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[2017] ZAGPPHC 179
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Nieuco Properties 1005 (Pty) Ltd and Another v Trustees for the time being of the Inkululeko Community Trust and Others (27524/13) [2017] ZAGPPHC 179 (29 March 2017)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE:
29/3/17
CASE
NO: 27524/13
REPORT
ABLE: NO
OF
INTEREST TO OTHER JUDGES: NO
In
the matter between:
NIEUCO
PROPERTIES 1005 (PTY)
LTD Plaintiff
(Registration
Number: 2001/017985/07)
JACOBUS
JOHANNES
BOSHOFF Second
Plaintiff
and
TRUSTEES
FOR THE TIME BEING OF
First
Defendant
THE
INKULULEKO COMMUNITY TRUST
(Master's
Reference: IT490/63)
MINISTER
OF THE DEPARTMENT OF RURAL
DEVELOPMENT
AND LAND REFORM,
REPUBLIC
OF SOUTH
AFRICA
Second
Defendant
and
SIPHO
LEVY
MASEKO
Third Party
(Id
No: […])
JUDGMENT
PETERSEN
AJ:
INTRODUCTION
[1]
This is a stated case for determination of liability of the second
defendant for damages to the plaintiff's properties.
The matter
comes before me pursuant to an agreement between the plaintiffs' and
second defendant to separate the issue of liability
from quantum in
terms of Rule 33(4) of the Uniform Rules of Court.
THE
STATED CASE
[2]
The stated case is phrased as follows:
"Do
the provisions of the Act and more particularly the duties imposed on
an owner referred to in the various sections apply
in relation to
State land where the Minister of the Government Department (the
Second Defendant) concluded a lease agreement with
a third party
whereby possession and control of such land are given and made over
to the lessee in terms of the provisions of the
lease agreement
including clauses 11.6 and 11.16 of the lease agreement?"
THE
AGREED FACTS
[3]
The first plaintiff is the owner of the remaining extent of Portion 1
of the Farm Glengarry 652, Registration Division J.T.,
Mpumalanga as
well as Portion 10 of the same farm which
adjoin each other ("the plaintiffs' properties").
The
second defendant is the owner of Portion 1 of the Farm Hanging Stone
636, Registration Division J.T., Mpumalanga as well as
the remaining
extent of the same farm 636, Registration Division
J.T., Mpumalanga ("the second defendants'
properties"). The
Farm Hanging Stone adjoins the Farm Glengarry. On or about 20
April 2011, Mr Elleck Sam Nkosi the
delegated representative of the
second defendant ("the lessor") and Mr Sipho Levey Maseko
("the lessee") concluded
a written agreement of lease in
terms whereof the second defendant's properties were leased to
Mr Maseko for a period of
five (5) years commencing on 1 April 2011.
Mr Maseko henceforth enjoyed the beneficial occupation and use
of the leased properties
(i.e. the "possession
and control"
in terms of and in accordance with the terms and provisions of
the lease agreement). The lease agreement
was
still in effect on 7 June 2012. In terms of clause 11.6 of the lease
agreement Mr Maseko had the obligation to keep all firebreaks
on the
border between Hanging Stone and Glengarry open and free from any
combustible material. In terms of clause 11.16 of the
lease agreement
Mr Maseko had the obligation to make firebreaks and firearm
belts on the boundaries of the adjoining
properties and
within the boundaries of the Farm Hanging Stone, where
necessary, to protect the second defendant's
properties
against internal fires. Mr Maseko was
also under obligation to comply
with any statutory fire
protection requirements or conditions imposed by any competent Fire
Protection Authority.
[4]
On 7 June 2012 a veld fire started on the Farm Rietvley (which
adjoins the Farm Hanging Stone and the Farm Glengarry, spread
from
Rietvley to the Farm Hanging Stone, and from Hanging Stone to
the Farm Glengarry. On 8 June 2012 a fire re-ignited
inter alia
on
Portion 1 of the Farm Glengarry, spread and caused damage to
the Plaintiffs' macadamia orchard which lies partly
on Portion
1 and partly on Portion 10 of the Farm Glengarry.
[5]
The general public and neighbours of the second defendant's
properties are aware that the second defendant is the owner of the
said properties. The second defendant did not inform the plaintiffs'
and neighbours that it leased the property to Mr Maseko
and had purported to contract out of its statutory obligations
in terms of the
National Veld and Forest Fire Act, Act
101 of 1998 ("the National Veld and Forest Fire Act")
and
that it purported to delegate all its duties and responsibilities in
terms of the Act to Mr Maseko. The second defendant relinquished
possession, use and enjoyment of its properties to Mr Maseko and did
not relinquish its right to dispose of the property to Mr
Maseko. The
lease agreement did not oblige or require Mr Maseko to physically
live (stay on) the second defendant's
properties.
ISSUE
OF COMMON CAUSE
[6]
The second defendant is both the admitted registered owner and common
law owner of the leased properties, which is
"State
land"
as
defined in the National Veld and Forest Fire Act
[1]
.
THE
ISSUE
[7]
The meaning of common law owner; comprehensively researched and dealt
with by Swain J in
Mondi
South Africa Ltd v Martens and Another
[2]
is apposite and needs no further exposition for purposes of this
stated case. The lessee was in possession and control of the leased
property and enjoyed the benefits of occupation and use of the leased
properties in accordance with the terms and provisions
of the lease agreement at the time of the fires which gave rise
to the plaintiffs'
damages.
[8]
The central issue calling for determination is whether the lease
agreement which deals with only two clauses relevant
to veld
fires absolved the second defendant,
as the owner of State
land,
from its statutory duties imposed on it in the Act,
and consequently from liability for the plaintiffs' damages.
ISSUES
RAISED BY THE PARTIES
THE
"EXTENDED" DEFINITION OF OWNER
[9]
In section 2(1)(xiii) of the National Veld and Forest Fire Act, other
than the common law owner, eight other categories of owners
are
defined. For purpose of the stated case, the only owner of relevance,
other than the common law owner, is "a
lessee who controls
the land in terms of
a
contract".
DUTIES
OF AN OWNER IN THE ACT
[10]
The
duties
imposed on an owner are
set
out
mainly at
Chapters 4
and 5.
The duties
relevant to the agreed facts include the duty to prepare and maintain
firebreaks
[3]
, the procedure to
be adopted in the event of a fire
[4]
and the duties in relation to adjoining owners and fire protection
associations
[5]
. The duties
relevant to the second defendant, as
owner of
State land are
contained
in
section
4(8)
[6]
.
[11]
Membership of a fire protection association, although not
obligatory for owners other than owners of State land,
provides a measure of protection as is in evident in the presumption
of negligence in Section 34 of the National Veld and
Forest
Fire Act:
34
Presumption of negligence
- (1) If a person who brings civil
proceedings proves that he/she suffered loss from a veldfire
which -
(a)
the defendant caused;
(b)
started on or spread from land owned by the defendant,
The
defendant is presumed to have been negligent in relation to the veld
fire until the contrary is proved, unless the defendant
is a member
of a fire protection association in the area where the fire
occurred.
(2)
The presumption in subsection (1) does not exempt the plaintiff from
the onus of proving that any act or omission by the defendant
was
wrongful."
THE
MEANING OF THE WORD OWNER IN THE ACT
[12]
The
meaning of the word
"owner"
in the
definition of the National Veld and Forest Fire Act, with
specific reference to the effect of the use of the words
"and
includes",
is
at issue. It is trite that, in determining the plain, ordinary
grammatical meaning of word
"owner"
with
reference to the words
"and
includes",
the
context in which it has been used is paramount. In the
leading case of
Jaga
v Donges NO and Another; Bhana v Donges NO and Another
[7]
Schreiner JA remarked as follows at 662G:
'Certainly
no less important than the oft repeated statement that the words and
expressions used in a statute must be interpreted
according to their
ordinary meaning is the statement that they must be interpreted in
the light of their context'.
This
dictum in the dissenting judgment of Schreiner JA, often
followed, has recently been approved by the Supreme
Court
of Appeal in
Natal
Joint Municipal Pension Fund v
Endumeni
Municipality
[8]
and
South
African Property Owners Association v Council of the City of
Johannesburg Metropolitan Municipality
[9]
.
It
has also mustered constitutional approval in
Sato
Star
Fishing (Pty) Ltd v Minister
of
Environmental Affairs and Others
[10]
,
where
the approach to statutory interpretation was at issue.
[13]
In
De
Reuck v Director of Public Prosecutions, Witwatersrand Local
Division, and
Others
[11]
,
Langa
DCJ as he then was set out the approach
to
the interpretation of
the
word
"includes"
as follows:
"The
correct sense of 'includes' in a statute must be ascertained from the
context in which it is used...If the primary meaning
of the term is
well known and not in need of definition and the items in the list
introduced by 'includes' go beyond that primary
meaning, the purpose
of that list is then usually taken to be to add to the primary
meaning so that 'includes' is non-exhaustive.
If,..., the primary
meaning already encompasses all the items in the list, then the
purpose of the list is to make the definition
more precise. In such a
case 'includes' is used exhaustively..."
[14]
The Department of Water Affairs and Forestry as it was
known in 2005 in a publication titled
"Guide to the
Interpretation and Implementation of the National Veld and Forest
Fire Act No. 101 of 1998, 6 January 2005 VERSION
3"
published
under the auspices of its Chief Directorate: Forestry, Legislative
Project, so as to guide the interpretation of the Act
to those
affected by its provisions, proposed the following interpretation of
the word
"owner":
"66.
Note that
"owner"
means any landowner with title
deed
as
well
as
(my
emphasis): a lessee or other person legally controlling land, a
community, the manager of State land, and the chief executive
officer
of any local authority, or their duly appointed agents in the cases
of State land (including SANDF land) and local authorities
(section
2(1)(xiii)). Note also that section 2(5) allows for the case where
there may be more than one owner of the land, and thus
where one of
the several owners may take on the duties imposed by the Act."
According
the Shorter Oxford Dictionary Volume 2 Fifth Edition, the ordinary
meaning of
"as well as"
is: 'in addition to'.
[15]
Having regard to the aforesaid judicial authority, when the
definition of
"owner"
is holistically interpreted by
according the words their ordinary grammatical meaning, in
their contextual setting,
the word
'includes'
is
non-exhaustive. Liability can therefore attract either to the common
law owner or the lessee subject to the terms of the contract
of lease
with the determinant factor being the
"control"
of
the land. The word
"control"
traverses the
definition of
"owner"
like a golden thread. In this
regard I align myself with Swain J where he states at para [22] of
Mondi South Africa Ltd v Martens and Another
supra
that:
"the
other meanings accorded to the definition of 'owner' in s 2 of the
Act, are instructive. Paragraph (a) refers to a lessee
'or other
person who controls the land in question' in terms of a contract,
testamentary document, law or order of a High Court.
The issue
of control of the land is repeated as the criterion in respect of
a
community, as well as
State land,
respectively,
in paras (b) and (c)...".
CONTROL
AS AN INCIDENT OF OWNERSHIP
[16]
Whilst
ownership constitutes the most comprehensive real right over
property, it has never been regarded as absolute
in the
common law.
[12]
Absoluteness
of ownership does not necessarily imply that an owner is always able
to exercise full and absolute control over his
property. Ownership of
immoveable property can be limited in a number of ways, with
such limitations often imposed by the
owner himself. In concluding
a lease agreement with Mr Maseko, the second defendant limited
his ownership by
transferring possession with the entitlements of
use,
control
and
encumbering of the property, to Mr Maseko.
[17]
Possession ordinarily constitutes the physical control
(corpus)
of a thing by a person and that person's
mental attitude
(animus)
towards the thing. In general these
requirements need to exist to constitute possession. However, the
exact nature of the possession
depends on the context in which and
the purpose for which it is used. In the context of the stated case
the terms of the lease
agreement dictates the exact nature of the
possession.
[18]
The rights and duties of the second defendant as lessor and Mr
Maseko as lessee in respect of the leased properties are
regulated by a contract of lease. A careful
reading of clauses 11.6 and 11.16 shows that it is designed
at the
protection of the interests of the second defendant in his land and
touches on provisions in the Act designed at protecting
those
interests.
[19]
The issue of the presence of the owner on the land was raised,
with the plaintiff and defendant putting forward conflicting
submissions.
The dispute can safely be laid to rest when regard is
had to section 17 of the Act which envisages the absence of an owner
and thus recognising absence of physical control but
still placing a duty on such owner to ensure the presence
of
responsible persons to extinguish any fires or to assist
in doing so and to take all reasonable steps to alert
the
owners of adjoining land and the relevant fire protection
association, if any. There was thus in terms of the lease no
obligation
placed on Mr Maseko to physically control the land but to
have someone present in his absence to comply with his duties
in
terms of the Act.
[20]
The vexing question, however, remains whether there was an
obligation on the second defendant to comprehensively (or at least
effectively)
prescribe Mr Maseko's duties and obligations to
neighbouring landowners in the lease agreement. According to the
common law the
intended use of the leased property is of real and
substantial importance. The subject matter of a lease agreement is
not the leased
property itself but the use and enjoyment of the
property.
Pothier
in his
Treatise on the Contract
of Lease
thus says:
"
It
is of the essence of the contract of lease that there be a certain
enjoyment or a certain use of a thing which the lessor
undertakes to cause the lessee to have during the period agreed upon,
and it is actually that which constitutes the subject and
substance
of the contract."
(my
underlining and emphasis)
[21]
The lease agreement makes it plain that the leased properties
of the second defendant were to be used by Mr Maseko for farming
purposes.
The terms of the lease agreement holistically considered,
inclusive of clauses 11.6 and 11.16, makes it clear that
its main object was to regulate the use and enjoyment of the property
and the protection of the second defendant's interest in its
property, as the substance of the contract.
[22]
The submission that the second defendant should have
comprehensively or at least effectively set out Mr Maseko's duties
and obligations
in the Act, could lead to the
absurd result that contracts of lease should set out every
conceivable
statutory obligation which impacts on a lessee.
There is no such requirement as an essential requirement of a lease
agreement.
[23]
Mr
Maseko leased the properties to engage in the specialised sphere of
farming. It would therefore have been required of him to
acquaint
himself with any legal obligations which impact on this chosen sphere
and the dictum of the Appellate Division as it was
then known in
S
v De Blom
[13]
is accordingly apposite:
"...
But the approach that it can be expected of a person who, in a modern
State, wherein many facets of the acts and omissions
of the legal
subject are controlled by legal provisions, involves himself in a
particular sphere, that he should keep himself informed
of the legal
provisions which are applicable to that particular sphere, can be
approved." (Extracted from the
Headnote)
[24]
The duties and obligations in the Act referred to
supra
with the presumption of negligence did not apply to the second
defendant.
RESULT
[25]
In the result, the stated case is answered in favour of the
second defendant.
ORDER
[26]
The plaintiffs' claim is dismissed with costs, including the
costs of two Counsel.
______________________
AH
PETERSEN ACTING
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
Appearances
:
On
behalf of the Plaintiff: Advocate AC Ferreira SC
Instructed
by Tim du Toit Attorneys
On
behalf of the Defendant: Advocate FJ Becker SC with Advocate HOR
Modisa
Instructed
by THE STATE ATTORNEY, PRETORIA
DATE
HEARD: 17 October 2016
DATE
OF JUDGMENT: 29 March 2017
[1]
“….land which vests in the National or Provincial
Government - (a) including land held in trust by the Minister
of
Land Affairs or the lngonyama referred to in the KwaZulu lngonyama
Trust Act (KwaZulu Act No. 3of1994); ... "
[2]
2012 (2) SA 469
(KZP) at paras [8] to [16]
[3]
Section 12 provides that "
every
owner
on
whose land a veld fire may start or burn or from whose land it may
spread must prepare and maintain a firebreak on his/her
side of the
boundary between his/her land and
any
adjoining
land".
[4]
Section 17 provides that "
every
owner
on
whose land a veld fire may start or burn or from whose land it may
spread must
-
...Ensure
that in his/her absence responsible persons are present on or near
his/her land who, in the event of fire, will -
Extinguish
the fire or assist in doing so; and
Take
all reasonable steps to alert the owners of adjoining land and the
relevant Fire Protection Association, if any.
[5]
Section 18 provides that "
any
owner
who
has reason to believe that a fire on his/her land or the land of an
adjoining owner may endanger life, property or the environment,
must
immediately -
Take
all reasonable steps to notify -
The
Fire Protection Officer or failing him/her, any member of the
Executive Committee of the Fire Protection Association, if one
exists for the area; and
The
owners of adjoining land and;
Do
everything in his/her power to stop the spread of the fire."
[6]
Section 4(8) :
the
owner in respect of State land
must
join any fire protection association registered in the area in which
the land lies.
[7]
1950 (4) SA 653 (A)
[8]
2012 (4) SA 593 (SCA)
[9]
2013 (1) SA 420 (SCA)
[10]
(2004) ZACC 15
;
2004 (4) SA 490
(CC) at
[72]
, [89]- [91]
[11]
[2003] ZACC 19
;
2004 (1) SA 406
(CC) at para
[18]
[12]
Colonial
Development (Pty) Ltd v Outer West Local Council
2002
(2) SA 589
(N) at 6101
[13]
1977(3) SA 513 (A) at 532 E-H