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[2011] ZAGPPHC 200
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Komatieland Forests (Pty) Ltd v Roux and Others (9853/08) [2011] ZAGPPHC 200 (14 October 2011)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
Case
No: 9853/08
Date
heard: 03/10/2011
Date
of judgment: 14/10/2011
In
the matter between:
Komatieland
Forests (Pty)
Ltd
...................................................................................
PLAINTIFF
and
Gabriel
Daniel
Roux
..................................................................................
FIRST DEFENDANT
Johan
Roux
..........................................................................................
SECOND DEFENDANT
Tavlands
(Pty)
Ltd
......................................................................................
THIRD
DEFENDANT
Tavistock
Colliers (Pty)
Ltd
....................................................................
FOURTH DEFENDANT
Tavistock
Colliers
Ltd
..................................................................................
FIFTH
DEFENDANT
and
Santam
......................................................................................................
FIRST
THIRD PARTY
Tavlands
(Pty)
Ltd
...............................................................................
SECOND THIRD PARTY
JUDGMENT
DU
PLESSIS J:
The
plaintiff conducts eucalyptus and fir plantations on the farm
Gemsbokfontein near Belfast in the Mpumalanga Province. The
plantations
are collectively known as the Pan plantation. The third
defendant occupies and farms on a portion of the farm Patatafonteint
which
is adjacent to Gemsbokfontein. It is convenient to refer to the
parties' respective farms as "Pan" and "Tavlands".
On
11 September 2005 a substantial portion of the plaintiff's
plantations were destroyed in a fire. The plaintiff contends that
by
reason of the third defendant's unlawful and negligent conduct, the
fire started on and/or spread from the third defendant's
Tavlands-farm. In this action, the plaintiff claims damages from the
third defendant.
I
must point out that the plaintiff initially claimed damages from five
defendants. The issues with the other four defendants have
been
sorted out and the only remaining claim is that against the third
defendant. I shall refer to the third defendant as 'the
defendant".
Returning
to the plaintiff's claim, the defendant admitted in tis plea that the
fire was a "veldfire" as envisaged in
the National Veld and
Forest Fire Act, 101 of 1998 ("the Act"). Section 34 of the
Act provides:
"
Presumption of negligence.—(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."
It
is common cause on the pleadings that the defendant is not a member
of a fire protection association and the proviso to section
34(1)
therefore does not apply in this case. At the relevant time, the
defendant admittedly was in occupation and control of the
Tavlands-farm and it was common cause during the proceedings that it
was "an owner"
1
for purposes of the Act.
As
to the defendant's liability for the plaintiff's alleged damages, the
effect of what I have said in the previous paragraph is
that the
plaintiff had to prove that the fire started on or spread from
Tavlands. While the plaintiff had the onus of proving wrongfulness,
the defendant had to prove that it was not negligent in relation to
the fire.
By
agreement it was ordered that the trial would proceed for the
determination only of the question of the defendant's liability.
The
quantum of damages that the plaintiff suffered was postponed sine
die. It is to the question of the defendant's liability that
I turn.
Common
cause and uncontested facts.
Relevant
geography
It
is common cause on the pleadings that the parties' respective farms
are in an area where extensive agriculture and foresting
are
conducted. Veldfires are known frequently to occur in the dry windy
months from July to September.
1
annex hereto a map of the area that was handed in as an exhibit.
2
From the map it can be seen that Pan (Gemsbokfontein) lies to the
west of Tavlands (Patatafontein) and the farms' common boundary
is
the eastern boundary of Pan and the western boundary of Tavlands.
Practically
the entire Pan is under plantations. From the north, nearly to a
point "I "on the map, there was at the time
a maize field
on Tavlands. It is the uncultivated portion to the south of the maize
field on Tavlands that is relevant in this
case. What follows now is
a description of that southern part of Tavlands as it appears from
the evidence. While not formally admitted,
the defendant did not put
the evidence in dispute.
The
uncultivated land on the defendant's property consisted of Highveld
grassland with eucalyptus natural regeneration. An organization
called Working for Water had cut alien plants there and the slashed
vegetation were at the time of the fire still lying where it
had been
cut.
Tavlands,
there was a firebreak 30 meters wide on Pan and no firebreak on
Tavlands. On Tavlands, about two meters from its western
boundary, at
the point "I" on the map, there grew a large blue gum tree.
Referring
to the annexed map, it can be seen that blocks P and R of the
plantations on Pan are situate on its northern part. Blocks
Q and S
are on the southern portion. A power line running across Pan
separates blocks P and R on the one hand from blocks Q and
S on the
other. Block S was next to the uncultivated land on Tavlands with the
30 meter firebreak in between.
From
south to north on Pan there is on the map a green strip. This
represents a 300 meter wide strip of land comprising vleiland
and, at
the time, burnt uncultivated land. On the map it can be seen that
this green strip separates some compartments of block
S from the
rest.
Point
A on the map lies just to the north of the green strip. That is where
the administration buildings on Pan are.
The
land that borders Pan on the south
3
was referred to in evidence as Beestepan. It is not in issue that on
the morning in question, 11 September 2005, a fire had started
on
Beestepan close to its common boundary with Pan.
4
Fire
fighting personnel and equipment
It
is not in issue that at the relevant time, the defendant had neither
personnel available on Tavlands nor, for practical purposes,
did it
have available fire fighting equipment.
The
plaintiff had a fire fighting team stationed on Pan. The team
consisted of Mr Morne Kleynsmith and his father-in- law each of
whom
had a which is a vehicle carrying 500 litres of water and the means
to use the water for fire fighting. These vehicles were
in the
evidence somewhat inaccurately called "bakkiesakkies" and I
shall do the same. Each of the bakkiesakkies had,
in addition to the
foreman, two crew members. The bakkiesakkies were equipped with tools
descriptively called fire beaters. In
addition to the bakkiesakkies
and its personnel, the team had a fire fighting truck carrying 10 000
litres of water and manned
by a crew of six. The truck was equipped
with fire beaters, rake hoes and knapsacks which are portable water
spraying units. There
also was a manned fire tower on Pan. Pan was
administered as a satellite of the plaintiff's bigger plantation at
Belfast, some
60 kilometres away by road. At Belfast the plaintiff
had additional fire fighting equipment and personnel who could be
used on
Pan.
The
evidence
For
the plaintiff Mr Morne Kleynsmith testified that, under the name N &
M Bosboudienste, he and his father-in-law held a contract
to perform
fire protection duties on Pan. They were equipped as described above.
On
11 September 2005 at about 09h00 to 09h30 the fire tower informed the
witness of a fire burning on Beestepan. The team went there
an put
the fire out. While they were still there, Kleynsmith received a
second call from the fire tower informing him of another
fire burning
on Tavlands. Leaving his father-in-law to ensure that the fire on
Beestepan was completely dead, Kleynsmith drove
along Pan's southern
and eastern boundaries to where the new fire was. As he turned to
proceed north along Pan's eastern boundary,
Kleynsmith saw the fire
on Tavlands. It had by then not spread onto Pan. The witness saw the
fire going into the large blue gum
tree on Tavlands's boundary. From
there he saw the fire spotting (jumping) from the tree, across the
plaintiff's firebreak and
into compartment S5 of the plantation.
5
When
he saw the fire spotting into the Pan plantation, Mr Kleynsmith
called his father-in-law for assistance. As he neared the point
where
the fire had spotted into Pan, the witness saw the fire spotting also
on other points. There was a strong wind blowing from
the east and
this drove the fire on into Pan. The team attacked the fire from its
northern flank, but it kept on spreading. Eventually
the fire spotted
across the strip of vleiland into the compartments of block S to the
west of the vleiland and into block Q. In
the meantime they called
the fire fighting team from Belfast for assistance but the fire
spread further into block Q. The combined
effort of the two teams
managed to stop the fire from spreading across the power line into
blocks P and R.s
the
300 meter wide strip of vleiland, the witness said that in his
experience he had seen fires spotting over distances of up to
two
kilometres.
The
witness confirmed that he knew about the slashed vegetation on
Tavlands and that he had not done anything to remove it. He explained
that he could not do so as the slashes were on the defendant's
property and he had no right to go there. At some stage before the
fire he spoke to Mr Meiring, the person in charge of the defendant's
operations on Tavlands. Kleynsmith confronted Meiring with
the
defendant's failure to take precautionary steps against a veldfire
but Meiring was uncooperative.
Mr
Michael Walker is, and was at the time of the fire, in the
plaintiff's employ as a harvesting forester. He testified that he
was
not on duty on the day of the fire. He was called at home and told of
the fire. He proceeded to Pan, a trip of about 60km by
road, with his
4X4 vehicle equipped with a 500 litre bakkiesakkie.
Mr
Walker drove past the spot where the fire on Beestepan had been. That
fire, the witness said, had then been extinguished and
was safe. He
was sure that fire did not spread onto Pan.
The
witness proceeded towards the administrative block on Pan. It was
about 11h00. By then the fire was burning intensely. A strong
wind
was blowing from east to west.
6
The entire block S to the east of the vleiland was on fire as were
parts of the plantation to the west of the vleiland. The fire
had
also spotted at compartment Q2 and was burning in the northern part
of block Q.
Walker
met Kleynsmith and his father-in-law at the admin block. They decided
to attack the fire from the power line in an effort
at least to save
blocks P and R. Ultimately, they managed to save the entire blocks P
and R and also compartments Q6 to 10 in the
north western corner of
block Q.
An
inspection after the fire convinced Mr Walker that it had started on
and spread from Tavlands.s
Mr
Walker conceded that the plaintiff had known about the slashed
vegetation on Tavlands for about a month and had done nothing
about
it.
The
witness was cross-examined about the adequacy of the plaintiff's fire
protection plan. There is on the evidence no basis for
holding that
the plan was inadequate or that it was not adhered to in relation to
the fire in question.
At
the time of the fire Mr GJ le Roux was the manager of the Belfast
plantation. With reference to correspondence, he testified
that he
had for a long time before the fire been attempting to secure the
defendant's cooperation with a view to establishing a
joint fire
protection plan. He also tried to get the defendant so far as to
establish firebreaks on Tavlands. His efforts came
to nought. From
the correspondence it is evident that Mr Le Roux wanted the defendant
to make on Tavlands a 100-meter-wide strip
where the vegetation was
cut down. This, Mr Le Roux explained, would have reduced the amount
of flammable material close to the
boundary and it would in addition
have served as a strip from where a counter burn could have been
started.
Mr
Le Roux was the author of the plaintiff's then current fire
protection plan. He was cross-examined about the content of the plan
but, save for what follows, nothing of note came forth. Mr Le Roux
conceded that in terms of the fire plan the fire on Beestepan
should
not have been left unattended until he had certified it to be safe.
He did not so certify it; he was not present on the
day of the fire.
Mr Le Roux said that in view thereof that Walker had seen the
Beestepan fire and was satisfied that it was safe,
he would have
certified it as safe on the strength of Walker's opinion.
The
plaintiff called Mr BJ Bothma as an expert witness in relation to
fire fighting and sin relation to establishing the cause and
nature
of a veldfire after the event. The witness confirmed the contents of
his expert report filed under the court rules.
From
the report it is evident that the witness regarded the plaintiff's
fire plan and the equipment and personnel it had available
as
adequate. As for the defendant, Mr Bothma is of the view that it
should reasonably have established along its boundary a firebreak
of
between three and five meters wide. Based on his inspection of the
properties after the fire and the evidence before the court,
Mr
Bothma expressed the view that the defendant did not establish
reasonable precautionary measures that could have been expected
of it
in the prevailing circumstances. Apart from its failure to
established firebreaks, the defendant's failure to have personnel
available to detect and extinguish veldfires was, according to the
witness, unreasonable. He pointed out that a veldfire should
be
attacked and put out within about 20 minutes after it had started.
Failure to do that often leads to the fire becoming uncontrollable.
Based
on his investigation and assessment after the fire, the witness
expressed the opinion that the fire started on Tavlands. It
remained
a fire of low intensity while spreading over the uncultivated land on
Tavlands. With reference to photographs Mr Bothma
explained how one
could see form scorch marks on the tree trunks where the flames were
still very low. As it spread across Tavlands,
the fire was still not
intense and could have been put out with relative ease. At that stage
it would not have been readily detectable
from the plaintiff's fire
tower as it would not have been producing sufficient smoke.
Mr
Bothma had no doubt that the fire had started on Tavlands and had
spread from there onto Pan. It ran through the uncultivated
land with
its slash up to the blue gum tree where it went into the tree and
then spotted over into Pan.
The
defendant closed its case without tendering any evidence.
Did
the fire spread from Tavlands to Pan?
The
evidence as a whole leaves no doubt that the fire started on Tavlands
and spread into Pan via the blue gum tree. It was put
to several of
the plaintiff's witnesses that it was the fire on Beestepan that
spread onto Pan. In this regard there is no basis
for rejecting
Kleynsmith and Walker's evidence that the fire on Beestepan was fully
extinguished, safe and that the area had been
doused with water.
Moreover, having regard to the wind direction, it is quite improbable
that the fire on Beestepan could have
spread northwards towards Pan.
Wrongfulness
If
regard is had to the admitted conditions in the area during September
2005 the defendant had a legal duty to take reasonable
precautions
against fires starting on and spreading from its property. It was
foreseeable that failure to maintain an adequate
firebreak and
failure to have personnel with fire fighting equipment available on
Tavlands could lead to veldfires spreading onto
Pan. In this regard
the presence of the blue gum tree close to the boundary with Pan
posed a particular and foreseeable threat
if no steps were taken to
ensure that a fire could not reach it. The defendant took no
precautions at all. That was wrongful and
it is unnecessary to
consider what would have been reasonable. Taking no precautions at
all was objectively seen unreasonable.
Negligence
I
have found that the fire started on and spread from Tavlands onto Pan
and that the defendant's failure to take any precautionary
measures
was wrongful. In view of these finding and for reasons already
stated, the defendant had to prove that it was not negligent
in
relation to the veldfire.
In
my view a reasonable person in the defendant's position would have
established firebreaks of at least three to five meters wide.
Such
person would probably have removed the slash from the uncultivated
land or he would at least have had personnel available
to detect and
extinguish fires in the uncultivated land. The defendant's failure to
take any of these steps was negligent. The
question is whether that
negligence was causally linked to the fire spreading onto Pan.
The
evidence shows that a veldfire could spot over distances of up to two
kilometres. In the circumstances it could be argued that
a firebreak
of three to five meters would have made no difference. In this regard
it must be borne in mind that the blue gum tree
from which the fire
spotted was two meters from the boundary. If the defendant had
maintained an adequate firebreak there, there
would have been no
vegetation through which the fire could have crept up to the tree. In
any event, a reasonable person in the
defendant's position would
either have cut the tree down or would have made a somewhat wider
firebreak around the tree.
In
addition, if the defendant had had a minimum of personnel with even
rudimentary fire fighting equipment available, they would
probably
have detected the fire in time to put it out within the crucial first
20 minutes.
It
is concluded that the defendant has failed to prove that it was not
negligent in relation to the fire.
The
plaintiff's negligence
The
defendant contends that the plaintiff was also negligent in relation
to the fire. I shall deal with the alleged grounds of the
plaintiff's
negligence seriatim.
The
defendant contends that the plaintiff was negligent in not providing
"proper, sufficient firebreaks on its property".
It will be
recalled that the plaintiff maintained a 30 meter wide firebreak
along its entire boundary. Defendant's counsel put
it to the
plaintiff's witnesses that in the knowledge that the defendant did
not have any firebreak, the plaintiff should have
maintained a wider
firebreak. Mr Walker, Mr Le Roux and Bothma said that would have been
unecomical. I agree. For it to have maintained
a wider firebreak, the
plaintiff would have sacrificed land presently under trees. I do not
think that it is reasonable to expect
of a forester to sacrifice land
only because its neighbour is not acting reasonably. I do not think
that the reasonable person
in the plaintiff's position would have
sacrificed land to maintain a firebreak wider than 30 meters.
The
defendant's second contention is that the plaintiff was negligent by
failing to "have personnel on the property, when it
reasonably
should have done so, as it was aware of the possibility of a fire
occurring". The evidence shows that the plaintiff
had a full
fire fighting team with a lookout on duty on the property and it had
further personnel and fire fighting equipment available
at Belfast to
assist. All the witnesses, including the expert Bothma, agreed that
this was adequate. There is no evidential basis
for upholding the
defendant's contention.
It
is further contended that the plaintiff unreasonably failed timeously
to put out the fire that spread to its property. The evidence
shows
that the plaintiff had adequate precautionary measures, fire fighting
equipment and personnel available. The fire fighters
immediately
responded to the detection of the fire There is no evidential basis
for holding that the watchman in the fire tower
could have detected
the fire earlier and that he did not immediately alert Kleynsmith.
There is no evidential basis for holding
that Kleynsmith could have
reached the fire earlier. As for the manner in which the fire was
attacked, there is on the evidence
no basis for holding that it could
have been done otherwise or more effectively.
Having
regard to the bulk of the evidence, the defendant's contention that
the plaintiff failed to keep proper fire fighting equipment
and
personnel on the property, must fail.
The
last ground of negligence pleaded was, inelegantly phrased, that the
plaintiff failed to ensure that fires on its property,
once detected,
would be controlled and extinguished. For reasons already given, this
ground of negligence was not proved.
In
argument Mr Riley for the defendant contended that, realising that
the defendant had not taken any precautions against veldfires,
the
plaintiff should itself have taken further precautions. The
plaintiff's failure to take such further precautions, counsel
contended, was negligent. This ground of negligence was not pleaded
and it is unnecessary to deal therewith. A few brief remarks
will
suffice.
Apart
from widening the firebreak on Pan no steps that the plaintiff could
have taken on Pan were suggested either in cross-examination
or in
argument. I have already pointed out that a wider firebreak on Pan
would have been uneconomical. The reasonable person in
the
plaintiff's position would not have made such an uneconomical
sacrifice in order to address the defendant's unlawful failure
to
make firebreaks.
There
might be circumstances under which the law will allow a landowner to
enter upon a neighbouring property in order to make firebreaks
or cut
trees there. As a general proposition, however, such conduct is
unlawful. For the plaintiff in this case to have refrained
from
unlawful conduct cannot be regarded as negligent.
Mr
Riley suggested that the plaintiff could have lain a charge against
the defendant for its failure to take reasonable precautions.
Mr
Mills for the plaintiff correctly pointed out that under Chapter 8 of
the Act fire protection officers, and those who may exercise
their
powers, have powers of search, seizure and arrest. They do not have
the power to enter upon property and there to perform
acts such as
making firebreaks or cutting trees. In the circumstances a charge
against the defendant may have led to a conviction
and sentence under
the Act. That does not mean that a charge would have led to a safer
Tavlands or to prevention of the fire in
question. Failure to lay a
charge cannot be said to have been causally linked to the spread of
the veldftre.
It
follows that the plaintiff has proved that the defendant is solely
liable for the damages caused by the veldfire. I have pointed
out
that the plaintiff had initially sued further defendants. The initial
first and second defendants were the owners and occupiers
of the farm
adjoining Tavlands to the east. The plaintiff has reached a
settlement with those defendants. When the order separating
the
issues in this case was made, I also reserved for determination later
the effect that this settlement has on the defendant's
liability. On
the evidence presented in this trial, the fire started on Tavlands
and spread from there onto Pan. Therefore, there
is no basis on the
evidence before this court to hold that any other person is also
liable for the plaintiff's proven damages.
The
costs must follow the event. The plaintiff was represented by senior
counsel. Having regard to the nature and extent of the
damages that
the plaintiff suffered, this was a reasonable precaution.
In
the result the following order is made:
1.
It is declared that the defendant is liable for the damage that the
plaintiff suffered as a result of the veldfire that destroyed
part of
its Pan plantation on 11 September 2005.
2.
The defendant is ordered to pay the plaintiff's costs of the trail,
including the costs of senior counsel.
B.R.
Du Plessis
Judge
of the High Court
On
behalf of the Plaintiff: MORAJANE DU PLESSIS INC
HB
Forum Building, 2nd Floor 13 Stamvrug Street Val De Grace Pretoria
Adv.
D. Mills SC
On
behalf of the Third Defendant: GERHARD BOTHA ATTORNEY
C/O
Fieldhouse Attorneys 1261 Cobham Road Queenswood
Adv.
N Riley
(Case
didn't proceed against the First, Second, Fourth and Fifth
Defendants)
1
See the definition in section 1 of the Act.
2
Volume
3:15A of the agreed bundle of documents.
3
Marked
"Hartogshoop" in the map.
4
The
fire was approximately at point D on the map.
5
6
With
reference to data electronically captured, the witness said that
between 2h00 and 15h00, the windspeed increased from 12,9kph
to
19,3kph (4:42)