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[2017] ZAGPPHC 15
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Bedrock Mining Support (Pty) Ltd v Greater Tzaneen Local Municipality and Another (66861/2014) [2017] ZAGPPHC 15 (25 January 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
25/1/2017
Case No: 66861/2014
Reportable:
No
Of
interest to other judges: No
Revised
In
the matter between:
BEDROCK
MINING SUPPORT (PTY)
LTD
Plaintiff
and
GREATER
TZANEEN LOCAL
MUNICIPALITY
First
Defendant
MOPANI
DISTRICT
MUNICIPALITY
Second
Defendant
JUDGMENT
D
S FOURIE, J:
(1)
The plaintiff is a timber company and the owner
of the Leobi Plantation near Tzaneen. The first defendant is the
Tzaneen Local Municipality
and the owner of certain land known as the
Hamabuya Farm. The second defendant is a district municipality with a
fire brigade service
as defined in section 1 of the Fire Brigade
Services Act, No 99 of 1987.
(2)
The plaintiff claims payment of R1 817 355.10
against the first and second defendants jointly and severally
pursuant to a fire which
destroyed part of the plaintiff's Leobi
Plantation. The case against the first defendant was settled on the
first day of the trial
on the basis that the first defendant would
pay the plaintiff an amount of R1 million plus 50% of the plaintiff's
costs. The trial
then proceeded against the second defendant only
after the issue of liability had been separated from the issue of
quantum by an
order of Court.
(3)
In essence, the plaintiff's case is that on
Sunday 5 August 2012 part of the first defendant's farm land was on
fire. After the
second defendant had been alerted, this fire was
apparently distinguished. On Monday 6 August 2012 this fire reignited
and the
second defendant was again alerted. Sometime later the fire
became uncontrollable and spread to other properties, including that
of the plaintiff. The second defendant denies any liability.
THE
PLEADINGS
(4)
It is alleged by the plaintiff in its particulars
of claim that the second defendant had a legal duty (or a duty of
care) in terms
of the common law to,
inter
a/ia,
extinguish and/or contain a fire whilst
it was still small and to prevent such fire from reigniting and/or
spreading to neighbouring
properties including that of the plaintiff.
It is also alleged that in terms of section 18(1)(b) of the National
Veld and Forest
Fire Act No 101 of 1998 the second defendant had a
statutory duty to do everything in its power to stop the spreading of
fire.
It is also pleaded that in terms of the provisions of
section
84(1)U)
of the
Local Government: Municipal Structures Act 117 of 1998
the second defendant, as a district municipality, has the function
and powers of fire-fighting services serving the area of the
district
municipality as a whole and that it acted wrongfully by failing to
call timeously for aerial assistance to extinguish
the fire.
(5)
According to the plaintiff the start of the fire,
the uncontrolled burning of it and the spreading thereof from the
first defendant's
property to the plaintiff's property was caused by
the wrongful breach of the second defendant and/or its agents or
employees of
the legal and statutory duties referred to above. It is
also alleged that the second defendant was negligent by,
inter
a/ia,
failing to extinguish a veld fire on
the first defendant's property at a time or times when they were able
to do so, when the fire
was still small and containable, and by
allowing it to become out of control and to spread to neighbouring
properties.
(6)
The second defendant has raised three special
pleas, all being to the effect that it had been misjoined in these
proceedings. The
first special plea is that the municipal
employees/members of the fire brigade service were exercising and/or
performing a delegated
statutory authority in terms of
section 19
of
the
Fire Brigade Services Act No 99 of 1987
"for which the
second defendant had no control". In its second special plea the
second defendant relies on the provisions
of
section 20
of the
Fire
Brigade Services Act. It
provides for an indemnity in favour of a
controlling authority, Chief Fire Officer or member of a service with
regard to,
inter alia,
damage
to property which is caused by or arises out of or in connection with
anything done or performed
bona fide
in
the exercise or performance of a power, function or duty. The third
special plea was raised in answer to the plaintiff s allegation
that
the second defendant was at the relevant time a person in control, in
occupation or the owner of the property identified as
the Farm
Hamabuya. It is now common cause that the second defendant was not in
control, in occupation or the owner of the said
property. It also
transpired that the plaintiff s case is no longer based on this
allegation. Therefore, the third special plea
is no longer an issue
before me.
(7)
As far as the merits are concerned, liability has
been denied. The second defendant has pleaded that a legal duty
imposed on it
to provide fire fighting services, "if proved
by the plaintiff', is limited to the availability of resources to
provide
such service. It has also pleaded that the plaintiff had the
obligation to take reasonable steps to ensure that the fire does not
spread to its own property. It is further alleged, in the
alternative, that if it is found that the second defendant, through
its employees and/or agents, acted wrongfully and negligently, that
the plaintiff was contributory negligent in that it,
inter
alia,
failed to take any, alternatively
adequate steps to control and/or prevent the continuous burning of a
veld fire on the Hamabuya
Farm and/or at the plaintiff s own farm and
also to prevent a veld fire from spreading from the Hamabuya Farm
onto neighbouring
properties.
(8)
The parties have also agreed in writing on
certain common cause facts and what the main issues in dispute are
(exhibit "X").
It is not necessary to refer to this
document now, but I will do so later when it becomes necessary. I
shall now proceed to summarise
the evidence.
EVIDENCE
FOR THE PLAINTIFF
Butch
Baker
(9)
Mr Baker was called to explain some of the
entries which had been made in the logbook of the Letaba Fire
Protection Association
("LFPA") on Sunday afternoon, 5
August 2012. He was the base manager and despatcher at the offices of
the LFPA where
there was also an airfield. According to him a spotter
plane and a helicopter were on standby to combat veld fires. Also
stationed
at the offices of the LFPA was a Working on Fire team
consisting of 22 fire fighters who were also on standby and ready to
be deployed.
(10)
As a member of the LFPA the first defendant was
entitled to call out the spotter plane, the helicopter and the
Working on Fire team.
The second defendant, not being a member, could
have done the same through the first defendant. The second defendant
could also
obtain these services if it was authorised by the Disaster
Management or the Municipal Manager of the second defendant.
(11)
The fire was reported to the LFPA at 15:51 on
Sunday afternoon 5 August 2012. Attempts to contact Mr Visser who was
the Chief Fire
Officer of the second defendant or the Municipal
Manager of the first defendant were unsuccessful. At that stage the
fire was burning
on the municipal land of the first defendant. At
16:43 the fire brigade services reported that the fire was still in a
river bed
but once allowed to get out of it, there would be big
trouble.
(12)
At 16:49 the witness informed the Disaster
Management Centre of the second defendant that there was still 40
minutes flying time
left for aerial assistance. According to him
water could have been dropped by the helicopter on the fire to
extinguish it. The
Working on Fire team could also have been
activated to do fire-fighting or mop-up. However, there was no
callout for either the
Working on Fire team or the aerial assistance
which was available.
Fanie
Venter
(13)
Mr Venter is the airbase manager and dispatcher
at the LFPA. During August 2012 his occupation was that of a
dispatcher. His work
was to receive a call for assistance and then to
dispatch the resources as requested. He testified about logbook
entries which
had been made on Monday 6 August 2012.
(14)
On 6 August 2012 at 11:12 he tried to contact the
Disaster Management Centre of the second defendant, but could not get
an answer.
At 11:48 when Hannes Enslin of another farm requested
aerial support, he spoke to Ms Altenroxel from the Disaster
Management Centre
of the second defendant and also gave her the
information. He confirmed that at 13:34 it was reported by Bravo 2
(who was Ludwig
Stemmet, an employee of the second defendant) that
the fire was out of control and that they could not do anything at
that stage.
(15)
Aerial support was activated for the first time
at 13:40 by Hannes Enslin of the Farm Merensky to protect their own
plantations.
At 13:53 Hannes Steyn who was the head of the Disaster
Management Centre of the second defendant, stated over the radio that
they
had authority but it was too late as the aircraft was already
being employed by Merensky at their plantation. He also reported that
at 13:53 the plaintiff asked that the helicopter should go to
Bedrock's new Reeds Plantation after completion of the Blacknall
fire
at Merensky. At 14:11 Ludwig Stemmet reported that the fire was
making spots Uumps) of .!. 3km. At 15:42 it was reported that
Koos
and Etienne of the plaintiff were on their way to Leobi and that the
fire which was out of control at 16:04, jumped to the
Leobi
plantation at 16:29.
(16)
In cross-examination it was put to the witness
that if the plaintiff had requested aerial support before or
immediately after Blacknall,
it would have been possible to provide
that support. His reply was that the plaintiff's property is not in
the same area where
the fire was at that stage. According to him
"they only got into part of this fire late that afternoon".
It was also
suggested to him that the responsible person to mobilise
aerial support at that point was the first defendant and not the
second
defendant. He replied as follows:
"...
I would say
that that would be wrong
as
they have access to the aerial
support. But in that week they pulled aerial support to another fire
...
later that day they pulled it away from the Blacknoll
Plantation.
So
they could have called it to their site earlier
to try to kill that fire, to try and stop it or to slow it down".
(17)
It was also put to him that it would not have
been unreasonable of the plaintiff to mobilise aerial support before
or immediately
after Blacknoll. His reply was that the plaintiff
would not have called for any resources when a fire is 5 to 6
kilometres away
from them. He emphasised that the fire was on another
property, not threatening the plaintiff directly and therefore it
would not
have been necessary for the plaintiff to request aerial
support to protect its property at that stage.
Andries
Khoza
(18)
Mr Khoza is employed by Hans Merensky Timbers as
a supervisor. They are the owners of the Blacknoll Plantation. He has
26 years
of experience in fire-fighting. He testified that during
this period he was combating between 10 and 20 fires per annum. On
many
occasions he also witnessed how helicopters were assisting in
the extinguishing of fires.
(19)
On Sunday 5 August 2012 he was on standby.
According to him there was a fire and smoke on the first defendant's
property, Hamabuya
Farm. He and his people then started to combat the
fire. He noticed a big truck stationary at the main road as well as
small trucks
which were stationary at the power line. At about 17:17
the fire was in the ravine area, but they were able to contain it.
There
was no strong wind but there were still stumps smouldering in
the ravine area. They had to mop-up, i.e. make sure the smouldering
stumps are properly extinguished by using water to avoid a flare up
at a later stage. They did not perform the mop-up operation
as
employees of the municipality were there and they thought that these
employees would do the mop-up. He later indicated that
the trucks
which he had noticed belonged to the fire brigade.
(20)
He was also questioned about aerial assistance.
According to him three or four drops of water by the helicopter would
have extinguished
this fire. He confirmed that there are dams in the
vicinity from where the helicopter could have obtained the water.
(21)
In cross-examination it was suggested to him that
with the assistance of more people the fire could still have been
extinguished.
His reply was that if there had been enough manpower
they would have been able to extinguish the fire. It was also put to
him that
Mr Stemmet, together with some of his colleagues, were
combating the same fire until 21:00 that night. He was unable to
dispute
that.
Johannes
Enslin
(22)
During 2012 Mr Enslin was a planning manager
employed by Merensky Timbers, a forestry company with offices at
Blacknall which is
situated just south of the first defendant's farm,
Hamabuya. He started in 1978 as a forester. For about eight months
every year
he performed fire duty and according to him, he is "quite
involved in it". He has also witnessed the effectiveness of
helicopters and spotters in the extinguishing of fires.
(23)
He testified that the first defendant had prior
to 5 August 2012 failed to maintain the roads on its property and had
allowed existing
roads to become overgrown with vegetation. This
prevented fire-fighters on Sunday 5 August and Monday 6 August 2012
to reach all
the burning areas on the first defendant's property with
their fire-fighting vehicles to extinguish or to suppress the fire.
According
to him the fire could have already been suppressed or even
extinguished on the Sunday afternoon, or the Monday morning, if the
fire-fighters had been able to reach all the affected areas on
accessible roads.
(24)
According to his evidence as summarised in the
Rule 36(9)(b)
notice, he also pointed out that, despite their
appreciation of the danger of the fire on the Sunday afternoon, the
second defendant
failed to utilise the services of a Working on Fire
team and it also failed to utilise aerial support which was available
on both
the Sunday afternoon and the Monday morning. Water was
available from three nearby dams to combat the fire with a
helicopter. The
turnaround time of a helicopter is between three to
five minutes and at that time and with a few loads of water the fire
could
have been extinguished.
(25)
He also testified that Sunday was a pleasant
afternoon. The prediction for the next week according to the Fire
Danger Index, i.e.
from the Monday onwards, was not so good. The
prediction for the Monday was a "high fire rating" which
means that "we
are going into a very difficult fire prevention
period". According to the witness this information is usually
sent through
to the LMPA twice on a daily basis from where it is
distributed to inform everybody concerned. He was of the view that
the second
defendant should also have received this information as it
is "going through to the ops room in the fire brigade".
(26)
According to his evidence as summarised in the
Rule 36(9)(b)
notice it was reported on Monday at about 11:05 that
the fire had stood up again. At 11:08 Disaster Management was phoned
but there
was no answer. The witness then went to the area on the
first defendant's property to assist. At about 11:48 he pleaded with
the
first and second defendant to get aerial support to combat the
fire on the first defendant's property and also requested a grader
to
grade the roads to enable fire-fighters to gain access to the first
defendant's property. The grader never arrived.
(27)
According to the witness a few drops of water by
the helicopter and one extra Working on Fire team would be able to
extinguish the
fire completely between 09:00 and 13:00 on Monday. He
also pointed out that the dispute between the first and second
defendant
on Monday about the deployment of Working on Fire teams and
aerial support continued until late that afternoon when the fire was
already out of control. The cost to deploy the chopper would have
been R20 376.00 plus VAT and another R60.00 per hour for foam.
For a
Working on Fire team only transport was payable at the rate of R13.00
per km and daily rations of R50.00 per person.
(28)
In cross-examination the witness explained that
early on the Monday morning until about 11:00/12:00 it was still a
calm day. The
actual problem started after 12:00 when the weather
conditions changed for the worse. However, according to the witness
the fire
could still be contained before 13:00. After that, when the
fire became uncontrollable, it was moving in the direction of Leobi
and the shooting range. It then also started spotting in that
direction "by the wind". He also explained that another
fire was burning on the plaintiff's other property at New Reeds
Plantation where the plaintiff's employees were fighting that fire.
He estimated the distance between the two properties between 35 and
40 kilometres.
Simon
Venter
(29)
Mr Venter is a spotter pilot and he was employed
in that capacity by Working on Fire during August 2012. He has 12
years experience
as a spotter pilot. He explained that the spotter
plane serves as the "eye in the sky" and will direct a
helicopter where
to throw water on a fire and it will also direct
ground teams where to move in by way of radio communication.
(30)
He was on standby duty as the spotter pilot with
Mr Paul Bester, the helicopter pilot on Sunday and Monday at the
airfield base.
There were also Working on Fire teams available at the
base as well as two dispatchers, Mr Baker and Mr Venter. According to
him
water was close by and they would be able to do ten drops within
one hour, which is 90 000 litres of water on that fire. According
to
him they could already have extinguished the fire on the Sunday
afternoon. He was surprised that they were not called out on
the
Sunday, as the weather prediction for the Monday was that the wind
would start at approximately 10:30. He explained that "when
the
western wind comes tomorrow there is nothing".
(31)
On Monday morning he and the helicopter pilot
were again on standby duty. They could see that the smoke column was
getting bigger
and bigger and they said to themselves "you had
better call us". That was approximately 10:00 Monday morning. It
was
only at 13:40 that they were called out to go and assist people
from Blacknall. He explained that the fire which spotted onto the
Leobi Plantation was the same fire which started on the first
defendant's farm. He also confirmed the logbook entries indicating
that at 16:29 "brand het gespring na Leobi-plantasie".
According to him the fire was then running out of control everywhere.
Ian
Sales
(32)
During August 2012 Mr Sales was the forestry
manager of the plaintiff for the Tzaneen area. He was living on the
Leobi Farm. He
testified with reference to a document titled "Fire
Preparedness Audit" dated 1 August 2012 that at the time of the
fire
the plaintiff complied with the norms and requirements of the
industry as far as safety, health, environment and quality (SHEQ)
were concerned. On the Sunday afternoon employees of Blacknall and a
representative of the plaintiff went out to the fire to assess
it and
to decide whether it was necessary for the plaintiff to assist. At
that stage the fire did not pose a threat to the plaintiff's
property
as the wind was blowing away from them and the fire was far away from
their plantation. A fire-fighting team of Merensky
Timbers as well as
the fire brigade were at the scene where the fire was.
(33)
On the Monday morning they were called out to
their new Reeds Plantation which is 30 km away from the Leobi
Plantation. There was
a fire in the vicinity of the new Reeds
Plantation and as the wind was blowing towards their plantation, they
went out in full
force to prevent the fire getting to the new Reeds
Plantation. Later that day at approximately 15:15 the Fire Protection
Association
informed them that there is a serious threat to the Leobi
Plantation. He and a colleague then left to ascertain the situation
at
the Leobi Plantation.
(34)
According to the witness there was a firebreak at
the boundary of their property facing the Hamabuya Farm. The width of
this firebreak
varied between 150 and 200 metres which, according to
the witness, are much wider than what is required. When asked how
could the
fire get across this wide firebreak he explained that the
weather that afternoon at 16:00 was so bad that this fire had jumped
350 to 500 metres. This happens when the wind carries burning
material in the air and then deposits it in front of the fire from
where a new fire is then created. He also said that under those
circumstances it would not be safe to do a back burn as "the
wind was just too strong".
(35)
In cross-examination he explained that they had
mobilised all their fire-fighting equipment and personnel to fight
the fire at the
new Reeds Plantation and in the process the Leobi
Plantation was left unattended. He also said it is accepted practice
in forestry
that when you have a fire threat you hit it "with
everything you have". It was then put to him that it was in
contravention
of the law to leave the Leobi Plantation unattended.
His answer was that when the fire had jumped into the Leobi
Plantation, they
were present. He was then again confronted with
their decision to mobilise all their forces to the new Reeds
Plantation well aware
of the fact that there was a fire at the
Hamabuya Farm and also having regard to the weather forecast for that
particular day.
He replied as follows:
"...
Our
protocols works
as
such,
when we get
a
fire
callout, when there is fire in our plantation we meet it with
everything we have.
We
cannot then take our forces and split them for where something could
happen
...
so we take
everything we have and we
go
and
hit the threat that (is) imminent. If
a
second threat will then appear we will then
make an adjustment in the plan we have, how are we going to react, do
we have
a
neighbour
that can cover for us, do we have
a
fire
brigade that can cover for us or how would we then treat the second
imminent threat. But we cannot, when the first threat happens,
keep
people back if
a
second
threat might happen.
We do not have that
many resources ...".
(36)
It was also put in cross-examination that on the
Monday morning the second defendant pulled human resources and
equipment from as
far as Phalaborwa, Giyani and Sekororo to come and
assist in minimising the potential damage which could be caused by
this fire.
The reply was that the fire was already out of control
when these steps were taken. The witness also explained that "if
it
had happened early in the morning it would have made a big
difference".
Trevor
Phillips
(37)
Mr Phillips, the chairperson of the Letaba Fire
Protection Association since 2007, was called as an expert witness.
He has 23 years
experience with Stevens Lumber Mills and was involved
in combating more than 460 fires.
(38)
According to this witness the second defendant as
a district municipality was obliged in terms of the National Veld and
Forest Fire
Act to become a member of the Fire Protection
Association. He testified that the second defendant was requested
many times to become
a member which never materialised. He also had a
meeting with the former municipal manager in this regard, but
notwithstanding
this meeting and for some unknown reason the second
defendant never became a member. He also explained that when the Fire
Protection
Association was registered he had to obtain a signature
from the municipal manager for registration at the Department of
Agriculture,
Forestry and Fisheries. It took them two and a half
years to get a signature from the municipal manager. That was only
done after
one of the larger timber companies had sent them a
lawyer's letter of demand that the municipal manager should sign the
document
concerned.
(39)
He further testified that a normal landowner who
is not a member of the Fire Protection Association will not be
entitled to call
for aerial assistance, but with regard to a district
municipality the position is different. According to him a district
municipality
has an obligation to render a service and therefore it
may request aerial assistance when necessary, but it will still be
liable
for payment of the account. Therefore, according to him, the
second defendant was entitled to request aerial support as well as
the services of Working on Fire on the Sunday and Monday if they
wished to do so. This indeed happened during the same week when
the
second defendant commanded aerial support to combat a fire elsewhere
close to the bird sanctuary.
(40)
According to the witness the defendants failed to
make use of aerial support and Working on Fire teams which were both
available
on 5 and 6 August 2012 to extinguish the fire at a time
when it was still containable and possible to do so. As a result of
this
failure the fire had become uncontrollable whereafter it was
spotting from the first defendant's property to other properties. As
far as the plaintiff's conduct is concerned, he was of the view that
it could not prevent the uncontrollable fire from spreading
to the
plaintiff's property and to that of his neighbours.
(41)
In cross-examination it was suggested that on the
Monday morning before 12:00, when it was still a normal day, the
second defendant
could not have foreseen that the fire would all of a
sudden at a later stage get out of control. The witness disagreed. He
explained
that the second defendant who has a fire service and "who
should know the nature of fire, and to know that under the conditions
of the future forecast, the chances that it will become
uncontrollable is very high with the resources they had at the time".
Richard
Wolff
(42)
Mr Wolff is employed as a technical officer at
the Institution of Fire Engineers, Southern Africa. He was also
called as an expert
witness who testified with reference to a summary
of his expert opinion contained in a Rule 36(9)(b) notice. According
to him the
second defendant is in terms of
section 84(1)U)
of the
Local Government: Municipal Structures Act No 117 of 1998
responsible
for fire-fighting services in the Tzaneen area. This responsibility
includes training of fire officers, the establishment
of specialised
fire-fighting services, coordination and the regulation of fire
services.
(43)
According to his opinion the second defendant
neglected its duties as a fire-fighting service by not preventing the
spreading of
the fire and by not extinguishing the fire when it was
opportune to do so. Both defendants failed to make use of aerial
support
and Working on Fire teams which were both available on 5 and
6 August 2012 to extinguish the fire at the time when it was still
possible to do so.
EVIDENCE
FOR THE SECOND DEFENDANT
Bernadine
Altenroxel
(44)
Ms Altenroxel is an employee of the second
defendant and she was called to explain certain entries in the
logbook of the Disaster
Management Centre. She testified that Hannes
Steyn is the head of the Mopani Disaster Management Centre. Mike
Rabothatha was employed
by the first defendant as the disaster
manager for the Greater Tzaneen Municipality. The "TZB" is
a reference to the
Tzaneen Fire Brigade. Kobus Visser is employed by
the second defendant and he is the Chief Fire Officer for the
district. She confirmed
that Vincent van der Westhuizen, the
assistant fire chief officer, was on leave on 5 and 6 August 2012.
(45)
On 6 August 2012 at 11:59 she called Mike
Rabothatha to request aerial assistance. He said he was going to the
scene and will talk
to Olga regarding the use of a grader. She
confirmed that she had informed him of the possibility that the fire
danger index would
reach "orange this afternoon". The
grader never arrived because it was not in a working condition.
(46)
In cross-examination she confirmed that according
to the entries in the logbook the fire was out of control at 13:32 on
Monday 6
August 2012. At 14:12 it was reported that the fire had
jumped about 3 km. She also conceded that at 15:23, long after the
fire
had become uncontrollable, she was authorised to activate one
team from Giyani and another one from Phalaborwa to assist.
Ludwig
Stemmet
(47)
Mr Stemmet is an employee of the second defendant
and on 5 August 2012 he was the Station Officer, Fire Prevention. He
explained
some of the entries which had been made in the Incident
Book of the Disaster Management Centre on 5 August 2012. He also went
out
to the scene where the fire was and assisted other personnel to
do some back-burning at one section. He left the scene at 20:47
and
according to him by that time the fire had already been extinguished.
(48)
The following day at approximately 12:00 they
were again alerted about another fire. According to him this fire did
not start at
the same place as the fire of the previous day, but it
was still in the same area. He then requested backup assistance and
also
tried to contact Mike Rabothatha from Disaster Management. Later
on the fire jumped a section of the road whereafter it "was
just
jumpi ng the whole time". He was unable to attend to all the
fires as he had to move from the one place to the other.
According to
him there were houses close to the dumping site as well as people at
the offices of the SPCA. About eight farms were
affected by this
fire.
(49)
He confirmed that it was necessary to call for
aerial support before the fire had become uncontrollable on 6 August
2012. In support
of this answer he also said the following:
"The only way
that we were going to be able to control that fire with the
prediction that we received the day beforehand already
was with
aerial support. We work on the principle that if you have aerial
support you have got two systems working
...
you take them with water, you draw water
lines, you stop the fire there and then you bring in ground crews to
mop up and kill that
fire. The ferocity of the fire and the wind was
very high that day."
(50)
The witness was then asked to indicate at what
time aerial support had been requested. According to him it was
approximately 12:58.
When asked why he did not call for aerial
support when he could not get hold of Mike Rabothatha, he said that
it was the responsibility
of the landowner, i.e. the first defendant
to do so. In that event it would also be the first defendant to take
responsibility
for payment of the account. He did not indicate that
it was impossible for him to also have called for aerial support.
(51)
In cross-examination he conceded that on the
Sunday night he only had made observations from his vehicle. He did
not do an inspection
to check all the stumps. He also conceded that
during August 2012 he, Kobus Visser and Vincent van der Westhuizen
were all acting
in the course and scope of their employment with the
second defendant. According to him policy and decision-making were
the responsibility
of the officials of the second defendant, such as
the various municipal managers and the Director of Community and
Safety and not
that of lower level officials.
Vincent
van der Westhuizen
(52)
Mr Van der Westhuizen was the Assistant Chief
Fire Officer employed by the second defendant during August 2012. He
testified that
all the people employed by the Tzaneen Fire Station
are professionally trained fire-fighters. They make use of state of
the art
equipment and vehicles that comply with national standards.
According to him the second defendant as a district municipality was
and still is in a position to pull resources from different stations,
i.e. Giyani, Modjadjiskloof, Phalaborwa and Tzaneen Fire
Station. On
5 and 6 August 2012 he was on leave.
DISCUSSION
(53)
It was contended on behalf of the plaintiff that
the second defendant had failed to fulfil its statutory duties in a
number of respects
as prescribed by various statutes, i.e. the Veld
and Forest Fire Act 101 of 1998, the
Fire Brigade Services Act 99 of
1987
, the
Local Government: Municipal Structures Act 117 of 1998
and
the
Disaster Management Act 57 of 2002
. It was also submitted that
the second defendant had failed to make use of aerial and Working on
Fire teams support when they could
and should have done so to prevent
the fire spreading to other properties, including that of the
plaintiff. This failure, so it
was argued, amounts to negligent
conduct which was the sole cause of the damages suffered by the
plaintiff.
(54)
The second defendant was relying on the special
pleas referred to above. It was contended, having regard to the
merits of these
special pleas, that the plaintiff's claim should be
dismissed. It was also argued, having regard to the onus of proof,
that the
plaintiff was unable to prove on a balance of probabilities
that the fire of the 5th of August 2012 reignited from or was caused
by the fire of the 5th of August 2012. It was contended in the
alternative that if it is found that the second fire was indeed
caused by the first fire, and that it could have been extinguished
had aerial support been mobilised timeously, "that the
omission
to provide aerial support and/or call for aerial support was a
novus
actus interveniens".
It was suggested,
as I understand the argument, that it was the first defendant's
responsibility to do so and not that of the second
defendant.
Finally it was submitted, if it is found that the second
defendant was negligent, that the plaintiff was contributory
negligent. I shall first consider the special pleas raised by the
second defendant.
FIRST
SPECIAL PLEA
(55)
The first special plea is that the municipal
employees/members of the Fire Brigade Service were exercising and/or
performing a delegated
statutory authority in terms of
section 19
of
the
Fire Brigade Services Act No 99 of 1987
"for which the
second defendant had no control" and can therefore not be held
liable for their negligent conduct.
(56)
Section 19(1)
provides as follows:
"A Chief Fire
Officer may -
(a)
delegate
any power granted to him by or under this Act, the regulations
contemplated in section 15 of the by-Jaws or regulations
contemplated
in section 16, excluding the power referred to in this section, to
a
member of the service concerned; and
(b)
grant
authority that
a
duty
so assigned to him
may
be
performed by such
a
member."
(57)
Section 19(2) stipulates that a power so
delegated and a duty so authorised shall be exercised or performed
subject to the directions
of the Chief Fire Officer, who may at any
time withdraw such delegation or authority. In terms of subsection
(3) a delegation does
not prevent the Chief Fire Officer from
exercising the power in question himself.
(58)
In
section 1
of the
Fire Brigade Services Act the
Chief Fire Officer is defined as "the person in charge of a
service as contemplated in
section 5
".
Section 5(1)
provides
that a controlling authority shall appoint a person who possesses the
prescribed qualifications and experience, as Chief
Fire Officer to be
in charge of its service.
(59)
In terms of
section 1
of this Act "service"
means a fire brigade service intended to be employed for,
inter
alia,
preventing the outbreak or spread of a
fire, fighting or extinguishing a fire and the protection of life or
property against a fire.
A "controlling authority" means a
"local authority in control of a service" or the person in
control of a designated
service.
(60)
It was submitted, with reference to these
statutory provisions, that the fire fighters who had been combatting
the fire on the 5th
and 5th August 2012 were performing functions
imposed upon them by statute and were therefore under the control of
the Chief Fire
Officer and not that of the second defendant. I cannot
agree with this submission for the reasons stated below.
(61)
First, according to its preamble the purpose of
the
Fire Brigade Services Act is
to provide for the establishment,
maintenance, employment, coordination and standardisation of fire
brigade services and for matters
connected therewith. The provisions
of this Act should, as far as possible, be read with the provisions
of
section 84(1)U)
of the
Local Government: Municipal Structures Act,
No 117 of 1998
. It provides that a district municipality has,
inter
alia,
fire-fighting services serving the area
of the district municipality as a whole, as part of its functions and
powers. It includes
the planning, coordination and regulation of fire
services. This implies, in my view, that a fire brigade service, the
chief fire
officer and the members are to perform their functions and
duties under the authority and control of a district municipality,
such
as the second defendant, unless otherwise provided for. The fact
that this Act assigns certain powers and functions to a fire brigade
service and its Chief Fire Officer (including his power of
delegation), does not detract from the control to be exercised by the
local authority concerned. The purpose of this assignment of powers
and functions, including that of delegation, is to comply with
the
principle that the exercise of power must be authorised by law. Every
incident of public power must be inferred from a lawful
empowering
source, usually legislation. Put differently, if an action is
performed without lawful authority it will be illegal
or
ultra
vires
(Hoexter,
Administrative
Law in South Africa,
2nd Ed, 255). It should
also be pointed out that these powers and functions have not been
delegated by a local authority (such as
the second defendant), but by
Parliament.
(62)
Second, Mr Stemmet who was the Station Officer,
Fire Protection during August 2012, confirmed in cross-examination
that during this
period he had always acted in the course and scope
of his employment with the second defendant and that the Chief Fire
Officer,
Mr Visser and the Assistant Chief Fire Officer, Mr Van der
Westhuizen acted likewise. There is no reason to doubt his evidence
in this regard. Furthermore, it was pointed out during argument that
the plaintiff s case against the second defendant is not limited
to
the actions of the fire brigade service and its members, but it also
includes the conduct of other employees and officials at
the
managerial level of the second defendant. This is, in my view, a
valid submission. Having regard to all these considerations
I have to
conclude that there is no merit in this special plea.
SECOND
SPECIAL PLEA
(63)
In its second special plea the second defendant
relies on the provisions of
section 20
of the
Fire Brigade Services
Act. It
relates to a statutory indemnity which is being granted to a
controlling authority (i.e. a municipality in this case), Chief Fire
Officer or member of a service.
(64)
Section 20
provides as follows:
"Subject to the
proviso to paragraph (e) of
section 8(1)
,
a
controlling authority, Chief Fire Officer or
member of
a
service of
a
controlling
authority or an inhabitant referred to in
section 8(2)
shall not be
liable for any damage or loss as
a
result
of bodily injury, loss of life or loss of or damage to property which
is caused by or arises
out of or in
connection with anything done or performed bona fide in the exercise
or performance of
a
power,
function or duty conferred or imposed in terms of this
Act, the regulations
contemplated in
section 15 or the by-laws contemplated in section 16."
(65)
In essence, the plaintiff's case is that the
second defendant failed, in a negligent manner, to extinguish and/or
prevent the fire
from spreading to the plaintiff's property as a
result whereof the plaintiff suffered damages. The question therefore
arises whether
this indemnity also applies to a delictual claim based
on an alleged "negligent omission".
(66)
It is a principle of our law that a statutory
provision which purports to limit or exclude liability must be
strictly construed.
This has been explained as follows in
Benning
v Union Government (Minister of Finance)
1914
AD 180
at 185:
"Conditions which
clog the ordinary rights of an aggrieved person to seek the
assistance of
a
court
of Jaw should be strictly construed and not be extended beyond the
cases to which they expressly
apply."
(See
also in this regard
Commissioner for SARS
&
Another v
TFN Diamond Cutting Works (Pty) Ltd
[2005] 2 All SA 455
(SCA) par
12.)
(67)
Powers, functions and duties conferred or imposed
in terms of this Act are referred to in section 1 (the definition of
"service")
and section 8. There may be more in the
regulations or by-laws, but no reference was made to them by any of
the counsel.
(68)
In terms of section 1 a fire brigade service is
intended to be employed for,
inter alia,
preventing the outbreak or spread of a fire;
fighting or extinguishing a fire; and the protection of life or
property against a
fire or other threatening danger. Section 8(1)
provides that a member of a service, including a Chief Fire Officer,
may, whenever
he regards it necessary or expedient in order to
perform his functions, "perform any act", and may also,
inter alia,
close any
road or street; enter or break and enter any premises; and damage,
destroy or pull down any property.
(69)
It is important to point out that in terms of
section 20 the indemnity relates to "anything done or performed"
bona fide
in the
exercise or performance of a power, function or duty. It implies some
form of action as opposed to inaction. The same underlying
notion
appears in section 1 (definition of "service") and section
8(1)(a) to (e).
(70)
In
Simon's Town
Municipality v Dews
&
Another
[1992] ZASCA 165
;
1993 (1) SA 191
(A) the Court was essentially
seized with an interpretation of section 87 of the now repealed
Forest Act No 122 of 1984. It provided
as follows:
"No person,
including the State, is liable in respect of anything done in good
faith in the exercise of
a
power
or the carrying out of
a
duty
conferred or imposed by or under this Act."
(71)
On appeal in that case it was contended that this
section creates a legal immunity in favour of a person who in good
faith exercises
a power conferred by or under the Act, even in cases
where the person concerned is negligent, in the sense that in
exercising the
power he fails to take reasonable precautions to
eliminate or minimise the risk of injury which his action may cause
to others.
Corbett CJ concluded as follows (at p 196 J) in this
regard:
"The person
sought to be held liable must show that he acted within the authority
conferred by the power in question. It necessarily
follows that if,
owing to
a
failure to
exercise due care or to take reasonable precautions, he exceeded the
power and acted without authority
...
his
reliance on s 87 must fail."
The
Court also found that a failure to take adequate precautions to
ensure that the fire did not break out and spread, means that
the
municipality cannot rely on the indemnity contained in section 87 (at
197 E-F).
(72)
The similarities between the wording of
section
20
of the
Fire Brigade Services Act and
that of
section 87
of the now
repealed Forest Act are striking. Both sections postulate two
requirements for legal immunity: the act in question must
have been
done in good faith and it must have been performed in the exercise of
a power or duty under the Act. Furthermore, the
person seeking to
rely on
section 20
of the
Fire Brigade Services Act bears
the onus of
establishing that his conduct falls within the ambit of this section
(cf
Simon's Town Municipality v Dews
&
Another, supra,
p 196
G-H). therefore see no reason why the interpretation with regard to
section 87
should not also be applied to
section 20
of the
Fire
Brigade Services Act. It
means that the second defendant bears the
onus to prove on a balance of probabilities that the conduct of its
employees on the
days in question was not only performed
bona
fide,
but also that it has been done in the
exercise of a power or duty under this Act. Put differently, if it is
found that the second
defendant failed to take adequate or reasonable
precautions to ensure that the fire did not break out and spread, it
cannot avail
itself of the indemnity provided for in section 20. A
proper consideration of this question necessarily implies that the
evidence
should also be taken into account. This means that the
second special plea cannot be dealt with in isolation. It also forms
part
of the merits. I shall later refer to it again and then make a
finding.
THE
MERITS
(73)
As already pointed out above, the plaintiff's
case is that the second defendant failed, in a negligent manner, to
extinguish and/or
prevent the fire from spreading to the plaintiff's
property as a result whereof the plaintiff suffered damages. The
plaintiff bears
the onus to prove its case on a balance of
probabilities. It entails proof of wrongfulness, negligence and
causation (the quantum
of damages having been postponed
sine
die).
Wrongfulness
(74)
The case pleaded and presented in Court by the
plaintiff focused mainly on the second defendant's alleged failure to
act, more particularly
the failure or omission to call for aerial
assistance. The general principle is that where conduct takes the
form of an omission,
such conduct is
prima
facie
lawful
(ABSA
Bank v Fouche
2003 (1) SA 176
(SCA) at 181
A-B). In order to determine whether there is wrongfulness the
question, in the case of an omission, is whether the
defendant had a
legal duty towards the plaintiff to act reasonably
(
Minister van Polisie v Ewels
1975 (3) SA 590
(A) at 596 H). A defendant is under a legal duty to act positively to
prevent harm to a plaintiff if it is reasonable to expect
of the
defendant to have taken positive measures to prevent the harm
(
Van Eeden v Minister of Safety
&
Security
2003 (1) SA 389
(SCA) at 396 and 400).
Wrongfulness, as far as an omission is concerned, can manifest itself
in different ways, for example, breach
of a common law right, a
particular statutory duty or a duty of care (Harms,
Amler's
Precedents of Pleadings,
8th Ed, 236).
(75)
The question is whether the second defendant had
a legal duty towards the plaintiff to act. It is common cause (in
terms of exhibit
"X") that the second defendant is a
district municipality with fire-fighting services as referred to in
section 84(1)U)
of the
Local Government: Municipal Structures Act
with
a fire brigade service as defined in the
Fire Brigade Services
Act.
(76
)
In terms of
section 84(1)U)
a district
municipality (such as the second defendant) has certain powers and
functions which include fire fighting services
"serving the
area of the district municipality as a whole". It includes:
planning, coordination and regulation of fire
services; coordination
of the standardisation of infrastructure, vehicles, equipment and
procedures; and the training of fire officers.
(77)
In terms of
section 1
of the
Fire Brigade
Services Act a
"service" means a fire brigade service
"intended to be employed for" preventing the outbreak or
spread of a
fire; fighting or extinguishing a fire or the performance
of any other function "connected with any of the matters"
referred
to above. I have already concluded that such a fire brigade
service, the chief fire officers and the members are to perform their
functions and duties under the control of a local authority. This
also applies to the second defendant and its fire brigade services.
According to the evidence of Mr Van der Westhuizen, the assistant
chief fire officer, all the people employed by the Tzaneen Fire
Station are professionally trained fire-fighters. They make use of
state of the art equipment and vehicles that comply with national
standards. He also testified that the second defendant as a district
municipality was and still is in a position to pull resources
from
different stations, i.e. Giyani, Modjadjiskloof, Phalaborwa and the
Tzaneen Fire Station.
(78)
Having regard to this evidence, the facts which
are common cause and the statutory provisions referred to above, I am
of the view
that at the time of the fire on 5 and 6 August 2012 the
second defendant had a statutory duty to provide fire-fighting
services,
including that of a fire brigade service, serving its area
as a whole, preventing the spread of a fire as well as fighting or
extinguishing
a fire. This does not necessarily mean that the second
defendant also had a duty, in addition to that already mentioned, to
act
positively by calling for aerial support to combat the fire. When
considering this issue one should take into account, not only
the
general prevailing circumstances, but also, for instance, the
availability of preventative measures and the chances of their
success; the cost involved, and whether or not other effective
remedies were available (Van der Walt & Midgley,
Principles
of Delict,
3rd Ed, p 85 and the authorities
cited there). In short, is it reasonable to expect of the second
defendant to have taken positive
measures by also calling for aerial
support to prevent harm to the plaintiff?
(79)
It is in dispute between the parties whether the
second defendant, not being a member of the LFPA, would have been
entitled to call
for aerial support from the LFPA on 5 and 6 August
2012. Section 4(7) of the National Veld and Forest Fire Act provides
as follows:
"Where a
fire protection association has been registered in an
area
-
(a)
all or part of which is controlled by
a
municipality and that municipality has
a
service; or
(b)
in which there is
a
designated service,
the municipality or
designated service must become
a
member
of the fire protection association."
(80)
The definition of "municipality" in
section 1 of this Act includes a district council. A "service"
means a fire
brigade service as defined in
section 1
of the
Fire
Brigade Services Act. It
is common cause that the second defendant is
a district municipality with fire-fighting services. The evidence of
Mr Phillips is
to the effect that the Letaba Fire Protection
Association was registered at the Department of Agriculture, Forestry
and Fisheries
and he has been the chairperson since 2007. The second
defendant was therefore obliged to become a member of the fire
protection
association for the area concerned. Furthermore, according
to the evidence of Mr Venter (the airbase manager and dispatcher at
the LFPA) as well as that of Mr Phillips (the chairperson of the
LFPA) the second defendant as a district municipality was entitled
to
request aerial and Working on Fire team support whilst not being a
member, although it would have been liable for payment of
the
account. This evidence was corroborated by the undisputed fact that
the second defendant had indeed commanded aerial support
during the
same week to combat a fire elsewhere close to the bird sanctuary. The
fact that the second defendant failed or refused
to become a member
of the LFPA can therefore not be raised as a defence for not having
been able to call for aerial support.
(81)
It is also not in dispute that the second
defendant was alerted of a fire burning on the first defendant's
property on 5 and 6 August
2012 and that its employees attended at
the scene of these fires. It has also been agreed that the second
defendant was during
August 2012 not impecunious and could have
afforded it to make use of aerial support on both 5 and 6 August 2012
(exhibit "X").
According to the evidence of Mr Enslin the
weather prediction for the Monday was a "high fire rating".
This was confirmed
by Ms Altenroxel who testified that the fire
danger index for 6 August 2012 would reach "orange this
afternoon".
(82)
It is also not in dispute that on both days in
question a spotter and helicopter pilot was on standby duty. The
spotter pilot testified
that water was available and that they would
have been able to do ten drops within one hour, which is 90 000
litres of water on
that fire. According to him they could already
have extinguished the fire on the Sunday afternoon. On the Monday
they noticed that
the smoke column was getting bigger and bigger and
they were waiting for a callout signal. The logbook entries of the
Disaster
Management Centre indicate that on 6 August 2012 at 11:52 Mr
Enslin reported that the fire "was going to get out of hand"
and requested that aerial support be authorised. Finally, Mr Stemmet
(Station Officer, Fire Prevention) confirmed that it was necessary
to
call for aerial support before the fire had become uncontrollable on
6 August 2012. According to him it was the first defendant's
responsibility to do so and not that of the second defendant. No
doubt, the reason why it was necessary to call for aerial support
is
because the services and equipment available on 6 August 2012 would
not have been sufficient to contain the fire or even to
extinguish
it. Mr Stemmet explained it as follows:
"The only way
that we were going to be able to control that fire with the
prediction that we received the day beforehand already
was with
aerial support. We work on the principle that if you have aerial
support you have got two systems working
...
you take them with
water, you draw waterlines, you stop the fire
there and then you bring in ground crews to mop up and kill that
fire."
(83)
Having regard to the statutory provisions
referred to above, the prevailing circumstances on both days in
question, the availability
and effectiveness of aerial support
services, the risk that serious harm could materialise, the interests
of the community and
the function of the second defendant as a
district municipality to provide fire-fighting services, I have to
conclude that the
second defendant had a legal duty to have taken
positive measures by also calling for aerial support timeously, i.e.
before the
fire had become uncontrollable. Its failure in this regard
constitutes a breach of this duty which results in its conduct being
wrongful.
Negligence
(84)
The question of negligence involves a twofold
enquiry: first, was the harm reasonable foreseeable? Second, would
the
diligens paterfamilias
have
taken reasonable steps to guard against such occurrence and did the
defendant fail to take those steps?
(Macintosh
v Premier, KwaZulu-Natal
&
Another
2008 (6) SA 1
(SCA) par 12). Generally
speaking, the answer to the question of negligence depends on a
consideration of all the relevant facts
and circumstances. The
following dictum of Holmes JA in
Sardi v
Standard
&
General
Insurance
Co
Ltd
1977
(3) SA 776
(A) at 780 G-H is apposite in this regard:
"In this final
analysis, the Court does not adopt the piecemeal approach of (a),
first drawing the inference of negligence
from the occurrence itself,
and regarding this
as a
prima
facie case; and then (b), deciding whether this has been rebutted by
the defendant's explanation."
(85)
The first question to be considered relates to
foreseeability. Was the damage suffered by the plaintiff foreseeable?
It is common
cause that on 5 and 6 August 2012 there was a fire on
the first respondent's property. The fire on 5 August 2012 was
apparently
extinguished. On 6 August 2012 another fire erupted.
According to the logbook entry at 11:05 a fire was reported at
Blacknall.
At 12:20 it was reported there was a fire, "the same
one which was fought last night and ... that the wind was picking
up".
According to the evidence of Mr Enslin (as summarised in
the
Rule 36(9)(b)
notice) he went to the first defendant's property
to assist. At about 11:48 he requested that the fire brigade should
call for
aerial support as soon as possible. He also requested a
grader to assist. Both requests came to nothing and at 13:34 it was
reported
by Mr Stemmet that the fire was out of control and that they
could not do anything at that stage.
(86)
It was suggested that on the Monday morning
before 12:00, when it was still a normal day, the second defendant
could not have foreseen
that the fire would all of a sudden at a
later stage become out of control. When this was put to Mr Phillips
he disagreed. He pointed
out that the second defendant who has a fire
service and "who should know the nature of fire, and to know
that under the conditions
of the future forecast, the chances that it
will become uncontrollable are very high with the resources they had
at the time".
No evidence was led by the second defendant to
contradict this explanation. On the contrary, Mr Stemmet (the second
defendant's
own employee) clearly indicated that the only way they
would be able to control that fire "with the prediction that we
received
the day beforehand" was with aerial support. Having
regard to the objective facts and the evidence, I have no doubt that
the
damage which the plaintiff suffered was indeed foreseeable by the
employees and the officials of the second defendant.
(87)
The next question to be considered relates to the
reasonableness or otherwise of the second defendant's conduct. Put
differently,
would the
diligens paterfamilias
have taken reasonable steps to guard against
the harm and did the second defendant fail to take those steps? The
evidence clearly
indicates that on 6 August 2012 there was a fire
which had to be attended to. The spotter pilot testified that he and
the helicopter
pilot were on standby. They could see the smoke column
was getting bigger and bigger and they were waiting for a callout
signal.
It was only at 13:40 that they were called out to go and
assist people from Blacknall, after the fire had become
uncontrollable
at 13:34. Prior to that Mr Enslin had already
requested aerial support at about 11:48. Even Mr Stemmet conceded
that the only way
they would be able to control that fire was with
aerial support. Taking into account the fact that there was a fire,
the surrounding
circumstances as explained by the witnesses and the
availability of aerial support as well as the effectiveness thereof,
I have
to conclude that a reasonable citizen in the position of the
second defendant would have called for aerial support before the fire
went out of control. The fact that employees and officials of the
second defendant failed to do so, under circumstances when they
could
and should have done so, means that they were negligent.
(88)
It was pleaded and argued (in the alternative)
that employees of the plaintiff were also negligent. A defendant who
alleges contributory
negligence bears the onus to prove it
(South
British Insurance
Co
Ltd
v Smit
1962 (3) SA 826
(A)). The main thrust
of the argument can be summarised as follows:
·
On 6 August 2012 the plaintiff left its Leobi
Plantation unattended during the time when the fire was presumed to
be out of control;
·
The plaintiff left its Leobi Plantation
unprotected when it moved all its fire-fighting equipment to another
area;
·
The plaintiff failed to call for aerial support
when it could and should have done so;
·
The plaintiff failed to make a firebreak when it
could and should have done so;
·
As a result of all these failures, the plaintiff
was unable to protect its property and/or to minimise the damage
which it has suffered.
(89)
According to the evidence of Mr Sales (forestry
manager of the plaintiff) he was living on the Leobi farm. On the
Monday morning
they were called out to their new Reeds Plantation
which is 30 kilometres away from the Leobi Plantation. There was a
fire in the
vicinity of the new Reeds Plantation and as the wind was
blowing towards their plantation, they went out in full force to
prevent
the fire getting to the new Reeds Plantation. Later that day
at approximately 15:15 the fire protection association informed them
that there is a serious threat to the Leobi Plantation. He and a
colleague then left to ascertain the situation at the Leobi
Plantation.
(90)
This witness also testified that there was a
firebreak at the boundary of their property facing the Hamabuya Farm.
The width of
this firebreak varied between 150 and 200 meters which,
according to the witness, are much wider than what is required. He
also
explained that it would not be safe to do a back-burn on that
particular day as "the wind was just too strong".
(91)
In cross-examination he explained that they had
mobilised all their fire-fighting equipment and personnel to fight
the fire at the
new Reeds Plantation. In the process the Leobi
Plantation was left unattended. According to him it is accepted
practice in forestry
that when you have a fire threat you hit it
"with everything you have". It would not make sense to keep
people back for
the possibility of another threat at another place as
they do not have all that resources. No evidence was led by the
second defendant
to contradict the evidence of Mr Sales and I have no
reason not to accept it.
(92)
Mr Venter (the airbase manager and dispatcher at
the LFPA) testified that aerial support was activated for the first
time at 13:40
by Mr Enslin of the Farm Merensky to protect their own
plantations. At 13:53 Mr Steyn who was the head of the Disaster
Management
Centre of the second defendant, stated over the radio that
they had authority to call for aerial support, but it was too late as
the aircraft was already being employed by Merensky at their
plantation. He also reported that at 14:53 the plaintiff requested
that the helicopter should go to the new Reeds Plantation after
completion of the Blacknall fire at Merensky. At 14:11 Mr Stemmet
reported that the fire was making spots Uumps) of plus-minus three
kilometres. At 15:42 it was reported that two employees of the
plaintiff were on their way to the Leobi Plantation and that the fire
which was out of control jumped to the Leobi Plantation at
16:29.
(93)
In cross-examination it was put to this witness
that if the plaintiff had requested aerial support before or
immediately after Blacknoll,
it would have been possible to provide
that support. His reply was that the plaintiff's property is not in
the same area where
the fire was at that stage. According to him
"they only got into part of this fire late that afternoon".
This evidence
was also not contradicted and there is no reason not to
accept it.
(94)
Having regard to the evidence it appears to me
that the plaintiff was first confronted with a fire close to its new
Reeds Plantation.
At that stage there was no direct threat to its
Leobi Plantation. There was sufficient reason for them to leave the
Leobi Plantation
unattended and to focus with all the available
support on the new Reeds Plantation. There is no reason to conclude
that the plaintiff's
employees were negligent by leaving the Leobi
Plantation unattended when they had to attend to their new Reeds
Plantation to protect
it from a fire.
(95)
It appears that a proper firebreak, between 150
and 200 metres wide, was already in place on 6 August 2012. According
to the evidence
it was not safe to also do a back-burn as the wind
was just too strong at that stage. It was only at approximately 15:15
when the
fire protection association informed employees of the
plaintiff that there was a serious threat to the Leobi Plantation. At
that
stage the fire was already out of control. According to the
evidence of Mr Venter (airbase manager and dispatcher) it would not
have been necessary for the plaintiff to mobilise aerial support
before or immediately after Blacknoll, because at that stage the
fire
was five to six kilometres away, on another property, not threatening
the plaintiff directly. It would therefore not have
been necessary
for the plaintiff to request aerial support at that stage. Having
regard to the objective facts and the evidence
referred to above, I
am unable to conclude that the employees of the plaintiff were
negligent as alleged or at all.
Causation
(96)
Finally, the plaintiff must also prove a factual
and legal causal connection between the negligent act relied on and
the damages
suffered
(International Shipping
Co
(Ply) Ltd v Bentley
1990 (1) SA 680
(A) at 700 E-G). The test for
factual causation is whether, but for the negligent act or omission
of the defendant, the event giving
rise to the harm in question would
in any event have occurred. This test is otherwise known as that of
the
conditio sine qua non (Minister of Police
v Skosana
1977 (1) SA 31
(A) at 35 C-D).
However, a demonstration that the wrongful act was
causa
sine qua non
of the loss does not necessarily
result in legal liability. The second enquiry then arises, namely
whether the wrongful act is linked
sufficiently closely or directly
to the loss for legal liability to ensue
(International
Shipping
Co.
(Pty) Ltd
v Bentley, supra,
at 700 H-1). I shall first
consider factual causation.
(97)
It was contended during argument that the
omission to call for aerial support was a
novus
actus interveniens,
suggesting that it was
the first defendant's responsibility to do so and not that of the
second defendant. A
novus actus interveniens,
or a new intervening cause, is an independent
event which is not foreseeable and either caused or contributed to
the consequence
concerned
(cf Law of Delict,
Neethling, Potgieter
&
Visser,
7
th
Ed, 216 and 218). It is important to point out that if a reasonable
person would have foreseen the independent event, that event
will not
qualify as a
novus actus interveniens ( Kruger
v Van der Merwe
1966 (2) SA 266
(A) at 273 as
well as Van der Walt & Midgley, p 207).
(98)
Having regard to these principles, the contention
that the first defendant's failure to call for aerial support should
be regarded
as a
novus actus interveniens,
cannot be supported. The evidence clearly
shows that on both days in question employees and officials of the
second defendant were
aware of the fire and no doubt, they were also
aware of the fact that no aerial support was called for by the first
defendant.
This inference is supported by the evidence of Mr Stemmet
who testified that he did not call for aerial support as this was,
according
to him, the responsibility of the first defendant.
Furthermore, according to the evidence of Mr Enslin this dispute
between the
first and second defendant continued until late that
afternoon when the fire was already out of control. This indicates
that the
first defendant's failure was not only reasonably
foreseeable, but it was indeed known to employees and officials of
the second
defendant. Notwithstanding this knowledge and a request by
Mr Enslin for aerial support, they allowed the fire to get out of
control.
The defence of a
novus actus
can
therefore not succeed.
(99)
According to the evidence of Mr Enslin the
existing roads in the area where the fire was, had become overgrown
with vegetation which
prevented fire-fighters on both days in
question to reach all the burning areas with their fire-fighting
vehicles to extinguish
or suppress the fire. Mr Khoza who was called
as an expert witness was of the view that three or four drops of
water by the helicopter
would have extinguished the fire. This view
was supported by Mr Enslin. The spotter pilot testified that water
was close by and
they would have been able to do ten drops within one
hour, which is 90 000 litres water on that fire. According to him
they could
already have extinguished the fire on the Sunday
afternoon. He was surprised that they were not called out on the
Sunday, as the
weather prediction for the Monday was that the wind
would start at approximately 10:30. Mr Stemmet, an employee of the
second defendant,
also testified that on the Monday that fire could
only have been controlled by aerial support. Taking into account all
the evidence
in this regard it is clear that if the defendant had
called for aerial support timeously, the fire could have been
extinguished
before any damage was caused to the plaintiff s
property. I am therefore satisfied that the second defendant's
omission is a factual
cause of the damages suffered by the plaintiff.
(100)
The second question to be considered is whether
this omission as a wrongful act is linked sufficiently closely to the
loss suffered
by the plaintiff for legal liability to ensue. The
basic question is whether there is a close enough relationship
between the wrongdoer's
conduct and its consequence for such
consequence to be imputed to the wrongdoer in view of policy
considerations based on reasonableness,
fairness and justice (
S
v Mokgethi
1990 (1) SA 32
(A) at 40-41). This
is a flexible approach where one should take into consideration, in a
matter like this, the following: the
fact that the second defendant
is a district municipality with fire-fighting services who was
obliged to become a member of the
Fire Protection Association for the
area concerned; the evidence that employees and officials of the
second defendant were aware
of the fire on both days concerned; the
risk involved when a fire of this nature is not extinguished
timeously; the evidence that
on the Monday the fire could only be
distinguished by means of aerial support; the availability and
effectiveness of aerial support;
the evidence that it was possible
for the second defendant to call for aerial support; the undisputed
fact that the second defendant
had commanded aerial support during
the same week to combat a fire elsewhere close to the bird sanctuary;
and finally, the interests
of the community. Taking into account
these facts I am of the view that a reasonable citizen in the
position of the second defendant
would have called for aerial
support. I am therefore satisfied that the second defendant's
wrongful omission is linked sufficiently
closely to the loss for
legal liability to ensue.
(101)
This brings me finally to the so called second
special plea which actually forms part of the merits. I have already
indicated (par
72 above) that the second defendant bears the onus to
prove on a balance of probabilities that the conduct of its employees
on
the days in question was not only performed
bona
fide,
but also that it has been done in the
exercise of a power or duty under this Act. Put differently, if it is
found that the second
defendant failed to take adequate or reasonable
precautions to ensure that the fire did not break out and spread, it
cannot avail
itself of the indemnity provided for in section 20.
There is no evidence to support this defence. On the contrary, there
is sufficient
evidence to conclude that the second defendant failed
to take adequate or reasonable precautions to ensure that the fire
did not
break out and spread. I have already concluded in this regard
that employees of the second defendant acted wrongfully and
negligently
by failing to call for aerial support timeously. The
second defendant can therefore not avail itself of the indemnity
provided
for in section 20.
SUITABLE
RELIEF
(102)
It was indicated above (par 2) that payment of R1
817 355.10 was claimed against the first and second defendants
jointly and severally
pursuant to the damage caused to the
plaintiff's Leobi Plantation. The case against the first defendant
was settled on the first
day of the trial on the basis that the first
defendant would pay the plaintiff an amount of R1 000 000.00 plus 50%
of the plaintiff's
costs. This was not a settlement, as I understand
it, to discharge the obligation for payment by the second defendant
as well.
It was, however, argued on behalf of the second defendant
that, in the event this court finds that the second defendant is
liable
to compensate the plaintiff, an apportionment should be made
with regard to the first and second defendants' relative degrees of
blameworthiness.
(103)
It was pointed out on behalf of the plaintiff
that presently there is only one defendant before court and that no
apportionment
can be made in the absence of the first defendant. I
agree with this submission. This court needs only to decide at this
stage
of the proceedings whether or not the second defendant is
liable for the payment of the plaintiff's agreed or proven damages.
Should
the second defendant wish to seek a contribution from the
first defendant at a later stage, it may do so as far as the law
permits.
ORDER
1.
In the result I make
the following order:
1.1
It is declared that the second defendant is
liable for payment of the plaintiff s proven or agreed damages with
regard to its Leobi
plantation suffered as a result of a fire on 6
August 2012;
1.2
The second defendant is ordered to pay 50% of the
plaintiff s taxed or agreed costs for the action on the issue of
liability up
to and including the first day of the trial, which
commenced on 23 August 2016;
1.3
The second defendant is ordered to pay the
plaintiff s taxed or agreed costs for the action on the issue of
liability from 24 August
2016 to date hereof;
1.4
The costs referred to above shall include:
1.4.1.
The costs of senior counsel;
1.4.2.
The reasonable costs of all the witnesses who
testified on behalf of the plaintiff who are all declared necessary
witnesses, including
their reasonable travel and accommodation costs
as allowed by the Taxing Master.
1.4.3.
It is noted that the first defendant has agreed
to pay R1 million with regard to the same damages referred to in
paragraph 1.1 above.
_____________________
D
S FOURIE
JUDGE
OF THE HIGH COURT
PRETORIA
Date:
25
January 2017