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[2018] ZAFSHC 126
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Wessels NO and Others v Phumelela Municipality (962/2014) [2018] ZAFSHC 126 (16 August 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 962/2014
In
the matter between:
W
G P WESSELS
N.O
1
St
Plaintiff
JUDITH
ADRIANA WESSELS
N.O
2
nd
Plaintiff
A
H RAUBENHEIMER
N.O
3
rd
Plaintiff
PETRONELL
SMIT
4
th
Plaintiff
and
PHUMELELA
MUNICIPALITY
Defendant
CORAM: MHLAMBI J,
HEARD ON:
15-18 August 2017; 30-31 Jan 2018; 02 February 2018; 19
April 2018; 07 June 2018
DELIVERED
ON:
16 August 2018
MHLAMBI,
J
INTRODUCTION
[1]
The plaintiff issued summons against the defendant for the recovery
of losses they suffered as a result of the fire which allegedly
broke
out on the defendant’s garbage dumping site on 20 September
2013 and spread onto the plaintiffs’ neighbouring
farms,
causing extensive damage to property and livestock.
[2]
At the commencement of the trial, a draft order was granted in terms
of which the issues were narrowed down and it reads
as follows:
“
1. The issue in
respect of merits and quantum are separated in terms of Rule 33(4)
2. …………
3. The merits-trial
entails the adjudication of paragraphs 4, 5.2, 5.3, 6 and 7 of the
Particulars of Claim read with the corresponding
paragraph of the
Defendant’s plea and also read with the Plaintiff’s
Request for Further Particulars, the Defendant’s
further
particulars, the Plaintiff’s Rule 37(4) Questionnaire and the
Defendant’s answer in terms of Rule 37(4).”
[3]
It was agreed between the parties that the only issue for
determination in respect of paragraph 4 of the particulars of claim
was whether the fire that arose on the defendants’ properties,
more especially the dumping site or
“
asgate”,
spread to the plaintiffs’ farming properties. The
plaintiffs’ case was pleaded in paragraph 4. The issues of the
date
of the fire, whether it was a veld fire and the damage to the
various properties were not in dispute. The issue of negligence and
the non-compliance with a legal duty were contained in paragraphs 5
and 6.
[4]
The evidence of Mr Steenkamp, the fire association officer, would
indicate that the defendant was not a member of the Phumemela
Fire
Association in 2013; the plaintiffs therefore relied on the
presumption of negligence as contained in Section 34 of the National
Veld and Forest Fire Act 101 of 1998 which provides 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.”
[5]
In support of their cases, the plaintiffs called seven witnesses,
including two experts: Mr Vorster, a satellite image processing
specialist and Mr de Beer, a forensic fire investigator.The defendant
called two witnesses instead of the four it had indicated
earlier in
the trial. By agreement the evidence of Mr Smit, on behalf of the
fourth plaintiff, was not led as the parties accepted
that it would
be a repetition of what was contained in paragraphs 5 and 6 of the
particulars of claim in regard to the allegations
of a breach of duty
of care and negligence and would have been in accordance with the
evidence of the other plaintiffs. The witness
was at the time
unavailable and it would have taken great difficulty for him to
attend the court.
Summary
of the evidence
[6]
Mr W.G.P Wessels testified that he was the trustee of the Koefontein
Trust which consisted of three properties: Koefontein,
Glen Harry and
Vaalpunt farm. He was a member of the Phumelela Fire Protection
Association which was active at Vrede. He was a
farmer in the
district for the past 28 years. On 20 September 2013 there were no
“
fire breaks”
at
the dump. There were no gates and access thereto was gained
unhindered. The period August- September was a dangerous period as
it
was a windy season due to the strong Westerly winds. The Fire
Protection Association issued warnings by
“
smses”
and 20 September 2013 was a so-called code red day. The
fire index had moved to red, indicative of the dangerous conditions
which
were conducive to the outbreak of fire.
[7]
Having received a telephone call at around 13h15, he walked to a
point where he could see the dump from Koefontein. The wind
was
blowing very strongly and he detected smoke and realised that it was
veld burning. He summoned his workers, drove towards the
fire which
had already moved over the Volkstrust road. He then drove to Glen
Harry which was approximately 5 km away where he met
the fourth
plaintiff’s husband. He started extinguishing the fire. The
fire spread in the direction of Memel away from Vrede.
It spread past
Koefontein. The farm was burnt but the livestock was saved.
[8]
He denied that neither he nor his employees were negligent or
contributorily negligent as he had complied with the fire association
prescriptions before the incident. Neither did he see any Municipal
employee assist in extinguishing the fire nor phone from the
Municipal Office. Frequent fires broke out at the dump.
[9]
In cross-examination, he said that a fire could cross over a tarred
road that was plus-minus 20 m wide if there was tamboekie
grass on
the road edges, but not short grass. A strong wind was blowing and it
was impossible to stop the fire. The fire moved
towards and passed
Glen Harry and Koefontein. It then moved and passed the
side of Vaalpunt towards Memel. At
16h00 they waited for the
smoke to subside while the fire was smouldering at the dump. He never
made fire breaks between his farm
and the dump which was plus-minus 5
km away because it was not expected of him to do so by the Fire
protection Association.
[10]
Mr Raubenheimer testified that he drove along the Memel Road when he
saw smoke emanating from the dumping site on 20 September
2013. He
was about three hundred metres from the dumping site when he noticed
the smouldering thereon. As he left Gibson Street
and the town, he
saw the flames leave the dumping site and move in a southerly
direction towards the Volksrust Road. Tall grass
grew on its
sides. The fire proceeded up to the farm, Brakfontein. According to
him the defendant failed to have proper equipment
to control the fire
and lacked manpower to look after and manage the dump. As fires
frequently started on the dumping site, the
defendant failed to make
fire breaks before the time or to scrape and keep the place
surrounding the dump clean as to prevent fires
from starting or
spreading. On being confronted with the defendant’s defence
that the fire that started around the dump was
fully extinguished,
his response was that, had the fire been properly extinguished,
managed and there were fire breaks, it would
not have started at the
same place as the grass there was short.
[11]
Mr Andries Greyling testified that on 20 September 2013 he was on his
farm, which was eight kilometres (8 Km) from the dumps,
when he saw
smoke between 13h00 and 14h00. He moved in its direction. He drove on
the Memel Road and noticed that the smoke came
from the dumping site.
It was a sunny day and the wind blew in a north-westerly direction.
He was about five hundred metres from
the dumping site when saw the
fire and the flames move in the direction of the Volksrust Road. No
persons extinguished the fire
as it moved towards the tarred road.
Grass or vegetation around the dumping site was short but grew taller
as it reached the service
area next to the road which belonged to the
municipality. This is the area where tall tamboekie grass grew
and the moment
the fire reached it on the road edges, it became
uncontrollable, larger and eventually jumped the road. The wind was
strong and
stoked the fire and eighty percent of the wind blew in a
westerly direction. They fought the fire until dusk. He was a Fire
Protection
Officer with the Phumelela Fire Protection Association.
All the plaintiffs were paid up members of the association as at 20
September
2013. The defendant was as at that date not a member of the
association. He was informed of the smoke and the smouldering on the
dump on 20 September 2013 whereafter he communicated with Mr Hope
Mthembu, an employee of the defendant and advised him of the
fire on
the dump. Mr Mthembu informed him that he had no knowledge of the
fire that had started at the dump and had no personnel
available to
confirm that there was indeed a fire on the dump. During
cross-examination he confirmed that on Friday 20 September
2013 at
approximately 11h30, he received a call from a motorist who informed
him of an uncontrollable fire burning at the refuse
site. He
maintained that the fire was uncontrollable as no person supervised
the smouldering on the dump and, as it was a red day,
no open fires
were to be made on the dump. The cross-examination was based on the
affidavit he had made to the police in connection
with the incident.
[13]
Mr Philip de Beer testified that he was the owner of the Hexagon Fire
Investigation CC and performed duties as the fire origin
and cause
experts. He had compiled two reports dated 19 January 2014 and 13
October 2014 and reported that a fire had probably
originated within
the boundary of the Vrede Municipality dump site on the 20 September
2013. The initial suppression of this fire
was
inter
alia
conducted by Mr Joshua Tshabango. He
encountered the right flank of the fire on the dumpsite at the south-
western fence. It was
reported to him by Mr Fanie Tshabango that the
latter commenced the fire suppression at the fence whereon burnt
vegetation was
still evident underneath the fence. Physical evidence
in the form of a line of unburnt vegetation verified the version and
the
location of the reported fire suppression actions. Fire
indicators were identified and traced from the western side of the
R543
road in an approximate north- western direction up to the
general area of the fire origin located between the Southern boundary
fence of the dumping site and the Southern edge of the site itself.
Fire indicators identified in this area indicated the specific
origin
area to be located in close proximity to the most North Western point
of the fire damage within that area. The specific
origin area was
subjected to a systematic grid search and the point of the fire
origin could not be identified. The cause of the
fire was therefore
classified as undetermined. The following hypotheses regarding the
cause of the fire were considered as possible
but not verifiable:
1.
Deliberate open flame ignition of the vegetation,
and
2.
Ignition of the vegetation by burning object
(carried by the wind) from fire burning within the dumping site.
[14]
He had not seen any fire breaks around the dumping site and if the
fire had not spread before it got into the tamboekie grass,
it would
mean that no embers were produced while the fire was burning before
it got to the tamboekie grass and there was no fire
on the other side
of the road before it got to tamboekie grass, then logically one
would infer that if there was no tamboekie grass
the fire would not
have spread. It is easier to extinguish a fire that has just started
than one that had developed into a head
fire.
[15]
Mr Vorster testified that he was an RS production and VAP
technologist, with specific field of expertise in satellite image
processing. He complied a report dated May 2017 which related to a
fire which occurred on 20 September 2013 in the Vrede area of
the
Free State by means of using available satellite imagery and
satellite data. His conclusion is contained in paragraph 4 of
the
report and reads as follows:
It is the expert’s
opinion, based on his knowledge and experience as experienced
satellite image processing specialist, and
based on his research and
interpretation of the available satellite images that the following
can be stated with reasonable degree
of confidence:
4.1 The relevant fire
which is the subject-matter of this case probably started on 20
September 2013 on the Farm Krynaauws Lust
(The town Vrede falls on
this farm) at an unknown time prior the orbit of the relevant MSG
satellite (indicated by fire scar of
20 September 2013) before 13:42
(figure 4). It probably started at the dumping site.”
[16]
Mr Joshua Tshabango testified that his brother, Fanie Tshabango, died
on 22 September 2017 and the appropriate death certificate
forms part
of the court record marked as exhibit “I”. He confirmed
that he and his brother witnessed the same event
of the veld fire
which occurred on 20 September 2013. He and his brother were working
on a fence when at about 13h00 they saw smoke
at the dumping site.
When they eventually saw the fire, they took a tractor and a water
tank and drove towards it. On entering
the dumping site, he saw a
small fire about half a metre from the fence. When their water supply
was depleted, they left the site
to refill the water tank. On
returning to the dump site to continue the fire suppression, the fire
had spread across the road between
the dumpsite and the golf course.
Many farmers assisted to extinguish the fire. The golf course was on
the other side of the dumping
site and there were no fire breaks as
well as on the Vrede/Memel road. The fence also did not have any fire
breaks.
[16]
Mr Jan Motaung testified on behalf of the defendant and stated that
he worked for the defendant as the manager of the Community
Services.
At around 16h15 on the day in question he became aware of the
fire and called the Warden Fire station in connection
with the
dumping site which was burning. He was informed that the fire would
be controlled. He confirmed that Mr Hope Mthembu was
in the employ of
the Phumelelela Municipality in the capacity of Acting Director of
Technical Services. According to him, the area
that was burnt out was
the length between two soccer posts. He did not know where the fire
started. He could not contest the evidence
of the plaintiffs’
two expert witnesses as well as Tshabango’s, during whose
testimony in court he was present.
He conceded all the points
and the plaintiffs’ version of the events that were put to him
by the plaintiffs’ counsel
and more especially that the fire
emanated from the dumping site. The municipality was responsible for
the dumping site and its
surrounding area. There was a gate leading
to the dump but the entry was uncontrolled. He could not
dispute that the fires
occured regularly on the dump during September
2013 and that mechanisms were only put in place to stop the spreading
of the fires
after the incident of 20 September 2013.
[17]
The evidence of Mr Siyabonga Radebe, the defendant’s second
witness, centred around the occurrence book, which formed
part of the
court record, and marked exhibit “J” and related to the
entries made on 20 September 2013. The essence
of his evidence was
that informal people cooked, recycled and burned plastics on the dump
and sometimes these burning plastics
could be brought up by the wind
and spread. Fires appeared occasionally on the dump and they used to
complain to Mr Motaung about
informal people starting fires there and
nothing happened. He confirmed that prior to 2013 no fire breaks were
made. He saw smoke
from the inside of the dumping site. He did not
know how the fire started and could not deny that it spread all the
away to Brakfontein
along the Volksrust road which had no fire
breaks. Had Mr Hope Mthembu responded to Mr Steenkamp’s call at
11h30 on that
day and sent one water truck or fire fighter, the fire
could have been stopped from spreading. Despite a postponement of the
case
to enable Mr Mthembu to testify, he failed to do so.
The
pleadings
[18]
The following are specifically alleged in the particulars of claim:
“
4
Op of ongeveer 20
September 2013 het ‘n veldbrand ontstaan by die Verweerder se
stortingsterrein (asgate), Vrede en vandaar
versprei
na die voormelde plase van die Eisers waar dit skade veroorsaak
het.
5.1 Daar was te alle
tye relevant tot hiedie asksie ‘n regsplig op die Verweerder om
te voorkom dat brande by die stortingsterrein
onstaan,
alternatiewelik vandaar
verspei
na aangrensende eiendom, meer in besonder diè van die Eisers
as gevolg van die feit dat vuur inherent gevaarlik is en verder
in
terme van die bepalings van die Nasionale Wet op Veld-en Bosbrande Nr
101 van 1998.
5.2 Ter verbreking van
voormelde regsplig het ‘n veldbrand ontstaan op die datum
voormeld en
versprei
vanaf die Verweerder se stortingsterrein na die eiendom van die
Eisers.
5.3 Die voormelde
veldbrand het ontstaan en
versprei
as gevolg van die uitsluitlike nalatigheid van die Verweerder,
alternatiewelik Verweerder se werknemers wat te alle tye relevant
hiertoe opgetree het en gehandel het binne hulle diensverhouding met
die Verweerder en binne die omvang en bestek van hulle
diensverhouding.
Die name en besonderhede van Verweerder se weknemers
is onbekend aan die Eiser.
6
Verweerder,
alternatiewelik Verweeder se voormelde werknemers, was nalatig in een
of meer van die volgende opsigte:
6.1 ………
6.2 ………
6.3 Deurdat Verweerder
toelaat dat vullis wat op die stortingsterrein gestort word verband
word sonder voorsorgmaartreëls,
alternatiewelik behoorlike
voorsorgmaatreëls;
6.4 Deurdat Verweerder
versuim om ‘n behoorlike brandbaan om die
stortingsterrein te maak wat ‘n redelike kans
het om die
verspreiding
van bran vanaf die stortngsterrein na aangerensende eiendom te
voorkom en meer in besonder na die eiendomme van die Eisers;
6.5 ……….
6.6 ……….
6.7 ……….
6.8 Deurdat Verweerder
versuim het om alles in sy vermoë te doen om te verhoed dat die
brand
versprei
nadat die brand ontstaan het [Artikel 18(1)(b) van die Wet].
7.1 As gevolg van die
Verweerder se voormelde nalatige en onregmatige optrede het die brand
wat
verpsprei
het na die onderskeie Eisers se voormelde grond skade aangerig en het
die Eerste en Tweede Eisers skade gely in die bedrag van
R 620,
106.55, het die Derde Eiser skade gely in di bedrag van R 563, 725.00
en het die Vierde Eiseres skade gely in die bedrag
van R 109, 830.00.
7.2 Verweerder was te
alle relevante tye, en spesifiek op of ongeveer 20 September 2013,
nie ‘n lid van ‘n Brand-beskermingsvereniging
nie”
[19]
The defendants’ plea reads as follows in relation to the above:
“
4
AD PARAGRAAF 4
DAARVAN:
4.1 Verweeder
erken
dat op
20 September 2013 het daar twee
relatief klein brande gebrand in die omgewing van die Verweerder se
stortinsterrin
(asgate) te Vrede.
4.2 Verweerder
pleit egter spesifiek dat werknemers van die Verweeder het
hierdie
twee brande volledig geblus op September 2013,voordat dit na naburige
eiendomme
versprei
het en stel Eiser tot die bewys van die teendeel.
4.3 In die
vooropstelling, en in die lig van die feit dat die voormelde brande
volledig geblus was,
ontken Verweerder
dat die brande versprei het na die Eisers se plase,
waar dit na bewering skade veroorsaak het en stel Eisers tot die
bewys van ieder en elke sodanige bewering.
5
AD PARAGRAAF 5.1
DAARVAN:
Verweerder erken dat
daar in die algemeen ‘n regsplig op die Verweerder rus om te
voorkom enige brande wat by die stortingsterrein
mag ontstaan,
vandaar versprei na aangrensende eidndomme”
The
Parties contentions
[20]
It was contended on behalf of the plaintiff that overwhelming
evidence, uncontested by the defendant, was produced that the
veld
fire started and spread from the defendant’s property to the
plaintiffs’ farms. According to the evidence, the
defendant was
not a member of the Fire Protection Association on 20 September 2013
and the presumption of negligence operated as
against the defendant.
The evidence of the plaintiffs’ experts and factual witnesses
showed clearly that the veld fire started
on the defendant’s
property on 20 September 2013 whence it spread across Volksrust road
and spread all the way to the adjoining
farm properties of the
plaintiffs. Consequently, the plaintiffs succeeded in alleging and
proving a wrongful act or omission by
the defendant in causing a veld
fire; negligence on its part or someone else for whom he or she was
vicariously liable; a causal
connection between the loss suffered and
the defendant; that the defendant started the fire or that the fire
emanated from the
defendant’s property
[1]
and that the
defendant was not a member of a Fire Protection Association in the
area in which the fire occurred.
[2]
[21]
It was contended furthermore that the onus was on the defendant to
prove on a balance of probabilities that it was not negligent
in any
of the respects alleged by the plaintiff or if its conduct did fall
short of the standards required of it, such failings
would have had
no effect on and would not have been relevant to the harm caused
[3]
.
It was contended that the only statement of the defendant which was
put to Mr Raubenheimer was that the defendant had allegedly
extinguished the fire, which version was not supported by the
defendant’s witnesses. The two witnesses called by the
defendant were non-contributory save to confirm that the defendant
failed to take preventative steps to curb the fires up until
20
September 2013. Their evidence did not dispute that the veld fire had
spread from the defendant’s property on 20 September
2013 to
the plaintiffs’ various farms. The court was requested to make
a negative inference against the defendant for failing
to call Mr
Johannes Mahlangu who allegedly extinguished the veld fire before it
could spread to the plaintiffs’ properties
as indicated in the
further particulars furnished by the defendant. Although the matter
stood down on 31 January 2018 and resumed
on 2 February 2018 to
enable the defendant to call Mr Hope Mthembu as a witness;he
was eventually not called as a witness.
[22]
Even though the argument on behalf of the defendant did briefly refer
to aspects of negligence and contributory negligence,
the main thrust
of the argument, both orally and in writing, was based on the absence
of wrongfulness on the part of the defendant.
It was argued that, if
the defendant was held to have been negligent, the plaintiffs failed
to prove that it acted wrongfully and
as such no liability could
ensue. Consequently, the plaintiffs’ claim should be dismissed
with costs.
[23]
Counsel, relying on
The
Municipality of Cape Town v Bakkerud
and
Administrateur
van Transvaal v Van der Merwe
argued
that in order to determine unlawfulness, the court must
carefully balance and evaluate the interest of the concerned
parties,
the relationship of the parties and the social consequences of the
imposition of liability in that particular type of
situation
[4]
and submitted
that, based on the undisputed evidence of financial constraints and
limited means in the small town of Vrede (Phumelela
Municipality), it
would be unreasonable to hold that it wrongfully breached its legal
duty to prevent or put out veld fires
that arose in
circumstances such as those present on the day in question. Any such
failure could not be regarded as unlawful in
these particular
circumstances
[5]
.This submission
is faulty and without base as no evidence was led to this effect. In
order to bolster its argument in respect of
the absence of
unlawfulness, counsel for the defendant relied on the following
cases;
Minister
of Safety and Security vs. Van Duivenboden
2002
(6) SA 431
(SCA) 441-2;
McIntosh
vs. Premier, Kwazulu Natal and Another
2008 (6) SA 1
A;
MTO
Forestry v Swart
[2017]
ZASCA 55
;
Gouda
Boerdery BK v Transnet
2005 (5) SA 490
(SCA);
Hammerstrand
vs. Pretoria Municipality
1913 TPD 374
;
Oosthuizen
Petrus Marais vs. Swissport South Africa and Another
[2005] ZAGPHC 36
;
Pretoria
City Council vs. De Jager
1997 (2) SA 46
(A). On the contrary, in my view, these cases do not
assist the defendant’s argument on the issue of wrongfulness in
the
present case, but are relevant to the issue of negligence as
stated in
Kruger
vs Coetzee
[6]
.
[24]
In the
MTO
Forestry v Swart
[7]
(which was
extensively quoted by Mr De La Rey, on behalf of the defendant) the
following was said:
“…
. 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
Gouda
Boerdery Bk v Transnet
[8]
it was said:
It
is now well established that wrongfulness is a requirement for
liability under the modern Aquilian action. Negligent conduct
giving
rise to loss, unless also wrongful, is therefore not actionable. But
the issue of
wrongfulness is more often than not uncontentious as the plaintiff's
action will be founded upon conduct which, if
held to be culpable,
would be prima facie wrongful.
Typically this is so where the negligent conduct takes the form of a
positive act which causes physical harm. Where
the element of
wrongfulness gains importance is in relation to liability for
omissions and pure economic loss.
The
inquiry as to wrongfulness will then involve a determination of the
existence or otherwise of a legal duty owed by the defendant
to the
plaintiff to act without negligence:
in other words to avoid negligently causing the plaintiff harm. This
will be a matter for judicial. A judgment involving criteria
of
reasonableness, policy and, where appropriate, constitutional norms.
If a legal duty is found to have existed, the next
inquiry will be
whether the defendant was negligent.
The
test to be applied will be that formulated in Kruger v Coetzee,
involving as it does, first, a determination of the issue
of
foreseeability and, second, a comparison between what steps a
reasonable person would have taken and what steps, if any,
the
defendant actually took.
While conceptually the inquiry as to wrongfulness might be anterior
to the enquiry as to negligence, it is equally so that
without
negligence the issue of wrongfulness does not arise for conduct will
not be wrongful if there is no negligence. Depending
on the
circumstances, therefore, it may be convenient to assume the
existence of a legal duty and consider first the issue
of
negligence. It may also be convenient for that matter, when the
issue of wrongfulness is considered first, to assume for
that purpose
the existence of negligence. The courts have in the past sometimes
determined the issue of foreseeability as part
of the inquiry into
wrongfulness and, after finding that there was a legal duty to act
reasonably, proceeded to determine the second
leg of the negligence
inquiry, the first (being foreseeability) having already been
decided. If this approach is adopted, it is
important not to overlook
the distinction between negligence and wrongfulness.
[25]
Mr Cilliers submitted in reply that the defendant admitted the
existence of a legal duty to prevent the spreading of a fire
from its
property to the neighbouring properties. The evidence adduced
established negligent conduct on behalf of the defendant,
which was
prima facie
wrongful.
No evidence was adduced by the defendant to the extent that its
conduct was not wrongful. It was
prima facie
clearly assumed that once it was established
that the fire had spread from the defendant’s property to the
plaintiffs’
neighbouring farms, such conduct would be wrongful
and negligent.
[26]
In order to prove contributory negligence on the part of the
plaintiffs, the defendants relied on the provisions of section
12 (1)
of Act 101 of 1998 in that a duty was imposed on every land owner on
whose land a veld fire may burn to prepare and maintain
a fire break.
It was contended that as the plaintiffs were members of the Fire
protection Association and their experience taken
into account, their
failure to prepare and maintain fire breaks could not be justified,
as it could reasonably be assumed that
such fire breaks could have
prevented the fire from spreading to their farms.
Evaluation
[27]
In its plea and paragraph 6.2 (C) of the Rule 37 Minute, the
defendant admitted that a fire arose on the dumping site
(stortingsterrein)
and that such fire was extinguished by its
employees on 20 September 2013 before it could spread to the
plaintiffs’ properties.
As a result, there was no need to
notify other people as the fire never extended beyond the municipal
boundaries. The further particulars
supplied by the defendant to the
plaintiffs on 11 February 2016 stated that one Johannes Mahlangu was
one of the employees who
assisted to extinguish the fire on the
dumping site. The defendant did not exercise any control on the
dumping site due to financial
constraints. Even though a grader was
used to remove grass from the surrounding dumping site, there were no
fire breaks in existence
around the dumping site. Despite the answers
so furnished, the defendant failed to call any employee in
substantiation of its defence.
The
onus
rested
on the defendant to rebut the presumption of negligence created by
section 34 of Act 101 of 1998 and that any failure on
its part would
have made no difference to the eventual spread of the fire.
[9]
The defendant
failed to adduce evidence to prove contributory negligence that the
alleged failure by the plaintiffs to erect fire
breaks would have
contained a large fire that had developed and stoked by the strong
winds.
Conclusion
[28]
I am therefore satisfied that the plaintiffs have acquitted
themselves of the
onus
to prove that the defendant acted
wrongfully and negligently in the causation of the veld fire which
arose on the defendant’s
dumping site on 20 September 2013 and
spread to the plaintiffs’ properties causing damage thereto.
The defendant failed to
discharge its
onus
on a balance of
probability that it was not negligent or that the plaintiffs were
contributorily negligent.
Costs
[29]
In the circumstances the successful party is entitled to the costs.
[30]
I therefore make the following order:
Order
1.
The defendant is liable for payment of 100% of
the first to fourth plaintiffs’ damages to be proved or agreed
in respect of
the veld fire which occurred on 20 September 2013.
2.
The defendant is liable for payment of the
plaintiffs’ costs on a party and party scale in respect of 15
August 2017, 16 August
2017, 18 August 2017, 31 January 2018 and 2
February 2018, which will include the following:
2.1
The first to fourth plaintiffs’ reasonable
travelling and accommodation expenses, if any;
2.2
The reasonable preparation, qualifying,
reservation, accommodation, travelling fees and expenses as well as
the income forfeiture
fee for court attendance (if any, as per
invoice), including travelling expenses of obtaining the experts’
reports (if any)
of:
2.2.3
Mr AP de Beer;
2.2.4
Mr WA Vorster.
2.3 The costs attendant
upon obtaining the payment of the amount referred to in this order.
___________________
MHLAMBI,
J
Counsel
for the Applicant: Adv. H.J Cillers
Instructed
by: Rossouws Attorneys
119
President Reitz Street
Westdene
Bloemfontein
Counsel
for Respondents: Adv. H. de la Rey
Instructed
by: Moroka Attorneys
74-80
President Reitz Street Westdene
Bloemfontein
[1]
Rosenthal v Mastroguiseppe 2004 (2000) 4 All SA 295 (A)
[2]
Minister of Forestry v Quathlamba (Pty) Ltd
1973 (3) SA 69
(A) on
page 84
[3]
Minister of Water Affairs and Forestry v Durr
2006 (6) SA 587
(SCA)
[4]
Municipality of Cape Town v Bakkerud
[2000] ZASCA 174
and
Adminstrateur van Transvaal v Van Der Merwe [1994] ZASCA 174
[5]
Paragraphs 22 and 23 of defendant’s heads of argument
[6]
1966(2) SA 428 (A)
[7]
2017 ZASCA 55
[8]
2005 (5) SA 490 (SCA)
[9]
HL & H Timber Products (Pty) Ltd v Sappi Manufacturing (Pty) Ltd
2001 (4) SA 814
(SCA)