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[2011] ZASCA 9
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Ivaura Estates (Pty) Ltd v MEC, Council, Department of Roads & Transport, Mpumalanga (240/10) [2011] ZASCA 9 (10 March 2011)
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Of no precedential significance
Case No: 240/10
In the matter between:
IVAURA
ESTATES (PTY) LTD
....................................................................
Appellant
and
THE
MEMBER OF THE EXECUTIVE COUNCIL,
DEPARTMENT
OF ROADS & TRANSPORT, MPUMALANGA
.............
Respondent
Neutral
citation:
Ivaura Estates (Pty) Ltd v The Member of the
Executive Council, Department of Roads & Transport, Mpumalanga
(240/10)
[2011] ZASCA 9
(10 March 2011).
Coram:
HARMS DP, CLOETE and MALAN JJA
Heard:
4 March 2011
Delivered:
10 March 2011
Summary:
Delict: negligence: fire.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
North Gauteng High Court
(Pretoria) (Legodi J sitting as
court of first instance):
The appeal is dismissed, with costs.
______________________________________________________________
JUDGMENT
______________________________________________________________
CLOETE JA (HARMS DP and MALAN JA concurring):
[1] On 12 October 2005 a fire destroyed or damaged a
considerable number of mango trees on the appellant company's
property. The
appellant sued The Member of the Executive Council,
Department of Roads and Transport, Mpumalanga Province, alleging
negligence
on the part of employees of the department ('the road
workers') who had been cutting the grass on the road reserve of the
D533
adjacent to the plaintiff's farm. The court a quo (Legodi J)
dismissed the claim but granted leave to appeal to this court.
[2] For the purposes of this judgment I shall assume in
favour of the appellant that the road workers were negligent in
starting
and not controlling the fire. A passerby noticed the fire
burning in the road reserve and alerted Mr Peter Spear, who
telephoned
his brother, Mr John Spear, the managing director of the
plaintiff. Mr John Spear dispatched a tractor towing a 2 000
litre
high pressure sprayer to fight the fire.
[3] When Mr John Spear arrived at the site of the fire,
he found that it had been extinguished by his brother, a team of five
or
six labourers using the high pressure sprayer and the road
workers. Nevertheless, to make assurance doubly sure, the burnt grass
was swept towards the middle of the burnt area and it was again
sprayed with water. The appellant's employees then left the scene.
[4] It was the appellant's case that the fire flared up
again and spread to the mango orchards owned by it. Assuming, again
in favour
of the appellant, that this is so, there was in my view no
negligence on the part of the road workers. The appellant's
representatives
arrived on the scene and took over the fighting of
the fire. They had the equipment and the knowledge how to do so. Mr
John Spear
said that he and his brother had acquired knowledge of
fighting fires over some thirty years of farming and he said that he
had
been involved in fighting between 100 and 200 fires himself. When
the appellant's employees left, Mr John Spear was satisfied not
only
that the fire had been extinguished, but also that sufficient
precautions had been taken to prevent it flaring up again. In
these
circumstances, it cannot be found that a reasonable man in the
position of the road workers would have foreseen that it would,
and
accordingly the first requirement set out in
Kruger v Coetzee
1966 (2) SA 428
(A) at 430E-F, the
locus classicus
of the test
for negligence, has not been satisfied.
[5] The appeal is dismissed, with costs.
_______________
T D CLOETE
JUDGE OF APPEAL
APPEARANCES:
APPELLANTS: E B Clavier
Instructed by Du Toit-Smuts & Mathews Phosa
c/o De Swardt Vögel & Myambo, Pretoria
Symington & De Kok, Bloemfontein
RESPONDENTS: T P Krüger
Instructed by The State Attorney, Pretoria
The State Attorney, Bloemfontein