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[2018] ZAFSHC 20
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Botha and Another v Du Toit and Another (2347/2016) [2018] ZAFSHC 20 (8 March 2018)
IN THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
interest to other judges: NO
Circulate
to Magistrates: NO
Case No.: 2347/2016
In the matter between
DIRK
SAMUEL
BOTHA
First Plaintiff
HENDRIK
PIETER VAN DER POST
Second Plaintiff
and
RHYNO DU
TOIT
First Defendant
JACO
FOURIE
Second Defendant
HEARD ON:
27, 28 FEBRUARY and 2 MARCH 2018
JUDGMENT
BY:
DAFFUE, J
DELIVERED
ON:
8 MARCH 2018
INTRODUCTION
[1] A South African
landowner, resident and employed in the United Kingdom, is confronted
with the Afrikaans proverb "ver van jou goed, naby aan jou
skade." In English: a man far from his good is near his harm,
or
put otherwise, the master's eye makes the cattle thrive. A veld fire
was ignited on his farm, situated in the Brandfort district,
close to
Bloemfontein, which fire spread to some of his neighbours.
II
THE PARTIES
[2] First plaintiff is
Mr Dirk Samuel Botha N.O, a major businessman in his capacity
as a
duly authorised trustee of the Prof Trust (IT 2055/01) (hereinafter
referred to as “the Trust”). Second plaintiff
is Mr
Hendrik Pieter van der Post N.O, a major businessman in his capacity
as a duly authorised trustee of the Trust.
[3] The
locus standi
of
the trustees was in dispute, but eventually admitted at the hearing.
I shall herein after refer to the trustees as the plaintiff
in the
singular.
[4] Adv SJ Reinders appeared
for the plaintiff, duly instructed by Phatshoane Henney Attorneys.
[5] Two
defend2nts were cited in the action, to wit Mr Rhyno du Toit, a major
male person
as first defendant and Mr Jaco Fourie, ("Fourie")
a major male person as second defendant.
[6]
Second
defendant did not defend the action, but judgment has not been
granted against him yet. The action is only defended by first
defendant, and therefor, I shall later interchangeably refer to Mr Du
Toit as the defendant or Du Toit.
Ill
THE PLEADINGS
[7]
The
plaintiff alleged that:
7.1 on 3 October 2015 and
at 9h45 a fire orignated on the farm Weltevreden 243, Brandfort
district, which spread to the farm Glen Doring and other neighbouring
farms;
7.2 plaintiff is the owner
of the farm Glen Doring and defendant is the owner of the
farm,
Weltevreden 243;
7.3 at the time of the fire
the defendant was leasing the farm Weltevreden 243 to his
lessee, Mr
Jaco Fourie, cited as second defendant;
7.4 both defendants,
including their employees owed a duty of care to the plaintiff for
which allegation plaintiff relied on nine reasons which I do not
intend to repeat;
7.5 the fire on Weltevreden
243 ignited by the first and/or second defendant and/or their
employees and/or persons acting under the control of first and/or
second defendant, spread to neighbouring farms and especially
the
farm Glen Doring of the plaintiff. The spreading of the fire was the
result of the negligence by any of the persons mentioned,
they having
been negligent in all or a number of or one of nine respects listed
in paragraph 8 of the particulars of claim. I shall
deal with some of
the grounds of negligence raised on behalf of the plaintiff
infra
insofar as I was addressed by counsel.
7.6 The fire caused
extensive damages to animals, implements, natural veld, fences and
electrical cables on the plaintiff's farm. The
quantum
of the
damages is alleged to be R797 013.02 for which plaintiff holds
defendant liable.
IV
SEPARATION OF MERITS AND
QUANTUM
[8]
I
separated merits and
quantum
by agreement and made an
appropriate order in terms of rule 33(4). In terms thereof I ordered
that the disputes relating to paragraphs
9 and 10 of the Particulars
of Claim, read with paragraphs 11 and 12 of the plea, shall stand
over for later adjudication, if required,
and all other disputes to
be adjudicated at the hearing.
V
COMMON CAUSE FACTS
[9]
The
following facts turned out to be common course, either from the
pleadings, or as agreed prior to the leading of evidence, or
during
the hearing of the matter:
9.1 the
locus standi
of the
trustees of the Trust;
9.2 plaintiff and defendant are
the registered owners of the farms Cyferbank, district Brandfort,
commonly known as Glen Doring, and Weltevreden 243, district
Brandfort respectively;
9.3 on 3 October 2015 a veld fire
originated on Weltevreden 243 which fire spread to plaintiff's
farm
Glen Doring;
9.4 Fourie, the second
defendant and lessee of Weltevreden 243 at the time! started a
fire
on Weltevreden 243 in order to kill lechwe cacti on a portion of 14
ha of the said farm;
9.4 at 08h18 on 3 October
2015 and prior to the fire, Fourie established a so-called
WhatsApp
group on his cellphone. The members of the group included neighbours,
inter alia
Mr Freek Strauss, (“Strauss”) the
farm manager of plaintiff as well as the defendant;
9.5 there was some
communication by group members via WhatsApp messages
ex facie
Exhibit 11811 an extract of Fourie's WhatsApp records which was
handed in by agreement; it may be accepted, as Strauss confirmed
in
his evidence that group members were informed at 08h20 that Fourie
intended to ignite a fire in order to burn the 14 ha on 11his
farm11
to the right of the gravel road as his message indicated;
9.6 not long after the fire was
started, it went out of control, prompting Fourie to call Strauss
who
was at that stage in Bloemfontein. Strauss rushed to the scene, but
to no avail: the fire could not be extinguished and it
spread to
neighbouring farms, including plaintiff's farm;
9.7 Fourie had fire
fighting equipment in the form of a bakkie (LDV) with a 1000 liter
water tank and a tractor with wagon carrying a 2500 liter water tank
and pump. He was assisted by 4 employees. When he needed to
utilise
his fire fighting equipment, he experienced technical difficilties,
leaving the bakkie and tractor useless, due
inter a/ia
to a
beakdown caused by the uneven terrain. Although it was calm the
morning, the wind started to pick up after he had ignited the
fire
and this together with the defective vehicles caused the fire to
become out of control;
9.8 other farmers came to
assist later, but to no avail;
9.9
ex facie
Exhibit
"B" defendant left the WhatsApp group at 16h10 on 3 October
2015;
9.10 plaintiff's trial bundle, containing a
Google map of the relevant farms, a history of Fourie's WhatsApp
communication sent by him to defendant at defendant's request, as
well as a letter of demand from defendant to Fourie sent by e-mail
on
11 October 2015 was accepted by agreement as Exhibit '1A";
9.11 defendant's rule 35(3) affidavit
containing Vodafone statements of his cellphone account, including
an
itemisation of all calls sent and received, was handed in by
agreement as Exhibit "C"·
;
9.12 the written lease agreement between
Fourie and defendant placed strict obligations on the lessee and
one
of those is found in clause 7.7. The lessee was expressly forbidden
to intentionally start veld fires on the farm.
VI
LEGISLATION AND AUTHORITIES
[10] The National Veld and
Forest Fire Act, 101 of 1998 is applicable. The purpose thereof is
described
as follows in s 1:
“
(1) The purpose of
this Act is to prevent and combat veld, forest and mountain fires
throughout the
Republic.
(2) The Act
provides for a variety of institutions, methods and practices for
achieving
the purpose.”
[11]
"Owner"
is defined in s2. In terms thereof "owner has its common law
meaning and includes - (a) a lessee or other
person who controls the
land in question in terms of a contract, testamentary disposition,
law or order of a High Court; ...."
The further sub-paragraphs
of the definition are not relevant
in casu.
[12]
Section 17 stipulates as follows:
"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."
[13]
A plaintiff may rely on the presumption of negligence created
in s 34 as an evidential tool to prove his case. The section reads
as
follows:
“
34.
Presumption of negligence.-(1) If a person who brings civil
proceedings
proves that he or she suffered loss from a veldfire
which (a} the defendant caused; or
(b) started on or spread from land owned by the
defendant, the defendant is presumed to have been negligent in
relation to the veldfire
until the contrary is proved, unless the
defendant is a member of a fire protection association in the area
where the fire occurred.
(2) The presumption in subsection (1) does not exempt the plaintiff
from the onus of proving that any act or omission by the defendant
was wrongful."
[14] The five requisites for
delictual liability are well-known. These are (a) conduct of the
defendant
which can be in the form of a
commissio, e.g.
the
start of a fire, or an omissio,
e.g.
the failure to exercise
proper control over a fire of which the defendant was in charge; (b)
wrongfulness of that conduct; (c) fault
in the form of negligence (or
intent); (d) harm suffered by the plaintiff and (e) a causal
connection between the harm and the
defendant's conduct.
[15] A negligent failure to
exercise proper control over a fire or to take preventive steps to
prevent a
fire from spreading to neighbouring property may cause the
owner or person in control of the property to be held liable. See:
H
L
&
H Timber Products v Sappi Manufacturing (Pty) Ltd
2001
(4) SA 814
(SCA) at para (14].
[16] Much time was spent on the
concept of ownership or "owner" in argument during an
application
for absolution from the instance which I refused, as well
as during the parties' closing arguments. Therefor it is apposite to
quote extensively from the judgment of Swain, J (as he then was) in
Mondi South Africa Ltd v Martens and another
2012 (2) SA 469
(KZP). I refer to the
following passages:
[16]
From the aforegoing, it is evident that central to the common law
meaning of
ownership, is that of unrestricted and exclusive control
and possession of the res, together with the power of alienation.
[
18
] ln my view, regard
being had to the incidents of ownership which the first defendant
disposed of, namely the exclusive control
of the properties, together
with the right to possession and alienation of the properties, as
well as the nature of the arrangements
under which they were disposed
of, the interest retained by the first defendant was solely that of
the properties being registered
in his name in the deeds registry.
[20]
In my view, registration of ownership in the deeds registry is not an
incident of ownership within the common-law meaning of that term,
flowing as it does from statute, in the form of the
Deeds Registries
Act 47 of 1937
. For the reasons that follow I regard the common-law
right of control over the property, as the decisive incident of
ownership
to determine whether the first defendant falls within the
'common-law meaning' of 'owner' in terms of the Act.
[21]
What the legislature intended by referring to the 'common-law
meaning'
of 'owner', must be determined not only in the context of
the language of the rest of the Act, but also its apparent purpose
and
scope, as well as the historical background to the Act. (Jaga v
Donges NO and another; Shana v Donges NO and another
1950 (4) SA 653
(A) at 662G-664H.
[22]
As regards the language of the rest of the Act, the other meanings
accorded to the definition of 'owner', in s 2 of the Act, are
instructive. Paragraph (a) refers to a lessee 'or other person who
controls the land in question' in terms of a contract , testamentary
document, law or order of a High Court. The issue of control
of the
land is repeated as the criterion in respect of a community, as well
as State land, respectively, in paragraphs (b) and
(c). However, with
regard to a local authority, no reference is made to the criterion of
control, in paragraph (d).
[23]
When the emphasis placed upon control of the land in question is
considered
with regard to the other entities which fall within the
definition of 'owner' in the Act, the significance of the attribute
of
control, in the common-law meaning of 'owner', becomes apparent.
If control is the determining criterion in the other categories
of
'owner', for the purposes of the Act, why should it not be the
determining criterion in the 'common-law meaning' of 'owner'?
It
would be anomalous to require control over the land in question to
qualify the other named entities as an 'owner', but not in
the case
of the 'common-law meaning' of 'owner'.
[33]
It is therefore clear that control of the landowner, over the
property in question, as one of the incidents of ownership, is a
decisive
factor in the determination of liability.
[34]
Regard being had to the provisions of the predecessors of s 34
of the Act, and the historical judicial requirement of control over
the property as a determinant of liability, 'the common-law meaning'
of 'owner' in terms of the Act must include the element of
the right
of control over the property in question. If this were not so, the
presumption of negligence contained in s 34 of the
Act would operate
against an 'owner' who had no right of control over the land in
question.
[35]
I am accordingly satisfied, as a consequence of the divesting by
first
defendant of the right of control over the properties in
question, in favour of the second defendant, that the first defendant
ceased to be an 'owner' of the properties in question within the
'common-law meaning' of the definition of 'owner' contained in
the
Act.
[17] In
Lubbe v Louw
[2006]
4 All SA 341
(SCA) at para [16) the court, dealing with wrongfulness,
referred to the "wide recognition of a duty to take care in
relation
to veld fires approved in cases such as
Quathlamba and H
L
&
H Timber Products"
and stated that the
judgment in
Administrateur, Transvaal v Van der Merwe
should
not be regarded as authority for the proposition that such wide
recognition should be qualified "where the control of
the
landowner in question is one of the incidents of ownership of the
property concerned." In
Administrateur, Transvaal v Van der
Merwe
[1994] ZASCA 83
;
1994 (4) SA 347
(AD) at 359 H - 360 H the Appeal Court, as
it was known, found that the fact that the Administrator had control
and supervision
over a road was a necessary factor to find liability
on his part, but this was in itself not sufficient.
[18] In
Loureiro and Others v
lmvula Quality Protection (Pty) Ltd
2014 (3)SA 394 (CC) at
paragraph [53] the Constitutional Court also warned that the concepts
of wrongfulness and negligence should
not be conflated. The court
continued as follows: "The wrongfulness enquiry focuses on the
conduct and goes to whether the
policy and legal convictions of the
community, constitutionally understood, regard it as acceptable. It
is based on the duty not
to cause harm - indeed to respect rights -
and questions the reasonableness of imposing liability." The
defendant's "subjective
state of mind is not the focus of the
wrongfulness enquiry. Negligence, on the other hand, focuses on the
state of mind of the
defendant and tests his or her conduct against
that of a reasonable person in the same situation in order to
determine fault."
[19] In
Country Cloud Trading
CC
v MEG, Department of Infrastructure Development, Gauteng
2015 (1) SA 1
(CC) the wrongfulness enquiry was dealt with as
follows:
“
[20] Wrongfulness is an
element of delictual liability. It functions to determine whether the
infliction
of culpably caused harm demands the imposition of
liability or, conversely, whether 'the social, economic and others
costs are
just too high to justify the use of the Jaw of delict for
the resolution of the particular issue.' Wrongfulness typically acts
as a brake on liability, particularly in areas of the law of delict
where it is undesirable or overly burdensome to impose liability.
[21] .....The statement
that harm-causing conduct is wrongful expresses the conclusion that
public
or legal policy considerations require that the conduct, if
paired with fault, is actionable. And if conduct is not wrongful, the
intention is to convey the converse: 'that public or legal policy
considerations determine that there should be no liability; that
the
potential defendant should not be subjected to a claim for damages',
notwithstanding his or her fault.''
[20]
MTO Forestry (Pty) Ltd v
Swart NO
2017 (5) SA 76
(SCA) is the latest reported judgment on
the delictual requirements of wrongfulness and negligence. In
paragraphs [16) to [18]
the SCA referred to the
dicta
of the
Constitutional Court in
Loureiro
and
Country Cloud supra
pertaining to the wrongfulness enquiry, but warned that "(l)t
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.'' It concluded in paragraph [18],
after
criticising some academics, that it should now be recognised ''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."
Leach JA,
the scribe of the judgment. drove the point home in
Pauw v Du
Preez
[2015] ZASCA 80
that "wrongfulness and negligence are
two separate and discrete elements of delictual liability which ..
should not be confused."
[21]
In
MTO Forestry
the SCA criticised the
Mondi
judgment
supra
by stating in paragraph [25] ".... it
may well be that the judgment in Mondi v Martens was founded on an
incorrect premise
and approach." However, it found that insofar
as the proven facts rebutted any presumption of negligence, it was
not necessary
to decide whether the reasoning in
Mondi
was
correct. The SCA approached the arguments pertaining to the effect of
the
Mondi
judgment as follows:
"[
22]
The respondent's argument on this issue was based on an 'owner' being
defined ins 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 Martens28 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 section16 placed an onus on the
respondents to show
that the fire spread to Witelsbos without
negligence on its part."
[22]
The SCA considered the issue of negligence as follows in
MTO
Forestry.
“
[45]
As was mentioned by this court in Durr 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. Andin considering what steps were reasonable, it must be
remembered that a reasonable person is not a timorous
faint-heart
always in trepidation 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]
........
[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
circLrn5tances 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."
VII
EVALUATION OF THE EVIDENCE AND APPLICATION OF THE LAW TO
THE FACTS
[23] I have mentioned the facts which
are common cause between the parties. I did not summarise the
evidence earlier as I am of the view that it is not required as a
result of the minor factual disputes. In my evaluation I shall
address the factual disputes and make findings in that regard.
[24] Three matters need to be
considered. Mr Zietsman indicated from the onset that wrongfulness
and negligence remained in dispute as is the issue of whether
defendant falls within the definition of 11owner'' as defined ins
2
of the Act.
[25] Two witnesses testified for
the plaintiff and defendant testified in his defence. Strauss,
the
farm manager of plaintiff, was the first witness. According to him,
Fourie never before 3 October 2015 indicated that he wanted
to burn
the veld on defendant's farm. He obtained knowledge of Fourie's
intention to start a veld fire after he was added to Fourie's
WhatsApp group referred to
supra.
At that stage he was in
Bloemfontein. Fourie's version is that he not only informed defendant
some time before 3 October 2015 of
his intention to burn the cacti on
the 14 ha, but also all his neighbours. This is in direct
contradiction of Strauss' version.
In fact he went further towards
the end of his evidence in stating the following: "Ek het Ian"
voor ait (die brand) sy
(verweerder) en ander bure se toestemming
verkry." When he was asked immediately after this response about
consent, he said:
"Enigeen op die groep (the WhatsApp group) kon
se nie vandag of ander voorwaardes stipuleer." This is a
ludicrous response
from somebody that was already on the verge of
setting the veld alight.
[26] Fourie went further and
mentioned that he discussed the issue again with defendant during
their telephonic conversation of Friday, 2 October 2015. According to
him, defendant consented to igniting a fire on condition
that all
neighbours were informed and it was safe to do so. The telephone
records of defendant show that there was indeed telephonic
contact on
the particular Friday afternoon. Defendant's version of the
conversation is as follows. His debit orders went through
his bank
account on the first of every month and therefore it was crucial that
he received the rental in order to provide sufficient
money to meet
his obligations. When he was made aware of Fourie's failure to pay
the rental, he phoned him to demand payment. There
was no discussion
of Fourie's intention to burn cacti on his farm. The WhatsApp message
of 3 October 2015 at 18h50:57
ex facie
Exhibit "A"
by defendant to Fourie corroborates defendant's version. Refer also
to Fourie's immediate explanation why
he did not deposit the money
that day.
[27] In light of Strauss'
uncontested evidence - he was called by plaintiff and could not be
cross-examined by plaintiff's counsel - defendant's version of the
conversation with Fourie is far more probable than Fourie's
version.
In this regard Fourie conceded in cross-examination that his
affidavit filed in previous proceedings between the parties
was
incorrect in several aspects. One important incorrect allegation
contained in that affidavit is that defendant and all the
neighbours
had agreed that he may burn the veld and that the neighbours were
present when the fire was started and helped to extinguish
it. He
blamed his attorney for advising him that it was not necessary to
amend the statement prepared on his behalf before he signed
and
verified the contents thereof under oath.
[28] Although I am prepared to
accept defendant's version in respect of his lack of prior knowledge
of the fire,
i.e.
prior to Saturday, 3 October 2015, his
version in respect of his knowledge of the existence of the WhatsApp
group is contradictory
and doubtful. It should be regarded as
improbable and/or mistaken, if not false. Initially his counsel put
it in no uncertain terms
to Strauss that defendant knew nothing of
this WhatsApp group and consequently he required Fourie, once he had
received information
of the existence of the group after the fire, to
provide him with a history of the conversations, which Fourie did. It
is apparent
from Exhibit 11811 that defendant left the group at 16h10
on Saturday afternoon, 3 October 2015. This confirms Strauss' version
as well as Fourie's version that he (Fourie) earlier that morning
added defendant as a member of the group. Eventually defendant
had to
concede that he was a member and that he had left the group as
reflected in Exhibit 118 ".
[29] I have to accept defendant's
uncontested evidence that he visited a nature reserve in
Wales that
particular weekend and that cellphone signals were limited to certain
areas only. This is corroborated by the WhatsApp
messages on Exhibit
"A". At 19h18 on Friday evening defendant sent a message to
Fourie, mentioning that he did not have
any cellphone signal and that
he had to get onto a bakkie (LDV) for signal. Furthermore, Exhibit
"A" reflects defendant's
query about payment of the money
due to him. His message at 18h50 on Saturday night confirms this. At
18h54, in response to defendant's
query, Fourie promised to deposit
money the next day, mentioning that he could not pay that day as he
was busy extinguishing a
fire. No details of the fire were reported
then.
[30] I have reason to believe
that defendant received the group's WhatsApp communication which
was
limited in nature. There is no indication as to when the fire would
be started and when it became out of control. In my view,
defendant,
finding himself in Wales at the time, or even if he was close-by in
Bloemfontein, could not have done anything to prevent
Fourie from
starting the fire and/or to take any steps to prevent the fire from
getting out of control and spreading to neighbours.
According to the
common cause facts this occurred at approximately 09h45 and thus very
soon after the WhatsApp group had been established
and the fire
started. Defendant, who initially denied that he was aware of the
existence of the WhatsApp group, eventually conceded
that he was
added as a member, but left the group later. It must be mentioned
that nothing was mentioned on this message system
by anyone that day
that a fire had gone out of control. Fourie's message of that
Saturday night to defendant merely stated that
he could not make
payment as he was busy extinguishing a fire without providing any
detail. Although defendant had his dates wrong
in his evidence
initially, he rectified that later1 probably after refreshing his
memory by consulting Exhibits "A" and
"C''. No doubt,
there was no telephonic conversation between him and Fourie on 3
October 2015. He only learnt about the fire
and extent thereof on 4
October 2015. Although defendant may be blamed for the manner in
which he responded to various questions
and the fact that he tried to
distance himself from the WhatsApp group and knowledge of the
intention to start a fire, his version
is more probable than that of
Fourie. I am also satisfied of the inherent truth of his version
insofar as it is corroborated by
Strauss and the communication set
out in the Exhibits referred to. Fourie, in my view, subtly evaded
questions by providing answers
on several occasions in order to
support his contention that Strauss, defendant and all neighbours
knew about his intentions and
consented to the fire before 3 October
2105. When it was put to him that he only informed defendant of the
fire on 4 October 2015,
he responded that defendant was on the
WhatsApp group. Fact of the matter is that it was never mentioned on
this group's message
system that a fire had spread to several
neighbouring farms, causing extensive damage. I have no reason to
doubt Strauss' evidence
that he did not know prior to 3 October 2015
that Fourie intended to burn veld.
[31] I find that Mr George Myers,
a neighbour, informed defendant of the fire on 4 October
and this led
to the two long telephone conversations between defendant and Fourie
on that day. Therefore, Fourie kept his lessor
in the dark and he had
to be informed by a neighbour. The mere fact that Myers at that stage
mentioned that defendant should keep
his lessee under control is no
proof that defendant knew or ought to have known that his lessee W8 S
a troublemaker. The contrary
is rather true, bearing in mind the
relationship between defendant and Fourie and the fact that Fourie
was regarded as an experienced
farmer.
[32] I respectfully agree with
the SCA's criticism of the
Mondi
judgment. However, the SCA
did not decide the issue and the criticism does not form part of the
court's
ratio decidendi.
Mr Zietsman tried to convince me that
defendant could not be regarded as "owner" for purposes of
the Act insofar as he
had parted with his control over his farm.
Obviously, the relinquishing of control was not as complete as in
Mondi,
but defendant did not have the right to peep over the
lessee's shoulder daily and regularly to ensure that he does not
breach any
of the terms of the contract. He merely had the right to
do inspections from time to time. Mr Zietsman used the analogy of an
old
widow who had inherited her husband's farm, but being too old and
ill to farm - staying in an old-age home - decided to rent out
the
farm. She, not being in control of farming activities, should not be
regarded as owner, although she is still the registered
and
common-law owner. One should be careful to make use of extreme
examples. It may well be that the same old widow decided to
rent out
her farm to a known unsavoury character and also that she had been
warned in the past by neighbours of the lessee's illegal
operations,
including ignition of veld fires in unsafe circumstances, but
refrained from acting in terms of the contract and cancelling
same.
Could it then still be said that she as the absent owner is not hit
by the presumption in s 34? In my view it is unnecessary
to decide
the issue. The presumption, an evidentiary aid, does not come into
play
in casu.
The evidence is clear. It is apposite and more
appropriate to deal with the matter by asking the question whether
any proven
commissio
or
omissio
of defendant should be
found to be wrongful and negligent, bearing in mind the separate
enquiries needed to come to a final conclusion.
Wrongfulness
[33] Could it be found that an
owner of immovable property such as defendant
in
casu,
considering all relevant circumstances, acted wrongfully by either
committing a certain conduct or refraining from doing something
where
he was expected to act? Mr Zietsman submitted that control of the
landowner is a decisive factor in the determination of
liability.
This cannot be accepted as a general proposition. As mentioned in
Loureiro supra
the test is whether the policy and legal
convictions of the community, constitutionally understood, regard the
conduct as acceptable.
There is a duty not to cause harm to others
and to respect their constitutional rights. It is common cause that
allowing the ignition
of a fire on one's property is inherently
dangerous and the Act was promulgated with the purpose to prevent and
combat
inter a/ia
veld fires. But, the concept of wrongfulness
acts as a brake in the words of Khampepe J in
Country Bird supra
where it is undesirable or overly burdensome to impose liability.
In my view public and legal policy considerations do not determine
that a lessor that leases his farm to an experienced farmer as
in
casu,
and without being presented by any warning signs of
unsavoury conduct by that person, shall be held to have acted
wrongful in allowing
the lessee to conduct farming activities on the
farm. That being my conclusion on the requisite of wrongfulness, it
is unnecessary
to consider possible negligence, but I shall make some
remarks in that regard.
Negligence
[34]
1
The test for negligence is an objective test1
i.e.
what
would the reasonable person have done if put in the defendant’s
shoes. The test pronounced in
Kruger v Coetzee
1966 (2) SA 428
(AD) at 430 E - F is still authoritative. The questions to be posed
are whether the reasonable person would have foreseen the reasonable
possibility that his conduct may cause harm and if so1 would he be
taking reasonable steps to guard against such harm; finally
whether
the defendant failed to take such steps.
[35] Mr Reinders referred me in
argument to s 17 of the Act which I quoted
supra.
In my view
there was nothing which the reasonable man would and could have done,
based on the version that defendant received notice
of the intended
fire on Saturday morning only. There were just no steps1 never mind
reasonable steps, that the reasonable man would
or could have taken
to guard against harm. Defendant's inaction by not responding to the
WhatsApp message cannot be described as
unreasonable in the
circumstances. Even if I was prepared to accept Fourie's version that
defendant was informed of his intention
the previous day, (which I am
not prepared to do) I am satisfied that the reasonable person in
defendant's shoes would not have
acted differently. According to
Fouriel consent was given on condition that all the neighbours
consent to the ignition of a fire
on the farm and that it was safe to
do so. Fourie was well-known to defendant and it is common cause that
he is an experienced
farmer. Clearly, he had an interest to ensure
that at least the farm that he was renting, be safe-guarded as he was
dependant on
the farm to produce income. The reasonable person is not
"'a
timorous faint heart always in trepidation' of harm
occurring."
I refer to the
dicta
in paragraphs 45 and
47 of
MTO Forestry supra.
Therefore, on both scenarios, no
negligence was proven.
VIII
COSTS
[36] There is no reason why
defendant as the successful party shall not be entitled to his
party
and party costs in defending the action. The purpose of an award of
costs is to indemnify the successful party for the expense
he had
been put through, having been unjustly compelled to initiate or
defend litigation as the case may be. The only contentious
issue is
the request by defendant that his travelling costs between the United
Kingdom and South Africa should form part of his
costs. I am
satisfied that plaintiff knew at all time that defendant was employed
and resident in the United Kingdom. This appeared
particularly from
the facts deposed to by plaintiff in the application for an order
that defendant's assets in South Africa be
frozen pending
finalisation of the action. Defendant was accused of acting
unlawfully and negligently and notwithstanding his plea,
relying on
the lease and the fact that Fourie was in complete control of the
farm, plaintiff insisted with the action against defendant.
Instead
of taking judgment against Fourie who did not even defend the action,
Fourie was called as a surprise witness by the plaintiff.
Mr Zietsman
did not refer me to any authority for his submission. The fundamental
rule relating to awards of costs is that it is
wholly in the
discretion of the court, although such discretion must be exercised
judicially. Based on what I have mentioned
supra,
I am
satisfied that the travelling costs should be allowed.
IX
ORDER
[37] Consequently the plaintiffs' claim
is dismissed with costs, such costs to include the travelling
costs
of the first defendant based on the costs of return air tickets on
economic class between the United Kingdom and Bloemfontein,
South
Africa.
J.P.
DAFFUE, J
On behalf of the plaintiff: Adv S J Reinders
Instructed
by:
Phatshoane Henney Attorneys
Bloemfontein
On behalf of the respondent:
Adv P J J Zietsman
Instructed by:
Honey Attorneys
Bloemfontein