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[2014] ZAGPJHC 341
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Heine v Prescor 183 CC and Others (25232/2012) [2014] ZAGPJHC 341 (8 July 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE SOUTH
GAUTENG HIGH COURT
JOHANNESBURG
(REPUBLIC OF
SOUTH AFRICA)
CASE
NO: 25232/2012
DATE:
08 JULY 2014
In the matter
between:
In the matter
between
BARRY BRUCE
HEINE
....................................................................
Plaintiff
And
PRESCOR 183 CC,
REGISTRATION
NUMBER: 2004/ 041291/ 23
.......................
1st
Defendant
HAMILTON GEORGE
ESTEVES VIEIRA
...........................
2nd
Defendant
TANYA ANNE
VIEIRA
..........................................................
3rd
Defendant
J U D G M E N T
VILAKAZI, AJ:
1. Plaintiff
instituted action against the First to Third Defendants for damages
he sustained when a fire which started on First
to Third Defendants
property and spread over the common boundary on to the Plaintiff’s
property causing damage to the Plaintiff’s
property.
2. Plaintiff is the
registered owner of Portion 100 of the farm Alewynspoort 145 in the
district of Johannesburg, Gauteng. The extent
of the property is 10
hectares.
2.1. First Defendant
is the registered owner of the Remaining Extent of Portion 52 of the
farm Alewynspoort 145, which adjoins the
Plaintiff’s property.
Second to Third Defendants are the members of the First Defendant.
The extent of the property is 4,137
hectares.
3. On 19th May 2012,
at about 13H30, a fire was observed on the "service road”,
known as Saddle road. Fanned by a strong
westerly wind, the fire
progressed in a north westerly direction from the service road. From
there it spread rapidly from First
Defendant’s property and
entered Plaintiff’s property. The cause of the fire was not
established.
4. The First
Defendant’s property is uncultivated, unoccupied and covered
with wild grass, kakibos and weeds.
5. Plaintiff alleges
that he suffered damages in the sum of R177 047.15 as a result of the
fire, which he also alleges to have been
due to the negligence of the
Defendants.
6. In terms of the
pre-trial minutes concluded by the parties on 7 October 2013, the
matter is to proceed both on merits and quantum.
PLAINTIFF’S
CASE
7. It is the
Plaintiff's case that the damage it had suffered was caused by the
negligence of the First Defendant, Second and or
Third Defendant,
more particularly-
7.1. failure of the
First Defendant to prepare and maintain an adequate fire break on the
First Defendant’s property;
7.2. failure of
First Defendant to have adequate and effective fire fighting
equipment, readily available to destroy the fire, that
started on the
First Defendant’s property;
7.3. failure of
First Defendant to employ the necessary staff, representatives or
employees, duly trained to combat and extinguish
the fire;
7.4. failure of the
First Defendant to employ a responsible person to be present on the
land, with responsibility to effectively
manage and or extinguish any
fire, that may occur on the First Defendant’s property;
7.5. failure of
First Defendant to take reasonable steps to inform land owners of the
adjoining properties,
7.6. failure of the
First Defendant to inform Plaintiff and or relevant authorities of
the existence of fire;
7.7. it is pleaded
in the alternative that failure of the First Defendant to act with
care and failure of the First Defendant to
take reasonable measures
to prevent the fire from spreading into Plaintiff’s property
and failure of the First Defendant
to control and extinguish the fire
burning on the First Defendant’s property;
7.8. failure of the
Second and Third Defendants in their capacities as members of the
First Defendant to prepare and maintain an
adequate fire break on the
First Defendant’s property;
7.9. failure of
Second and Third Defendant to have adequate and effective fire
fighting equipment readily available to destroy the
fire that started
on First Defendant’s property;
8. In the
alternative Plaintiff alleges that Second and Third Defendant jointly
and severally had a legal duty acting as representatives
of the First
Defendant and their failure to act with due care particularly with;
8.1. their failure
to take reasonable measures to prevent and extinguish fire from
spreading onto the Plaintiff’s property;
8.1.1. failure to
take reasonable measures to control and extinguish fire burning on
the First Defendant’s property;
8.1.2. failure to
take reasonable measures to prepare and maintain adequate fire- break
on the First Defendant’s property;
8.1.3. failure to
take reasonable measures to have adequate and effective fire fighting
equipment, readily available to destroy
fire that started on the
First Defendant’s property;
8.1.4. failure to
take reasonable measures to have adequate and effective fire fighting
equipment readily available to destroy the
fire that started on the
First Defendant’s property;
8.1.5. failure to
take reasonable measures to employ staff duly trained to combat and
extinguish the fire;
8.1.6. failure to
take reasonable measures to employ a responsible person to be present
on the property with responsibility to manage/
extinguish any fire
that may occur on the First Defendant’s property;
8.1.7. failure to
take reasonable steps to inform land owner of the adjoining
properties and Plaintiff or relevant authorities of
the existence of
fire;
8.1.8. failure to
reasonably foresee Plaintiff’s damages and despite
foreseeability, failed or neglected to act.
FIRST TO THIRD
DEFENDANTS CASE
9. The Defendants
denied that they were negligent. They alleged that the fire started
on the Plaintiff’s property, alternatively
on the road reserve
on the south western boundary adjoining the Plaintiff’s
property and Duiker road and spread therefrom
to the Plaintiff’s
property. The cause of fire is unknown.
9.1. The Defendants
pleaded in the alternative that should it be found that the fire
destroyed Plaintiff’s property and that
they were negligent,
they denied that such negligence was the cause of damage to the
Plaintiff’s property and that the Plaintiff’s
property
was damaged or destroyed as a result of the negligence of the
Plaintiff for :
9.1.1. failure to
take reasonable measures to prevent the fire starting on his
property;
9.1.2. failure to
take reasonable measures to control and extinguish the fire burning
on his property;
9.1.3. failure to
prepare and maintain an adequate fire- break on the plaintiff’s
property to ensure that the fire did not
spread from the road reserve
onto the plaintiff’s property;
9.1.4. failure to
house the alleged damaged goods in proper facilities thus protecting
them from the risk;
9.1.5. failure to
have adequate and effective fire fighting equipment readily available
to destroy the fire;
9.1.6. failure to
employ necessary staff which are trained to combat and extinguish
fire;
9.1.7. failure to
employ responsible person to be present on Plaintiff’s land
with the responsibility to effectively manage
and extinguish the
fire;
9.1.8. failure to
take reasonable steps to inform the relevant authorities of the
existence of fire, alternatively the risk of
fire starting and
spreading from the road reserve onto Plaintiff’s property;
9.1.9. the
Defendants admitted that they are not members of the fire protection
association.
10. In the
alternative, the Second and Third Defendants alleged that do not in
law, have a duty of care as alleged nor can they
be jointly and
severally liable.
11. In the course of
trial, the Defendants amended their Plea and alleged that on 19 May
2012, the fire started on Plaintiff’s
property alternatively on
the road reserve on the south western boundary adjoining Plaintiff’s
property and Duiker road (R550)
and spread there from to Plaintiff’s
property.
THE EVIDENCE
13. Mr Barry Bruce
Heine, the Plaintiff testified that when he was notified of the fire
at 13H15, he was in Frankfort which is approximately
170 kilometres
drive away from his farm. Immediately thereafter he telephoned his
farm manager, Mr Pretorius and informed him of
a veld fire. The said
Mr Pretorius responded that he was aware of this fire and had
summoned Plaintiff’s workers to extinguish
the fire. On his
arrival at the farm he discovered that the bales of grass, namely,
teff, smuts finger, erogrostis, storage tanks,
barbed wire, fire
beaters, plastic pipes, bee hives and various farming equipments were
burnt and destroyed.
14. Mr Heine further
testified that all the bales of grass as claimed were stored along
the tree line (approximately 15 metres wide)
along the upper portion
of his farm which was indicated on Exhibit “DC3” along
north eastern line. The aforesaid bale
of grass was stored outside
along the tree line since January 2012 to date of fire.
15. He further
testified that he regarded the fire-break in his property to be
adequate and in good condition at the time of fire.
On his boundary
wall, is 15 meters of blue gum trees, which provided a “natural
firebreak, a sand road of approximately 5
meters in width and a
disked road approximately 4 meters wide, giving a total width of
approximately 24 meters of firebreak. He
also maintains fire- break
around his property. He has adequate fire fighting equipment kept at
his farm such as hessian bags,
20 litre containers , a 40 000 litre
reservoir tank, a cannon spray and fire beaters.
16. Under cross
examination, Plaintiff denied that the blue gum trees and veld grass
along his boundary which was 1.2 metre high
is combustible. He
further denied that the tall grass and blue gum trees fuelled the
fire. According to him the blue gum trees,
approximately 40 trees,
act as a natural firebreak. He denied that he negligent by failing to
store the bales of grass in storage
facilities post harvesting
period, and keeping them in the open along the tree line instead. He
conceded that the portion directly
above his blue gum tree line
(North eastern point of Exhibit DC3) did not have a firebreak. His
staff members are not trained in
fire fighting.
17. Ms Amy Ullyett,
a neighbour, testified for the Plaintiff. Her property is situated on
top, on the north eastern direction of
Plaintiff’s property as
depicted on Exhibit “DC3” She testified that during lunch
time, she was in her house
in the kitchen and noticed the smoke at
the back of her stables. She noticed flames approximately the height
of her stables, approximately
2.8 meters. Her observation was that
the fire came from the north western side of the road which is
referred to as the service
road, also known as Saddle road. At that
stage the fire had become uncontrollable. Her weathervane showed a
westerly wind. The
fire spread quickly from the First Defendant’s
property onto her property and then across to Plaintiff’s
property.
The fire was fanned by a strong wind blowing at a speed of
30 to 40 kilometres per hour.
18. She further
testified that she saw Plaintiff’s workers extinguishing the
fire, by spraying water, had buckets of water
and connected
irrigation pipes.
19. According to her
the fire was unstoppable, due to the strong wind. Within 10-15
minutes the fire had passed. There was no firebreak
between her
boundary adjoining the First defendant’s property.
20. Mr Jan Abram
Pretorius was in the Plaintiff’s employ during 2012 and lives
on Plaintiff’s farm. He was a farm manager
employed by
Plaintiff. He was in the house when he received a telephone call from
Plaintiff at about 13H00 who informed him that
there was a fire. At
that point in time he was aware of the fire.
21. He further
testified that Mr Naicker and his 3 workers, Mr Da Silva and two
employees of the Plaintiff used irrigation pipes,
utilised 40 000
litres of the water from the reservoir and fire beaters to extinguish
the fire. He tried with his workers to roll
away the bales of grass
to save them from the fire but due to the strong wind they could not
contain the fire. He explained that
the bales of grass weigh
approximately 450 kilograms and 1.2 meter in diameter. It took
approximately 15 minutes for the fire to
spread across both portions
of Amy Ullyett, First Defendant's property and Plaintiff’s
property, as the fire was fanned by
a strong wind. He explained that
nobody could have stopped the fire. He testified that he observed
that the fire came from north
western direction from the First
Defendant’s property over the property of Ms Ullyett and then
across to Plaintiff’s
property.
22. He further
testified that First Defendant did not have firebreaks on May 2012 on
his boundary adjoining Plaintiff’s property.
23. Under cross-
examination Mr Pretorius testified that he saw the fire spread from
First Defendant’s property. The Second
Defendant came after the
fire spread. According to him, the blue gum trees on Plaintiff’s
property function as a “natural
fire- break”. He denied
that they did not utilise the fire beaters to put out the fire, but
were forced to abandon them
due to the smoke inhalation which was
unbearable.
24. The Plaintiff
thereafter called Mr James Gray, who was the chairman of MidVaal Fire
Protection Association. According to the
guidelines of the
association, a firebreak must be at least 5 metres wide` on either
side of the owner’s boundary. The firebreak
must be maintained
every year. The firebreak must be free from non- combustible
material. The size of the firebreak will however
depend on the nature
of vegetation sought to be protected.
25. He further
testified that the Plaintiff is a member of Fire Protection
Association, but had not attended the training.
EVIDENCE BY FIRST
TO THIRD DEFENDANTS
26. Mr Vieira
testified on behalf of the First Defendant. He is the Second
Defendant in this matter. He testified that the property
on which
Plaintiff alleges that the fire originated on 19 May 2012 belongs to
the First Defendant and was acquired in 2009. He
bought the property
in order to develop it. The property is unoccupied, uncultivated, has
weeds, grass and kakibos.
27. He further
testified that at about 14h15 he was telephonically advised by
Plaintiff that his bales of grass were burnt and he
wanted
compensation. At that point in time he was at his home in Glenvista,
which is a drive-away of approximately 20 kilometres.
He immediately
rushed to Plaintiff’s property and arrived at 14H40. He
explained that there was nothing that he could do
or could have done
as the fire had passed. On his arrival at the scene, which is
adjoining Plaintiff’s property he saw the
blue gum tree line of
Plaintiff engulfed in smoke. In support of his testimony, he tendered
photographs and video clips depicting
the scene of damage. The bale
of grass of Plaintiff was stored underneath the blue gum tree line.
28. He further
testified that due to saddle road being a firebreak in itself, there
was no need for a firebreak between his boundary
and Plaintiff’s
boundary (Exhibits “DP16”and “OD15”).
29. Under cross-
examination, Mr Vieira conceded that he did not have fire fighting
equipment and personnel available on this vacant
land. He did not
mobilise resources to assist to extinguish the fire. He did not
inform landowners of adjoining properties of the
existence of the
veldfire. The costs are prohibitive to keep personnel and fire
fighting equipment on his land.
30. The issues to be
determined in this matter are whether the fire was indeed a veldfire
and whether the fire was caused by the
First Defendant, spread from
the First Defendant’s property or started on the First
Defendant’s property.
31. The Plaintiff’s
claim against the Defendants is a delictual one and for the Plaintiff
to succeed in his claim he must
show that the Defendants' wrongful
and culpable conduct caused its damages. In other words, the
Plaintiff must establish a conduct
(either in the form of an act or
omission), fault (either negligent or intentional) on the part of the
Defendants, that it has
suffered harm or loss and that there is a
causal connection between the Defendants' conduct and the harm or
loss suffered. (See
HL & Timber Products (Pty) Ltd v SAPPI
Manufacturing (Pty) Ltd 2001(4) SA 814 (SCA) at 820E-G).
32. In terms of
section 34 of the Act, the Defendant is presumed (until the contrary
is proved) to have been negligent in relating
to a veldfire if the
Plaintiff proves a loss suffered as a result of a veldfire, caused by
the Defendant. It is common cause in
this instant matter the
Defendants were not members of the fire fighting association and
therefore section 34 is applicable. This
section provides that:
"If a person
who brings civil proceedings proves that he or she suffered loss from
a veld fire 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".
32.1 The presumption
in subsection (1) does not exempt the Plaintiff from the onus of
proving that any act or omission of the Defendant
was wrongful.
33. It was argued by
Mr Kloek, appearing for the Plaintiff that the grammatical meaning of
“veldfire” for the purposes
of the Act must be determined
with reference to the word “veld” That term conveys the
idea of an area covered with
grass of considerable extent and in its
original rough state. (see West Rand Estates Ltd v New Zealand
Insurance Co Ltd
1925 AD 245
at 253).
34. The evidence by
Mr Vieira makes it clear that the First Defendant’s property is
uncultivated, unoccupied and covered with
wild grass, kakibos and
weeds. In my view the fire in question was a veld fire within the
meaning of section 2 of the Act.
35. It was in
dispute as to who caused the fire or where the fire did start or
where did the fire spread from. This matter raises
question of
liability in delict for so called pure economic loss resulting from
the ignition and spread of the fire to the neighbouring
properties.
In order to succeed the Plaintiff must establish first, that the
omissions complained of were wrongful, secondly, that
they were
negligent and thirdly that those omissions were causally connected to
the loss suffered by them. (Local Transitional
Council of Delmas v
Boshoff
2005 (5) SA 514
(SCA) para 23).
36. It was Mr Vieira
evidence that the portion of the First Defendant's land were both Mrs
Ullyett and Mr Pretorius indicated the
fire came from appeared to be
unburnt ("Exhibit DE5"). This according to him suggested
that the fire may have started
and or spread either from the
Plaintiff's property alternatively, the road reserve.
37. It was Mrs
Ullyett's evidence that the fire came from the north western side,
the road which is known as Saddle Street. There
was westerly wind
which she noticed when she looked at the weathervane. Her evidence
was not attacked that the fire spread quickly
from the First
Defendant’s property onto her property and then across to
Plaintiff’s property. The fire was fanned
by a strong wind
blowing at a speed of 30 to 40 kilometres per hour.
38. I accept the
evidence of Mrs Ullyett on the fire spread as reliable and credible.
39. In the
circumstances I find that the Plaintiff's version that the fire
spread from the First Defendant's property onto his property.
40. The next
question is whether the Defendants were negligent. In this regard it
was the Plaintiff’s contention that the
Defendants negligence
was in their failure, to prepare and maintain firebreak on its side
of the common boundary between his property,
to provide adequate and
effective fire fighting equipment readily available to extinguish
fire and to employ a responsible person
to be present to effectively
manage and or extinguish fire and trained personnel to extinguish
fire that may occur on First Defendant’s
property.
41. It was common
cause between the parties that the cause of the fire was not
established and that the Defendants were not members
of a fire
protection association. In the circumstances the provisions of the
Act are applicable. The relevant provisions are contained
in sections
2, 12, 13, 17 and 34 of the Act. Section 12 (1) of the Act provides:
“Every owner
on whose land a veldfire may start or burn or from whose land it
started may spread must prepare and maintain
a firebreak on his or
her side of the boundary and any adjoining land”
42. In terms of s13
of the Act the firebreak must be wide enough and long enough to have
a reasonable chance of preventing a veld
fire from spreading to or
from neighbouring land. The size of the fire breaks required to be
prepared and maintained is, however
not defined. Section 17 of the
Act requires the owner on whose land a veld fire may start or burn
from to have prescribed or reasonable
equipment, protective clothing
and trained personnel for extinguishing fires.
43. It was submitted
by Ms Maschwitz that the evidence show that First Defendant's
property is vacant, and unoccupied and that it
cannot reasonably be
expected of the First Defendant to employ staff for the purpose of
complying with the Act. Mr Vieira testified
that it is not reasonable
under the circumstances to have fire fighting equipment available on
the First Defendant's property.
It was further submitted that the
Plaintiff in failing to inform the Defendants of the existence of the
fire precluded them from
being able to act accordingly.
44. In my view the
submission by Ms Maschwitz cannot be accepted. I found this
contention untenable. It is not a correct reflection
of the law
regarding their liability of the landowner created by section 17 (1)
and 17 (2) of the Act. It had been decided by our
courts that
landowner in our law is under a duty control or extinguish a fire
burning on his or her land. See in this regard Minister
of Forestry v
Quathlamba (Pty) Ltd
1973 (3) SA 69
(A), where Ogilve Thompson CJ
said the following at 81G-82A.
"Once such an
owner or occupier (hereinafter for convenience referred to as a
landowner) as is mentioned in the preceding paragraph
becomes aware
that the fire has broken out or spread on to his property, and he
foresees or ought reasonably to have foreseen,
the likelihood that,
if not controlled or extinguished, it might spread to and cause
damage to or on another's property, I am,
for reasons which follow,
firmly of the opinion that our law requires him, with such means as
are at his disposal, to take reasonable
steps to control or
extinguish the fire. For, under such circumstances, "the duty to
take care" mentioned in Paine's
case, supra, is, in my view,
established. Purely as a matter of language, it is no doubt correct
to say that where the landowner
bears no responsibility for the
origin of a fire which is burning on his property, his failure to
take steps to endeavour to control
or extinguish it is an "omission"
which is not "connected with prior conduct". To relive such
a landowner of
all legal liability, solely on that ground would,
however, in my opinion, be to ignore both practical realities and
what I conceive
to be our law. For, in the circumstances postulated
above, the law, in my opinion, imposes a duly upon the landowner to
take, within
the range of his capacities, reasonable steps to control
or extinguish a fire liable to cause damage to another"
45. The main
argument advanced on behalf of the Plaintiff was that the First
Defendant to Third Defendant ought to have established
and maintained
adequate firebreaks on its side of the common boundary and that had
it done so, the fire would not have spread.
Thereafter the onus rests
upon the First to Third Defendant to show that” the fire could
not by reasonable means and measures
have been prevented beyond the
boundaries of its property, thereby occasioning harm to the
Plaintiff. Mr Vieira testified that
due to saddle road being a
firebreak in itself, there was no need for a firebreak on that
portion of the first defendant’s
property. This is so because
the Act does not create strict liability. (See Minister of Forestry v
Quathlamba
1973 (3) SA 69
(A) at 83G).Mr Vieira testified that it was
way beyond his resources and unreasonable under the circumstances to
employ a 24 hour
staff and to house fire fighting equipment, given
the fact that First Defendant’s property is a vacant piece of
land. I now
turn to consider whether there was any negligence proved
on the part of the First to the Third Defendant. Ms Maschwitz
submitted
that First to Third Defendants did not act negligently. In
the alternatively she submitted that in the event that the court
finds
that the First to Third Defendants were negligent then in that
event of damage was caused by Plaintiff's failure to prepare maintain
an adequate firebreak on the Plaintiff's property to ensure that the
fire did not spread from the road reserve onto the Plaintiff's
property.
46. In response Ms
Maschwitz submitted that despite the fact that the Act places certain
duties on the owner of the land, failure
by the Defendants to comply
with such duties does not render them negligent. Even with Plaintiff
24 metre firebreak the fire burnt
the entire portion of the boundary
of the Plaintiff's property and the bottom portion thereof ("Exhibit
DC3"). She further
submitted under these circumstances, a
reasonable person would not have foreseen possibility of harm and a
reasonable person in
the Defendants position could not have done
anything more.
47. I reject Ms
Maschwitz's contention. The Defendants were aware that their land was
uncultivated and that in the event of the
fire it could create risk.
48. I disagree with
the suggestion that the failure of First to Third Defendants to keep
and maintain firebreaks and to provide
adequate fire fighting
equipment would have had no effect on the spread of the fire. The
presence of the firebreak would have served
an important function to
prevent the fire spread. The fact that there is a road between First
Defendant's property and the Plaintiff's
property does not relieve
the First to Third Defendants from their statutory obligation as a
landowners in terms of s12(1) of the
Act
49. In my view the
lack of a firebreak on the First Defendant's side common boundary was
a major factor in the spread of the fire
across the boundary into the
Plaintiff's property. The firebreak would have assisted in retarding
the spread of the fire, thereby
making it easier to contain it. Mrs
Ullyett and Mr Pretorius were in a better position to observe the
cause and extent of the fire
than Mr Vieira.
50. What we do know,
as Mr Kloek pointed out that the grass where the fire raged, was long
and dry. No precautionary measures had
been taken to prevent the fire
that arose on the First Defendant's property from spreading to that
of its neighbours. In all circumstances
I cannot find that First to
Third Defendants rebutted the presumption of negligence.
NEGLIGENCE OF THE
PLAINTIFF
51. I now turn to
consider whether the Plaintiff was negligent in relation to the
extent of its damages. Mr Vieira on behalf of
the First Defendant
testified that the Plaintiff was negligent in relation to the fire in
that he failed to store the alleged damaged
goods in proper
facilities to protect the goods from the risk of fire. He also stated
the Plaintiff was negligent by allowing the
bale of grass stored
underneath the tree line along the portion of the Plaintiff's
property which had no firebreak. The test of
negligence is that a
reasonable person in the position of the Plaintiff would have
foreseen the reasonable possibility of his conduct
causing him
patrimonial loss and what reasonable steps would he have taken to
prevent or to guard against such loss.
52. According to
Holmes JA in Kruger v Coetzee
1966 (2) SA 428
(AD) at 430E:
"For the
purposes of liability culpa arises if—
a) a diligens
paterfamilias in the position of the Defendant—
i. would foresee the
reasonable possibility of his conduct injuring another in his person
or property and causing him patrimonial
loss; and
ii. would take
reasonable steps to guard against such occurrence….
b) The Defendant
failed to take such steps"
53. It was
Plaintiff's evidence that he stacked the bales of the grass under or
along the boundary fence of his property which had
no firebreaks in
January 2012. Mr Pretorius confirmed that the grass along the
Plaintiff's tree line had dry leaves, twigs and
wild grass which were
1.2 metre long. The Plaintiff proffered no plausible explanation as
to why he did not store these valuable
assets in proper storage
facilities which were in any event available.
54. It was contended
that the Plaintiff's standard was not that of a reasonable farmer and
in circumstances he was negligent in
failing to keep the alleged
goods in proper facilities.
55. I agree the
Plaintiff has not behaved in accordance with the test as laid out in
Kruger v Coetzee (supra). Stacking of the bales
of grass along the
tree line was worst risk imaginable. Stacking bales of grass which
weighed 4.5 kilogram was not just ill-advised
but plain reckless.
QUANTUM
56. It is trite that
the Plaintiff bore the onus to prove his damages. The Plaintiff
called as an expert, Mr Aubrey Delport, a branch
manager in the
employ of Senwes village, Vereeniging branch. He expressed the view
that prices quoted by Mr Steyn, his subordinate
on 6 June 2012 were
fair and reasonable (Annexure X2). According to Mr Delport, he is
opinion that the prices quoted are market
related and that general
selling price is determined by the public market and the general
prices throughout the district among
people who deal in the
particular commodity.
57. It is common
cause that jakkals draad, (27 in quantity) creosout hout droppers
(351 in quantity) 2 vertical water storage tank
and 6 plastic pipes
(in total of 300 in quantity) the replacement value thereof is R29
984.35. These goods were destroyed and rendered
useless. The
Plaintiff in cross-examination confirmed that the areforementioned
items were destroyed and had no residual value.
58. It was submitted
on behalf of the Defendants that should Honourable court find that
the Plaintiff proved the alleged damages
as presented in the quote,
then it is submitted that the quote represents a replacement value as
at the time of damage (new item
quoted) as opposed to what the actual
value of the goods were at the time of damage.
59. I am satisfied
that Plaintiff has presented reliable and acceptable evidence and
consequently he has proven his damages.
60. The Plaintiff
testified that the bauer hose was destroyed by the fire and in
support of his damages he presented a quotation
from Senwes Village.
It was submitted on behalf of the Defendants that Plaintiff has
failed to prove his damages in relation to
the bauer hose and neither
can the Plaintiff justify or prove the quantum thereof. I am of the
view that this quotation furnished
by the Plaintiff in Annexure "X1"
is hearsay and non-existent.
61. The claim of
damages in the amount of R10 098.00 in respect of the beehives was
however abandoned during trial.
62. In the
circumstances I shall give judgement against the Defendants jointly
and severally, the one paying the other to be absolved
as claimed by
the Plaintiff.
ORDER
63. I make the
following order:
63.1 The Defendants
are ordered to pay the Plaintiff damages in the sum of R29 984.35
(twenty nine thousand nine hundred and eighty
four rand and thirty
five cents)
63.2 The Defendants
must pay the Plaintiff's cost of suit, taxed on the appropriate
magistrate court scale including the cost of
counsel.
T. D. VILAKAZI
ACTING JUDGE OF
THE SOUTH GAUTENG
HIGH COURT,
JOHANNESBURG
APPEARANCES :
FOR PLAINTIFF :
ADV J W KLOEK
INSTRUCTED BY :
CCM ATTORNEYS INC
FOR
DEFENDANTS : ADV M MASCHWITZ
INSTRUCTED BY :
TIEFENTHALER ATTORNEYS
DATE OF HEARING :
29, 30, 31 OCTOBER 2013 AND 5 NOVEMBER 2013
DATE OF
JUDGMENT : 8 JULY 2014