or fire to extinguish
it or to take reasonable steps to alert the
owners or occupiers of adjoining properties to the fire; not creating
a fire hazard
during the summer holiday season; effectively and
timeously extinguishing any veldfire or fire that originates on the
road during
the high fire risk summer and holiday season. Then
it is said that the second defendant’s disaster management team
at or near the fire on 26 December 2008 had a duty to control the
spread of the fire to the plaintiff’s farm but failed to
do so.
[43]
When
considering the issue of wrongfulness, the question is always whether
the defendant ought reasonably and practically to have
prevented harm
to the plaintiff.
[17]
In
every case a court must consider and balance inter alia the following
factors: the foreseeability and possible extent
of harm; the degree
of risk that the harm will materialise; constitutional obligations;
the breach of a statutory duty; the interests
of the defendant and
the community; who has control over the situation; the availability
of practical preventative measures and
their prospects of success;
whether the cost of preventing the harm is reasonably proportional to
the harm; and whether or not
there are other practical and effective
remedies available.
[18]
[44]
Applying these principles to the facts of
this case, in my view it would be unreasonable to impose liability on
the defendants for
what is essentially a failure to prepare and
maintain adequate firebreaks next to or on the road; to ensure that
the firebreaks
are free from inflammable material; and to not create
a fire hazard during the summer holiday season.
[45]
As already stated, the duty not to cause
harm for which the plaintiff contends is not contemplated in the Act
- it would mean that
virtually every stretch of road reserve in rural
areas would have to be turned into a firebreak.
[46]
Apart from this, the Act contemplates a
substantial degree of self-help by individual property owners against
the risk of fires,
more specifically in relation to preventative
action, fire-fighting and responsibilities once a fire has started.
(a)
Chapter
2 of the Act regulates the establishment, registration, duties and
functioning of fire protection associations, to deal
with all aspects
of veldfire prevention and fire fighting. Thus in terms of s 3
of the Act, owners of land (which include
lessees or persons who
control the land in question) may form a fire protection association
for the purpose of predicting, preventing,
managing and extinguishing
veldfires,
[19]
in respect of
an area which has regular veldfires, or a relatively uniform risk of
veldfires, climatic conditions or types of forest
or vegetation.
[20]
Section 12 enjoins every owner on whose land a veldfire may start or
burn or from whose land it may spread, to prepare and
maintain a
firebreak. The requirements for firebreaks are set out in s 13
of the Act. It provides inter alia that an
owner who is obliged
to prepare and maintain a firebreak must ensure that it is wide
enough and long enough to have a reasonable
chance of preventing a
veldfire from spreading to or from neighbouring land and that it is
reasonably clear of inflammable material
capable of carrying a
veldfire across it, with due regard to the weather, climate, terrain
and vegetation of the area.
(b)
Chapter
5 of the Act places a duty on all owners to acquire equipment and
have available personnel to fight fires. Certain
persons and
officials are given the power to enter land and fight fires in an
emergency. Section 17 provides that owners
on whose land a
veldfire may start or from whose land it may spread must have
equipment, protective clothing and trained personnel
for
extinguishing fires; and ensure that in their absence, there are
responsible persons to extinguish a fire, to assist in doing
so and
to take all reasonable steps to alert the owners of adjoining
land.
[21]
In terms of
section 18, any owner who has reason to believe that a fire on his or
her land or the land of an adjoining owner
may endanger life,
property or the environment must immediately take all reasonable
steps to notify the fire protection officer
and the owners of
adjoining land and must do everything in their power to stop the
spread of the fire.
[22]
[47]
In my view, these provisions of the Act are
inconsistent with the imposition of liability on the defendants for
not preparing and
maintaining firebreaks next to or on the road;
ensuring that such firebreaks are free from combustible material so
as to prevent
a veldfire or fire from igniting or spreading; ensuring
that responsible persons are present at or near the road to
extinguish
a fire; or taking reasonable steps to alert the owners or
occupiers of adjoining properties to the fire.
[48]
In other words, the Act envisages that
there are many actions that owners and occupiers of land can take to
try to protect their
property from damage caused by fires starting on
their land or spreading from other land. The Act contemplates
and in certain
circumstances requires individual property owners to
take considerable and effective measures to protect their property
against
fire. These circumstances also militate against the
existence of a legal duty of the kind for which the plaintiff
contends.
[49]
In addition, the evidence of Hutton - which
was not contradicted - is that the costs of creating and maintaining
firebreaks in road
reserves would be prohibitively expensive, and
disproportionate to the potential damage to landowners.
[50]
Hutton testified that he is responsible for
the overall management of District Roads Engineers and the in-house
maintenance and
construction of roads by District Municipalities and
the Regional Offices of the Department. The road in question is
classified
as a divisional road due to low traffic volumes and the
level of service expected from the road, as opposed to major arterial
routes
or main roads (which are given higher priority). Hutton
said that there is a limited budget allocation in respect of the
road, and because it is a divisional road, it is graded about four to
five times per year.
[51]
District Municipalities are responsible for
the management of most of the gravel road networks in the Western
Cape. This involves
routine road maintenance work, and
re-gravelling and upgrading of roads, within the budgets determined
by the Department.
Hutton has a say in the allocation of
budgets and gives overall guidance regarding the management of
particular units operating
in the offices of District Roads Engineers
and District Municipalities. He is also responsible for
monitoring the expenditure
of these offices on a monthly basis, to
ensure that no irregular or unauthorised expenditure is incurred in
violation of the
Public Finance Management Act 1 of 1999
.
[52]
Hutton, who himself is a former district
roads engineer, said that as regards the road reserve, the
priority is the driveability,
surface and drainage of the road, and
the safety of motorists and other road users and pedestrians.
Virtually all the complaints
which the routine road maintenance teams
receive concerning surface and gravel roads relate to driveability
and drainage of roads.
The focus is on the surface of the road and
maintenance teams go out and repair drainage, clean pipes, repair and
replace road
signs, patch gravel roads with indentations especially
after heavy rains, and generally keep roads in the best condition
they can
manage. Each road maintenance team covers 200 km of
road. There is a huge amount of work to be done and they are under
resourced.
[53]
Another priority of road maintenance teams
is to ensure that motorists have sight distance when travelling on
the road, and to remove
any vegetation encroaching on that sight
distance. Hutton said that before the Department can consider a
fire risk, it must
be informed of that risk either by the public or a
District Municipality. On this score Van Sittert, the
plaintiff’s
witness, testified that they never received a
complaint about overgrown vegetation in the road reserve of the road
in question.
Neither did Hessequa Municipality or the second
defendant complain to the Western Cape Province about the condition
of the road
reserve.
[54]
If any fire risk is brought to the
attention of a District Municipality, it is considered in the light
of resources. There
are some 6000 km of surface roads which
have both alien and environmentally sensitive vegetation from the
side drain to the fence;
10 000 km of gravel roads on which a fair
amount of money is spent; and about 15 000 km of minor roads on which
very little is
spent because of scarce resources. Hutton said
that everything is done from a risk and needs perspective, balanced
against
the affordability - there are many things in relation to
roads that the Department simply cannot do because it does not have
the
money. If the Department or a municipality had to maintain
firebreaks in road reserves, it would have to do this on either
side
of the road. In the case of only gravel roads in the Western
Cape, for example, firebreaks would have to be created
and maintained
for a distance of 10 000 km x 2. This, Hutton said, is a
virtually impossible problem.
[55]
Aside from this, Hutton said that in terms
of the Department’s policy in relation to the removal of
vegetation, a distinction
is drawn between alien and environmentally
sensitive vegetation. Environmentalists would first have to
survey road reserves
before any vegetation can be removed.
[56]
In
the light of Hutton’s evidence, I consider that it would be
unreasonable to impose liability on the defendants in the
circumstances of this case, particularly having regard to the public
interest in the maintenance of public roads; the financial
resources
of the defendants; the costs of creating and maintaining firebreaks
in road reserves which would be prohibitively expensive;
the
disproportionality between potential damage to landowners and the
potential costs of prevention; and the social consequences
of
imposing liability.
[23]
[57]
But the plaintiff also seeks to hold the
second defendant liable because its employees failed to assist him in
making a back fire
between points A and B on the land adjacent to the
plaintiff’s farm (p 3 of Exhibit A). The particulars of
claim state
that the second defendant had a disaster management team
consisting of fire fighters, fire-fighting equipment and
fire-fighting
vehicles in the vicinity of the fire able to contain
the spread of the fire to the plaintiff’s farm, but that they
refused
to do so.
[58]
In this regard Mr Ferreira, for the
plaintiff, submitted that the position in English law that a fire
brigade does not enter into
a sufficiently proximate relationship
with the owner or occupier of premises so as to come under a duty of
care merely by attending
at the fire ground and fighting the fire,
does not apply in this case because our law “is more scientific
than the casuistic
English system.” Then it was submitted
that the second defendant should be held liable because there are
numerous cases
in South African law in which security and other
services were held liable for failing to perform their tasks properly
and that
the fire brigade, but one arm of a local authority, is
liable for omissions.
[59]
However, these submissions do not bear
scrutiny, both on the level of the facts and the law.
[60]
The facts show that the fire was intense
and devastating. That appears clearly from the evidence of Van
Sittert and the photographs
which his son had taken. It shows
that the fire had crossed the road and there was always the risk of
the fire flaring up
and spreading unpredictably, due to changing
weather conditions, which Van Sittert said happened. Indeed,
the evidence established
that the fire took off on 23 December 2008
and by 26 December 2008 it was still burning intensely when it
destroyed the plaintiff’s
farm. Van Sittert said that it was
the largest fire they had fought in his 15 years of service.
Van Wyk testified that the
left and right flanks (sides of the fire)
were each approximately 17 km long.
[61]
The intensity of the fire is underscored in
the report by the plaintiff’s expert, Mr Willem Vorster
(“Vorster”),
which is common ground. Vorster used
satellite imagery to determine the origin of the fire and to indicate
its spread.
Vorster states that the fire started on 23 December
2008 on the farm Buffelshoek and burned in a north-easterly direction
and an
easterly direction. The original fire destroyed an area
of some 3171 hectares. The later fire destroyed approximately 3216
hectares. The total area destroyed was about 6387 hectares.
[62]
It is also common ground that on 26
December 2008, the fire was beyond direct attack. The plaintiff
himself testified that
the fire was so intense that one could not go
near the fire to extinguish it: that, he said, would have been
suicidal. The
western front of the fire alone was about 3 km
wide, apart from its eastern and north-eastern flanks. The
flames were 10
m high at places. The fire was so extreme, that
trying to put it out was equivalent to, in the plaintiff’s
words, “’n
miggie teen ‘n trein.” He
said that he had approached the disaster management team for
assistance at about 9h00
on 26 December 2008. But by 10h30 that
day it was already too dangerous to light a back fire between points
A and B on the
map at p 3 of Exhibit A, as a result of the intense
heat of the fire which the plaintiff said could be felt from a
distance.
[63]
Yet the duty of care as pleaded, is that
the second defendant’s disaster management team at or near the
fire on 26 December
2008 was in a position to and could have
contained the spreading of the fire to the plaintiff’s farm,
but failed to do so.
[64]
The plaintiff however is mistaken.
There was nothing the defendants could have done to stop the fire.
And there was
no evidence that the defendants did anything or omitted
to do something which made the danger any worse. Put
differently,
it cannot be said that the defendants or their employees
created, increased or transformed the risk of harm. The second
defendant
in particular did not, by its employees refusing to assist
the plaintiff to start a back fire along points A and B on the map at
p 3 of Exhibit A, change the fire from one that covered 616 hectares
(the extent of the plaintiff’s farm) to one that covered
6387
hectares.
[65]
As this case shows, fires, by their nature,
may be incapable of control by human action. The fire in this
case - a destructive
large scale fire - had spread because that is
what fires do in hot, dry conditions; or when the direction of the
wind changes or
wind speeds are high. And a fire can burn
uncontrollably until the weather changes for the better, or the fire
runs out of
fuel or is extinguished. The fire in question
spread because of the natural behaviour of fire. It burned over
a number
of days, flared up at different places, quickly became out
of control, consumed everything in its path and ultimately destroyed
an area of some 6387 hectares.
[66]
As
to the spread and intensity of large fires, Luke and McArthur
say,
[24]
“
The
spread, intensity and shape characteristics of large fires defy
simple description. Any fire which remains uncontrolled
for
some days is likely to be subjected to considerable wind and other
weather changes, fuel differences and topographic variations.
Even minor variations are important as these can determine the
direction of head fire travel on any particular day. …
When
large fires burn for a lengthy period the main concern is that
weather conditions may deteriorate. Should a day of extreme
fire
danger develop, fires are likely to burn completely out of control
and cover a very large area in high-intensity runs.”
[25]
[67]
In addition, the instruction given to the
disaster team was to remain in position near the gate of the
plaintiff’s farm and
to be ready to act when there was a threat
to life (or a threat of injury). The plaintiff testified that
the team was positioned
on the road in such a way that they had a
very good view of the fire, and could easily react if there was a
threat to life.
When he approached the disaster management
team, the plaintiff said, there was no threat to life as a result of
the fire, and the
concern was valuable thatching reed and fynbos.
He rightly conceded that the protection of life takes priority over
the protection
of vegetation; that he did not know the position in
the area (regarding the raging fire); that the situation was
unpredictable
and the fire could have endangered the lives of people;
and that it was not only the persons on the farms who had to be
protected
but also those who were using the roads during the fire.
[68]
What all of this shows is that positioning
the disaster management team at the place they were; deciding upon
the composition of
the team; equipping them with fire-fighting gear
and vehicles; and instructing them to act when lives are endangered
and to be
ready when the need arises, are all policy decisions and
forward planning, taken in the course of fighting a destructive
large-scale
and unpredictable fire. In my view, in these
circumstances, it is not the function of a court to second-guess
policy choices
made by functionaries entrusted with fire-fighting,
who are also responsible for managing the risks associated with
uncontrollable
fires. In addition, the second defendant
is obliged to fight fires on behalf of the community, and to ensure
the safety
of the public and its crews, which would conflict with a
duty of care of the kind contended for by the plaintiff.
[69]
In
this regard the argument in
Capital
and Counties
against imposing a duty of care on fire brigades is apposite:
[26]
“
It
seems hardly realistic that a fire officer who has to make a split
second decision as to the manner in which fire fighting operations
are to be conducted will be looking over his shoulder at the
possibility of his employers being made vicariously liable for his
negligence. If there can be liability for negligence, it is
better to have a high threshold of negligence … and for
judges
to remind themselves that fire officers who make difficult decisions
in difficult circumstances should be given considerable
latitude
before being held guilty of negligence. It is not readily
apparent why the imposition of a duty of care should divert
the fire
brigade resources from other fire-fighting duties.”
[70]
For the above reasons I have come to the
conclusion that in the circumstances, the second defendant did not
owe the plaintiff a
duty of care to control the spread of the fire to
his farm.
[71]
At this point, and assuming that the
defendants acted wrongfully, it is appropriate to deal with the
question of causation.
I am of the opinion that the plaintiff
has not proved that the defendants’ conduct was the cause of
his loss.
[72]
It
is settled that causation involves two distinct enquiries: whether
factually, the defendant’s wrongful act was a cause
of the
plaintiff’s loss; and whether the wrongful act is linked
sufficiently closely or directly to the loss for legal liability
to
ensue.
[27]
[73]
The cause of the plaintiff’s loss, it
was established in evidence, was the natural behaviour of the fire -
not the conduct
of the defendants. By 26 December 2008, under
the influence of high winds and other weather changes, and with fuel
such as
grass, leaves and trees on the ground and in its path, the
fire increased in intensity and was burning out of control. It
could not be directly suppressed. The plaintiff said that the
heat of the fire was so intense and it was approaching rapidly
in the
direction of his farm, that by 10h30 that morning it was too late to
start a back fire. It is thus hardly surprising
that the
farmers who were with the plaintiff on 26 December 2008 were afraid
to start a back fire and that it took him an hour
to persuade them to
do so - it was extremely dangerous because the wind could change
direction at any time.
[74]
Further, it is common ground that
there was a chain of command from the Joint Operations Centre to the
disaster management team.
The team was placed along the road
and instructed to be ready to act when life was in danger or to
prevent injury. That,
Van Wyk said, was a lawful instruction
and if it was not carried out, the relevant official would be subject
to disciplinary action.
Moreover, if the official, contrary to
his instructions, were to start a back fire which causes damage, the
second defendant may
be held liable. The plaintiff was informed
of the instruction given to the disaster management team.
However, he did
not contact the Joint Operations Centre at all.
Van Wyk said that they had not received a request to ignite a back
fire.
[75]
Van Wyk testified that there is a protocol
in relation to back fires, in terms of which firemen must be trained
and work under supervision.
Only certain firemen employed by the
second defendant are qualified to start back fires; and weather
conditions and more specifically,
wind speed is taken into account.
So too, the condition of the terrain and the type, age and height of
vegetation.
And a back fire must be preceded by adequate
firebreaks, which Van Wyk said, is the anchor from which one works,
since a back fire
may cause even greater damage than the head fire.
Usually back fires would be ignited early in the morning or late
afternoon,
because the wind is at its strongest between 10h00 and
14h00, as was the case in the Gouritzmond fire. Van Wyk also
said
that given the size and intensity of the fire in question, and
the fact that operationally, they were in charge of the fire, only
he
and Lambrecht were authorised to make a decision to start a back
fire.
[76]
On these aspects Van Wyk’s evidence
stands uncontradicted.
[77]
On the plaintiff’s own evidence there
was a very short window within which a back fire could be started at
points A to B on
the map at p 3 of Exhibit A – one and a half
hours. It is even shorter on Van Wyk’s evidence: he
said that
the wind was at its strongest between 10h00 and 14h00.
And the evidence is that the back fire between points E and F at p
3
of exhibit A was started around 19h00 on 26 December 2008. The
evidence also shows that the fire that destroyed the plaintiff’s
farm was intensely hot, burning uncontrollably and spreading rapidly
towards the farm; and that there was extremely limited time
to put in
place the procedures to start a back fire.
[78]
In these circumstances, there is no
evidence to show that it was probable that igniting a back fire
between points A and B at p
3 of exhibit A, would have made any
difference to the eventual outcome. Consequently, the failure
on the part of the defendants,
if there was one, was not the cause of
the plaintiff’s loss; and on this basis also, his claim must
fail.
Negligence
[79]
The
test for negligence is trite. Conduct is negligent if a
reasonable person in the position of the defendant: would have
foreseen the reasonable possibility of his conduct injuring another
in his person or property and causing patrimonial loss; would
have
taken reasonable steps to guard against such occurrence; and the
defendant failed to take such steps.
[28]
[80]
A
finding that the defendants’ omission was not wrongful has the
consequence that the issue of negligence does not arise.
It is
not only impracticable to speculate about the possible negligence on
the part of the defendants, but also juridically unsound.
The
question of negligence can only be answered if a court determines the
legal duty owed by the defendant to the plaintiff and
that the
defendant breached
that
duty.
[29]
Stated
differently, the issue of negligence only becomes relevant
sequentially after the situation has been identified as
one in which
the law of delict requires action.
[30]
The
origin of the fire
[81]
A central issue in the case is where the
fire started. The plaintiff’s case is that it started in
the road reserve.
This is based on the evidence of the
plaintiff, Van Sittert, Dr JE Danckwerts, a fire ecologist, and a
written statement by Joubert
which is hearsay. Initially Horn
testified that the fire had started in the road reserve, but later
said that he honestly
could not remember where the fire had started.
[82]
The defendants dispute the claim that the
fire started in the road reserve. They say that Stoffels’
testimony shows that the
fire did not start in the road reserve.
They also rely on Vorster’s report which states that the fire
started either
in the road reserve, or on the farm Buffelshoek, close
to the road crossing. The first defendant adduced evidence by
Mr Jens
Jakobsen (“Jakobsen”), an expert in fire
technology, and a certified fire and explosion investigator. He
expressed
the opinion that the fire could have started either in the
road reserve or on the farm Buffelshoek.
[83]
The plaintiff’s evidence that the
fire occurred in the road reserve cannot be accepted essentially for
two reasons.
First, the plaintiff did not see any burning or a
smouldering fire in the road reserve. He obviously had to
concede this.
Second, the plaintiff is no expert on the origin
of a fire. This too, he conceded. However, when asked how
he could
express the opinion on the origin of the fire, he replied
that it “makes logical sense” that the fire started in
the
road reserve. For the same reasons, the plaintiff’s
opinion that Vorster’s plotting of the fire scar is wrong;
that
Vorster’s statement that the fire started on the farm
Buffelshoek is apparently wrong because no road or road reserve
is
indicated on the original fire scar mapped (Figure 9 of Vorster’s
report); and that Vorster’s conclusion that the
fire started
close to the road crossing should be assessed having regard to the
accuracy of the satellite imaging, must be rejected.
[84]
Likewise, no store can be placed on Van
Sittert’s statement that the fire started in the road reserve.
He too, did not
see the fire burning at point X on the map at p 3 of
Exhibit A. And he testified that he wrote the word “
(BEGIN)
”
on the map at p 2 of exhibit A to indicate the origin of the fire for
the purpose of operational fire-fighting - not to
identify the point
of origin of the fire as a fact, or for forensic purposes.
Further, Van Sittert said that he did not receive
forensic training
in relation to the origin or cause of fires. Aside from this,
Van Sittert himself testified that he had
asked Joubert to tell him
where the fire had started so that he could furnish a report on the
fire to his (Van Sittert’s)
superiors.
[85]
Thus Van Sittert’s letter dated 24
May 2010 to the Municipal Manager, Hessequa Municipality, is not only
incorrect, but also
constitutes hearsay. He had no basis,
factual or otherwise to form this opinion:
“
Tydens
die ontstaan van die Gouritsmond brand op 24 Desember 2008 was ek in
samewerking met Eden Ramp en Brandweer aan diens.
Volgens
my waarneming het die brand ontstaan op die afdelingpad 1528 tussen
Gouritsmond en Stilbaai naby Reins Natuur Reservaat
wat ‘n
geproklameerde pad is en dus onder die eienaarskap van die
Provinsiale Regering is en uitgekontrakteer is na Eden
Distriks
Munisipaliteit. Die padreserwe waar die brand ontstaan het was
nie skoon nie en verseker ‘n brandgevaar. Die
vuur het
gepaard gegaan met sterk stormwind. Alhoewel Eden Brandweer in
beheer was van die brand het Hessequa Personeel ook
hulp verleen.”
[86]
The next question is whether the affidavit
which Joubert made on 18 June 2010 should be admitted in evidence.
It reads:
“
Hiermee
verklaar ek, Gideon Joubert, gedurende die brande by Gouritsmond in
Desember 2008 ek een van die eerste mense op die toneel
was.
Volgens my het die brand begin op die pad tussen Gourits en Stilbaai,
naby Reins Natuurreservaat. Die brand het
volgens my in die
Padreserwe begin. Die Padreserwe was nie skoon of in stand
gehou nie en was beslis ʼn brandgevaar.”
[87]
In
his evidence the plaintiff referred to this affidavit to support his
case that the fire started in the road reserve. The
probative
value of what is stated in the affidavit depends on the credibility
of a person other than the deponent – Joubert,
who has since
passed away. As such, it is hearsay evidence as contemplated in
s 3 of The Law of Evidence Amendment Act 45
of 1988 (“the 1988
Act”).
[31]
[88]
In
deciding whether to admit hearsay evidence, the starting point is
that hearsay is not evidence, unless it is brought within one
of the
recognised exceptions. The SCA has said that the 1988 Act does
not change that starting point. Subject to the
framework it
creates, its provisions are exclusionary. Unless hearsay is admitted
in accordance with the provisions of the 1988
Act, it is not evidence
at all.
[32]
[89]
I
turn now to consider the requirements of s 3(1)(c) of the 1988 Act.
As regards the nature of the proceedings, this is a
civil case, a
factor which relates not only to the admission of hearsay evidence,
but also the weight to be given to such evidence.
[33]
[90]
As
to the nature of the evidence, it is an affidavit in which the
deponent expresses an opinion as to the origin and cause of the
fire. Regarding this factor, Zeffertt and Paizes
[34]
observe that the person upon whose credibility the probative value of
hearsay evidence depends, is not subject to a curial device
(such as
cross-examination) used to identify, assess and eliminate aspects of
that evidence which render it potentially unreliable.
Therefore, a court should be alert to potential dangers such as
insincerity on the part of the absent declarant; erroneous memory;
defective perception and inadequate narrative capacity. The
court should consider the extent to which such dangers arise
in the
case before it, and identify factors that tend to reduce or eliminate
them. Only then will the court be in a position
to determine
the extent of the prejudice caused to an adversary who is denied the
benefit of cross-examination.
[35]
[91]
The purpose of the evidence is to establish
that the fire started in the road reserve because it was not kept
clean and maintained,
and was a fire hazard. This purpose is
direct and its attainment rests squarely on the reliability of the
hearsay.
[92]
This
brings me to the probative value of the evidence. In
Ndhlovu
Cameron JA said that “probative value” means value for
purposes of proof, and relates not only to what the hearsay
evidence
will prove, but also whether it will do so reliably.
[36]
In my view, the probative value of the evidence, weighed against the
potential prejudice to the defendants if it were to
be admitted,
militates against its admission. The affidavit contains a bald
statement that according to Joubert, the fire
started in the road
reserve, presumably because it was not clean or maintained. But
the affidavit contains no facts or any
observation by Joubert at the
scene, showing the basis for that opinion, or why he formed it.
The court has thus not been
placed in a position to make a proper
assessment of the value of such opinion, or to decide whether it is
founded on fact or logical
reasoning. Moreover, there is no
indication that Joubert is even qualified to form such an opinion.
[93]
In
addition, there is a lack of corroborating evidence that might
otherwise have confirmed the reliability of Joubert’s
statement.
In
Ndhlovu
the SCA referred to “guarantees of reliability” and said
that the most compelling justification for admitting the hearsay
in
that case was “the numerous pointers to its truthfulness.”
[37]
But that is not the case here. Indeed, the evidence points the
other way: Stoffels, who was with Joubert when they
got to the scene
of the fire at Gouritzmond, said that there was no fire or
smouldering fire in the road reserve at all.
[94]
When regard is had to the factors set out
in s 3(1)(c) in the light of the facts of this case, and in
particular the probative value
of the hearsay evidence and the
prejudice which its admission will entail for the defendants, I have
come to the conclusion that
it is not in the interests of justice
that the affidavit by Joubert should be admitted as evidence.
[95]
The only direct evidence that the fire did
not start in the road reserve is that of Stoffels. When he got
to the scene there
was no fire or fire scar in the road reserve at
all. He saw smouldering behind the fence in the nature
reserve. Stoffels
was subjected to rigorous cross-examination
on this issue. He impressed me as a witness and I accept his
evidence.
He gave a simple and coherent account of what he had
seen and what happened when he and Joubert got to the place where
they tried
to find an access road to the fire. He came across
as honest, made concessions fairly and did not deviate from his
version.
Contrary to the submissions by Mr Ferreira, and as is
shown below, Stoffels’ evidence is probable, reliable and
credible
and there are no contradictions in his testimony. And
it is not coincidental that his version is supported by the opinion
of Vorster.
[96]
On 23 December 2008 Stoffels and Joubert
were first on the scene where the fire was likely to have started.
They arrived on
the scene at 17h30. There was no one else
there. It will be recalled that they left the fire in Stilbaai
when they
received the report of a fire at Gouritzmond. When
they left, Van Sittert remained at the fire at Stilbaai to ensure
that
it was extinguished. He therefore arrived later at point X
on the map at p 3 of Exhibit A. The plaintiff also arrived
later at that point.
[97]
Stoffels clearly recollected the events of
23 December 2008. For example, he was able to explain the
precise route they had
taken to the fire at Gouritzmond. He
said that en route to the fire, they got one of the fire trucks on
the road. Joubert
told that crew to continue with fire-fighting
at Jongensfontein; that he and Stoffels would assess the situation;
and that they
would let the crew know as soon as possible so that the
crew could assist at the fire at Gouritzmond. He remembered
that
Joubert at some point opened the door of the vehicle and sat
with one foot outside it whilst he was on the phone. Stoffels
was adamant that Joubert did not get out of the vehicle, although he
had not looked at Joubert all the time. He had returned
to
Joubert to tell him that he could not find an access road to the
fire. This, of course, would not have been necessary
if Joubert
had got out of the vehicle and accompanied Stoffels to look for a
road. Stoffels said that throughout he was in
communication
with Joubert.
[98]
It was put to Stoffels in cross-examination
that the plaintiff had testified that there was no access to the area
in the road reserve
where the fire had started, because the
vegetation was too dense. Stoffels disagreed. He said
that there was vegetation
in the road reserve but it was not so dense
that it was impossible to walk on the road reserve so as to find an
entrance road to
the fire. And the vegetation was not so dense
that one needed a machete (“kapmes”) in order to walk
through or
around it on the road reserve.
[99]
Although Stoffels’ focus was on the
head of the fire and finding a route to it, this does not detract
from his evidence that
he had walked along both sides of the road
reserve, in a westerly and easterly direction next to the fence
(outside it), when he
saw smouldering inside the fence. He was
sure of that. Stoffels was honest - he said that it looked to
him like the
fire had started at that place, but he could not be 100%
certain. He also said that he did not look for the precise
origin
of the fire; that he had not been trained in establishing the
origin of a fire; but that he was taught to look what was happening
around him. Stoffels said that he did not have much experience,
but he was certain that there was no burning or a smouldering
fire in
the road reserve. He was taxed on this in cross-examination and
did not once deviate from his version. He consistently
said
that he had walked on the road reserve while the fire was smouldering
inside the fence. And it is highly unlikely that
Stoffels would
have walked through a smouldering fire in the road reserve.
[100]
Stoffels readily conceded that Joubert was
an experienced fireman; that he was trustworthy and a person of
integrity; and that he
had learned much from Joubert. But he
did not agree with Joubert’s statement that the fire had
started in the road
reserve. He said that Joubert never got out
of the vehicle and did not walk to the road reserve, although Joubert
could see
it. On this issue also Stoffels was both candid and
consistent. He also testified that Joubert did not take issue
with
him about the fact that he had seen smouldering inside the
fence; neither did Joubert show him any signs of fire in the road
reserve.
[101]
It appears that at the time of the fire in
December 2008 or shortly thereafter, nobody had asked Stoffels about
his version of events
at the Gouritzmond fire. He was asked in
cross-examination when he first became aware of the allegation that
the fire had
started in the road reserve. Stoffels replied that
in 2014 he was told that according to the occurrence book, he and
Joubert
were the first to respond to the fire and that he had
informed the relevant person that the fire had started inside the
fence,
on a farm.
[102]
Stoffels also fairly conceded that Van
Sittert may have been at the Jongensfontein fire, although he could
not state as a fact that
Van Sittert was there. Here again, his
honesty and recall of events were evident. He said that he was
in the veld at
Jongensfontein, fighting the fire with a hose and did
not know what was happening on the road. Stoffels could not say
whether
Van Sittert had arrived at the Gouritzmond fire before or
after him; and said that he could not comment on Van Sittert’s
opinion that there were signs of a fire in the road reserve.
[103]
Further, Stoffels’ evidence is
confirmed by the plaintiff’s expert, Vorster. The mapping
of the original fire
scar indicates that the fire started on the farm
Buffelshoek and burned in a north easterly direction and an easterly
direction.
Vorster concluded that the fire which started on 23
December 2008, started close to the road crossing. He does not
state
that it started in the road reserve.
[104]
As already stated, Stoffels’ evidence
is consistent with the probabilities. The fire scar in the road
reserve is explicable
simply on the basis that the fire never burnt
on the southern side of the road and the area of origin was on its
northern side.
Vorster’s report states that the
resolution of the Landsat 7 satellite is 30 m and he concludes that
the fire which started
on 23 December 2008 started close to the road
crossing. Thus Vorster does not indicate the point of origin
with an accuracy
of greater than 30 m.
[105]
By
reason of the conclusion to which I have come, it is unnecessary to
analyse the evidence of the experts in any detail.
It suffices
to say that the opinion by Danckwerts that the fire started in the
road reserve is inconsistent with the proved facts
and I do not
accept it.
[38]
It was
established in evidence that on 23 December 2008, there was no fire
scar or burning in the road reserve and that there
was smouldering
inside the nature reserve. On the facts therefore, the fire did
not start in the road reserve.
[106]
Danckwerts however said that if indeed
there was no fire scar in the road reserve at the relevant time, then
some of the information
which he had been given and on which he
prefaced his thesis would be incorrect, but not his interpretation of
the fire behaviour.
When pressed as to how the incorrect
information would affect his opinion, Danckwerts said that he was
confident that the conclusions
which he had drawn based on fire
behaviour are logical and what one would expect; that either the
direction of the wind, the presence
of dry fuel on the side of the
road or fuel continuity must be wrong; that his interpretation of the
fire behaviour based on those
facts is nonetheless correct; and that
a contrary view would “defy the law of physics”.
[107]
Danckwerts’ answer is illogical,
given his own evidence. In his report dated 18 July 2014,
confirmed in evidence, he
states that the plaintiff was the first to
arrive at the site of the fire and it was clear to him (the
plaintiff) that the fire
had started in the road reserve and spread
in a north-easterly direction. Dankwerts goes on to say, “Since
I was not present
at the time, my opinions rely heavily on the
observations of those who were, and I accept this information in good
faith.”
[108]
It is inconceivable that if the stated
grounds on which an expert bases his opinion is wrong, the process of
reasoning which led
to his conclusion is sustainable.
[109]
Apart from this, Jakobsen testified that it
is impossible to determine precisely where the fire started long
after the fact –
five years in this case, having regard to the
factors which must be taken into account in determining the origin or
cause of a
fire of the kind in question. These factors, which
are really common sense, include the following: preserving evidence
at
the area of origin; topography, fuels and their classification,
content and humidity; factors affecting fire spread; wind influence;
[110]
and witness statements. I accept
Jakobsen’s evidence.
[111]
Jakobsen said that a proper investigation
involves getting down on one’s hands and knees at the base
where the fire could
have started. The area is mapped out having
regard to the witness statements and topography. The area could
be narrowed down
using a rope to make a grid and then working through
grid by grid over a number of days to look for the cause of the fire,
such
as a bent twig, or the discoloration of rocks or poles, which
may indicate the direction of the fire. If it rains or the wind
blows, the evidence would be covered up and start fading with time.
[112]
Jakobsen explained that there are different
densities of vegetation which cannot be determined so long after the
fact. The
exact kind of vegetation which was there on the day
of the fire is unknown. The condition of that vegetation is
unknown.
The veld has a 10 day cycle of moisture retention and
some plants naturally burn faster than others. The wind at the
point
of origin might be blowing in a different direction with a
totally different speed, contrary to the report of a weather
station.
Unless one is at the area of origin at the time of
ignition or shortly thereafter, one would not know the status of
flammable material
in the area. Jakobsen said a reasonable time
to do a proper investigation to determine the origin and cause of the
fire would
be a few days. He said that the outer limit in a case like
this to produce a report which can be relied upon, is 30 to 60 days.
[113]
What this shows, is that the plaintiff has
placed no evidence before the court from which it can be concluded,
with any degree of
reliance, that the fire originated in the road
reserve. The evidence shows the contrary.
[114]
For the above reasons I find that the
plaintiff has not proved that the fire started in the road reserve.
On this basis alone
also, the claim must fail.
Conclusion
[115]
I make the following order:
The
plaintiff’s claim is dismissed with costs.
SCHIPPERS
J
Plaintiff’s
counsel : Advocate JE Ferreira
Applicant’s
attorneys : Gildenhuys Malatji Inc.
First
Defendant’s counsel : Advocate G Oliver
First
Defendant’s attorney : State Attorney
Second
Defendant’s counsel : Advocate D van der Merwe
Second
Defendant’s attorney : Roux Attorneys
[1]
Point
X on photo 3 of Exhibit A - the plaintiff’s bundle of maps and
photographs.
[2]
Photos
18 and 19 of Exhibit A.
[3]
The
firebreak can be seen in photo 4 of Exhibit A.
[4]
Section
34 of the Act reads:
(1)
If a person who brings civil proceedings
proves that he or she suffered loss from a veldfire which-
(a)
the defendant caused; or
(b)
started on or spread from land owned by the defendant, the defendant
is presumed to have been negligent in relation to the
veldfire until
the contrary is proved, unless the defendant is a member of a Fire
Protection Association in the area where the
fire occurred.
(2)
The presumption in subsection (1) does not
exempt the plaintiff from the onus of proving that any act or
omission by the defendant
was wrongful."
[5]
Gouda
Boerdery BK v Transnet
2005 (5) SA 490 (SCA).
[6]
West
Rand Estates Ltd v New Zealand Insurance Co Ltd
1925
AD 245
at 253 and 264.
[7]
West
Rand Estates
n 6 above at 253 per Solomon JA.
[8]
Gouda
Boerdery
n 5 above para 9.
[9]
Section
12(1) of the Act reads:
“
Every
owner on whose land a veldfire may start or burn or from whose land
it may spread must prepare and maintain a firebreak
on his or her
side of the boundary between his or her land and any adjoining
land.”
[10]
Gouda
Boerdery
n 5 above para 11.
[11]
Gouda
Boerdery
n 5 above para at 495G.
[12]
Trustees,
Two
Oceans Aquarium Trust v Kantey and Templer (Pty) Ltd
2006 (3) SA 138
(SCA) para
10;
Loureiro and Others v Imvula Quality
Protection (Pty) Ltd
2014 (3) SA
394
(CC) para
54.
[13]
Country
Cloud Trading CC v MEC, Department of Infrastructure Development
2015 (1) SA
1
(CC).
[14]
Country
Cloud
n 13 above para 20.
[15]
Loureiro
n
12 above para 53.
[16]
Le
Roux and Others v Dey (Freedom of Expression Institute and
Restorative Justice Centre as
Amici Curiae)
2011 (3) SA 274
(CC) para 122;
ZA
v Smith and Another
2015 (4) SA 574
(SCA) paras 17-19.
[17]
Administrateur,
Transvaal v Van Der Merwe
[1994] ZASCA 83
;
1994 (4) SA 347
(A) at 361G-H;
Carmichele
v Minister of Safety and Security and Another
[2000] ZASCA 149
;
2001 (1) SA 489
(SCA) para 7.
[18]
See
Van der Walt and Midgley
Principles
of Delict
(3
rd
ed 2005) 85 and the authorities there
collected.
[19]
Section
3(1) of the Act.
[20]
Section
3(2) of the Act.
[21]
Section
17(1) of the Act reads:
“
Readiness
for fire fighting
– (1)
Every owner on whose land a veldfire may start or burn or from whose
land it may spread must-
(a)
have such equipment, protective clothing
and trained personnel for extinguishing fires as are-
(i)
prescribed; or
(ii)
in the absence of prescribed requirements,
reasonably required in the circumstances;
(b)
ensure that in his or her absence
responsible persons are present on or near his or her land who, in
the event of fire, will-
(i)
extinguish the fire or insist in doing so;
and
(ii)
take all reasonable steps to alert the
owners of adjoining land and the relevant fire protection
association, if any.”
[22]
Section
18 of the Act is in these terms:
“
Actions
to fight fires
– (1) Any owner
who has reason to believe that a fire on his or her
land
or the land of an adjoining owner may endanger life, property or the
environment,
must
immediately-
(a)
take all reasonable steps to notify-
(i)
the fire protection officer or, failing
him or her, any member of the executive committee of the fire
protection association,
if one exists for the area; and
(ii)
the owners of adjoining land; and
(b)
do everything in his or her power to stop
the spread of the fire.
(2)
Any person who has reason to believe that
a fire on any land may endanger life, property or the environment,
may, together with
any other person under his or her control, enter
that land or land to which the fire can spread in order to prevent
that fire
from spreading or to extinguish it.
[23]
Administrateur,
Transvaal v Van Der Merwe
n 17 above at 361I-362B; 364D-F.
[24]
Luke
and Mcarthur (eds)
Bushfires
in Australia
(1978).
[25]
Luke
and Mcarthur
op
cit
n 24 above 110-111.
[26]
Capital
and Counties plc v Hampshire County Council and Others; Digital
Equipment Co Ltd v
Hampshire
County Council and Others; John Munro (Acrylics) Ltd v London Fire
and Civil Defence
Authority
and Others; Church of Jesus Christ of Latter Day Saints (Great
Britain) v West Yorkshire Fire
and
Civil Defence Authority
[1997] 2 All
ER 865
at 1043.
[27]
International
Shipping Co (Pty) Ltd v Bentley
1990 (1) SA 680
(A) at 700 E-I; Joubert
et
al
(eds)
The
Law of South Africa
(2
nd
ed 2005) Vol 8 Part 1 p 234 para 129.
[28]
Kruger
v Coetzee
1966 (2) SA 428
(A) and 430E-G
[29]
Van
Der Merwe
n 17 above at 364G;
[30]
Cape
Town Municipality v Bakkerud
2000 (3) SA 1049
(SCA) para 9.
[31]
Section
3(1)
of the
Law of Evidence Amendment Act reads
inter-alia as
follows:
“
Subject
to the provisions of any other law, hearsay evidence shall not be
admitted as evidence at criminal or civil proceedings,
unless –
(a)
each party against whom the evidence is to
be adduced agrees to the admission thereof as evidence at such
proceedings;
(b)
the person upon whose credibility the
probative value of such evidence depends, himself testifies sat such
proceedings; or
(c)
the court having regard to –
(i)
the nature of the proceedings;
(ii)
the nature of the evidence;
(iii)
the purpose for which the evidence is
tendered;
(iv)
the probative value of the evidence;
(v)
the reason why the evidence is not given
by the person upon whose credibility the probative value of such
evidence depends;
(vi)
any prejudice to a party which the
admission of such evidence might entail; and
(vii)
any other factor which should in the
opinion of the court be taken into account,
is
of the opinion that such evidence should be admitted in the
interests of justice.
[32]
S
v Ndhlovu and Others
2002 (6) SA 305
(SCA) at 316C-D.
[33]
Ndhlovu
n
32 above para 16.
[34]
The
South African Law of Evidence
(formerly Hoffmann and Zeffertt) (2
nd
ed 2009).
[35]
Hoffman
and Zeffert
op
cit
n 34 above 401.
[36]
Note
32 above para 45.
[37]
Ndhlovu
n
32 above para 45.
[38]
S
v Mngomezulu
1972 (1) SA 797
(A) at 798H-799A.