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[2011] ZAGPPHC 139
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Prime Invest 253 (Pty) Ltd and Others v 114-11th Road Kew (Pty) Ltd and Others (57426/2009) [2011] ZAGPPHC 139 (27 July 2011)
NOT
REPORTABLE
NORTH
GAUTENG HIGH COURT,
PRETORIA
,REPUBLIC OF SOUTH AFRICA)
CASE
NO:57426/2009
DATE:27/07/2011
In
the matter between:
PRIME
INVEST 253 (PTY)
LTD
.................................................................................
1st
Plaintiff
GINGER
STEVENS (PTY)
LTD
................................................................................
2nd
Plaintiff
GRAHAM
WESLEY
STEVENS
................................................................................
3rd
Plaintiff
CHAIRMATE
(PTY)
LTD
..............................................................................................
4th
Plaintiff
And
114-11™
ROAD KEW (PTY)
LTD
..........................................................................
1st
Defendant
COUGAR
TAR MAINTENANCE (PTY)
LTD
.........................................................
2nd
Defendant
KEITH
DU
TOIT
.........................................................................................................
3rd
Defendant
CONTOOL
&
MACHINERY
......................................................................................
4th
Defendant
CON-TOOL
& MACHINERY
(PTY)
..........................................................................
5th
Defendant
BLACK
ROOTES (PTY)
LTD
...................................................................................
6th
Defendant
ARTICULATED
STRUCTURES (PTY)
LTD
..........................................................
7th
Defendant
KWAGGA
ROADS CONSTRUCTION
AND
..........................................................
8th
Defendant
MAINTENANCE (PTY) LTD
MR
MAJOLA
.............................................................................................................
9th
Defendant
MATOJANE
J
[1]
First plaintiff and first defendant are owners of adjoining factory
premises situated at 114-llth Road Kew, Wynberg, Johannesburg.
On the
8 October 2008 a fire that started at the factory premises of the
first defendant spread to the first plaintiff's factory
premises and
destroyed the factory and also damaged the contents of the factory
that belonged to the second to fourth plaintiffs.
[2]
Second to fourth plaintiffs were tenants in the factory premises
owned by the first plaintiff. The premises of the first defendant
was
occupied on 8 October 2006 by second defendant, fifth defendant and
such of the employees of the first defendant as may have
been
present.
[3]
Claiming that the start of the fire and spreading thereof to the
plaintiff's property and the destruction of the plaintiff's
property
had been unlawfully and negligently started by one or more of the
defendant's or their servants (acting as such). First
plaintiff sued
the defendants for the payment of the sum of R879 906.67 being the
reasonable costs of labour and material to reinstate
the factory
building to its pre-damaged condition. Second plaintiff claimed
payment for the sum of R2 091 925.60, this allegedly
represented the
reasonable value of the plant, machinery and items in the building
and costs incurred as a result of the business
interruption. Third
plaintiff claimed payment in the amount of R213 444.50 and fourth
plaintiff claimed payment of R234 558.34
being damages they allegedly
suffered as a result of the fire.
[4]
The court ordered in terms of Court Rule 34(4) that the issue of
quantum of the plaintiffs claims be dealt with separately,
and be
postponed sine die, and that at this trial all the other issues as
pleaded in the pleadings be dealt with.
[5]
The plaintiffs case is that one or more or all of the defendants were
causally negligent in relation to the loss suffered by
the
plaintiffs, and that their conduct was unlawful. It is contended that
first defendant who was the owner of the factory building
failed to
take reasonable precautions to guard against the fire starting on
first defendant's property, by failing to conduct mixing
operations
of flammable liquids in a safe area, by failing to ensure that the
properties were properly equipped with fire prevention
measures which
would have prevented the spread of the fire to plaintiff's property
and also by failing to comply with certain statutory
requirements in
respect of fire safety in terms of the National Building Regulations
and or the Local Authority By-Laws, by conducting
a high risk
industrial mixing operation on the outside of the building, by
keeping of quantities of flammable and combustible liquids
exceeding
the limitations imposed by law, by failing to comply with the
requirement of bunding and that this failure caused or
contributed to
the start and spread of the fire. It is further contended that second
defendant and third defendant, had employees
on the factory premises
who worked over the weekend without proper supervision and that one
of those employees caused the fire
when he lit a cigarette during an
illegal and highly dangerous production process which was being
conducted on first defendant's
premises.
[6]
The plaintiffs called four witnesses in support of their case. The
defendants closed their cases without testifying. The first
witness
to testify was Mr. Jorge Roderiques, a tenant at the property of
first defendant at the time of the fire. He said that
Mr. Keith du
Toit (third defendant) was in charge of and represented first
defendant when his business, African Timber King concluded
a lease
agreement with first defendant. He testified that third defendant,
Keith du Toit was visibly in charge of first and second
defendant and
was on the premises on a daily basis.
[7]
Roderiques testified that Keith du Toit was involved in the
production process in the premises wherein a black tar like substance
was heated and mixed with benzene, which was added to thin the tar,
and stored in drums, and then sold. Keith du Toit told him
about the
details of the production process that he witnessed. The production
process was conducted in an open space in the yard.
He told him that
he could not keep up with the demand for the product. Employees were
working over the weekend to meet the demand.
Prior to signing the
lease, he raised his concern about the bitumen in the premises and Du
Toit told him that the Municipality
had informed him that the
operation was illegal on the premises and that he had to move it to
this other land he had purchased
for this purpose. It was on this
understanding that he signed the lease agreement.
[8]
On his arrival on the scene after he was informed of the fire, he
stated that "the bitumen was not burning that bad but
my timber
was up in flames, it was totally gone and when I asked Keith du Toit
what had happened, he basically told me that one
of his guys was busy
decanting benzene into one of those smaller containers with a
cigarette in his mouth and essentially that
is how the fire started".
He saw the fire brigade using foam on the Ginger Stevens fire and
water on his burning timber and
that the bitumen was no longer
burning at that time. During cross examination it was put to
Roderiques that Du Toit will deny that
he told him that his operation
was illegal and that Roderiques understanding of the process was
flawed and incorrect as the substance
used was 'solumix' not benzene.
[9]
The second witness to testify was Dr Phillip de Vos, a civil engineer
who specializes in structural stability of buildings during
a fire
and the analyses and assessment of that. He is qualified to express
an opinion about fire safety in buildings, statutory
requirements for
fire safety in buildings, fire risk management and related matters.
He testified that he was instructed by a loss
adjuster to assess
compliance with statutory requirements regarding fire safety, and the
effect of possible non-compliance on the
origin and spread of the
fire. He was met on site by Mr. Gavin du Toit who took him through
the site, and explained to him the
processes that occurred there.
Gavin du Toit explained to him the exact quantum and the temperatures
at which the elements were
mixed and what the altitude gas was used
for. It was obvious to him that there had been a significant fire and
that there was a
process being conducted with a forklift standing
with a mixing drum still elevated. He could see that there were a lot
of drums
that had ruptured and others were still undamaged with the
flammable warning stickers on them. He knew that the drums could not
have been empty, because if they had contained air only, there would
not have been a fire.
[10]
Dr de Vos testified that there was no compliance with statutory
requirements relating to the mixing operation of combustible
and
flammable materials on the outside, which should have been inside of
a building. There were no fire resistant walls and bunding
and too
high volume of flammable and combustible liquids were kept on the
premises. He found that the non-compliance with statutory
requirements and the nature of the operation led to the hazardous
conditions on the first defendant's premises, which led to the
spread
of the fire to neighbouring premises. It was put to Dr de Vos that
the actions of the fire brigade who attempted to extinguish
a
chemical fire with water caused its lateral spread into the
plaintiff's premises, de Vos rejected the supposition and reiterated
correctly, in my view, that all what Roderiques said in his testimony
was that he had only seen water being used on his timber.
It was also
put to Dr de Vos that his interpretation of the By-Laws was wrong and
that his opinion is based on an incorrect interpretation
of the law
in that the rules that Dr de Vos said were not complied with did not
have the power of law since they were not Building
Regulations but
only "deemed-to-satisfy rules".
[11]
Ms. Anina Burger, an independent fire investigator employed by CSIR
conducted an investigation at the premises about five days
after the
fire. She found that based on the fire movement and fire intensity
pattern, the fire spread from first defendant's property
to the
property of first plaintiff. She explained that the tarlike
substance, which was deposited on the adjacent building of the
second
plaintiff, came from the drums on first defendant's property from
which tar was propelled from the drums during the fire.
She testified
that some of the drums exploded, became airborne and landed on the
roofs of neighbouring properties. She observed
lines of demarcation
on a number of drums, which meant that the drums had liquid inside
when they exploded and other drums had
been full. She was adamant
that the spread of the fire from the one premises to the other could
have been prevented had reasonable
fire prevention standards been
complied with. In her opinion, the fire patterns on the separating
wall between the open yard and
the plaintiff's premises excluded the
possibility of the actions of the fire brigade causing the spread of
the fire to plaintiff's
premises.
[12]
Mr. Fouche was the last witness to testify. He was employed by Mutual
and Federal insurance at the time as an investigator.
He testified
that he could not succeed in obtaining statements from witnesses on
the defendant's property as Mr. Keith du Toit
refused him access to
any witness in the premises to establish what happened there. It was
put to him that du Toit will say that
he had never seen him before.
[13]
The defendant's counsel, in his heads of argument raised the point in
limine that, firstly, De Vos conclusions are based on
inadmissible
hearsay evidence, given to him by Gavin du Toit. It must be mentioned
that counsel did not object when De Vos tendered
evidence of the
statement made to him by Gavin du Toit about the production process
conducted on the premises. Importantly, De
Vos testified that when he
walked on the premises he knew from his experience and training and
from what he saw from the remaining
debris, that there had been a lot
of combustibles on the premises prior to the fire and there were
significant breaches of the
By-Laws and safety rules in terms of the
Building Regulations. It is clear that he arrived at his conclusions
based on his own
observations and experience even if the scene was
contaminated at the time of inspection as contended by counsel.
[14]
Secondly, counsel submitted that De Vos was not a chemical engineer
and could not testify as to the chemical components of
substances
present at the scene as he did not take measurements and samples or
analyse any of the substances found at the scene.
He therefore could
not identify the process at the scene and could not assess compliance
with regulations or local By-Laws for
that process. De Vos testified
that if Gavin du Tort's hearsay information was false or incorrect,
that information would not nullify
his report. It might change the
quantities, temperatures and the exact procedural manufacturing
process of mixing processes but
in essence it remains that there was
a significant fire because of the very large quantity of combustible
and flammable materials
on site contrary to the safety rules in terms
of Building Regulations.
[15]
Lastly, counsel submitted that the evidence of Ms. Burger was based
on hearsay evidence of witnesses she interviewed and was
inadmissible. Ms. Burger testified she could establish based on fire
movement and fire patterns and specifically the fire intensity
pattern, that the fire originated and spread from first defendant's
premises where second and third defendants conducted the production
process with combustibles and flammable material.
[16]
The statements made by operators to Ms. Burger about the
manufacturing process on the day when the fire started and what
caused
the fire and the fact that Gavin du Toit made the statement
about the production process to De Vos is not hearsay and is
admissible
to proof that the statements were in fact made. In
Subramanian v Public Prosecutor
(1956) 1 WLR 965
at 969 the court
held:
"Evidence
of a statement made to a witness by a person which is not himself
called as a witness may or may not be hearsay.
It is hearsay and
inadmissible when the object of the evidence is to establish the
truth of what is contained in the statement.
It is not hearsay and is
admissible when it is proposed to establish by the evidence, not the
truth of the statement, but the fact
that it was made."
[17]
In my view, the points in limine raised by counsel for the defendants
are without merit and are accordingly dismissed.
[18]
It is common cause that first defendant was the owner of the premises
and that second defendant was a tenant of the first defendant
and
carried on business at the premises. According to the evidence of
Roderiques, the third defendant, Keith du Toit was on the
premises on
a daily basis and was involved in the production process observed by
Roderiques, conducted in an open yard with vast
quantities of
combustible and flammable material. The defendants did not tender any
evidence displacing the inference of negligence
arising from that
fact. The correct role of the maxim res ipsa loquitur is well settled
in our law. In Sardi and Others v Standard
and General Insurance Co
Ltd
1977 (3) SA 776
(A) at 780G-H, HOLMES JA said the following:
"At
the end of the case, the Court has to decide whether, on all of the
evidence and the probabilities and the inferences,
the plaintiff has
discharged the onus of proof on the pleadings on a preponderance of
probability, just as the Court would do in
any other case concerning
negligence. In this final analysis, the Court does not adopt the
piecemeal approach of (a), first drawing
the inference of negligence
from the occurrence itself, and regarding this as a prima facie case;
and then (b), deciding whether
this has been rebutted by the
defendant's explanation."
[19]
In Arthur v Bezuidenhout & Mieny,
1962 (2) SA 566
A the Appellate
Division held that the finding of res ipsa loquitor does not alter
the incident of the onus of proof, it merely
casts an evidential
burden of rebuttal on the defendant. If the defendant fails to adduce
evidence to negative the inference of
negligence, his failure to do
so tilts the scale in the claimant's favour and the latter is
entitled to succeed against the defendant.
In the present matter,
numerous suppositions were put to De Vos that he was wrong in
arriving at certain conclusions and that his
understanding of the
process and the risk involved was wrong and flawed and that Keith du
Toit will come and explain about what
had really happened there, and
what the risks really had been. Keith du Toit never backed up the
suppositions in evidence to rebut
the evidential burden casted on him
and other defendants. The defendants failed to testify about facts
clearly within their knowledge
as to why the fire started on their
premises and why it spread to plaintiff's premises.
[20]
I agree with the submission by counsel for the plaintiff that first
defendant as the landowner, and the second defendant as
occupier in
terms of the lease agreement, and the third defendant who was in
charge of the first and second defendants should have
foreseen that
in the circumstances where the production process was conducted with
huge quantities of combustible and flammables,
that such operation
could cause harm to neighbours, should something go wrong, and they
should have taken reasonable precautions
to prevent harm to others
[21]
The uncontested evidence of Ms. Burger that it was either an
intentional or negligent act of a human being that caused the
origin
of the fire should be accepted and that in the absence of evidence to
contradict the evidence of de Vos it should be accepted
that the
failure to comply with the Building Regulations and By-Laws (as
testified to by Dr de Vos) caused the fire once it started
to spread
from the first defendant's factory to the plaintiff's factory. This
contention is borne out by the observations and findings
made by Ms.
Burger.
[22]
I am therefore of the view that plaintiff's have succeeded in proving
on a balance of probability that the causal negligence
of at least
first, second and third defendants caused their damages.
The
following order is made:
1.
First defendant, alternatively second defendant, alternatively third
defendant, alternatively all three the defendants jointly
and
severally are liable for the plaintiffs' proven or agreed damages
resultant from the fire which on 8 October 2006 occurred
at 112 -
11th Road, Kew.
2.
First defendant, second defendant and third defendant, alternatively
the three defendants jointly and severally are liable to
pay
plaintiffs' agreed or taxed costs of the merits part of the action.
K
E MATOJANE
JUDGE
OF THE HIGH COURT