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[2017] ZASCA 57
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MTO Forestry (Pty) Ltd v Swart N.O. (420/2016) [2017] ZASCA 57; [2017] 3 All SA 502 (SCA); 2017 (5) SA 76 (SCA) (22 May 2017)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 420/2016
In
the matter between:
MTO
FORESTRY (PTY)
LIMITED
APPELLANT
and
A
H SWART NO
RESPONDENT
Neutral
citation:
MTO
Forestry v Swart
(420/2016)
[2017] ZASCA 57
(22 May 2017)
Coram:
Leach,
Willis, Mathopo and Mocumie JJA and Coppin AJA
Heard:
27
February 2017
Delivered:
22
May 2017
Summary:
Delict:
wrongfulness and fault separate elements: regard not to be had to
foreseeability of harm in determining wrongfulness: whether
reasonably adequate steps taken by landowner to prevent fire
spreading to neighbour’s property.
Presumption
of negligence in s 34 of the National Veld and Forest Fire Act 101 of
1998: effect thereof when facts known.
ORDER
On
appeal from:
Western
Cape Division of the High Court, Cape Town (Joubert AJ sitting as
court of first instance):
The
appeal is dismissed with costs.
JUDGMENT
Leach
JA (
Willis,
Mathopo and Mocumie JJA and Coppin AJA
concurring)
[1]
The appellant is a private company which conducts a forestry business
on what is known as the Witelsbos plantation (Witelsbos)
in the
district of Humansdorp. The appellant is the beneficial owner of the
forest on Witelsbos in the sense that it has the right
to harvest the
trees and enjoy the income from the forest’s production. On
27 October 2005, a fire started on a farm
owned by the
respondent, situated immediately adjacent to Witelsbos. A strong wind
caused the fire to spread onto Witelsbos where
it burned for several
days. According to the appellant, some 1 300 ha of forest were
destroyed as a result. In due course, the
appellant instituted action
in the Western Cape Division of the High Court, Cape Town, alleging
that the fire had either been caused,
or allowed to spread onto its
plantation, by negligence on the part of the respondent. It claimed
damages in excess of R23 million.
[2]
This was one of three claims made against the respondent in the
summons. The other two related to damage allegedly sustained
by the
appellant arising from fires that had originated on the respondent’s
farm on 27 August 2005 and 17 October 2005,
respectively. The
parties agreed that both those claims, as well as the question of the
quantum of the appellant’s
damages suffered as a result of the
fire of 27 October 2005, would stand over for later determination. An
order to that effect
was made by the court a quo, and as a result the
trial proceeded solely in relation to the respondent’s
liability arising
from the 27 October 2005 fire. The hearing
culminated with the court a quo holding that the respondent’s
liability had not
been established. It dismissed the appellant’s
claim but granted leave to appeal to this court.
[3]
The respondent is an entity commonly known as the Moravian Church in
South Africa and is represented by its Superintendent.
It owns the
immovable property commonly known as Clarkson Farm, situated to the
south of the mountains that lie on the coastal
belt between
Humansdorp and Plettenberg Bay. Having its roots in a Moravian
mission station, a portion of the property was developed
into what is
known as the Clarkson Township. The property is bisected by the R102
road which runs approximately west to east, and
forms the southern
boundary of the township. Immovable property owned by the respondent
therefore lies immediately adjacent to
the western, eastern and
southern boundaries of the township. The land upon which the fire
broke out is to the east of the township,
but north of the R102 road.
Approximately 120 ha in extent, it is described in certain of the
exhibits in the court a quo as being
‘Portion C of the Farm
Clarkson No 540/1891’ (to avoid confusion with any other
portion of the Clarkson Farm, I intend
to refer to it simply as
Portion C). Witelsbos lies immediately to the north of Portion C.
[4]
Situated towards the centre of Portion C is a vlei in the rough shape
of a Y. Situated to the east and west of the vlei is arable
land
planted to grazing for cattle, and totalling some 64 ha in extent. It
is common cause that at least those lands had been hired
from the
respondent to a trust used by a Humansdorp farmer, Mr M Meyer as a
vehicle for his farm in operations (the respondent
alleges that not
just those lands but the entire portion C had been leased– an
issue I shall mention in due course).
[5]
The vlei between the arable lands was wet, muddy and marsh-like in
certain areas. Much of it was covered by its natural vegetation
of
fynbos and proteas but, particularly towards its northern aspect, it
was also heavily infested with invasive alien plants such
as black
wattle and
acacia
longifolia.
This
infestation formed a tight thicket, in places up to 10 metres high,
that was referred to in evidence as a ‘warbos’
(and
although the direct English translation for that word is ‘jungle’
it appears to have a unique local connotation
and for that reason I
intend to use it for purposes of this judgment). As appears from the
photographs contained in the record,
the warbos was closely packed
and caused a build-up of highly flammable dead plant material such as
dried leaves and twigs lying
on the ground.
[6]
It goes without saying that the prospect of a veld or forest fire
spreading into its plantations was a nightmare for a company
such as
the appellant. Not only did it employ highly trained and equipped
fire-fighting teams to combat any fire, either on its
property or on
that of a neighbour, which could spread to its plantations, but as
measure of protection the appellant erected watch-towers
manned 24
hours a day to ensure that the first signs of a fire are detected.
Between midday and 13h00 of the day in question, Mr
Con van Niekerk,
a forester employed by the appellant who was at the time at the
Witelsbos plantation offices some 30 kilometres
away, received a
report from the Kromrivier watch-tower near Clarkson of smoke rising
from a fire on Portion C.
[7]
It was hot and dry at the time, with a light to moderate
south-westerly wind. These were dangerous fire conditions and Mr Van
Niekerk immediately contacted the appellant’s road team and
instructed it to proceed to the scene. This team had been
specifically
trained to fight veld and forest fires, and had
considerable resources to do so. It had a number of labourers who
were equipped
with hand beaters and other implements to fight the
fire by hand. They also had a 3 000 litre fire-engine, four
fire-trucks
equipped with water tanks that varied in size from 3 000
litre to 10 000 litre, and a ‘bakkie-sakkie’, a
light utility vehicle equipped with a water tank and a high pressure
water pump.
[8]
Mr Van Niekerk also contacted a Mr Fanie Wasserman, a contractor who
had a fire-fighting team and who immediately sent 25 fire-fighters
to
the scene. He also phoned a Mr Burrows, a leading figure in the
Clarkson community and a local representative of the appellant
who
was the recognised contact person the appellant had with the Clarkson
community and with whom he had regularly met in regard
to fire
matters. He knew Mr Burrows had keys to the locked gates leading onto
the property and he arranged to meet him so as to
gain access to the
fire. With that, he set off for the scene with what Holmes JA would
have described as ‘a celerity worthy
of a young Lochinvar’.
[1]
[9]
In the meantime, the report from the lookout tower had also been
received by Mr Anton Scholtz, who was at the time the appellant’s
plantation manager. He, too, contacted Mr Fanie Wasserman to ask for
assistance. Mr Scholtz also reported the fire to Mr Meyer,
the
farmer who was hiring Portion C from the respondent, and asked for
his help. He, too, then hurried off to Clarkson.
[10]
Mr Van Niekerk arrived at the scene before him where he met
Mr Burrows at the south western corner of Portion C. Mr Burrows
had died before the trial in the court a quo, and so one does not
know where he had been when he first heard of the fire or what
resources or manpower were available to him to attempt to douse it
himself in the limited time before he met Mr Van Niekerk. We
do know
that he had, by then, already tried to unlock a gate on the western
boundary allowing access to a road leading towards
the vlei where the
fire was burning, but that his attempts were unsuccessful as he had
brought the wrong keys with him (how this
had come about was never
explained). As a result, he and Mr Van Niekerk tried to see if they
could unlock other gates leading onto
the property; first on the
southern and then on the eastern boundary. When unsuccessful, they
eventually ended up at a gate in
the northern boundary fence between
Portion C and the appellant’s plantation. When this, too, could
not be unlocked, Mr Burrows
produced a hacksaw and proceeded to cut
through the wire on which the lock was mounted.
[11]
In this way, some 20 minutes after he had arrived at the scene, Mr
Van Niekerk gained access to the property. It was at about
this time
that the appellant’s road team, as well as the fire-fighters
sent by Mr Wasserman and Mr Meyer’s team
arrived.
Unfortunately, the fire was difficult to reach. Mr Van Niekerk
could not get the bakkie-sakkie he had with him close
enough to the
fire for its water pump to be effective, and he described how he sank
up to his knees in the mud as he attempted
to reach the blaze on
foot. Despite this, the appellant’s fire team did what they
could. Using hoses from their fire-engine
they sprayed water onto the
flames. But the wind had begun to blow much harder from the
south–west and the fire, which had
started in an area where the
vegetation stood waist high, spread into areas where the bushes stood
several metres high; and from
there into the thick warbos where it
was impossible to reach. In addition, flaming plant material was
carried forward by the wind
and air currents to start fresh fires
further into the warbos. In the result, the fire became
uncontrollable and it was decided
to retire the fire-fighters to the
fire-break on the border of the appellant’s property in the
hope of preventing the fire
from spreading into its plantation. The
hope was forlorn. The fire became so fierce and powerful that it
easily jumped the fire-break
and set alight the plantation, where it
burned for about a week.
[12]
In the light of this background, I turn to the question of the
respondent’s liability.
As
the appellant’s claim is founded in delict it had to establish,
first, the conduct of the respondent of which it complained;
second,
the wrongfulness of that conduct; third, fault on the part of the
respondent (in this case in the form of negligence);
fourth, that it
had suffered harm; and fifth, a causal connection between such harm
and the respondent’s conduct that is
the subject of its
complaint.
[13]
In regard to the first element, that of conduct, there was evidence
of previous fires regularly occurring on the appellant’s
property, mostly started by members of the Clarkson community, either
accidentally or intentionally, particularly when burning
their
rubbish or in order to clear veld or fynbos so as to provide grazing
for livestock being run without permission on Portion
C. The fire on
the day in question was started a short distance from the point where
another fire had been started shortly before
and, in the light of
this history, in all probability both were due to activities of
Clarkson residents. In these circumstances,
the appellant sought to
hold the respondent liable, not for starting the fire on the day in
question, but for its alleged negligent
omission to take preventative
steps which allowed or caused it to spread onto Witelsbos. That such
a negligent omission, if established,
could found liability cannot be
doubted. In
H
L & H Timber Products
,
[2]
a
case
similar to the present where a veldfire had spread onto the property
of the claimant, Nienaber JA said the following in regard
to
causation:
[3]
‘
Conduct
. . . can take the form of a
commissio
,
for example where the fire causing the loss was started by the
defendant . . . or an
omissio,
for
example the failure to exercise proper control over a fire of which
he was legally in charge . . . or the failure to contain
a fire when,
in the absence of countervailing considerations adduced by him, he
was under the legal duty, by virtue of his ownership
or control of
the property, to prevent it from escaping onto a neighbouring
property thereby causing loss to others . . . .’
[4]
[14]
I should mention that the use of phraseology such as ‘duty’
or ‘legal duty’ has, with justification,
been criticised
as not really contributing to the determination of the true issue
which is whether, given the particular circumstances
of a case, a
defendant’s conduct should be regarded as wrongful; and as it
may lead to confusion with the concept of a ‘duty
of care’
as envisaged in English law, a concept which encompasses both
wrongfulness and negligence. Bearing this in mind,
I believe that F D
J Brand
[5]
was correct when he
commented that reference to concepts such as ‘a legal duty’
had been ‘no more than an attempt
at formulating some kind of
practical yardstick as to when policy considerations will require the
imposition of legal liability’.
[6]
[15]
Bearing that in mind, I turn now to deal with the importance of
distinguishing between the elements of wrongfulness and fault.
During
a lecture presented in April 2014, later published in the
Stellenbosch Law Review, in a passage pertinently relevant to
the
debate of wrongfulness in the present case, F D J Brand said the
following in regard to this issue:
[7]
‘
Wrongfulness
– sometimes also referred to as unlawfulness – is one of
the elements of delictual liability. The other
elements are conduct,
fault, causation and harm. Without the convergence of all these
elements delictual liability will not ensue
. . . In modern South
African law, wrongfulness has become the most interesting of these
elements. Under this rubric the law determines
whether the defendant
should be held legally liable for the harm suffered by the plaintiff
that resulted from the defendant’s
blameworthy conduct. If the
law determines that there will be no liability, the defendant is
afforded immunity from the consequences
of the wrongful conduct; the
defendant is not liable despite the presence of all the other
elements of delictual liability.’
[16]
Wrongfulness therefore functions, effectively, as a limitation to
ensure liability is not imposed in cases in which it would
be
undesirable or overly burdensome to do so. Previously, the issue of
what the wrongfulness enquiry entailed was somewhat contentious, but
this is no longer the case. The Constitutional Court, endorsing
developments in the law propounded by this court over the last
decade
or so, recently confirmed in
Loureiro
[8]
and
Country
Cloud
[9]
that the wrongfulness enquiry depends on considerations of legal and
public policy, and focuses on
‘
the
duty not to cause harm – indeed to respect rights – and
questions the reasonableness of imposing liability’.
It is only
if an action is wrongful
in
that sense that,
if
it is associated with fault, it becomes actionable. As
Nugent
JA stated in
Minister
of Safety and Security v Van Duivenboden
,
[10]
in a case which, like this, involved an allegation of a negligent
omission:
‘
A
negligent omission is [wrongful]
[11]
only if it occurs in circumstances that the law regards as sufficient
to give rise to a legal duty to avoid negligently causing
harm.
It is important to keep that concept quite separate from the concept
of fault. Where the law recognises the existence
of a legal duty it
does not follow that an omission will necessarily attract liability -
it will attract liability only if the
omission was also culpable as
determined by the application of the separate test that has
consistently been applied by this
court in
Kruger
v Coetzee
,
namely whether a reasonable person in the position of the defendant
would not only have foreseen the harm but would also have
acted to
avert it.’
[17]
Despite a number of judgments of this court pointing out that
wrongfulness and negligence are indeed separate elements of a
delict,
[12]
there has been a
debate in academic circles as to whether it is important in the
determination of liability for the two elements
to be kept apart.
This commenced in 2006 with an article written by Professor Johan
Neethling, a respected academic, who expressed
the view that certain
factors such as foreseeability and preventability of harm are
relevant for the determination of both wrongfulness
and negligence,
so that a degree of conflation of these two elements is inevitable –
and that if a degree of overlap can
be accepted ‘without
negating the distinctive functions of wrongfulness and negligence as
separate elements of delict’
it would not be a bad thing.
[13]
A riposte by R W Nugent
[14]
to
the effect that conflation of the two elements is always a bad thing,
was swift.
[15]
F D J Brand,
also entered this academic duel,
[16]
and the debate continued for some years.
[17]
However, the cases that I have already mentioned, and further
decisions both in this court – such as
Steenkamp
,
[18]
Fourway
,
[19]
Roux
v Hattingh
[20]
and
Za
v Smith
[21]
– as well as in the Constitutional Court – such as
Le Roux
v Dey
[22]
– (this list is not meant to be exhaustive) led me to comment
in
Pauw
v Du Preez
‘(t)hat wrongfulness and negligence are two separate and
discreet elements of delictual liability which, importantly, should
not be confused, can now be accepted as well established in our law,
academic criticism from certain quarters notwithstanding’.
[23]
Subsequently the Constitutional Court’s judgment in
Country
Cloud
essentially re-affirmed what I had said and justified the comment of
F D J Brand, that the debate on the issue was ‘rather
sterile’.
[24]
[18]
One further issue relevant to both wrongfulness and negligence must
be mentioned. In
Country
Cloud
[25]
this court, despite in the past having recognised foreseeability of
harm (a clear requirement of negligence) as a factor in determining
wrongfulness, expressed its ‘reservation about this approach,
mainly because it is bound to add to the confusion between
negligence
and wrongfulness’.
[26]
The author of the judgment has since stated extra-curially that it
‘went all the way by saying that, because foreseeability
is an
essential component of negligence, it should find no place in the
enquiry into wrongfulness at all’.
[27]
With great respect, that may be the effect of the judgment but it
does not spell it out as being the case in unequivocal terms.
But I
agree with the motivation for such a conclusion. It is potentially
confusing to take foreseeability into account as a factor
common to
the inquiry in regard to the presence of both wrongfulness and
negligence. Such confusion will have the effect of the
two being
conflated and lead to wrongfulness losing its important attribute as
a measure of control over liability. Accordingly,
I think the time
has now come to specifically recognise that foreseeability of harm
should not be taken into account in respect
of the determination of
wrongfulness, and that its role may be safely confined to the rubrics
of negligence and causation.
[19]
Bearing these principles in mind, I turn to the question of the
respondent’s liability in the present case in which,
similar to
a number of the previous cases already mentioned, the appellant
relies upon an alleged omission to found its case.
In
this regard, the appellant relied upon, first, an alleged delay on
the part of the respondent to take steps to ensure that the
fire was
promptly extinguished after it was first reported; secondly, an
alleged failure by the respondent to have adequate fire-fighting
facilities in place; and, thirdly, the respondent’s failure to
have cleared the warbos from Portion C (contending that if
it had it
been cleared, the fire would not have become uncontrollable).
[20]
Although I shall deal with each of these contentions in turn, it is
convenient to first deal with a statutory issue relevant
to the
overall issue of whether the appellant proved its case.
Both
in the court a quo
and in their heads of argument in this court, both parties debated
the effect of s 34 of the National Veld
and Forest Fire Act 101
0f 1998 (the Act). It reads as follows:
‘
(1)
If a person who brings civil proceedings proves that he or she
suffered loss from a veldfire which-
(a)
the
defendant caused; or
(b)
started
on or spread from land owned by the defendant,
the defendant is
presumed to have been negligent in relation to the veldfire until the
contrary is proved, unless the defendant
is a member of a fire
protection association in the area where the fire occurred.
(2)
The presumption in subsection (1) does not exempt the plaintiff from
the onus of proving that any act or omission by the defendant
was
wrongful.’
(As
an aside it must be stated that this not only recognises the
distinction to be drawn between wrongfulness and fault but it
provides a clear example of why it would be wrong to conflate the two
elements. A landowner might well be deemed to be negligent
under s
34(1) but, as is reinforced by s 34(2), may still be able to escape
liability in the event of his actions not having been
wrongful. This
could be the case if, for example, the owner has been essentially
divested of the incidence of ownership, including
control – as
to which see below.)
[21]
In any event, relevant to the applicability of the section are the
following: the respondent was the owner of the land on which
the fire
started and from where it spread to the appellant’s forest; it
is common cause that the fire in question was a ‘veldfire’
as envisaged by the Act and that the respondent was not a member of a
fire protection association in the area where it occurred;
the
respondent does not dispute that the fire burned a substantial
portion of the appellant’s forest, so clearly loss was
suffered
(although it has not yet been quantified). Despite all of this,
the respondent contended that the presumption in
s 34(1) does not
apply in respect of the appellant’s claim against it.
[22]
The respondent’s argument on this issue was based on an ‘owner’
being defined in s 1 of the Act as having
both ‘its common law
meaning’ and as including, inter alia, ‘a lessee or other
person who controls the land in
question in terms of a contract,
testamentary document, law or order of the High Court’. This
somewhat awkward definition
was the subject of the judgment in
Mondi
v Martens
[28]
in which the court concluded that unrestricted and exclusive control
of possession of an article was central to the common law
meaning of
ownership and that an owner as envisaged by the section had to have
the right of control over a property. Were this
is not so, so it was
reasoned, the presumption of negligence in s 34(1) would operate
unjustly against an owner who had no right
of control over the land.
In the light of the contractual relationship that existed in that
case between the first defendant and
another party, in terms of which
the first defendant had divested himself of right of control over the
property and had retained
no more than the registration of ownership
in his name, the court concluded that the first defendant had
ceased to be an
‘owner’ within the common law meaning as
defined in the Act.
[23]
In the present case the respondent alleged it had leased Portion C to
the trust used by Mr M Meyer as a vehicle for his farming
operations,
and that it was consequently not in control of the property at the
time the fire broke out. Relying on the judgment
in
Mondi
v Martens
,
the respondent argued that in the circumstances the presumption in s
34(1) was of no application. The appellant’s answer
to this was
two-fold. First, it argued that
Mondi
v Martens
had been wrongly decided. Secondly, relying upon the evidence of Mr
Meyer himself, whilst admitting the existence of the lease,
the
appellant argued that it had not related to the whole of Portion C
but had been restricted to some 64 ha of arable lands which
Mr Meyer
had used to graze his cattle, and that the area where the fire had
started and spread to Witelsbos had never been let.
[24]
In regard to the first of these issues, the appellant argued that the
court in
Mondi
v Martens
had conflated the liability for certain duties under the Act and the
presumption of negligence contained in s 34(1) with delictual
liability. This was particularly so in regard to its reasoning that
it was necessary to adopt a narrow meaning to the concept of
ownership so as to avoid an owner, who had no right to control over
land, being held liable. The correct approach, so the argument
went,
would have been for the court to have held the registered owner to
have been an owner in terms of the Act – and therefore
liable
to perform the prescribed duties imposed by the Act – but not
having been liable in delict as, due to him not having
been in
control of the property in question, he had not acted wrongfully.
[25]
This criticism I find to be compelling, and it may well be that the
judgment in
Mondi
v Martens
was founded on an incorrect premise and approach. But the presumption
is really an evidential aid and where, as here, the essential
facts
are known its role is to a large extent truncated. As appears from
what follows, however, the proven facts in the present
matter rebut
any presumption of negligence, making it unnecessary to reach a
decision on whether the reasoning in that case was
correct. For
present purposes I therefore intend to proceed on the assumption, but
without deciding, that the section placed an
onus on the respondents
to show that the fire spread to Witelsbos without negligence on its
part.
[26]
In the light of these comments, I return to the alleged negligent
omissions advanced by the appellant. The first of these,
as I have
mentioned, is an alleged delay on the part of the respondent to take
steps to ensure that the fire was promptly extinguished
after it was
first reported. The appellant argued that the opinion of both
Mr Scholtz and Mr Van Niekerk that the fire could
have been
extinguished had more prompt action been taken within the first 30
minutes, was not speculation as there had been a similar
fire in the
vlei on 27 August 2005 which had been successfully contained and
extinguished. This, so it was argued, had been due
to the access gate
to the property in the western boundary having been unlocked on that
occasion, thereby allowing the fire to
be speedily reached. However,
this had not been possible on the day in question as Mr Burrows
had arrived with the wrong keys
and had failed to go and fetch the
correct keys when this mistake became apparent. The appellant also
argued that Mr Burrows had
remained passive and idle until Mr Van
Niekerk arrived rather than, either alone or with the assistance of
the respondent’s
fire-fighting personnel, having used the open
pedestrian gate onto the property to gain access to the fire and put
it out himself.
[27]
Certain of the issues arising out of this argument may be disposed of
fairly swiftly. First, Mr Burrows was apparently a man
of advanced
years who, as I have mentioned, had died before the trial and was
thus not available to explain his actions or defend
himself against
the allegations of tardiness levied against him. But, importantly, it
was not alleged in the appellant’s
pleadings that the
respondent should be held vicariously liable for any negligent act or
omission on the part of Mr Burrows. His
personal negligence was
therefore not in truth a live issue. Moreover, even if he was
negligent, an issue on which I do not intend
to comment, the fact
remains that there is nothing to establish that the relationship
between he and the respondent was of such
a nature as to visit
vicarious liability upon the respondent. All one knows is that he was
a leading figure in the Clarkson community
and that he operated as a
channel of communication between the appellant’s
representatives and the respondent. The fact that
he was, seemingly,
a member of the respondent’s church is no reason, in itself, to
render the respondent vicariously liability
for any actions or
omissions on his part.
[28]
Secondly, on this issue the appellant faces a problem in respect of
causation. Despite the successful control of the fire of
27 August
2005, it is a matter of speculation whether, if Mr Burrows or anyone
else charged with the respondent’s affairs,
had taken more
precipitate action the fire would not have spread and become
uncontrollable. The various fire-fighting teams and
their equipment
only arrived on the scene after Mr Van Niekerk, and there is no
suggestion that their attempts to extinguish the
fire were delayed by
the locked gates. By the time they arrived on the scene the fire was
beyond their control. The real culprit
for its spreading appears to
have been the wind which had, by then, become strong.
[29]
The respondent attempted to meet this by pointing to Mr Van Niekerk’s
evidence that when he arrived on the scene there
was no wind at all
as the smoke was rising straight up. Whilst he said this when he was
recalled to testify, in his initial testimony
at the commencement of
the trial he had stated that when the fire was first reported the
wind was already blowing light to moderately
from the south west.
This, too, was the evidence of Mr Scholtz. Although Mr Van
Niekerk was not tested on this, his later
evidence that there had
been no wind when he arrived at Portion C is obviously unreliable
given both his and Mr Scholtz’s
earlier evidence to the
contrary, as well as the rapid advance made by the fire immediately
upon his arrival.
[30]
The wind was obviously an important contributory factor in the spread
of the fire. In the light of the climatic conditions
and the drought
that was being experienced at the time,
[29]
it is a matter of common sense any veld fires would have been easily
spread by wind. The fact that on a previous occasion the appellant
had been fortunate enough for a fire in a similar position to have
been extinguished before it spread too far does not, in itself,
establish that the fire on the day in question could probably also
have been extinguished, let alone by Mr Burrows alone or
with
the assistance of anyone else if available – which was not
shown to be the case – had he or they acted sooner.
There are
just too many variables which come into play: the precise size of the
fire; the material that was burning; whether or
not the fire
spotted
[30]
either on the day
in question or during the previous incident. It needs little
imagination to conjure up factors that may have
been of significance
on one day but not on the other.
[31]
One obvious variable is the time it took for the appellants own
fire-fighting team to reach the blaze on each occasion. According
to
Mr Van Niekerk his team had been able to reach the fire of 27 August
2005 within 30 minutes. On the day in question, however,
he arrived
about 30 minutes after receiving the first report whereas his team
arrived later. There is no suggestion that the appellant’s
team
were tardy in their arrival, but the time difference may well have
had a significant influence on the outcome of the fire.
[32]
I do not intend to dwell on this issue in more detail. Suffice it to
say that I do not think that, simply through the fact
that the
previous fire had been contained, the appellant showed that the fire
on the day in question would probably have been similarly
extinguished without spreading into the warbos or becoming
uncontrollable had more precipitate action been taken. There are just
too many uncertainties and variables for that conclusion to be drawn
on a balance of probabilities. Moreover the appellant’s
argument that the respondent failed to take earlier action overlooks
the fact that, as set out below, it had appointed an independent
contractor, Mr Wasserman, most of whose employees were members of the
Clarkson community, to act on its behalf to fight fires.
He was
immediately called to the scene and it is not suggested he unduly
delayed arriving to render assistance.
[33]
Accordingly, in regard to the first issue, bearing in mind that the
statutory presumptions relates to negligence, not causation,
it was
not shown that an undue delay on the part of the respondent caused
the fire to spread to the appellant’s property.
That brings me
to the more pertinent question raised by the appellant, namely, the
alleged inadequacy of the fire-fighting measures
the respondent had
in place.
[34]
In advancing its case in this regard, the appellant placed
considerable emphasis on s 17 of the Act which reads:
‘
Readiness
for fire fighting
(1)
Every owner on whose land a veldfire may start or burn or from whose
land it may spread
must-
(a)
have
such equipment, protective clothing and trained personnel for
extinguishing fires as are-
(i)
prescribed; or
(ii)
in the absence of prescribed requirements, reasonably required in the
circumstances;
(b)
ensure
that in his or her absence responsible persons are present on or near
his or her land who, in the event of fire, will-
(i)
extinguish the fire or assist in doing so; and
(ii)
take all reasonable steps to alert the owners of adjoining land and
the relevant
fire protection association, if any.
(2)
An owner may appoint an agent to do all that he or she is required to
do in terms
of this section.’
[35]
The respondent did not have a dedicated team of trained personnel for
extinguishing fires on its property. In addition, its
fire-fighting
equipment appears to have been fairly rudimentary. It consisted at
the time of two 210 litre drums of water and a
pump mounted on a
trailer towed by a tractor. At first blush this would not amount to
compliance with s 17(1) but, notwithstanding
the obvious inadequacies
in regard to its own equipment and trained personnel, for the reasons
that follow I do not view the respondent
as having been in breach of
its obligations under the section.
[36]
The evidence of the appellant was to the effect that although Mr
Burrows had from time to time in the past arranged for the
odd team
of volunteers to fight fires, the respondent had relied more and more
upon the appellant to do so on its behalf. This
was so particularly
from the year 2000 onwards. The appellant had understandably accepted
this responsibility as fires on Clarkson
were clearly a threat to its
Witelsbos plantations; and this arrangement appears to have been
relatively successful. In addition,
on various occasions after the
appellant had procured the services of independent contractors to
assist in fighting fires on the
respondent’s property, it
submitted their charges to the respondent who paid some of them. In
this way the respondent became
largely reliant upon the appellant and
its expertise and assistance to fight fires, as indeed it did on the
day in question.
[37]
Importantly, the respondent’s declining interest in, or
commitment to, fighting fires on its property became a sore point
for
the appellant, whose representatives took the matter up with Mr
Burrows on several occasions. As a result of this pressure,
and
acting on the appellant’s recommendation, the respondent
contracted with a local independent fire-fighting contractor,
Mr Fanie Wasserman, to provide it with fire-fighting services.
Mr Wasserman had a team of some 60-80 trained fire-fighters,
most of whom were in fact residents of the Clarkson Township, who
were well trained in their vocation. Mr Wasserman employed
two
foremen, each of whom was responsible for a 5 ton fire truck
that held the necessary fire-fighting equipment, including
hand-beaters and mobile water sprayers, for the men to use. The
appellant’s own evidence was that Mr Wasserman’s team
formed an effective and well equipped fire-fighting unit.
[38]
As a result, from about 2003 the respondent was able to call upon
Mr Wasserman to fight fires on its behalf on its property.
Although the relationship between Mr Wasserman and the respondent
later became strained due to allegations of non-payment of services
rendered, it was only in about 2007 that Mr Wasserman told the
appellant that he was no longer prepared to work for it. On
testifying, Mr Wasserman himself confirmed that in 2005, the year
that the fire in question occurred, he was under contract to
the
respondent to perform fire-fighting services on its behalf – as
he did on the day of the fire in question.
[39]
As already set out above, s 17(2) of the Act allows an owner to
discharge its obligations under that section by appointing
an agent
to do all that is required of it. This the respondent did and it is
not suggested that the services and equipment Mr Wasserman
was able
to supply fell short of what the respondent, as owner of Portion C,
was obliged to have available to comply with its obligations
under s
17(1). The respondent was thus in no way in breach of its obligations
under s 17 and did in fact have in place an effective
and well
equipped fire-fighting team which, as the events of the day in
question proved, was capable of being on its property at
short notice
in order to combat fires.
[40]
Not only had the respondent in this way discharged its obligations
under s 17 but, in my view, it cannot be held liable
for
negligence in failing to have adequate fire-fighting measures in
place. Not only was it contractually entitled to call on the
considerable expertise and trained manpower of Mr Wasserman and his
team, but could also draw comfort from its knowledge that,
in the
event of a fire on its property, the fully trained might of the
appellant’s fire-fighting team and its equipment would
undoubtedly be immediately summoned to its aid. The mere fact that
the fire that day flared up out of control does not mean that
reasonable fire-fighting measures or steps had not been taken.
They clearly had.
[41]
In these circumstances, I am satisfied that the respondent showed
that the fire-fighting measures it had in place, including
the
justified anticipation of assistance from the appellant itself as
well as its contracted fire-fighting agent Mr Wasserman,
did not fall
short of what a reasonable person in its position as owner of Portion
C would have provided. On this second issue,
too, the appellant must
fail.
[42]
For the reasons that follow, this also effectively disposes of the
appellant’s third and final complaint against the
respondent,
namely its alleged negligent failure to clear the warbos from the
vlei on Portion C. The precise sizes of both the
vlei and the warbos
are not known and were not properly explored in evidence. What does
appear from the record is that the arable
areas of the property,
totalling some 64 ha, extended over more than half of Portion C. A
considerable percentage of the remainder
appears from the plans to
have been vlei land, and as appears from the photographs handed in as
exhibits, the warbos, in turn,
was of not inconsiderable size. In
fact the evidence of Mr Meyer, for some reason not seriously
challenged, that the warbos
could have been cleared by manual labour
in a single day at a cost of R1 000 can, on the photographs alone, be
rejected as wholly
improbable.
[43]
The issue then becomes whether the respondent should be held liable
for failing to clear this warbos from its property, bearing
in mind
that, like the appellant’s own plantations, it is far more
flammable than the indigenous vegetation of fynbos and
protea. Put
differently, was it wrongful and negligent for the respondent not to
have cleared the warbos knowing that if it caught
alight, the fire
might spread to Witelsbos?
[44]
In the present dispute, the appellant’s allegation that the
respondent had acted wrongfully was based primarily upon
the
respondent’s knowledge of the fire risk created by the warbos
about which it had complained to the respondent on a number
of
occasions (the respondent had refused to do anything about the
situation as the residents of Clarkson were putting the warbos
to
various uses, including the harvesting of wood). The essence of the
allegation of wrongfulness was, thus, the foreseeability
of the fire
hazard caused by the warbos but, for the reasons already mentioned,
that is a factor relevant to the determination
of negligence rather
than wrongfulness. In these circumstances it seems to me that the
dispute ultimately turns on whether the
respondent was negligent in
not removing the warbos as it was a fire hazard rather than whether
its failure to do so was wrongful.
[45]
As was mentioned by this court in
Durr
[31]
a landowner is under a ‘duty’ to control or extinguish a
fire burning on its land. But as Nienaber JA stressed
in
H L
& H Timber
,
whilst landowners may be settled with the primary responsibility of
ensuring that fires on their land do not escape the boundaries,
this
falls short of being an absolute duty.
[32]
And in considering what steps were reasonable, it must be remembered
that a reasonable person is not a timorous faint-heart always
in
trepidation
[33]
of harm
occurring but ‘ventures out into the world, engages in affairs
and takes reasonable chances’. Thus in considering
what steps a
reasonable person would have taken and the standard of care expected,
the bar, whilst high, must not be set so high
as to be out of
reasonable reach.
[46]
Although the warbos may have been more flammable than the other
vegetation in the vlei, and thus a reasonable person would
have
appreciated, it was made up of plants, albeit foreign invaders,
occurring naturally upon the respondent’s property.
This
distinguishes the present case from the decision of this court
in
Durr
in which an alien invader, black wattle, had been cut and then
stacked to dry out on the defendant’s property thereby creating
a ‘tinderbox’ which ignited and caused a fire to spread.
It had been common cause in that case that the defendant,
in drying
and stacking the wattle, had created ‘one of the worst fire
hazards imaginable’.
[34]
The court was therefore concerned with a man-made fire hazard and
not, as here, a piece of vegetation which burns readily but which
was
naturally upon the property. Accordingly, although I accept that it
was far more likely for a fire in the warbos to spread
than a fire in
the fynbos in the vlei, and that this would have been apparent to a
reasonable person, the true issue is whether,
knowing that to be the
case, the respondent took reasonable steps to guard against a fire
spreading to the appellant’s property
– and of course
removing the warbos would have been such a step.
[47]
A reasonable landowner in the respondent’s position was
therefore not obliged to ensure that in all circumstances a fire
on
its property would not spread beyond its boundaries. All the
respondent was obliged to do was to take steps that were reasonable
in the circumstances to guard against such an event occurring. If it
took such steps and a fire spread nevertheless, it cannot
be held
liable for negligence just because further steps could have been
taken.
[35]
[48]
Did the respondent take such reasonable steps? I have already dealt
in detail with the fire equipment and manpower it had arranged
to
have available to fight fires on Portion C. In this regard, not only
had the respondent had engaged Mr Wasserman to make his
fire-fighting
services available if needs be, but it was aware that the appellant
would immediately take steps as it had always
done in the past to
come to its assistance in combatting any fire that should break out.
All these fire-fighting forces were considerable
and, in my view,
more than fulfilled the respondent’s obligation to take
reasonable steps in the circumstances, including
the presence of the
warbos, to guard against a fire spreading from its property. Although
the warbos may have burned more easily
than the surrounding
vegetation, it was a natural resource on the property and not a
man-made tinderbox such as the case in
Durr
.
[49]
The truth of the matter, as I have already said, is that the fire got
out of control because of the strong wind that got up.
This caused
the fire to spot and to spread despite the presence on the scene of a
number of fire engines and the substantial number
of fire-fighters
who ultimately proved to be helpless in stopping the fire from
encroaching onto Witelsbos. From the evidence led
by the appellant
itself, the fire could not be controlled despite the presence of
equipment and manpower far beyond that which
the respondent alone
could reasonably have marshalled, but which it was aware would hasten
to its assistance in the event of a
fire on its property. It is so
that the removal of the warbos would have been a further step to
prevent any fire that might start
from spreading, but that does not
mean that the failure to remove it is to be regarded as unreasonable
given the substantial fire-fighting
facilities that were available to
fight fires on Portion C.
[50]
I am therefore of the view that despite the presence of the warbos,
the steps taken by the respondent to avoid a fire on its
property
spreading to its neighbours were reasonable in the circumstances. On
this basis the court a quo correctly concluded that
the appellant had
failed to prove its case and dismissed its claim.
[51]
The appeal is dismissed with costs.
______________
L
E Leach
Judge
of Appeal
APPEARANCES:
For
Appellant: S J du
Plessis SC (with him T van der Walt)
Instructed
by:
Morajane
Du Plessis Inc, Pretoria
Webbers,
Bloemfontein
For
Respondent: M v R Potgieter SC
Instructed
by:
Von
Lieres, Cooper, Barlow & Hangone, Cape Town
Rossouws
Attorneys, Bloemfontein
[1]
See
Sardi
& others v Standard and General Insurance Co Ltd
1977
(3) SA 776
(A) at 779H.
[2]
H L &
H Timber Products
(Pty)
Ltd v Sappi Manufacturing (Pty) Ltd
2001 (4) SA 814 (SCA).
[3]
Paragraph 14.
[4]
Authorities
cited are omitted.
[5]
A former
member of this court, a Professor Extraordinary at the University of
the Free State and an Honorary Professor of the
University of
Stellenbosch.
[6]
F D J Brand ‘Aspects of
wrongfulness: A series of lectures’ (2014) 25
Stellenbosch
LR
451 at 455.
[7]
Ibid at
451.
[8]
Loureiro &
others v Imvula Quality Protection (Pty) Ltd
[2014] ZACC 4
;
2014 (3) SA 394
(CC) para 53.
[9]
Country Cloud Trading CC v
MEC, Department of Infrastructure Development
[2014]
ZACC 28
;
2015 (1) SA 1
(CC) paras 20-21.
[10]
Minister
of Safety and Security v Van Duivenboden
2002 (6) SA 431
(SCA) para 12.
[11]
The learned
Judge used the word ‘unlawful’.
[12]
See eg
Telematrix
(Pty) Ltd
t/a
Matrix Vehicle Tracking
v
Advertising Standards Authority SA
2006
(1) SA 461
(SCA) para 12 and
Minister
of Safety and Security v Van Duivenboden
2002 (6) SA 431
(SCA) para 12 and the authorities referred to
therein.
[13]
J Neethling
‘The conflation of wrongfulness and negligence: Is it always
such a bad thing for the law of delict’ (2006)
123
SALJ
204 at 209; 214.
[14]
Also a former member of this
court and the author of the judgment in
Minister
of Safety and Security v Van Duivenboden
quoted
above.
[15]
R W Nugent ‘Yes it is
always a bad thing for the law: A reply to Professor Neethling’
(2006) 123
SALJ
557.
[16]
F D J Brand
‘Reflections on wrongfulness in the law of delict’
(2007) 124
SALJ
76.
[17]
See F D J
Brand ‘The contribution of Louis Harms in the sphere of
Aquilian liability for pure economic loss’
(2013) 76
THRHR
57
;
J Neethling and J Potgieter ‘Wrongfulness in delict: A
response to Brand JA’ (2014) 77
THRHR
116.
[18]
Steenkamp
NO v Provincial Tender Board, Eastern Cape
[2006] 1 ALL SA 478 (SCA); 2006 (3) SA 151 (SCA).
[19]
Fourway
Haulage SA (Pty) Ltd v SA National Roads Agency Ltd
2009 (2) SA 150 (SCA).
[20]
Roux v
Hattingh
[2012] ZASCA 132
;
2012 (6) SA 428
(SCA) paras 32-38.
[21]
Za v
Smith & another
[2015]
ZASCA
75
;
2015 (4) SA 574
(SCA)
paras
17-22.
[22]
Le Roux &
others v Dey (Freedom of Expression Institute and Restorative
Justice Centre as Amici Curiae)
[2011]
ZACC 4
;
2011 (3) SA 274
(CC) para 122.
[23]
Pauw v Du
Preez
[2015] ZASCA 80.
[24]
F D J Brand
‘Aspects of wrongfulness: A series of lectures’ (2014)
125
Stellenbosch
LR
451 at 458.
[25]
Country
Cloud Trading CC v MEC, Department of Infrastructure Development
2014 (2) SA 214 (SCA); [2013] ZASCA 161.
[26]
Paragraph 27.
[27]
F D J Brand
Stellenbosch
LR
(2014) at 457.
[28]
Mondi South Africa Ltd v
Martens & another
2012
(2) SA 469 (KZP).
[29]
It was alleged in the
Particulars of Claim that 2005 was one of the driest in the last 80
years.
[30]
Spotting occurs when burning
material lifts into the air and then causes a further fire on
landing.
[31]
Minister
of Water Affairs and Forestry & others v Durr & others
2006 (6) SA 587
(SCA) para 19.
[32]
Paragraph
21.
[33]
Herschel v
Mrupe
1945 (3) SA 464
(A) at 490E-F.
[34]
Durr
para 22.
[35]
See
Robertson
v Durban Turf Club & others
1970
(4) SA 649
(N) at 653D cited with approval in
Van
Wyk v Thrills Incorporated (Pty) Ltd
1978
(2) SA 614
(A) at 623C-D; and M Loubser et al
The
Law of Delict in South Africa
2
ed (2012) at 118.