Normadien Farms (PTY) Ltd v SAFIRE Crop Protection Co-operative Limited (8960/2016P) [2023] ZAKZPHC 6 (26 January 2023)

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[2023] ZAKZPHC 6
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Normadien Farms (PTY) Ltd v SAFIRE Crop Protection Co-operative Limited (8960/2016P) [2023] ZAKZPHC 6 (26 January 2023)

IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NUMBER:
8960/2016P
In the matter between:
NORMANDIEN FARMS (PTY)
LTD

PLAINTIFF
and
SAFIRE CROP PROTECTION
CO-OPERATIVE LIMITED

DEFENDANT
JUDGMENT
BEZUIDENHOUT
J
:
[1]
Plaintiff instituted an action against Defendant resulting from a
fire in a plantation
on a farm known as Albany Farm, Newcastle during
May 2015 which it alleged resulted in damage in the sum of R 14 385
720.85. The
action is defendant by Defendant. It is common cause that
Plaintiff was insured with Defendant at the time and had such
insurance
with Defendant for some prior years. It is also common
cause that the necessary instalments in respect of the said policy
had been
paid.
[2]
Plaintiff’s claim was repudiated on 22 June 2016. Defendant
pleaded that in
the event of it being found that a fire occurred in
the plantation on Albany Farm on 7 November 2015 that Plaintiff had
misrepresented
to Defendant that the fire giving rise to the claim
originated in compartment A13a when in fact it originated in a
sawdust and
timber waste area situated on the north western boundary
of compartment A13a. It is contended that this misrepresentation was
material
and entitled Defendant to repudiate the claim. Plaintiff
allowed sawdust and timber waste to be dumped on the property
adjoining
the insured plantations, increasing the combustible
material in the vicinity of the insured plantation increasing the
fire risk.
Plaintiff had not made any mention of the existence of the
sawdust and timber waste area in completing the renewed form.
Plaintiff
was also involved in litigation in respect of certain local
inhabitants relating to grazing rights which was not declared and
affected
the risk. The sawdust and timber waste area required a
firebreak of at least 30 metres wide around the whole immediate
exterior
perimeter thereof and in breach thereof Plaintiff failed to
maintain such a firebreak which entitled Defendant to repudiate the

claim.
[3]
In a replication by Plaintiff it was contended that Mrs R
Bezuidenhout (Bezuidenhout)
representing Defendant admitted that the
insurance premium was paid and the cover was applicable from 1 May
2015 to 31 April 2016
and that the claim was duly instituted during
that period. The claim was considered by Bezuidenhout and in a letter
dated 22 June
2016 she repudiated the claim. Plaintiff did not accept
the repudiation and instituted action on 17 August 2016. It refers to
the
plea where the defences referred to above are raised and contends
that Defendant, by the conduct of Bezuidenhout, failed to void
the
insurance and thereby waived reliance on these defences,
alternatively elected not to rely thereon and is estopped from now

relying thereon.
[4]
Bezuidenhout on 9 November and 11 November 2015 visited Albany Farm
concluded that
a firebreak of 30 metres had not been made around the
perimeter of the waste dump. On 9 February 2016 a letter had been
addressed
to her about the grazing rights. Letters were received from
her by Plaintiff on 10 February, 24 February, 26 February and 16
March
2016 which did not indicate any repudiation of the claim. In
the letter of 16 March 2016 she merely recorded that she was unware

of the sawmill dump until 7 November 2015, that it must cease, that
Defendant was unaware of the substantial risk factor and that
further
cover would not be extended to Plaintiff and that Defendant will
continue to hold Plaintiff covered under the existing
certificate
subject to certain conditions.
[5]
On 20 January 2016 to February 2016 various letters were addressed by
Bezuidenhout
to representatives of Plaintiff in respect of the
salvage of trees, the price of burnt trees etc. She did not void the
policy nor
repudiate the policy. She waited until after the expiry of
the insurance period on 30 April 2016 and only on 22 June 2016
addressed
a letter to Plaintiff repudiating the claim which was
submitted on 13 November 2015. If the claim was repudiated shortly
after
it was submitted then Defendant would have had to repay to
Plaintiff the sum of R 1 254 461.80 for the remaining five month
period.
It is therefore contended that Defendant waived the right to
rely on the alleged breaches of the policy. Further in the
alternative
that Defendant is estopped from relying on the defences
set out in the plea. There was no indication from Defendant from 13
November
2015 to 20 June 2016 that the claim would be rejected.
[6]
Defendant filed a rejoinder that the relationship between the parties
were contractual
in terms of the contract and section 18(b) of the
policy provides no indulgence by Defendant to Plaintiff that failure
to reinforce
the terms of the agreement shall be construed as a
waiver or capable of founding estoppel. Accordingly Plaintiff is
precluded from
relying on a waiver by Defendant to rely on the
defences and raising estoppel.
[7]
During the evidence of Defendant’s case when Bezuidenhout
testified Plaintiff’s
sought an adjournment and tendered the
wasted costs to bring an application to file a replication. Such
application was brought
and Plaintiff was granted leave to file a
replication.
[8]
The evidence in this matter is voluminous and a typed record has been
provided. I
accordingly deem it unnecessary to deal with the evidence
of each witness in detail but will refer to the evidence of the
witness
which is relevant to the issues in these proceedings.
Plaintiff’s
witnesses
[9]
Miss Nthombifuthi Khubeka (Khubeka) was employed by Plaintiff since
2011 and at times
did duty in the fire tower. This entails the
reporting of any fire which is visible from the tower. She is
provided with a cellular
phone and a radio. If she sees a fire she
reports to the person in charge. On 7 November 2015 she was on duty
in the tower from
6 a.m. She took over from one Thandi Nbugase who
reported no incident to her. While she was seated she saw smoke in
the sawdust
area. She could not see the sawdust area from the tower
because of the trees. She reported it to Mr Dennis Pretorius
(Pretorius)
at 8:45 a.m. It was white smoke that became black. She
did not see any smoke at the sawdust area when she was walking to
work that
morning. There was wind at the time that she reported the
smoke. The smoke was white for approximately 10 minutes. She did not
contact Mr Simon (Simon) as he was not on duty.
[10]
Pretorius testified in Afrikaans as will appear from the record. (I
have translated his evidence
into English). He was employment by
Plaintiff from 2003 until 2016. He was in control of forestry, the
workshops and cutting of
trees. He was on duty on Saturday 7 November
2015 as they were on duty during certain weekends. They were busy
chopping wood to
load and take to the saw mill. He commenced working
at 7 a.m. and had radio contact with the tower. Simon was not on duty
that
day. He received the radio contact at 8:40 a.m. from Khubeka. It
is a call channel open to all vehicles on the Normandien Farms.
When
he received the radio call he had not seen any smoke. She referred to
the sawdust area. He immediately went to the area where
she said the
fire was. He drove into the saw mill area from where he could see
smoke. He used the road which went past the sawdust
area. Simon also
arranged with workers to go to where the smoke was coming from.
[11]
He went past the area marked waste 1 and waste 2 and did not see any
smouldering. The material
that was in the waste areas come from the
saw mill. It was sawdust, bark, soil and stone. This was then
transported to the said
places and flattened with a grader. They
wanted to rehabilitate the donga area to plant trees. Soil was
usually brought and thrown
over the sawdust etc. which was then
flattened. When he arrived at A13a compartment he saw that the fire
was about 10 to 15 metres
from the road. He went into the compartment
to contain the fire. He then marked with an X on the map where the
fire was. The wind
was blowing in a westerly direction and he was not
able to contain the fire. He estimates that the wind was blowing
between 15
and 25 km per hour. It is incorrect that the fire started
at the sawdust site. He has never seen any smouldering at the sawdust

site. The fire burnt from west to east. There were many spot fires
which made it difficult to determine the line of fire. At times
there
were 3 or 4 different fires ahead of him. The fire jumped the tar
road which is the Newcastle Normandien Road. When they
started
fighting the fire the wind came from a westerly direction in an
easterly direction but as the fire became larger whirlwinds
started
and it was not possible to determine how big the fire became. During
the afternoon they went to the waste sites and at
waste site number 1
he saw an area of approximately ½ metre by 1 metre that was
smouldering. There were no flames.
[12]
Compartment A13a burnt in a westerly direction towards the road. The
area on the road where waste
sites 1 and 2 were had been burnt and he
suspected that it was back burning. He has been involved in fighting
approximately 100
fires. When back burning is done you attempt to
cause a buffer zone between the fire coming in your direction and it
then burns
back towards the fire approaching. In the afternoon when
the smouldering was seen they attempted to douse it with a water cart
and the water bag at the back of his bakkie. After the incident Mr
Hay (Hay), the attorney for Defendant had discussion with him
and
took various statements from him in English. He attended a meeting
where a senior advocate and Plaintiff’s attorney was
present
while he was being questioned by the attorney for Defendant. After
this a statement was drafted which was read to him by
Mr Vinnicombe,
Plaintiff’s attorney and he signed it as correct. The statement
is contained in bundle B page 67 and he confirmed
that he signed each
page and it was his signature that appeared thereon.
[13]
Approximately 3 months later an interview was conducted with him by
the insurance company’s
employees. He was aware that the
insurance company was of the view that the fire had started at the
waste site. The waste site
does not pose a fire danger. He did not
explain to the representatives of Defendant how the waste site was
filled and that the
sawdust, bark, soil and gravel was flattened and
filled with soil and compacted. He did not think that it was
necessary or important
as he had seen where the fire had started. The
dump site was not a priority. He had later showed Simon where the
fire had started.
Simon was also aware of the procedure followed at
the dump site. Mr Rob Houtson (Houtson) the general manager on the
farm was aware
of the procedure at the dumping site. Only dump site 2
was not in use. On 9 November 2015 machinery was working at dump site
1.
He was shown a photograph from which it did not appear to be
material from the saw mill which was compacted. He agreed. He was not

at the dump site the week after the fire. When he saw the start of
the fire there was no burning on or towards the dump site. The
fire
had burnt out in approximately 45 minutes. The plantation burnt for
much longer than an hour. It was approximately 4 or 5
hours before it
was brought under control. The wind became stronger during the day
and the fire generated its own energy. The trees
that had burnt were
cut down after the fire. The trees to the left of the west side of
the origin of the fire had burnt and was
therefore cut down. The
roads were clear and with no combustible material. The smouldering
was on dump site 1. There was no burning
on the west side of the road
marked in blue. The fact that it was smouldering made it a possible
fire hazard if the wind blew and
it could have gone to the plantation
on the western side. The photograph on page 20 taken on 11 November
2015 indicated how the
dump site normally looked. On the Saturday the
fire at the dump site was extinguished at 5:15 p.m. There were no
further fires.
He was never asked by Hay about the dump site nor was
he asked what the dump site consisted of.
[14]
Mr Voster (Voster) testified he had been employed by the South
African National Space Agency
since 2010. He has a master’s
degree from UNISA about analysing veldt fires and he is an Image
Processing Specialist. The
South African National Space Agency has a
branch where they receive satellite imagery at Hartebeespoort. All
the data is accessible
via the internet from catalogues which the
ground stations space agency holds. He uses landscaped data from a
satellite owned by
America. The landscaped data is used for
identification of the outline of the fire perimeter. The method he
uses is that he first
draws a perimeter of the fire from landscaped
data because on a low resolution data it is difficult to orientate
yourself.
[15]
From the imagery that he has he sew that there was a large fire at
Albany Farm on 7 November
2015 at 10:45. From the analysis of
documents the fire could have started between 8:57 a.m. and 9:12 a.m.
The data indicates the
forest and the light that is red indicates
grassland that is burning. He cannot establish the exact starting
point of the fire.
All fires burn back a little bit as well. If a
fire starts in vegetation where there is no wind it would have burnt
in a circle
outwards. If there is wind it burns ones and also burns
back into the wind against the wind. He expressed the view that the
expert
of Defendant one Mr Frost with the satellite data he had could
not determine the origin of the fire. The data used by Frost can
only
determine that there was a fire on the farm but not the area of the
fire. The distance between the saw mill waste site 1 and
2 is about
250 metres.
[16]
Simon was employed by Plaintiff as a farm manager. He was responsible
for the planting of trees
until the trees were ready to be harvested.
He was employed at Normadien Farm during February 2013 together with
Pretorius. On
7 November 2015 at about 7 a.m. he was on the farm
Buffelshook which also belongs to Normandien Farms looking at the
grazing. He
drove in the direction of the fire tower. He went past
the western side of compartment A13a and past compartment A10 in the
direction
of Buffelshook. He passed the sawmill dump between 6 and
6:45 a.m. and there was no smouldering at the said dumps. He heard
via
the radio that the fire tower was calling Pretorius stating that
there is a fire in the region where the rubble of the sawmill was

dumped. It was in Zulu and referred to the saw mill waste dump. He
drove thereafter, picked up some people workers. He saw the
smoke and
drove to compartment A13a and saw the fire. He did not see Pretorius
at the time. He did not establish where the fire
commenced. It was
between the markings X and Y on the map. The fire was then in
plantation A13 and he attempted to extinguish the
fire but was unable
to do so.
[17]
The fire spread in an easterly direction and they tried to prevent it
from crossing the road.
They were unsuccessful and then attempted to
prevent the fire at the next road but were again unsuccessful. The
fire burnt up until
the tar road. At the tar road it jumped the road
but was then extinguished on the other side of the tar road. There
were, besides
him and Pretorius, other employees and neighbours
assisting. Later that afternoon he returned to the waste site and
found that
it was smouldering but there were no flames. It was an
area of approximately 1 metre. It was extinguished. The smouldering
was
at waste dump 1. It was being used as a dumping site to
rehabilitate the area so that further trees could be planted. Their
dumping
material consisted of bark, soil and mud. Once it was dumped
it was levelled with a TLB and once a year soil was thrown over it

and it was levelled. This was done by Pretorius. He does not know
precisely how it was done but only saw when travelling past that
they
were busy at the site. After the fire on the Monday there were earth
moving equipment and he was instructed by Mr Lawrence
Hoatson to push
all the material into the area and to cover it with soil. He used a
bulldozer to do so. Whilst they were busy a
representative of Safire,
Bezuidenhout arrived.
[18]
The fire moved speedily driven by wind. He agrees with Pretorius that
there was spotting. Later
on 7
November 2015 he had a
discussion with Pretorius who showed with his hand where he saw the
fire starting. It was not specific. It
was the first time to see the
dumping site smouldering when he went there in the afternoon. The
smouldering was about 1 metre by
1 metre and he did not see any other
portion of it burning. A large portion of the plantation to the east
of the dumping site had
burnt. He did not recall any burning to the
western side of the road. The smouldering at the dumping site was
completely extinguished.
[19]
On the Monday when he worked at the dumping site he did not notice
any fire damage. He cannot
recall that he together with Bezuidenhout
went in his bakkie on the farm. He cannot recall being together with
Bezuidenhout in
his vehicle. It was put to him that she would say
that he told her that there was a fire in 13A and smouldering in the
dumping
site. He could not remember that. He informed her that he did
not know where the fire started. He was shown various photographs

relating to the earthworks which were conducted at dumping site 1.
There was fire damage to the west of saw mill waste site 1.
The dump
site was rehabilitated. Earlier that year fire breaks were made in
the area of the dump site. It was put to him that Bezuidenhout
would
state that on the Monday there were signs of fire at the dump site
larger than the metre by metre smouldering that he was
referring to.
His reaction was that was her view. He does not agree.
[20]
Mr. Dumisani Mfusi (Mfusi), employed by Plaintiff, as culture
supervisor and in charge of the
mill stated that he had been involved
in the fighting of fires on many occasions. On 7 November 2015 he
heard Khubeka call Pretorius
on the radio. She said there is fire at
the area of the sawdust. He was called to fetch labourers. He knew
the sawdust area. When
he went past the sawdust he did not see any
fire or smouldering. The fire that he saw was inside the plantation.
He was on the
road and it was about 20 metres inside the plantation.
The fire was burning backwards towards the road. The front of the
fire was
gone by then. The fire was burning back to where he was. He
did not stay there and they were moving towards the sides. The wind

was pushing it hard towards the road. It was burning against the
wind. There was no smouldering at the saw mill. The wind was strong

and they were able to distinguish the fire in the end. They kept on
patrolling after the fire was extinguished. He then drove past
the
sawdust heap in the afternoon and saw Pretorius who was extinguishing
something with water. It was at saw mill waste site 1.
He had already
extinguished whatever there was. The head of the fire was the eastern
boundary of A13a. The wind was strong in a
westerly direction. He
indicated that the area which Pretorius was dousing at the waste site
was approximately 50 cm by 50 cm.
[21]
Pretorius was recalled and was shown various photographs which had
been taken. He was shown certain
burnt areas and stated that they
were not burnt on the 7 November 2015 the day of the fire. On the
morning 8 November 2015 he made
a fire and burnt an area around
sawdust site 1. This was to prevent any possibility of a fire
starting at the sawdust site. There
was no smoke or smouldering on 8
November 2015. He stated that prior to him being recalled he had
consulted with his legal team
and was shown the photographs in bundle
E. The photographs indicated signs of burning around the dump site.
It was put to him that
when he was cross-examined on the previous day
he was aware that he had burnt that area at a later stage. He was
referred to a
transcription of a conversation with Mr Hay wherein he
was asked that the property at the west road burnt on the Saturday
and his
answer was there was a little bit of grass between the waist
pit and the road. He was asked in respect of the consultation where

he had stated that there were no flare ups after the fire had been
extinguished at about 5:15 p.m. on the Saturday. He confirmed
that he
did not state that they had made fire breaks on the Sunday.
[22]
Mr Vinniconde testified that he was an attorney practicing at
Thornville and the attorney of
Plaintiff in certain of the land
issues. He testified that an application was brought in the Land
Claims Court dealing with a compliance
notice against Plaintiff by
the Department of Agriculture due to overgrazing of an area of the
Farm Albany occupied by labour tenants.
In terms of the order cattle
were removed from the said area. The issue of a labour tenants had
also previously been settled. The
cattle amounting to approximately
260 was ordered to be removed from Albany Farm two days prior to the
fire. There were five homesteads
occupied by the families involved
which were approximately 14 Respondents. There was only one case of
litigation between Plaintiff
and the labourers on the farm.
[23]
Mr Lawrence Johan Houtson (L Houtson) testified he was the Chief
Executive Officer of Plaintiff
which was formed in 2000 and purchased
certain plantations from Mondi in the Normandien area. After
purchasing the said land insurance
cover was taken out with Safire.
That was in 2001. A saw mill was constructed on the farm Albany in
about 2003/ 2004 and was insured
separately but also through Safire.
Initially when the insurance was taken in respect of the timber
plantations Defendant was represented
by Bezuidenhout. At all times
she was involved in the issues and discussions in respect of the
insurance. Before the insurance
was put in place he drove to the farm
with Bezuidenhout who did an assessment of the farm. They drove most
of the farm. On the
day she handed him a list of requirements, an
application form and it was thereafter renewed annually. The
insurance is extended
from 1 May of the year until the end of April
of the following year. A form was completed annually. He was shown a
form indicating
that on 15 February 2001 insurance was sought through
Defendant. He was shown proposal forms of various years thereafter
which
he confirmed he signed. He was shown a review of proposal for 1
May 2013 and indicated that it was signed by his son Matthew. The

proposal form dated 21 April 2015 was signed by his son Matthew as he
delegated some of it as Matthew took over all the insurance
work. All
premiums were paid as required. The premiums were paid annually in
advance. The annual premiums were approximately R
2.5 million. On 7
November 2015 there was a fire on the farm Albany and the claim was
repudiated by Defendant.
[24]
He was informed of the fire by his son Robin while he was at a
meeting and could not do anything
immediately. He received a missed
call from Bezuidenhout at about 3 p.m. and returned her call and she
informed him that smoke
was seen from a fire at Normandien. She asked
him what the cause of the fire was and he replied that his son Robin
had informed
him that it came out of the sawdust and that he
responded that he could not see that happening. Bezuidenhout visited
the farm on
Monday 9 November 2015. He informed her that she had to
go up there as quickly as possible after she had informed him that
she
and Mr Mullins were due to go there on the Thursday because he
had given instructions that earth moving equipment was to go to the

sawdust heap and bury it.
[25]
The fire was reported to the Normandien Police Station and a
reference number was given. A claim
calculation was done of the burnt
areas and in terms of the policy Defendant had to be notified within
30 days. It was however
done verbally on the Saturday that the fire
occurred. The claim form was submitted to Defendant. This was done in
terms of sub
clause 71. Hay the attorney for Defendant had various
meetings with him and members of the staff and they cooperated at all
times.
He visited the farm on more than one occasion. Only the
initial meeting was in his presence. Many emails were sent by his son
Matthew
setting out the calculation and the value of the damages
suffered. There was also communications in writing between
Bezuidenhout
and himself. She was the senior person of Defendant that
dealt with forestry. They had had previous fires and they always
dealt
with Bezuidenhout and she assessed the claims unless it went
over a certain size an adjuster would be appointed. The smaller
claims
she finalised. No previous claims had been repudiated. The
previous claims were smaller than this one. Plaintiff also has farms

in Mphumalanga which are insured by Defendant. He is no longer
insured by Defendant. In 2014 there was a spate of fires in a period

of two weeks. There were attacks of fire. They instructed their
security company to investigate it. It was established that employees

that had been retrenched were responsible for the fires. This was
then conveyed to Bezuidenhout as a matter of courtesy. Within
a day
of communicating this to her he received a withdrawal of insurance
based on labour action.
[26]
He then had discussions with Bezuidenhout and Bekker. The withdrawal
was then cancelled. On 20
October 2015 he had informed Bezuidenhout
that there was litigation between Plaintiff and the occupiers on
Albany Farm being the
Mathibani’s. There was a fire in the gum
tree area and Mullins and Bezuidenhout were on the farm doing an
assessment. He
informed her that they were going to court that
Thursday against the tenants and she did not comment at all. No
changes were received
in respect of the policies. Bezuidenhout has
been on the major farm road going past compartment A13a. There was a
fire on that
road some years before which she assessed. The area that
was assessed by her was block AO13b.
[27]
The sawdust, woodchips and bark from the mill is incinerated. But all
the sawdust is diverted
into a fuel which feeds the boilers. The
residue is piled up with the mill residue and the mill residue
consists of sawdust, woodchip,
log yard scrapings which would include
bark and so on. In the summer months also mud. The log yard scrapings
were dumped into valleys
to aid environmentally friendly to prevent
soil erosion and to repair damage. This has been done since 2003.
Bezuidenhout was well
aware of the saw mill. Bezuidenhout was not
instrumental in the insurance of the saw mill but another member
namely Belinda Henry.
For 14 years the dump sites would after the
dumping of material be flattened. The banks would be broken down and
covered with soil.
[28]
It was put to him that Bezuidenhout in a letter stated that she was
unware that log yard scrapings
had been dumped on the farm. He stated
that she had been on the farm for 14 years and he does not know how
she missed it. He had
not seen the risk surveys before until it was
in the bundle of documents for trial. He was shown a document on page
454 paragraph
2.4 which deals with land claims/disputes and that it
was scored a minus 2 and a qualification at the bottom that a general
land
claim for area classified as minor. The areas adjoining the
plantation would be grass land, roads and waterways and the dump
sites
would be in a waterway in the ravine. Woodchips are sold from
the saw mill and the sawdust is burnt. The scrapings are dumped.
There has been a tenant claim lodged against the property by the
Mathabani family. That is an issue which has been finalised in
March
2014. Nothing was done to increase the fire risk prior to the renewal
of the policy. The dump site has been there since approximately
2003
when the saw mill commenced. The dump sites were never considered to
be a fire risk. He has been involved in the timber industry
since
1993. At Mount Alif he had a massive sawdust dump just outside the
mill. In Piet Retief they dumped on a farm next door.
In Thornville
they had a big dump on the property. There was never any risk of
fire. Trees were planted in areas which were recovered
and
rehabilitated. The dumping areas will be covered when the machinery
was on the farm.
[29]
L Houtson disputed that the fire started in the sawdust heap and
stated that he had never had
a situation where a fire started in a
sawdust heap as a result of combustion. According to his knowledge
the fire started in compartment
A13a. Bezuidenhout did not visit the
farm after the repudiation. When she did visit the farm on 9 November
2015 she did not tell
him to stop dumping waste at that spot. The
letter dated 22 June 2016 was a notification of a rejection of the
claim. He responded
to that notification. There was no evidence that
the Mathebane’s caused the fire. They stay about 3 or 4 km from
the point
of fire. They have never issued any threats to him. Nor
since their cattle were removed in March 2017. The repudiation came
after
he had already moved to another insurance company as he did not
renew the insurance on 1 May 2016.
[30]
During that period of November 2015 every single day was orange which
indicated a fire hazard
and therefore he instructed, as the machinery
was on the farm, that the sawdust pit be spread over with soil. As a
practise sawdust
was not dumped at the dump site but only in
exceptional circumstances. At the time the plantation had been
thinned and pruned about
4 months prior so there would have been a
lot of brush wood on the ground. His unhappiness with Safire
commenced during 2014 prior
he had been satisfied with them. He
agreed that a number of claims arose on his farms and these claims
were paid except for one.
He agreed that he was paid an amount of R8
million in 2012 in respect of a claim. There was a reserve placed on
it by Defendant.
He agreed that the instalment was R1 254 000 that
stated that it did not include the farms Piet Retief and Nottingham
Road. The
Normandien Farms were covered until March 2016. He agreed
that he received value for the premium. It was put to him that on 26
February 2016 he received a letter from Defendant that they were
concerned. He told her that he was informed that it was possibly

spontaneous combustion. He does not know how it can be and it would
be investigated.
[31]
He denied that he had said to her that they can come and look in a
few days’ time. He told
her that he was cleaning up and she
phoned him to inform him that she was only going up on the Wednesday
and he told her that the
cleaning up was taking place and she then
phoned back to say that she is coming to the farm. It was put that is
was the first time
she became aware of the dump sites and he stated
that he was not aware that she did not know that they existed. He was
surprised
that she was not aware of the dump sites. He cannot dispute
that she first got to know of the dump sites on 9 November 2015.
There
was compaction. He did not want the dump site to pose any
danger. He informed her during October 2015 about a court case
starting
in the Lands Claims Court in respect of the labour tenants.
He did not notify Defendant of this litigation. On 9 February 2016 he

sent a letter to Bezuidenhout saying that the contents is
self-explanatory and advising of adverse circumstances.
[32]
Mr. Butt (Butt) was employed by Plaintiff as planning manager and
knows the farms at Normandien
very well. He knows dump site 1 and
dump 2 very well. He was previously employed by Mondi for most of his
career. He commenced
working for Houtson in 2016. He took specimens
of sawdust heaps. He took one from Franklin saw mill on the
KwaZulu-Natal South
Coast and marked the sample. It was mixed
material composed of soil, bark and pretty similar to the material
dumped at Normandien
farms. Three sample were taken. Sample number 4
was taken from Normandien farms saw mill on Albany farm. It consisted
of soil,
bark, gravel and small amounts of sawdust. The 5
th
sample was taken from dump site 1. He also took sample 6 and 7. They
were taken from Kernville Farm which adjoins Albany. It was
old dump
sites that had been used some time back. The samples were sealed and
taken to Johannesburg CSIR Complex. He was present
when the tests on
the samples were conducted. Some pine needles were also taken. The
samples were taken approximately six weeks
before the date of his
testimony. The material was decomposed except for that from Franklin
which was pretty recent.
[33]
Mr Jacobus Strydom (Strydom) is self-employed, under the name Fire
Lab and is involved in the
testing of materials. He does such tests
on the CSIR Campus in Pretoria. It commenced in 2001 after the CSIR
discontinued doing
such testing. He was previously employed by the
CSIR for 26 years. Testing is done to different materials of which
timber is one.
Timber for mining is tested on a quarterly basis in a
furnace that is heated up to 400 degrees centigrade and the log is
then inserted.
In this case it was also tested at 400 degrees Celsius
because the ultimate goal was to look at the heat that would be
obtained
during the test. He was instructed to determine the heat or
the risk associated with the various samples that he received. They

were scrapings from various origins. It included sawdust that was
taken from the mill and sawdust heaps and grass samples as well.
He
was requested to compile a report which he did and completed two
reports. Combustion can best be explained in terms of the fire

triangle where you have combustible material, ignition source and
oxygen.
[34]
Without one of these there cannot be any combustion. Spontaneous
combustion is something which
is very often misleading because
spontaneous combustion means that the entire surface or area is
combusting when exposed to certain
temperatures. The critical
temperature for timber is 220 degrees centigrade exposed for 10
minutes. The samples he received were
subjected to heat. The amount
of the material was placed on a tray and then subjected in a furnace
as would be done with line log
or timber. 500 grams of each sample
was used. It was subjected to 400 degrees centigrade for a 10 minute
period. He referred to
a graph and indicated that there was no rise
above the 400 degrees recorded from the sample as shown on the graph.
There was no
ignition because otherwise it would have spiked or
increased the temperature. Sample 2 which was from the Franklin Log
Yard was
done on the same basis, the sample was wet and as it was
heated for about 8 minutes and then commenced increasing in
temperature.
Only glowing was present. From the graph of sample 4
(Albany Farm) it can be seen that the temperature went negative, it
never
went up. It went up to about 300 degrees and the decrease in
the furnace temperature to below 30 degrees centigrade. Sample 5 was

from saw mill waste there was no ignition. There was smouldering and
glowing but no flame. The 6
th
sample was from Kernville
Farm, in a decomposed state and there was no flame ignition. Sample 8
was pine needles and there was
a spike right in the beginning which
constituted the ignition of the material that was posed there and
then decayed and just glowed.
[35]
Sample 9 which was fresh saw dust was moist and when it was inserted
into the furnace glowing
of the course particles was visible for
approximately 30 second. There was no flaming during the test. There
was no glowing when
the tray was removed from the furnace and also an
increase in temperature which deceased at the end. The first two
sample which
came from the Franklin Log Yard was a mix of soil and
decomposed whatever whereas the third one was less decomposed and
contained
no soil. Sample 1 and sample 3 were very close whereas the
Franklin Log Yard was moist and therefore a negative reading. Sample

4 from a log yard at Normandien contained a lot of sand. It was moist
and had a negative reaction. There was ignition but no flaming

ignition. Ignition can represent slight glowing or whatever smoke
coming from decomposing or flaming combustion constitute flames.

Samples 1 to 6 the outer service of the samples were charred with a
little bit of glowing during the test being subjected to a
heat of
400 degrees centigrade. All glowing disappeared when the test samples
were removed from the furnace. The sawdust specimen
did not ignite
during the exposure period when subjected to 400 degrees centigrade.
Sawdust only charred during the test period
with glowing visible at
times. He concluded that from a test conducted on the scrapings of
the mill and specimen samples taken
from the plantation the log
scrapings cannot be regarded as constituting any special fire risk to
the timber industry. It cannot
burn because oxygen cannot reach the
inner portion of whatever is lying in the dump or heap or a hole or
whatever the case is.
It excludes oxygen. It only smoulders. The log
yard scrapings did increase the fire load. During cross examination
he stated that
if there is a very strong wind and it is exposed you
may have a short flame. It will only be small flames. During cross
examination
he stated that all of the material combusted sufficient
to contribute an increase in the temperature in the furnace.
[36]
Mr Lucas Mthanti (Mthanti) testified that he was employed as a
Supervisor in the culture section
at Normandien Farms since 2001. He
knows the layout of the farm and the different compartments and where
the fire tower is situated.
He also knows the sawdust area. At about
9 a.m. he was alerted about a fire by one Dumisani and was told to
get ready. When they
arrived at the farm the fire truck was there. He
could not see the fire he only saw the smoke. He was together with
Dumisani. The
fire was brought under control in the afternoon before
sunset. They then went towards the dump site where they met
Pretorius. Pretorius
had been extinguishing a spot that he had
already extinguished. It was near the area that was levelled at the
dumping site. There
was smoke and the smoke was extinguished. They
then left.
[37]
On the Sunday they went back to check. He was with the driver of the
fire truck. They went to
the dump site but there was no fire or
smouldering at the dump site. Pretorius was there. They then burnt a
piece of grass that
was there because the wind changes direction. If
the charcoal that was burning there could be pushed by the wind it
could go into
compartment A11 which was across the road. By charcoal
he means the logs that had burnt. On photograph 6 of bundle B he was
shown
a piece of land that had been burnt and indicated that he had
burnt it. He was also shown a black patch near where there was an

excavator and indicated that that was the area they were protecting
and had burnt. A black area in front on page 14 was shown and
he
indicated that he had burnt that. The trees in compartment A11 were
seen in the background. He was also shown a black patch
to the top
left hand corner of the photograph and once again confirmed that that
was veldt that he had burnt to protect the area.
All the areas that
he was shown he indicated that he had burnt them. In photograph 19
and excavator was shown as well as burnt
grass and he indicated that
also was what he had burnt. The same in photograph 22. During cross
examination he indicated that it
was his proposition that on the
Sunday the area around the waste site be burnt. That was because the
wind always changes direction.
There was grass that remained there
and he thought that it was going to be problematic. He therefore
thought that it should be
burnt in case that the wind changes
direction. There was nothing burning at the waste site on the Sunday.
According to him there
was no fire risk at the dump site on the
Sunday. It was around about 7H00 on the Sunday that the burning took
place. The burning
around the sawdust heap was to protect the
plantation. That was Plaintiffs case.
[38]
Bezuidenhout testified she was the general manager of the crop
division of Defendant and had
been employed with them for 27 years.
She was involved in the yearly renewal process of insurance for
Normandien Farms. Renewal
invitations were sent out in February each
year inviting the client to renew the policy. She dealt with the
renewal for 2015.
[39]
She had, prior to 9 November 2015, no knowledge of the dump sites and
had been visiting Albany
Farm on numerous occasions for the past 14
years. She was not aware of the litigation with regards to grazing.
She had conducted
3 formal surveys on the farm and also certain
informal surveys. The survey is a document that assists Defendant as
to whether a
risk is acceptable. Whether there should be any special
terms or conditions applied and the premium which is payable. She was
referred
to page 30 of bundle G which is a computer generated risk
survey report and stated that she did the physical survey and her
assistant
captured it. The rating was 58 out of 100 which is
acceptable although it is not the best risk. There is a heading
Negative Land
Use Factors and one for example was a purely managed
forest where it would receive a minus 2 score. It would mean that on
the adjoining
property there was plantation which would negatively
affect the fire risk. Although she had done surveys of the farm she
was not
aware of the dump site because she cannot see the entire
farm. The day that she went around the farm she was with Rob Hoatson.
They travelled out of the saw mill in a westerly direction and went
to the point where compartments 13A and 13B meet. They had a
look at
the condition of the trees and the general area that had burned. They
did a full circle around the area that did burn being
A13b and she
advised him that she needed to walk around and he then left her
there, returned to the office and came and collected
her some time
later.
[40]
They went back to the saw mill after that. In the past 14 years the
Normandien group has had
37 claims and 7 relating to Albany Farm of
which one is the present claim. The claims that have been paid out is
approximately
11.5 million rand. On 7 November 2015 the Saturday she
phoned L Houtson who was not available but phoned her back and
confirmed
that there had been a fire on Normandien Albany Farm. He
informed her that it was early in the morning and that they were busy
with the mopping up process. His response was that it was possibly
spontaneous combustion. She understood him to say on the side
of the
hill. She informed him that she would arrange a survey to come and
assess what had transpired. On the Monday morning at
7:39 she
received a call from him to say that they had started extensive
mopping up operations which included bulldozers, excavators
etc. This
was because he was worried about the balance of the plantations that
were not burnt as a result of a change in the weather
conditions and
specifically the wind direction. He asked her to delay for a couple
of days because they are involved in extensive
mopping up. She was
however advised by Bekker to go immediately to the farm. She then
informed L Houtson that she was to do so
and he told her to contact
Rob when coming to the farm. She arrived at the farm at approximately
1 p.m. on 9 November 2015.
[41]
On arrival driving from the eastern side towards Albany Farm she had
a clear view of the layout
of the farm from north to south and could
see where the fire had taken place. Instead of going to the saw mill
she took a ride
along the right flank of the fire. She traversed
around the edge of the fire, making her way towards where the fire
would have
started because on approaching the farm you could see the
very distinct pattern that had presented. She did go near the dump
site
because on coming up the right flank of the fire she then
travelled down the road with A13a on the right hand side. She noticed

for the first time extensive dumping of saw mill waste in what has
been labelled waste sites 1 and 2. There were vehicles, fire
tankers
and a lot of people busy in the area and she realised that this area
was where the possible spontaneous combustion had
taken place. At the
dump site they were attempting to get an excavator out which had got
stuck. The excavator had been used together
with the bulldozer to
rework the surface area and the stream line area of the saw mill
waste dump. She observed smoke coming out
of the saw mill waste in an
area that had been bulldozed into almost a pyramid shape. The smoke
was limited to that area. She noticed
a lot of black marks within the
saw dust area that had already been reworked. She was concerned about
the process of extracting
the excavator. She saw a lot of burn marks
in the stream line area looking into the dump site. She also observed
that point where
the grass was burnt on the eastern northern side of
the waste dump. It was also burnt along the back side.
[42]
She took some photographs of the area. Photograph 3 reflects the area
that was being worked in
the waste site between it and the adjoining
plantation A13a which had been subjected to fire. Photographs were
contained in exhibit
E. The road was in a good condition, had been
graded and had no vegetation. She did not physically go and touch or
pick up the
blackened area because she was concerned about the
extraction of the excavator. The firebreak had been burned at the
beginning
of the season and this was visible as it was already green.
There was an area which was black which was shown that it was burnt

now. There was an area of unburnt grass.
[43]
One of the most important aspects of risks of any plantation are
waste dumps. There was smoke
evident where it appears to be grey in
the area of the saw dust and reflected over the grass backward over
the blackened grass
in the back ground. The smoke was coming out of
the pyramid area. There was under the arm of the excavator a darkened
area which
was burnt material deep within the saw mill waste site. In
the stream line area there was also burnt material. She went back 2
days later on 11 November 2015 with Mullins. He prepared a report. It
looked different to what she had seen on 9 November 2015.
It was very
difficult to see the saw mill waste on 11 November 2015 as it had
been reworked very well with sand and other material.
The photographs
at page 37 of bundle E indicated the markings left on the trees by
the fire. She observed that on the western facing
side of the trees
there were little to no burn marks. On the eastern side of the trees
there were charred marks or burnt marks
which progressively got
higher as you walked into the burnt plantation. She walked through
the entire compartment A13a to where
it joined A13b. The observations
which she referred to were consistent throughout the entire area.
[44]
She returned on 16 November 2015 and has since then been back on two
occasions. She has also
been back to the dump site. She confirmed a
letter that was written to Hoatson in connection with the farm
Stafford and which was
withdrawn 3 days later. It was withdrawn
because Hoatson had informed them that the issue had been resolved.
She received an email
from Hoatson relating to grazing issues that
Hoatson had on the farm Albany which she was not aware of. She
received this on 9
February 2016 after the event. She further wrote
an email as she was concerned about the dumping on the farm and that
there may
be areas where this was taking place and potentially posed
a risk. Hoatson responded to the letter and it was confirmed to
Hoatson
that they were not aware of the saw mill waste dumping that
was going on at the farm and the dumping was seen as a huge increase

in risk. The policy was thereafter endorsed to limit cover as a
result of any fire that could take place in the area or in the
dump.
She has no recollection of the conversation that allegedly took place
at a meeting on 20 October where she was informed that
a case of
Normandien Farms was due to start. A video was shown which was taken
by her. She indicated where the heaps in the triangle
the smoke was
emanating from. It also shows what the excavator was doing, namely
opening up the stream line area which had burnt
material in it.
[45]
The cross examination of Bezuidenhout was lengthy and I will only
summarise the portions which
in my view are applicable. The risk
assessment in almost all cases rests with her but if she has concerns
she elevates it. As far
as Normandien is concerned up to 2015 the
decision rested with her. A proposal if revealing risk factors it
would depend on the
severity of the risk whether such person would be
insured or not. A risk survey is done on the farm after a proposal
confirms certain
information as being received. There are cases where
they will not insure. She had undertaken surveys on the farm Albany.
There
is an onus or responsibility on the insured to make sure that
they keep their side of the policy. The risk survey is her guideline

in terms of whether the risk is acceptable or not. As the properties
are generally large not all aspects can be seen in a single
visit.
She had travelled over the years on some of the roads on the farm
Albany and normally Rob Hoatson was with her in his vehicle.
She has
never carried out a survey independently. When doing the risk survey
she completes a form as guideline and will print out
the previous
survey and then compare the two. The surveys are based on her
observation. The decision to repudiate the claim was
not entirely her
own. It was a collective process including assistance from their
legal representatives.
[46]
There were surveys in 2011 and 2014 but in 2015 there was no survey
conducted. She was questioned
about a discovery affidavit where she
stated “A copy of the fire risk survey 2003, 2005, 2011 and
2014 are attached. The
fire surveys for years not mentioned above
were destroyed in a fire at Metro File, where the plaintiff’s
closed files are
held.” She then conceded that an error
occurred in that the 2015 survey would appear from the affidavit to
have been done
but it was not done and that the fire at Metro File
was during 2013. It was pointed out to her that the 2015 survey could
not have
been destroyed in the fire as it was in 18 October 2013 and
she said it was a mistake and she apologised therefore. No risk
survey
was also done in 2013. In 2014 one was done. A risk survey is
also not done for every single farm every year but it is done on a

rotational basis and there is no fixed rotation. The risk surveys for
2011, 2010 and 2005 were done by Norris who was previously
employed
by Defendant on a contractual basis. She had done a general
inspection with Hoatson in 2001 and in 2003 the risk survey
was done
by Norris who was instrumental in upgrading what they used to do in
such a fire risk survey.
[47]
When a score of minus 1 is recorded on the risk assessment it is a
negative but it is a minor
negative. If it was a minus 2 then it
would be a serious risk. The risk assessment would give her an
opportunity to look whether
there is something that she could come up
with positively. There have been no negative issues. This was up to
2015 although there
was no adjustment in the premium. The proposal
form was devised predominantly by Norris and Bekker. The question in
paragraph 12
of the proposal form at page 25 of buddle G was prepared
by her.
[48]
Dealing with the fuel load she stated that it can extend from a
compartment at the roadside to
an adjoining area and to an adjoining
plantation. These are aspects that they look at. A fuel load is one
of the most critical
factors when it comes to fires because fuel
loads create a different behaviour in a fire. A low fuel load makes a
fire more controllable.
A high fuel load not only makes it
uncontrollable but also increases the intensity of the fire. They
prefer to do risk surveys
between June and September of the year that
they do it. During summer months a false impression of a fuel load is
presented. They
do not have the manpower or the time to do an
inspection of every compartment on a farm. She was cross examined
extensively about
the scoring that had been made on several of the
forms which are in the bundles.
[49]
She stated that she is confident that when Norris did the scoring if
there was a saw waste dump
he would have raised it as a problem and
mentioned it. Exhibit “G” page 454 is a handwritten
document by her done on
15 April 2014. That is when she conducted a
survey. Referring to page 465 she indicated that there was a
discrepancy between the
typed form and the handwritten document and
that the person who captured the information did so incorrectly. The
correct document
is the handwritten survey. It was put to her that
her handwritten document, if it was correct where she ticked “Yes”,

could be reference to land disputes and related to the cattle issue.
She responded that Hoatson could have conveyed the message
in the
manner that did not make it feel an extra risk or concern. She cannot
recall what was said to her.
[50]
She agreed that on 9 February 2016 she received a letter together
with a court order. She was
unware that there had been any dispute in
the land claims court. On 10 February 2016 the day after receiving
the order she wrote
to Hoatson but did not raise the issue of the
court order. On 24 February 2016 she again addressed a letter to
Hoatson but did
not raise the issue. On 26 February 2016 another
letter was written to Hoatson and once again the issue was not
raised. On 16 March
2016 she addressed a further letter and that
dealt with the issue of the waste site. Once again there was no
mention of the livestock
issue. She could not explain why no letter
about the livestock was written once the order had been received. Mr
Hay, Defendant’s
attorney investigated the claim on behalf of
Defendant. She was familiar with the farm Albany and also with the
Hoatson’s
attempts to improve the farm and to reduce fuel
loads. The plantation areas are approximately 2 048 hectares and the
total size
of the farms Albany and Buffelshook approximately 3 359
hectares. In 2012 there had been a fire and she together with Hoatson
drove
through the area to inspect where the fire had occurred.
[51]
Dealing with the fuel load in 2012 there was heavy felling due to the
last fire that she kept
it at a zero. She did not score them
negatively. The fire had taken away the fuel load which changed the
dynamics. She was confident
that it was smoke that she saw at the saw
dust pits which were being reworked. She confirmed that the video
which was taken did
not show any smoke. There was still smoke in the
area that was being worked as appears from the photographs that she
had taken.
She conceded that there was smoke from the diesel.
[52]
She did not comment about smoke on the video as she did not see any
smoke on the video. She was
further shown a photograph in bundle E on
page 5 which was similar to that of the photograph on exhibit “1”
which she
agreed to and agreed that there was no smoke visible there.
The reason she took photograph 5 was to show all the burns and the
different sections and that the area had been worked. The saw mill
was known to her and was insured by Defendant up to 2014 but
not for
the 2014 to 2015 years. Although she had walked along what was termed
the blue road she did not walk past the waste dumps.
At the saw mill
she has seen debris and that it contained bark, pieces of wood as
well as soil from the floor of the log yard.
The residue was lying in
heaps and she foresaw this as a problem. She was however assured that
the waste material was either burnt
in the boilers or was sold to
other farmers.
[53]
On 11 November 2015 she once again inspected the burnt area but did
not inspect the unburnt area.
There was evidence as testified to by
Hoatson that shortly before the forest was pruned and thinned. The
fuel load is then increased.
But it was not regarded as exceptionally
high in these circumstances. The fuel load on the unburnt area of all
the veld grass was
slightly higher because of the left over material
from the thinning operation. The grass area adjacent to compartment
A13a had
been burnt on a regular basis. That year it had been burnt
so the fuel load in the valley or the grass area adjacent to A13a was

low at the time of the fire.
[54]
On 9 November 2015 she was angry and disappointed when she saw the
dump sites and questioned
Hoatson about it and why she had not been
shown it before and he responded that it was not a danger or a
threat. She however considered
it a serious non-disclosure and a
basis for rejecting the claim. She agreed that on 9 November 2015 she
knew that potentially this
could be an issue to repudiate or not. She
also visited the scene again on 11 November 2015 with Mullins and
Simon. Simon stated
in his statement that the fire started in A13a.
Mullins was concerned that the fire started in the saw dust heap. It
could have
been as a result of a fire break burn that went into the
sawdust heap. She received the report from Mullins on 15 December
2015.
There was not a 30 metre fire burn around the saw dust heap.
She had formed the opinion that the fire started at the saw dust heap

and not in compartment A13a.
[55]
She requested Plaintiff to provide her with the salvage value of the
burnt wood and what was
left after the fire. She agreed that she
intended to obtain information to enable her to consider what amount
should be kept in
reserve in the event that the claim was to be paid.
In the letter of 16 March 2016 addressed to Plaintiff she set out
that she
was unaware of the saw mill waste dump until 9 November 2015
and was unaware that it was a continuous practice to dump saw mill

waste and saw dust scrapings on Albany Farm. They were requested to
immediately seize that and should any fires spread from the
saw mill
waste dump then they would not cover the damage. They will continue
to hold them covered subject to the said condition
referred to. On 22
June 2016 the letter of repudiation was sent.
[56]
The non-disclosure of the saw dust heap would have given them a
reason in November 2015 to cancel
the policy. In February 2016 Hay
investigated the issue, visited the farm and had various
consultations. When asked why she did
not include the issue of
livestock knowing that it was an issue she stated that she could not
give a reason. The fire belt around
the saw dust heap was also not
mentioned in the letters and she agreed therewith.
[57]
At this stage Plaintiff indicated it wished to file a replication and
that the matter be adjourned
with Plaintiff to pay the wasted costs
so that it could bring a substantive application to file the
replication. This was done
and after the replication was filed the
matter then continued some three years later with the
cross-examination of Bezuidenhout.
[58]
She agreed that Plaintiff had complied with the provisions of the
policy in respect of the claim
procedure. The documents containing
the claim form had been submitted to her and this was done within the
time limits prescribed.
It was also reported to the police at
Normandien under case number CAS 6/11/2015. She confirmed that in a
letter from her to a
Mr Jamalabin, a landowner, she informed him that
there was no negligence attributable to Normandien Farms for damage
caused by
the fire to his property. The letter was written on 6
January 2016 before the investigation had been fully completed. The
saw dust
heap is on the edge of the road going past plantation A13a
and anybody driving past there would be able to see this heap. She
denied
that when she visited the farm as a result of a fire on 22
September 2015 she had driven past the dump site on Albany Farm. She

disputed that where the dump site was, was in a roadbed area but in
her view it was a stream line area.
[59]
She was referred to the letter of repudiation wherein it stated that
Plaintiff had caused saw
dust and timber waste from the industrial
saw mill plant to be dumped on the farm in an area adjoining the
insured plantations
and thereby increasing the load of combustible
material in the vicinity of the insured area and that she had used
the word “dramatically”
increased. She was then referred
to some article written by one Dave Hopson who stated that saw dust
cannot combust. She disagreed
therewith. She was not aware of
everything that was happening on the farm and Plaintiff had a duty to
make her aware of anything
that was not ordinary or that has changed.
[60]
In re-examination she stated that there were no factors that
increased the risk on the farm according
to the proposal form. The
form has a declaration which is signed by applicant that he was
satisfied that everything he had completed
was correct. The 2014 one
was definitely that of L Houtson but the 2015 one may have been
signed by Matthew Hoatson. She referred
to clause 12 with the heading
“Duty of Disclosure” that they were to disclose or advise
of any changes that may have
taken place during the prior period.
Normandien Farms consists of about 7 or 8 farms and between 1500 and
2000 hectares of planted
trees. It was a large operation. She once
again confirmed that it was smoke that came out of the saw dust heap.
There were definitely
no machines to the left or anywhere near where
the smoke was coming out of the saw dust area. She stated that it was
conveyed to
her by Lawrence Hoatson that “I recorded at the
inception of my insurance review the question of the dump site was
never
raised. Compounds where saw mills were and further that our
warranties make no mention of the dump site.” She was adamant

that during May 2015 the investigation was still proceeding and
therefore the letter of repudiation was only sent on 22 June 2016.
If
there was any repayment of the insurance premium due to the fact of
earlier cancellation it would only have been about 20 per
cent of the
premium that was repayable. That concluded her evidence.
[61]
Mr Piere Bayley Bekker (Bekker) testified that he was the CEO of
Defendant. That their business
was forestry insurance and that he had
joined the company in 1997. He has a BSC Honours degree from
Stellenbosch University in
forestry followed by a B com in business.
He did not attend to the farm after the fire at all. He was informed
by his brother who
farms in the same area that there had been a fire
on the Hoatson farm and he then contacted Bezuidenhout who then
thereafter went
to investigate. The account of Plaintiff was an
important one for them especially in respect of the forestry side.
The cancellation
or repudiation of a policy or claim was a major
decision. Only he makes that decision. He did repudiate and conceded
that it was
only in June of the year after the fire. They believed in
an upfront underwriting policy and that entails that the farmer must
beforehand advise them of all possible risks on the farm so that it
does not become a later issue. The survey which was used was
put
together over some time and it is taken into account as a management
tool. In 2007 and 2008 there were a lot of fires in the
timber market
and a lot of companies pulled out of underwriting forestry and a lot
of farmers approached them at that stage.
[62]
Saw dust was a pertinent factor and irrespective of the result of the
survey he would have expected
it to be brought to his attention. Saw
dust stores fire and when the fire gets into the saw dust it can hide
there and come to
the surface when there is combustion. It is a risk
factor that increases the fuel load. It needs to be specifically
mentioned.
They would exclude any fire that emanates form a saw dust
pit. They may still continue to ensure the balance of the farm.
Accordingly
if there was a saw dust heap it did not exclude the
possibility of insuring the farm but it may have been on different
terms.
[63]
During cross examination he stated that being upfront was to ensure
that there is no issues at
the claim stage. The survey was a
management tool to assess the risk. The risk surveys are conducted
with the farmer and an objective
view of the farm is obtained. The
farmer is encouraged to take them to the areas of concern. He
indicated that a scoring of 2 on
the survey means that there is a
high fuel load. 1 indicates a low fuel load. He has no record of any
saw dust heap being reported
to them. It is expected of a client to
bring such information to their attention. One of the reasons it took
so long to decide
on whether to repudiate was to make certain that
the fire started in the saw dust heap. From day one there was a
suspicion that
there was a problem but they gave them the benefit of
the doubt until all the investigations had been conducted and
completed.
Such decisions are not made easily and quickly. The
Hoatson’s had at great surprise to them the very day after the
fire started
a massive process of remedial action using excavators
and all sorts of things and it made no sense for them to do so if
there was
only a tiny little fire on top of the saw dust heap. It
indicated that there may be tampering with evidence.
[64]
It was therefore agreed by Defendant that they will continue to
insure but will not cover any
fire that emanates from the saw dust
heap. There were different places provided to them where the fire had
started. He had seen
the report of Mullins on 15 December 2015. The
report indicated that there had been a non-disclosure. From
everything provided
to him he was satisfied that the fire started in
the saw dust heap. He was further cross examined on an article
written by one
Mr Dobson about saw dust and the combustion thereof
and whether there was spontaneous combustion and how that occurs
which in my
view it is not necessary to deal with here in detail as
it appears from the typed record.
[65]
He regarded an industrial waste site or dump site as part of a
manufacturing process. When he
was phoned by Bezuidenhout after she
attended the scene he was informed by her that there was a saw dust
waste dump. This was a
big issue as it had not been reported to them.
On 13 May 2016 there was still discussions going on. There was a
transcript of an
interview with Pretorius and it was only finalised
on 7 June 2016.
[66]
Mr Michael Charles Mullins (Mullins) testified that he was a
professional loss adjustor and had
been doing so for 40 years
specialising in timber adjustments. Attempts to ensure that there is
a fair settlement at the end of
the day. He does not make any
decisions nor recommendations but just says what the issues are. He
likes to be there before anything
is disturbed so as to obtain the
necessary information. He received a call from Bezuidenhout either on
Monday or Tuesday but then
met her on the farm on Wednesday 11
November 2015. He is aware that there is a saw mill, an air strip, a
fire tower and a weather
station on the farm.
[67]
The weather conditions are presented by different colours and an
orange colour indicates that
it is dangerous and that your
firefighting equipment should be ready. On Saturday 7 November 2015
the temperature was 29 to 31
degrees and the wind speed at 11h00 was
18 km per hour. It abated a bit and then got stronger again. It was a
westerly and south
westerly wind. He was questioned as to when it
says westerly wind is it blowing from west or towards west and
responded that it
is blowing from the west. He was shown a diagram
and indicated that the wind was blowing from the left to the right on
the diagram.
For the Saturday it was marked as orange which meant
that there was danger. It was pointed out to him that in his report
he stated
that the fire appears to have started in or adjacent to
compartment A13b spreading rapidly in a south easterly direction due
to
the strong westerly wind.
[68]
He stated that he used the word waste bits because there was no more
saw dust or anything when
he arrived there. There was some grass that
had been burnt along the top. He had been told by Rob Hoatson that
they had been dumping
saw dust there for the past 7 years. He
expressed the view that there is a possibility due to the weather
conditions that the saw
dust waste dump spontaneously ignited caused
by the low humidity, high temperatures and strong winds. When he
spoke to the lady
that was in the watch tower she indicated that the
smoke at first was white smoke and then later turned to black. No
clearing of
the surrounding grass of the waste dump had been carried
out and he commented that there had been a non-disclosure and that
reasonable
steps may be taken.
[69]
During cross examination he stated that he has experience in many
fires but he would not express
himself as an expert in the field of
fires but that he is an expert in terms of fires relating to
insurance claims. He went to
the saw dust heap on the day in question
together with Rob Hoatson and Bezuidenhout went with Simon in his
bakkie. He was aware
of expert reports and theories that the fire did
not start within a compartment. Although the statement of Hoatson was
that it
did not start in the saw dust heap Rob Hoatson immediately
took him to the waste dump when he was there. He was referred to his

report where he said that an alternative was that it started from the
dump site itself and spotted into compartment 13A. He stated
that
grass burning normally makes white smoke. In 13A and 13b all the
material on the floor had burnt out. If the grass between
the trees
burnt it was possible that it would have created white smoke. He
agreed that it was possible that the white smoke which
was seen by
Khubeka could have emanated from within a compartment amongst the
trees. He agreed that the wind directions change
during the day on
the farm.
[70]
The purpose of his report was to set out what he had seen at the
scene. It was a preliminary
report and he was not asked to do
anything further. The saw dust heap when he arrived there, had large
trucks and bulldozers in
the pit and it had been worked.
[71]
The manuscript changes to his report relating to 13b was done by him
as it is his initial that
is next to it. He was asked by someone from
Defendant to change the reference on page 21 from compartment 13b to
13a and towards
the middle also to compartment 13a and 13b instead of
just 13b. He says it was possibly Bezuidenhout. It was not changed on
page
19 and he indicated that it must have been an oversight. It was
put to him that the point indicated marked with an X was dump site
2
and not dump site 1.
[72]
Mr Abraham Petrus Du Preez (Du Preez) testified that he has a
Bachelor of Science in forestry,
civy culture and nature
conservation, an Honours Degree in business administration and is a
part time lecturer at Nelson Mandela
University and lectures fire
management and fire ecology and forestry engineering practises. He is
an independent forestry and
wild fire consultant. He started his
career in forestry inline management and after a period of 21 years
was moved to another position
in a company MTO Forestry as manager
doing fire investigations or being a member doing fire
investigations. He left MTO in 2017
then lectured for 3 years and
then became an expert in fire investigation.
[73]
He visited the site on 5 October 2018. With the knowledge at his
disposal and what was possible
to see on site as to the origin of the
fire and the direction and the intensity of the fire are issues which
he attempted to determine.
There was a small area of trees that were
left after the fire. The area next to compartment A13a had already
been harvested and
replanted. It was a gentle slope upwards from the
road into compartment A13a in an easterly direction. There were black
burn marks
or scars on the fronts of the trees which was visible. The
burn scars on the bark will remain visible for many years. It was
evident
that the fire burnt from a westerly direction in an easterly
direction up the slope away from the road into A13a. It was a west
to
northwest wind according to the records.
[74]
The angle of char would normally if there was wind involved be a
distinction between the side
where the wind comes from and the
opposite side where it is referred to as the lee side of the tree.
The bark on the tree points
to the direction of the spread of the
fire. The angle would be lower in the direction from where the wind
is coming and higher
in a direction in which the wind is blowing.
What he could establish was that the fire burnt from one direction to
another, the
angel of char indicates the direction and thirdly the
presence of wind. It is evident to him from the photographs and
observation
on the day of the visit that the fire initially moved
reasonably slowly into the compartment as it entered. It thereafter
definitely
increased in intensity. If one considers the photographs
it can be seen that compartment A13a the trees in the foreground
facing
the observer there is very little evidence of a burn scar on
this side whereas one can see black at the back of the tree, where

there is clear signs of scorching. The photograph is clear that the
fire was moving in the opposite direction from which the photograph

was taken at page 39 of bundle E. The fire intensity increased as the
fire progressed. There are no signs of a so called back fire
burning
towards the origin of the fire. Where a fire burns there are two
clear flanks. The left flank and the right flank burning
outwards
from a source of the origin of the fire. One can clearly see the
direction of the fire burning away from a westerly to
an easterly
direction.
[75]
It is so that external sources, such as fire embers burning material
might be blown into the
sawdust heap. If it is blown into the saw
dust heap or dump site it may be dormant for weeks and even months.
The dumping of saw
dust was a potential hazard in a plantation area.
He stated that from his observations that it is highly improbable
that the fire
would develop into such a big fire inside the
plantation. The remaining trees did not show signs of back fire at
the rear. Although
it is not uncommon that fires do burn slowly back
from the origin, the signs left in compartment A13a would not be in
keeping with
that due to the angle of the char and it showed that the
fire had momentum moving from west to east and not in the opposite
direction.
He stated that it was virtually impossible for a fire to
jump back across the road against the prevailing wind. The wind was
around
19 to 20 km per hour which is a reasonably strong wind. Where
there is smoke there is 99 per cent of the time a fire. He said that

on the photographs the fire at the saw dust heap was indeed larger
than the area of approximately a metre by metre, a surface fire
which
was stated by Simon. He was asked whether where there is a slope one
can expect a sudden increase in speed of fire which
he stated was
correct but stated that the wind would be the most important factor.
If the fire has gone up higher it is indicative
of a fair amount of
undergrowth.
[76]
In this case the wind was consistent from the west. It changes
gradually. In the southern hemisphere
the wind direction changes
anticlockwise from northwest to west to a southwest and that would be
the explanation why on the Saturday
it was predominantly west
northwest and on the Sunday southwest. A back burn is a counter fire
in the terminology to explain the
fire burning slowly back from its
point of origin away from it against a predominantly wind direction.
But a back burn would be
putting in an additional fire to stop the
progress usually against a safe place like the road or a structure.
Winds can change
direction but in his opinion that was not so in this
case. If the fire originated from the saw dust heap it would have
spotted
across the road into A13a. It is about 4 to 6 metres. The
angle of char indicated the direction of the movement and that it
burnt
from west to east but not from east to west. It is most likely
that it spotted from the saw dust heap and that is the most likely

point of origin. As far as burning embers inside the dump he
testified that it was either due to spontaneous combustion or burning

embers from previous burning operations such as fire breaks adjacent
to the saw dust heap. Smouldering will not necessarily emanate
smoke.
It can burnt inside without generating smoke.
[77]
He considered all the factors such as lightening, the teams working
in the area arson, but the
only logical cause for the fire was that
it originated from the saw dust heap. He stated that it definitely
crossed the road so
it spotted. Either directly from the saw dust
heap or from burning vegetation on the verge of the saw dust heap.
The angle of char
would be deeper on the lee side. He denied that he
had been influenced in anyway by what was told to him by Defendant’s
representatives.
He then referred to what was called a V pattern as a
very reliable indicator. This indicated that the fire crossed the
road into
A13a and then moving from a westerly to an easterly
direction fuelled by the westerly wind. He once again expressed the
view that
it was a wind driven fire and not a slope driven fire. The
wind pushed it in an easterly direction.
[78]
He was questioned at length about the V pattern but was adamant that
the V pattern indeed confirmed
what he had established as the origin
and burning of the fire. He stated that it was not based on
speculation but on evidence provided
to him. It spread into A13a and
the followed the typical V pattern. He could find no evidence of
anyone having lit a fire. There
were clear indications of a fire in
the saw dust heap. The fire definitely burnt from the road into A13a
and not back to it. He
was adamant that there was still a V pattern
and his conclusions were reached on the evidence found on the trees
in A13a. He was
instructed by attorney Hay and also consulted with
Bezuidenhout, shown photographs and also a video but made his own
observations.
He was questioned why he did not in his report refer to
the fact that he had consulted with Bezuidenhout and responded that
he
was not asked whether he had done so. He was taken to the scene so
somebody had to take him there.
[79]
He conceded that the direction of fire can vary in general terms but
not radically or instantly.
It normally happens over a period of
time. He once again confirmed that what remained in A13a clearly
indicated a fire burning
from west to east not the opposite
direction.
[80]
During re-examination he referred to his report where he stated that
it was improbable that the
fire first entered the saw dust waste area
only on 7 November 2015. The visible traces of saw dust and blackened
char remains are
more consistent with an indication that the fire had
been resident in the saw dust waste for a period preceding 7 November
2015.
He once gain confirmed that there was a constant reasonably
strong westerly wind blowing at the time at roughly below 35 km per

hour. It is a reasonably strong wind. It was a westerly wind and he
once again referred to the charring on the remaining trees.
He
explained that it is a physical reality the way that the flame moves
and it is to do with the air vacuum and the shape of the
flame going
up similar to when a fire moves uphill and it will always be higher
on the other side of the tree but the height will
be determined by
the fuel load. So the burning or the char on the leeward side is
always more severe. It was put to him that the
evidence presented was
that the wind at all times was in a westerly direction. He was asked
if he could postulate how a fire that
started in the compartment can
end up in the saw dust heap which was against the wind. His answer
was that it was virtually impossible.
That concluded his evidence.
That was the case for Defendant.
[81]
Heads of argument were filed and the matter also argued. At the
argument stage Defendant indicated
that it no longer persued the
issue that the claims procedure had not been complied with, the issue
of the grazing rights and the
fire belt of 30 metres that was not
burnt around the sawdust waste area. These issues have therefore not
been dealt with in detail
in the summary of evidence. The issues
which have to be determined are thus the origin of the fire and
whether there was any misrepresentation,
whether there had to be a
disclosure of the sawdust heap which affected the risk and the issue
of waiver and estoppel.
[82]
Both parties referred me to the decision of Regent Insurance Company
Ltd v Kings Property Development
(Pty) Ltd t/a Kings Plot
2015 (3) SA
85
(SCA). I was also referred to various other decisions relating to
the onus and the test of materiality. However, in my view, there

issues are dealt with in the Regent Insurance decision.
[83]
Section 53(1) of the Short Terms Insurance Act 53 of 1998 provides as
follows:
“
Misrepresentation
and failure to disclose material information
(1)
(a) Notwithstanding
anything to the contrary in a short term policy, whether entered into
before or after the commencement of this
Act, but subject to
subsection 2.
(i) the policy shall not
be invalidated.
(ii) the obligation of
the short term insurer thereunder will not be excluded or limited and
(iii) the obligation of
the policy holder shall not be increased, on account of any
representation made to the insurer which is
not true, or failure to
disclose information, whether or not the representation or disclosure
has been warranted to be true and
correct, unless that representation
or non-disclosure is such as likely to have materially affected the
assessment of the risk
under the policy concerned at the time of its
issue or at the time of any renewal or variation thereof.
(b) The representation or
non-disclosure shall be regarded as material if a reasonable, prudent
person would consider that the particular
information constituting
the representation or which was not disclosed, as the case may be,
should have been correctly disclosed
to the short term insurer so
that the insurer could form its own view as to the effect of such
information on the assessment of
the relevant risk.”
[84]
What is clear from the decision of Regent Insurance is that the onus
of proving materiality is
on the insurer to prove that the
non-disclosure or representation induced it to conclude the insurance
contract. Further that it
is an objective test to determine the
materiality of a non-disclosure as set out in section 53(b) whether a
reasonable person would
have considered that the risk should have
been disclosed to the insurer. The test for inducement remained
subjective, whether the
particular insurer was induced by the failure
to disclose a material fact to issue the policy. These legal issues
are accordingly
not in dispute.
[85]
Plaintiff submitted that Defendant had to prove the materiality of
misrepresentation, and also
had to prove where the fire started. It
was submitted that it was speculation by Defendant where the fire
started in that:
1.
It was speculated that it crept into the sawdust heap earlier on.
2.
It was not said when.
3.
The issue of spontaneous combustion was speculation.
4.
Bezuidenhout did not say where in the sawdust heap it first started
it was a reconstruction
of how the fire started with no factual
evidence to base this on.
5.
The photograph of smoke at the sawdust heap shown at the trial.
It was the conclusion of
Du Preez that the fire spotted from the sawdust heap.
[86]
The expert witness of Defendant Mullins, concluded that the
possibility was that the fire emanated
from the sawdust heap, which
is adjacent to compartment 13b. He was told that he had to make
alteration to his report by Bezuidenhout
and it was submitted that
his evidence was conjecture.
[87]
It was further submitted that the evidence of Bekker was of no
assistance he was a biased witness
and his evidence should be treated
as inadmissible. It was submitted that the alleged non-disclosure of
where the fire started
was akin to fraud and had to be distinctly
proved. The evidence of Plaintiff was that the fire started in
A13(a). It was submitted
that the following factors proved that the
fire did not start in the sawdust heap. Bezuidenhout knew of the
sawdust heap, the repudiation
of the claim long after the fire. On 9
and 11 November 2015 Bezuidenhout formed the opinion that the fire
started in the sawdust
heap. She took a video version thereof. A
photograph taken on 9 November 2015 showed smoke. No letter after 9
November 2015 to
Plaintiff that the fire started in the sawdust heap
until the letter of 16 March 2016 stating to Plaintiff there was a
misrepresentation
as to where the fire started. The misrepresentation
only arose after the claim had lapsed and there was correspondence
between
the parties about the salvage of the timber. The silence of
Bezuidenhout from November 2015 to March 2016 without repudiating or

communicating creates an irresistible inference that she knew of it.
An adverse inference also had to be drawn from the fact that
the
expert Thomson in respect of whom an expert notice had been given was
not called to testify.
[88]
It was submitted that having regard to the decision of Representative
of Lloyds v Classic Sailing
Adventures
2010 (5) SA 50
(SCA) at
paragraph 60 that where there were eyewitness evidence or direct
evidence of an occurrence this may render the construction
of experts
less relevant or even irrelevant.
[89]
It was submitted that it must be accepted that when the witness
Khubeka walked past the sawdust
heap at 5:35 she saw no smoke.
Pretorius at 8:30 was informed by Khubeka that there was a fire in
the sawdust area. There was no
fire but only smouldering and he saw a
fire in A13(a) 10 to 15 metres from the road. Later a small area
smouldering was in the
sawdust heap. The witness Mfusi saw a fire in
A13(a) and no smouldering at the sawdust heap. The witness Mfanathi
burnt the area
around the sawdust heap the day after the fire so
there was no fire at the sawdust heap.
[90]
It was submitted that Defendant failed to prove non-disclosure of the
sawdust heap. There were
no factors which increased the fire risk
since the last proposal including changes to management. The sawdust
heap had been there
since 2003 and the farm was visited by
Bezuidenhout over a period of 14 years and she could not explain how
she missed it. The
risk remained the same and Defendant itself
assessed the risk. She knew thereof but falsely denied it. Fire
surveys were conducted
on 28 July 2011 and 15 April 2014 and
Bezuidenhout admitted that the handwritten survey of 2014 conflicted
with the typed version.
Bezuidenhout had travelled on the roads but
made all attempts to avoid admitting that she travelled on the road
passing the sawdust
heap. The forms used by Defendant contained
scores and the fuel load was important and in 2011 as well as 2014
she scored the surrounding
areas as zero.
[91]
Bezuidenhout must have been aware of the sawdust heap and only
enquired about such on 25 February
2016. She was unable to comment
why only then. She was of the opinion on 9 and 11 of November 2015
that due to the non-disclosure
the claim could be repudiated. She
also addressed letters to Plaintiff about salvage and made no mention
of the sawdust heap. By
not immediately referring to the sawdust heap
is indicative that she knew about it. Further there was false
evidence of the 2015
survey.
[92]
It is further submitted that the sawdust heap did not increase the
insured risk and that it was
not necessary to disclose. It had been
no risk for more than 10 years. Bezuidenhout was a poor witness which
was argumentative
and her demeanour was bad, and she was untruthful.
[93]
In respect of the replication it was submitted that it took from 7
November 2015 until 22 June
2016 to repudiate the claim. The sawdust
heap was also only first mentioned on 16 March 2016. Defendant thus
waived its rights.
[94]
It was submitted on behalf of Defendant that as it was a contract of
insurance Plaintiff had
to notify Defendant of any increase in the
risk, had to maintain firebreaks and make a full disclosure. In terms
of clause 12 of
the contract of insurance a full disclosure had to be
made and the non-disclosure of the waste dump site was therefore
irregular.
There was no evidence prior to 9 November 2015 that
Bezuidenhout knew of the waste site. There is no evidence to back up
the accusation
that she must have been aware. On 24 February 2016 she
stated that she only became aware of it on 9 November 2015. Mr
Houtson responded
that the warranties never made mention of a dump
site. The evidence of Houtson as to her knowledge was speculation.
[95]
Defendant referred to the Regent Insurance decision and stated that a
person seeking cover is
obliged to disclose all matters material to
the assessment of risk to allow the insurer to make a proper
assessment. It was submitted
that in terms of section 53 of the Short
Term Insurance Act Defendant alleging the non-disclosure had to prove
the materiality
thereof and that it was an objective test. Du Preez
testified as to the threat of the timber waste site and this was not
challenged.
The work on the dump site the following day as testified
by Plaintiff’s witness indicated that it was a danger. Anything
that increases the risk in the vicinity of a plantation is critical.
Further it was submitted that the timber waste site did burn
and this
should have been disclosed. The repudiation was therefore justified.
[96]
As far as the origin of the fire it was submitted there was fire in
the dump site on 7 November
2015. The cluster of trees on the western
end of compartment A13(a) survived but all the timber to its east was
destroyed. The
wind blew from west to east and the road between the
dumpsite and the compartment had no fuel load. The char pattern on
the surviving
trees indicate that a westerly wind blew and varying
degrees of char was visible on the eastern side. Du Preez was not
challenged
that he was wrong. The marks on the tree indicate that the
fire burnt from west to east. There was nothing to indicate that the

fire had moved from east to west.
[97]
It was further submitted that the evidence of Pretorius that the fire
originated 15 metres into
the plantation compartment was contrary to
the char marks on the surviving trees and the fire would have had to
back burn against
the wind. There was no explanation for this. The
probabilities did not support the evidence of Pretorius. Pretorius
testified that
the dumpsite was safe but if it was so then why all
the workings that occurred there the following day. In his statement
Pretorius
stated that the tower informed him that the fire was in
compartment A13(a). On 16 February 2016 he stated that he could see
the
fire in A13(a) and that is where it started. However he had not
shared this information with anyone up until then. It is improbable

that he would not have reported where he thought the fire started.
His evidence is accordingly improbable and cannot be accepted.
It was
proven that in all likelihood the fire started in the dumpsite.
[98]
As far as the waiver and estoppel was concerned the fire was on 7
November 2015. It was attended
by Bezuidenhout and Mullins on 9
November 2015 and 11 November 2015 and on 10 February 2016 it was
stated to Plaintiff that the
reinsurers had certain queries. On 19
February 2016 Defendant’s attorney and Bezuidenhout attended
the farm and interviewed
various witnesses and this was the first
time that Pretorius stated that the fire started in A13(a). It was a
protracted investigation
that was only completed on 7 June 2016 and
Plaintiff was aware of the investigation. On 22 June 2016 the claim
was repudiated.
It was accordingly submitted that Defendant did not
waive its right to rely on the said defences and that clause 18 of
the insurance
contract excludes waiver.
Origin of the fire.
[99]
The witness Khubeka, who was in the tower at Normandien Farm on the
morning in question, stated
that she reported at 8:45 that there was
smoke in the sawdust area. This evidence of her was not disputed and
was also confirmed
by various other witnesses such as Pretorius and
Mfusi. It is therefore uncontested that the report made by her
indicated smoke
from the sawdust area. Pretorius went to the scene
and stated that he saw a fire at compartment A13(a). There was no
smouldering
at the sawdust heap and the wind was blowing in a
westerly direction and there were spot fires. In the afternoon there
was smouldering
at the sawdust heap in the section of approximately a
metre by a half a metre. He suspected that there was back burning.
The waste
site was no fire danger.
[100]   The
witness Simon indicated that there was no smouldering at the dump
site at approximately 06h00. He however
confirms that Khubeka stated
that she saw smoke at the dump site. He saw the fire at A13(a) but
could not established where it
had come from. It spread in an
easterly direction. In the afternoon the dump site was smouldering.
He confirmed that there was
extensive workings at the dump site on
the Monday and that there were bull dozers etc. operating there.
Pretorius showed with a
hand where the fire started but was not
specific. Mfusi stated that he saw fire in the plantation. There was
no smouldering at
the sawmill dump site and the wind was in a
westerly direction. The burning was against the wind.
[101]   Houtson
stated that he informed Bezuidenhout on 7 November 2015 that he was
moving equipment into the sawdust
heap. She had been on road A13(a).
The sawdust heap had been there since 2003 and what it consists of is
log yard scrapings which
is dumped so as to fill up the area that
trees can later be planted. He stated that it was a surprise to him
that after having
travelled on the farm for 14 years Bezuidenhout
missed seeing the sawdust heap. The dump site was never considered to
be a fire
risk and he denied that it started there. Bezuidenhout also
on 9 November 2015 when she visited the farm not tell him to stop
dumping.
Four months prior to the fire the plantation had been
thinned out and pruned and there was a lot of brush wood lying in the
forest.
Various samples were taken to Mr. Strydom, previously
employed by the CSIR, to do various tests as to the scrapings of the
samples
taken from the mill sites and also the dump and he was of the
view that log yard scrapings would not make large flames.
[102]
Bezuidenhout was adamant she only became aware of the dump site on 9
November 2015. She however conceded that
she had on numerous
occasions in the previous 14 years been to the said farm and had also
conducted a survey of the farm. Houtson
had on 7 November 2015, when
she spoke to him telephonically, informed her that he suspected it
was spontaneous combustion and
on the Monday informed her that he was
commencing remedial operations because of changes in the wind
direction. She then went to
the farm on 9 November 2015 and saw
various vehicles operating in the dump site area. There were burn
marks at the dump site and
such a dump site was high risk. On 11
November 2015 she attended at the farm with Mullins. On the western
side of the trees that
were still left there were very little burn
marks. She also went to the farm on 16 April 2015 and on 2 occasions
thereafter. She
later informed Houtson about the dumping and the
policy was endorsed accordingly. There was no survey during 2015.
[103]   On 16
March 2016 she addressed a letter to Houtson dealing with the waste
site. The fuel load is increased when
forests are pruned and thinned
and this is accepted. On 9 November 2015 she considered the waste
dump as a non-disclosure and as
a basis for rejecting the claim. The
report from Mullins was received on 15 December 2015. She agreed that
she enquired from Houtson
what the salvage value of the wood was and
that on 22 June 2016 the claim was repudiated.
[104]   She was
cross examined at length about various issues which are not of
assistance in deciding where the origin
of the fire was. It is
however apparent from her evidence that she attempted at all times to
avoid admitting that she, although
having been to the farm on
numerous occasions over a period of 14 years, had ever passed the
waste site. When she was referred
to her attendance at the farm on
the previous occasion when there was a fire she once again attempted
to avoid admitting passing
the waste site by stating that she
approached on the farm from the other side.
[105]   Bekker,
who was the CEO, never attended the scene and stated that a saw dust
heap is a risk and needs to be mentioned
by the insured. He concluded
that the fire started in the sawdust heap.
[106]   Mullins
testified that the wind was in a westerly direction and that the saw
dust waste heap spontaneously ignited
and that this was due to the
humidity, the temperature and the wind. He agreed that white smoke
was from grass and could be from
among trees.
[107]   Du
Preez concluded the fire burnt from west to east up the slope of
compartment A13(a). The angle of char showed
the side of the wind.
The char on the remaining trees was indicative that the wind blew
from a westerly to an easterly direction.
It first moved slow into
the compartment and then increased in intensity. He could find no
signs of back burning and the fire was
from a westerly to an easterly
direction.
[108]   The
dump site was seen by him as a potential hazard. Due to the angle of
char there was no back burning. The wind
was about 20 km per hour and
the fire did not jump back against the prevailing wind. He therefore
concluded that the fire started
at the sawdust heap and spotted
therefrom. The V pattern was what one would have found as the fire
crossed the road into compartment
A13(a). The fire in the sawdust
heap was from spontaneous combustion or burnt ambers. He was cross
examined at length on various
issues as well as to his qualifications
to testify as an expert. It was his first time to present evidence as
an expert in the
High Court. This however is not an issue that would
affect the calibre of his evidence. It is apparent that he has
extensive knowledge
of forestry and of the controlling of fires and
also lectures in that regard. Although there was lengthy cross
examination it could
not be disputed that the angle of char indicated
the direction of the fire. Unfortunately due to the fact that all the
other trees
had been cut down at the time that he visited the
property he could only refer to the small portion of trees that were
still in
the compartment opposite the sawdust heap and which
contained the char from which it could be established due to the
angle thereof
that the wind blew in a westerly direction and the fire
burnt in the same direction.
[109]
Khubeka’s evidence can be accepted and was also not challenged.
Pretorius, although agreeing that Khubeka
reported smoke coming from
the sawdust heap, only at a later stage during February 2016 stated
that he saw the origin of the fire
about 10 to 15 metres inside the
plantation. Although his evidence in this regard was what he actually
observed, his evidence must
be considered together with all the other
evidence and the probabilities. He conceded that the wind was blowing
in a westerly direction.
He stated that there was later some
whirlwinds but did not indicate that that would have caused the
burning of the plantation in
compartment A13(a). He suspected it was
back burning but it must then have been spontaneous back burning
because there was no evidence
by any of the witnesses that a fire was
ignited to cause the actual back burning against the prevailing wind.
Although he answered
all questions the veracity thereof must be
established.
[110]   The
witness Simon’s evidence that he saw the fire at A13(a) is not
of much assistance as he could not indicate
where the fire had
started. It is not in dispute that the fire spread through
compartment A13(a) and therefore it is of no assistance
in
determining the origin of the fire. Mfusi indicated that he saw the
fire in the plantation burning against the wind. He admitted
that the
wind was in a westerly direction. Once again his evidence as to where
the fire was seen by him has to be considered against
the
probabilities and the other factors such as the wind direction. He
could not provide any explanation as to how this fire would
have
burnt against the prevailing wind which it was common cause was at
least 20 km per hour at the time. Therefore just as in
the case of
Pretorius and Simon the other factors such as the wind direction and
the other evidence which I will deal with later
makes one to conclude
that no reliance can be placed on their evidence. Houtson could not
provide any assistance as to the origin
of the fire except that he
stated that the sawdust heap had been there since 2003 and that he
did not regard the sawdust heap as
a risk factor. He was surprised
that Bezuidenhout, having been to the farm on so many occasions, had
no observed the sawdust heap.
Also four months prior the plantation
had been trimmed and pruned with a lot of brush wood which was lying
under the trees. When
the policy was renewed there was no increased
fire risk. When Bezuidenhout visited the fire on 9 November 2015 she
did not tell
him to stop dumping. He agreed that on the next day and
especially the Monday various machinery was brought in to work on the
dump
site. Extra soil poured onto it and in his view this was done
due to the change in the wind direction and to ensure that no further

fires could be started.
[111]
Bezuidenhout attempted to ensure when answering questions that she
had not gone past the dump site. She had only
gone up the road to a
certain extent or came down the road to a certain extent but never
past the area where the dump site was.
She did not conduct a survey
in 2015. The fuel load was increased when the forest was pruned and
thinned. On 9 November 2015 she
already considered it as a
non-disclosure and a basis for rejecting the claim.
[112]   It is
difficult to understand why, if on 9 November 2015 she already was
satisfied that it was a non- disclosure
and a reason for repudiating
the claim, which was confirmed by Mullins on 15 November 2015, that
the repudiation was only done
on 22 June 2016. It is contended that
this was due to further investigations which took place. In my view
there is nothing from
the evidence which indicated that such a
lengthy further investigation was necessary and further that one
would have expected,
at least if the parties were satisfied during
November 2015 that there was a non-disclosure and where the origin of
the fire was,
that this would be communicated to Plaintiff and would
not wait until March 2016 to communicate it and then only cancel it
during
June 2016 after the policy was not renewed. This was after the
salvage value of the timber was requested from Plaintiff even though

she had already decided that it was a non-disclosure which warranted
a repudiation. She was not the best of witnesses. At times
she could
not answer the questions posed to her or explain her conduct. Her
conduct does not seem to accord with what she found
and in my view no
reliance can be placed on her evidence as to the origin of the fire.
[113]   The
evidence of Mullins that it was spontaneous combustions at the
sawdust heap is supported by the wind direction
[114]
Although Du Preez’s evidence may have had certain deficiencies,
it was in my view reliable. He was honest
in respect of the findings
that he made and his evidence was supported by the other factual
evidence and probabilities. The char
marks and the angle thereof is
indicative that the fire burnt in a westerly direction from west to
east and therefore it would
appear on the probabilities that it
commenced at the sawdust heap. There was no dispute about the
direction of the wind and no
credible evidence that contradicted the
conclusions drawn from the char marks. It entered the compartment
A13(a) and from there
due to the wind of at least 20 km per hour in a
westerly direction kept on burning up the compartment away from the
sawdust heap.
I accept for the said reasons that there was no back
burning as this does not appear from the angle of char. If the fire
had started
in compartment A13(a) as testified to by Pretorius the
fire must have burnt against the wind. There was no evidence to
support
this possibility as the wind speed was about 20 km per hour
or more at times. There was no evidence direct or indirect that the

fire burnt from inside compartment A13(a) towards the dump site.
Although Pretorius stated that the fire started in A13(a) he did
not
testify that he saw it burning against the wind. The V shape also did
not show burning towards the west.
[115]
Considering all these factors and especially the direction of the
wind the charring on the remaining trees and
the fact that
immediately after the fire Plaintiff commenced extensive work on the
sawdust heap, it has been proved on a balance
of probabilities that
the sawdust heap must have been the origin of the fire.
Non-disclosure of the
sawdust heap and risk effect.
[116]   It is
common cause that Plaintiff at no stage informed Defendant of the
sawdust heap. The evidence of Houtson
was that it had been dumping at
the said heap since 2003 so as to fill up the area to enable it to
plant more trees in that area.
In its letter of repudiation dated 22
June 2016 Defendant contends that the fire spread from the sawdust
waste area. In the said
letter it sets out that section (A) of the
certificate was breached because the member did not take reasonable
steps and precautions
to prevent accidents or losses and in terms of
section B clause 7(c) the member shall in addition to the express
warranties contained
therein take all reasonable steps and
precautions to prevent loss or attempt to minimise such losses that
may occur. It is contended
that by allowing sawdust and timber waste
from the saw mill to be dumped on the farm in an area adjoining
insured plantations increased
the combustible load and increased the
fire risk.
[117]   It is
also contended that in terms of section A clause 8 if any claim under
the certificate is in any respect
fraudulent or if any event is
occasioned by the wilful act with the connivance of the member the
benefit afforded under this certificate
shall be forfeited. It is
further contended that during the investigation management employees
made materially inconsistent and
contradictory statements regarding
the incident and that they caused part of the area where it was
dumped to be interfered with
on about 9 November 2015 in a deliberate
effort to destroy. However the issues relating to the cattle and the
court cases relating
thereto and the 30 metre firebreak were not
pursued by Defendant.
[118]   It
referred to section B clause 12 of the certificate which has the
heading “Duty of Disclosure” and
states that the member
shall be obliged to make a full disclosure of any factors which may
impact on the assessment of the risks
underwritten in terms of the
certificate. Such obligation extends to informing the cooperative of
any material change and circumstances
that may have an impact on the
risks underwritten during the currency of the certificate including
change of ownership, i.e. cross-partnerships,
cease lease agreements
etc. It is then once again alleged that by dumping the sawmill waste
it substantially increased the load
of combustible material in the
vicinity of the plantations.
[119]   The
policy was taken out the first time in 2001. On 21 April 2015 a
renewal proposal form was signed as appears
at page 54 of exhibit
“B”. In paragraph 13 thereof it enquires whether there
were any factors which have increased
the fire risk of the farm since
the last proposal was completed including change to management and
the answer was no. The evidence
of Houtson that the dumping had taken
place since 2003 was not disputed. Accordingly the answer which was
provided in the renewal
proposal form that there was no factor which
increased the fire risk since the last proposal does not appear to me
to have been
a misrepresentation neither to have been fraudulent.
[120]   Also
from the evidence it did not appear that there was any intentional
fraudulent means or conduct by Plaintiff
or its employees in respect
of the origin of the fire. It was never disputed that the dumping had
taken place and Plaintiff also
from the commencement provided the
evidence of the witness Khubeka that the first report stated that
smoke was seen from the sawdust
dump area.
[121]   In
terms of clause 12 of section B a member shall be obliged to make a
full disclosure of any factors which may
impact on the assessment of
the risks underwritten in terms of the certificate. Such obligation
extends to informing of any material
change in the circumstances that
may have an impact on the risks underwritten during the currency of
the certificate. It is then
contended that by dumping the sawdust
waste from the mill in the area in which Plaintiff did it increased
the combustible load
in the vicinity of the plantations and increased
the fire risk in the plantations.
[122]   The
question that therefore arises is whether there was a duty to make a
disclosure thereof to Defendant. There
is no specific mention in the
certificate or in any of the documentation that was referred to that
the dumping of the sawdust waste
is not allowed. Houtson and
Pretorius were of the view that it is not a fire hazard. The tests
done by Strydom did not find that
the saw dust waste from the dump
was highly flammable. Bezuidenhout, Du Preez and Bekker were of the
view that it was indeed a
fire risk and a factor which had to be
disclosed.
[123]   What is
concerning is that if Defendant was convinced on 9 November 2015 at
the latest by 15 December 2015 that
the fire originated from the
sawdust pit this was not mentioned to Plaintiff until 16 March 2016.
There was only an enquiry in
this regard on 16 February 2016 but
still no indication that Defendant was of the view that there was a
possible breach of the
conditions of the policy which would have
entitled Defendant to cancel the agreement. To the contrary Defendant
enquired from Plaintiff
what the salvage value would be of the timber
that remained. As the claim was not paid out by the end of April 2016
Plaintiff did
not renew its policy with Defendant but did so through
another insurer. It is only thereafter on 22 June 2016 that Defendant
repudiated
the claim. The question arises why, if during November
2015 it was known or Defendant was of the view that a breach had
occurred
which allowed for termination of the policy and repudiation
of the claim, that it did not do so until 22 June 2016. As already
stated there could not have been a necessity for such a lengthy
investigation to come to that decision. It would appear that
Defendant
was itself not convinced about the origin of the fire
and/or to repudiate.
[124]   What is
set out in clause 12 is very similar to what the common law is and as
set out in section 53 of the Insurance
Act that a full disclosure
must be made. The onus of proving the materiality is on Defendant and
it is an objective test viewed
through the lens of the reasonable
person.
[125]   The
question therefore is whether a reasonable person in the position of
Plaintiff would have considered it necessary
to inform Defendant of
the waste site. At that stage the dumping had been taking place for a
period of approximately 12 years.
It would therefore appear that a
reasonable person in that position when such dumping had been taking
place for such a time period
and had never caused any fire risk would
regard it as necessary to specifically inform the insurer thereof.
Even if it is accepted
that it did increase the fire risk it was also
accepted by Defendant’s witnesses that the pruning and trimming
of the trees
which was done and waste left on the ground increased
the fire risk but it was not considered necessary that it be
reported.
[126]
Defendant did not from November 2015 to 16 March 2016 specifically
mention the dumping site as being irregular
and causing an increased
fire risk. If it was such a serious concern which needed to be
reported by the reasonable person in the
position of Plaintiff as
alleged by Defendant, one would have expected that Defendant would
immediately have raised this with Plaintiff.
The time lapse to which
I have referred in my view is indicative that Defendant itself was
not at that stage convinced that it
was such a serious breach to take
it up with Plaintiff immediately. Further if it is considered to be
such a serious fire risk
one would expect it to be specifically
contained in the policy document.
[127]   In the
circumstances due to the factors mentioned it does not appear that
there was a misrepresentation by Plaintiff
nor that there was a duty
to disclose the waste dump site to Defendant as an issue which would
affect the insurance policy or Defendants
decision to insure the said
property. Defendant has failed to prove that the non-disclosure or
representation induced it to conclude
the contract. The evidence of
its witnesses that it increased the fire risk in itself is not
sufficient to prove such materiality.
Waiver and estoppel
[128]
Plaintiff contends that Bezuidenhout, on her version, knew on 9
November 2015 that the sawdust heap existed but
did not repudiate the
claim but stated that they were still considering whether to
repudiate it or not. The decision to waive may
be express or implied.
Implied waiver is proved by the conduct which is inconsistent with an
intention to repudiate the insurance
claim. It took from November
2015 until June 2016 before the claim was repudiated. It was
submitted on behalf of Defendant that
the investigation was still
taking place and that there were certain concerns and that Plaintiff
was well aware thereof. It was
further submitted that clause 18 of
the certificate states that no indulgence by the cooperative to the
member or failure strictly
to inforce the terms of shall be construed
as a waiver or be capable of founding an estoppel.
[129]   A
failure to strictly enforce the terms thereof shall, according to
clause 18, therefore not be construed as a
waiver. It is indeed so
that the right to repudiate according to Defendant was already known
during November 2015 but only communicated
to Plaintiff during June
2016. There is however no specific time period within which the
repudiation had to take place except that
after a period of 24 months
no claim shall be payable. It would accordingly appear that in terms
of clause 18 the length of time
which Defendant took to repudiate the
claim can be frowned upon but it does not constitute a waiver of its
rights.
Accordingly the following
order is made.
1. Defendant is ordered
to pay to Plaintiff
(i)
The sum of R 14 385 720.84 (14 million, three hundred and eighty-five
thousand, seven hundred
and twenty rand and eighty-four cents)
(ii)
Interest on the said sum at the rate of 9 per cent per annum from
date of service of summons to date
of payment.
(iii)
Costs of suit such costs to include the costs of senior counsel where
appropriate.
BEZUIDENHOUT J.
Date
reserved:

28 July 2022
Date
delivered:

26 January 2023
For
Plaintiff:

Adv Roberts SC
Instructed
by:

VINNICOMBE & ASSOCIATES
C/O STOWELL & CO
REF: ANTHONY
IRONS/VIN180011/JB
Tel: 033 845 0500
Email:
laraw@stowell.co.za
For
Defendant:

Adv Troskie SC
Instructed
by:

HAY AND SCOTT ATTORNEYS
REF: PS HAY/tc/08S223020
Tel: 033 342 4800
Email:
paul@hayandscott.co.za