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[2017] ZANCHC 70
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Vermeulen and Others v Minister of Defence (1720/2010) [2017] ZANCHC 70 (15 December 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE HIGH COURT, KIMBERLEY)
CASE
NO.: 1720/2010
Matter
heard:15-09-2016
Delivered:
15-12-2017
In
the matter between:
GERT
JOHANNES
VERMEULEN
1
st
Plaintiff
PIETER
JAKOBUS
HUGO
2
nd
Plaintiff
THABA
LETSELE (PTY)
LTD
3
rd
Plaintiff
JACOB
STEYN
N.O
4
th
Plaintiff
DE
BRAK BOERDERY
CC
5
th
Plaintiff
CHRIS
STRAUSS
6
th
Plaintiff
BOTHA
MARKRAM
7
th
Plaintiff
ALWYN
JOHANNES
LÜBBE
8
th
Plaintiff
SAREL
FRANCOIS
WEIDEMAN
9
th
Plaintiff
MIETJIE
STEENKAMP
10
th
Plaintiff
ALEXANDER
ABRAHAMS
11
th
Plaintiff
FREDDY
MARKRAM
N.O.
12
th
Plaintiff
And
MINISTER
OF
DEFENCE
Defendant
J U D G M E N T
WILLIAMS
J:
1.
On 6
September 2009 while conducting military exercises with live
ammunition at the Lohatla Military Base, a fire broke out which
spread to the farms of the plaintiffs. The plaintiffs issued
summons against the defendant, the Minister of Defence, for
damages
suffered as a result of the fire on 4 October 2010. On 6
September 2012 the merits were settled before Olivier J
an order by
agreement was made in the following relevant terms:
“
1.
THAT
the defendant is liable for the proven or agreed damages of the first
to the fifth plaintiffs, and the ninth and twelfth plaintiffs
qua
owners of the properties described in the particulars of claim.
2.
THAT
Barend Frederik Lubbe, in his capacity as executor of the estate of
the late Alwyn Johannes Lubbe is hereby substituted for
the late
Alwyn Johannes Lubbe.
3.
THAT
the defendant is liable for the proven or agreed damages of the
executor of the estate of the late Alwyn Johannes Lubbe, the
eighth
plaintiff, who was the owner of the property described in the
particulars of claim.
4.
THAT
the defendant is liable for the proven or agreed damages of the
sixth, seventh, tenth, and eleventh plaintiffs, the possessors
of the
properties referred to in the particulars of claim.”
2.
The trial
on quantum was initially set down for hearing on 12, 13 and 14 March
2013. This time was however spent in its entirety
on an
application for postponement brought by the defendant which
inevitably caused the postponement of the trial to December 2013.
3.
On 3
December 2013 an inspection
in
loco
was held at some of the farms. Due to the fact that
Danielskuil, from where the procession started, is some 160 kilometre
from Kimberley, not all of the fourteen farms could be visited in one
day. The parties however agreed and placed on record
that the
farms not inspected suffered from the same degradation observed on
the farms visited, that some burnt bushes and trees
resprout in the
normal course while others do not and that the observations made in
respect of grasses on the farms inspected apply
similarly to those
farms not visited.
4.
The
inspection
in
loco
was a most unpleasant experience and set the scene for the rest of
the trial. In a matter of this nature where the defendant
has
admitted negligence and there can hardly be any doubt that a fire
which raged over several days would leave destruction in
its wake,
causing damage to the plaintiffs properties, the defendant chose to
put almost all of the various claims in issue.
Attempts at
settlement were unsuccessful. Attempts at narrowing the issues
between the parties proved to be unproductive.
Points of
agreement reached between the various experts were later disputed and
retracted. A meeting of some of the experts
had to be arranged
in one of the courtrooms on 4 February 2014, under the chairmanship
of Adv J Van Niekerk SC, where the discussions
and points of
agreement could be recorded in order to prevent any unnecessary
disputes regarding such agreements. Even this
arrangement did
not have the desired effect and the trial which was initially set
down for 3 days took 113 days spread over two
years and 9 months to
complete. Mr Mbenenge SC (as he then was) who initially led the
defendant’s legal team was indeed
wise when he chose to
withdraw from this matter on 4 February 2014.
5.
The
plaintiffs’ claims are divided into three main groups.
The infrastructure claims relate to fencing, pipes, dams
and the
like. Production claims which were structured according to a
formula which in previous fire cases was accepted by
the defendant,
were in most instances amended to include in the alternative a
production claim based on the formula used by the
defendant’s
expert Prof Dube. Then there are the claims for general damages
which include
inter
alia
fire fighting costs, transport costs, labourers wages, trees lost and
long term grazing lost.
6.
The
plaintiffs’ loss of production claims are premised on a 3 year
withdrawal period of the livestock from the areas affected
by the
fire. The formula used is as follows:
The
affected area in hectares divided by the hectares per large livestock
unit, which would give the number of cows having been
kept on the
affected areas. The number of cows are multiplied by the
percentage calving rate to give the projected number
of calves.
The number of calves for a particular year would then be multiplied
by the average selling weight of a particular
plaintiff multiplied by
the average price obtained per kilogram for a particular year.
7.
A
production loss claim for a particular year would thus for example be
expressed as follows:
2010
: 729 ÷10.5 (ha per unit) = 69.4 Cows X 80%
=55.5
(calves) X 250 kg x R17.67. Thus totalling R245 171.25
(This is the 2010 production loss claim of the 5
th
plaintiff)
8.
The initial
production claims which allowed for 10 hectares per large livestock
unit but were amended to conform with an average
of 10.5 hectare per
unit reached by agreement between the experts. Various other
amendments were sought to the claims of
the plaintiffs. These
amendments were generally granted on the basis that (i) there would
be no prejudice to the defendant
(in some cases the amendments
brought about a decrease in claims), (ii) the defendant was granted
time to study and consider the
amendments sought and (iii) in the
case of the 1
st
plaintiff Mr GJ Vermeulen, whose production method differed
completely from the rest of the plaintiffs, the defendant was granted
some months to investigate his amended production claim before his
evidence was led.
9.
I now turn
to deal with the evidence of the plaintiffs.
Mr
Migiel Coetzee testified on behalf of the 5
th
plaintiff, De Brak Boerdery CC
.
It was during his evidence that is came to light that points of
agreement reached by the parties’ experts relating
to the
infrastructure claims and which would have saved considerable time
were now disputed by Mr Memani who appeared for the defendant,
as
being the maximum allowed by the defendant, but that each and every
infrastructure claim would be expected to be proved by every
plaintiff. I will return to the defendant’s obstructive
attitude in more detail later in this judgment.
10.
Coetzee
testified that he had farmed in partnership with the 5
th
plaintiff, De Brak Boerdery CC since January 2009. The 5
th
plaintiff owned the farm Owendale and provided the property while
Coetzee provided the cattle – 73 cows and 4 bulls.
The
arrangement with the 5
th
plaintiff, through its only member a certain Mr Du Toit, was that he
would share the profits and/or losses of the farming operations
with
the 5
th
plaintiff. Du Toit had in the meantime immigrated to Australia
and Coetzee was authorised to testify on behalf of the 5
th
plaintiff.
11.
The fire
burnt through the whole of the farm of Owendale which measures
729.1949 hectares in extent. 10 Cows died in the fire.
Coetzee was left with no grazing for the remaining cattle and was
forced to sell the entire herd at a loss.
12.
The
production claim of the 5
th
plaintiff is based on having reasonably been able to keep 69.4 cows
on the farm with an 80% calving rate as claimed. In their
initial claims, the plaintiffs claimed at the going rate for beef
prices during 2010 multiplied by 3 years, but at the trial refined
their claims to the average beef price for each of the 3 years
claimed. The 5
th
plaintiffs total claim for loss of production thus amounts to
R806 553.75.
13.
As far as
the claim for infrastructure is concerned Coetzee testified that he
had obtained a map of the farm from the Department
of Agriculture’s
Technical Services and had in part used this map to determine the
extent of the fences damaged in the fire.
The map was however
an old one, dated 2002, and did not include all the camps which
existed at the time of the fire. He therefore
in addition to
using the map provided, measured out the fences by using a vehicle
odometer and a measuring wheel to make sure that
the lengths were
correct. He measured 4971 m of fence proof which burned,
12 250m of 8 wire inside fence burned and
1400 m of 14 wire
inside fence burned, bringing the total claim for infracture to
R392758.00.
(The
price per meter claimed to replace the burnt fences was calculated
according to a formula explained later in this judgment.)
14.
Under
general damages the 5
th
plaintiff claimed for the 10 cows lost in fire at R8000, 00 each,
which Coetzee testified was the value per cow. The 5
th
plaintiff had to pay a contractor to transport the remainder of the
cattle to the purchaser who had a farm in the Kuruman district
some
110 km from Owendale at R50.00 per kilometre. Fire fighting
costs comprised of R700.00 for petrol for the vehicle used
in
fighting the fire, R8000, 00 for damage to the clutch and gearbox of
the vehicle, occuring while driving over the rocky terrain
of the
farm and R150, 00 for petrol for the fire-fighter used.
15.
Coetzee
also testified that wild olive, karee and camelthorn trees were lost
in the fire. He testified that he had determined
the number of
trees lost by taking certain portions of the farm, determining its
size and counting the trees within such areas.
According to his
own calculations more trees were lost. But he accepted the
plaintiffs experts determination of 87 trees
lost at R5000, 00 per
tree and left it for the experts to explain. The final claim
under the general damages heading is for
long term grazing lost,
calculated over 7 years, which Coetzee also left for the experts to
explain. The 5
th
plaintiff’s total damages claim amounts to R2627098.75.
16.
The next
witness to give evidence was
Mr
Victor Hugo on behalf of his father the 2
nd
plaintiff, Mr Peter Hugo
.
The 2
nd
plaintiff had been ill and at the time when the evidence was
presented was still recuperating at home. Hugo has personal
knowledge of the farming activities on the farm Doornvlei since he
had been in charge of the farming on behalf of the 2
nd
plaintiff since 1999. He also kept some of his own cattle on
the farm. Hugo was also personally involved in fighting
the
fire on Doornvlei from 6 to 8 September 2009.
17.
Hugo, who
is a mine surveyor by profession, had used an industrial GPS to
measure the areas burnt on the farm as well as the fences
burnt.
The total area burnt amounted to 520 hectares which he conceded,
based on the experts reports, would amount to a total
affected area
of 610 hectares. The fences burnt were jackal proof, measured
at 4764.2 meters and inside fences of 10 wires,
measured to be
8777.07 meters. The claim for the burnt fences was formulated
as mentioned herein before and totals an amount
of R466 445.55.
18.
The 2
nd
plaintiff’s production loss claim is formulated in accordance
with the formula used by the plaintiffs as described herein
above.
Hugo however testified that the average weaning weight at which the
2
nd
plaintiff sold his calves was 225 kg and that he, before the fire,
also achieved an 80% calving rate. The price per kilogram
was
determined by the experts for the plaintiffs at an average over the 3
years withdrawal period as R17,67. The 2
nd
plaintiff’s total loss of production over 3 years is calculated
as R554 617.99. Hugo testified that the 2
nd
plaintiff would be amendable, should the court so decide, to accept a
production claim based on the formula of Prof Dube.
19.
As far as
general damages are concerned Hugo testified that two vehicles
(bakkies) were used over 48 hours in fighting the fire
on Doornvlei –
each carrying one firefighter. The vehicles used 70 litres of
diesel per day, which at that stage cost
R10,00 per litre. The
firefighters used 50 litres of petrol over the two days, which Hugo
testified also cost about R10,00
per litre. Driving the
vehicles over the rough terrain caused six flat tyres which Hugo had
repaired at R45,00 per tyre.
Two additional labourers had to be
employed over two days to assist with the firefighting and were paid
at a rate of R15.00 per
hour over 48 hours at a total cost of
R1440,00. The two vehicles used required repairs afterwards,
additional to normal maintenance
and to the tune of about R5000,00.
The total cost incurred in fighting the fire thus amount to R10.010,
00, which was rounded
of to R10.000.00.
20.
Hugo
testified that it was quite difficult to calculate the number of
trees lost in the fire. Doornvlei has wild olive, karee,
witgat
as well as camelthorn trees. He was guided by the experts in
claiming for 101 trees at R5000, 00 per tree (although
he estimated
the trees lost in the fire to be considerably more). The same
applies to the claim for long term loss of grazing.
The total
general damages claim for the 2
nd
plaintiff amounts to R1162 053.3 - bringing the total claim to
R2 183 115, 85.
21.
Botha
Markram is the 7
th
plaintiff in this matter and leases the farm Kolbe from PPC
.
According to the lease agreement with PPC the lessee is responsible
for any structural damage to the property. PPC
as owners of the
property had also ceded their right to claim damages from the
defendant to Markram.
22.
The farm
Kolbe measures 1561.9004 hectares in extent. Markram testified
that before he could help fight the fire he first
chased his cattle
from where they were grazing in one camp to a kraal close to the
farmhouse. At that stage he had 120 cattle
of which 3 were
bulls. He fought the fire and kept observation for some 24
hours during which he used his vehicle with a
firefigther and one
labourer.
23.
Markram
testified that he measured the burnt area of the farm with measuring
instruments used in conducting field surveys –
a hundred meter
length of rope marked in 1 meter lengths which he then measured
between metal poles. Contours could not be
measured in this
way, so curved areas were excluded, but small areas in between the
measuring poles which had not burnt were included
to cancel out those
areas which could not be measured. With this method of
calculation of the burnt area he reached a figure
of 375 hectares
burnt area. The affected area of 931 hectares is based on the
camps which could not be used after the fire
as a result of the
extent of the burnt areas within these camps.
24.
In this
respect Markram stated that he had initially continued farming with
all his cattle on the remaining camps but by December
2009 he had to
start moving some of the cattle to his own farm about 30 kilometres
from Kolbe. This in turn caused overgrazing
on his farm and he
had to sell 12 cattle. After the second rain season following
the fire some cattle were moved back to
Kolbe but according to
Markram the climax grasses had not yet developed properly.
25.
Markram
also measured the burnt fences on Kolbe by multiplying the distance
between the metal droppers. In this respect he
testified that
it was not feasible to fix new fence to the fire damaged fence since
the damaged fence was not pliable and that
he in fact required larger
lengths of fence than what he had measured. He was however
willing to claim only for the burnt
extent of the fences. Fence
proof burnt was 2150 meters and inside fences of 6 wires totalled
1500 meters. The price
and formula used to calculate this claim
was obtained from the experts and the total fence claim amounts to
R131 659,79.
26.
Markram’s
production claim, based on an average calving rate of 74%, weaning
weight of 224 kg, at a price of R17,67 for 3
years, amounts to
R779 068, 80. He also claims in the alternative according
to Prof Dube’s formula, the amount
of R2 967 562.50.
27.
Under
general damages Markram claims for transport costs of the cattle to
his own farm. He stated that the used his own trailer
which
could accommodate 5 or 6 cows depending on their size and that he
made about 15 round trips to his farm (60 km) at R8.00
per kilometre
in his estimation – totalling R7 200.00. He incurred
costs in fighting the fire in that he drove
his vehicle over about
120 kilometres (to and from his own farm and in fighting the fire) at
R10.00 per liter petrol. He
had to replace two tyres at R700,
00 each. After the fire he had to have the radiator of his
vehicle repaired and cleaned
at R500.00. He had to pay his
labourer an additional amount of R120, 00. The firefighters
pipes had to be replaced
at an amount of R900, 00. The total of
the claim relating to firefighting costs is thus R3 702.00.
28.
He also
estimated the trees lost in the fire at 96 based on the hectares
burnt and was advised by the experts to claim R5000.00
per tree
totalling R480 000.00. The long term grazing loss
calculated over 7 years is likewise a claim on the advice
of the
experts and which amounts to R908 913.70 The general
damages claim total R1 399 815.70 bringing the total claim
to R2 310
544 37 and should Prof Dube’s formula be applied,
R4 499 037.99.
29.
Mrs
Mietjie Steenkamp, the 10
th
plaintiff
,
testified that she and her late husband initially farmed on municipal
communal farm land until the state provided them with the
farm
Darehope 2 in 2000 as part of its emerging farmer initiative.
Her husband died during 2002 but she continued farming
on Darehope
2. At the time of the fire she had farmed with 50 cows, 30
heifers and 2 bulls.
30.
The fire
had burned three of her camps completely and two partially.
Steenkamp testified that a good deal of the fences had
burned in the
fire and although she did not measure the burnt fence she could point
it out on a map of the farm. Mr Louis
de Jager of the
Department of Agriculture’s Technical Support Services who had
been advising Steenkamp before and after the
fire on good farming
practices, had measured the extent of the burnt fences and would
testify thereto.
31.
After the
fire Steenkamp sold 50 cows and 20 heifers since the remaining
grazing land could not accommodate all her cattle.
She sold the
cattle to a farmer in Kuruman and had to pay for the transport of the
cattle, which constituted two loads at a price
of R6 600,00.
She continued farming with the remaining cattle, selling off the
calves to the neighbouring farmers to
provide an income over the
years following on the fire. She sold the calves for cash and
did not know the weights at which
she sold, although according to
Steenkamp they were generally smaller than before the fire as she
could not keep the calves on
the farm for long because of the weak
grazing veld.
32.
Steenkamp
who has a limited education relied on the evidence of the plaintiffs
experts to prove her production loss claim as well
as the claim
relating to long term loss of grazing.
33.
Mr
Christiaan Strauss, the 6
th
plaintiff
,
was in the unfortunate position of having farmed on the farm Barker
for only about a week when the fire raged through 1300 hectares
of
the 1398 hectares farm resulting in the whole farm being affected.
34.
Strauss
testified that he had during July 2009, entered into an verbal
agreement with a certain Mr Balepile, who was leasing the
farm from
the Department of Agriculture, to sub-lease the farm. Balepile
had fallen on difficult financial times and at the
time owed the
lessor some R39 000, 00 in rental payments. The agreement
with Balepile was to pay the outstanding rental,
pay the monthly
rental and provide Balepile with 8 heifers per year in exchange for
the use and occupation of the farm. Strauss
also testified that
he had the obligation to return the farm to Balepile in the same
condition as he had received it, if and when
Balepile chose to return
to the farm.
35.
Before the
fire Strauss had kept his cattle on a farm between Postmasburg and
Kuruman. During the week preceding the fire
he had already
off-loaded on Barker four truck loads of cattle. The fifth
truckload was en route to Barker and could not
enter the farm because
of the fire. All the cattle had to be taken away from Barker.
Some to the previous farm and
others to the auction lots in Kuruman.
The five truckloads were transported over 105 kilometers at R50, 00
per kilometre
which brings his claim for transport costs to
R26 250,00.
36.
Strauss
testified that he incurred costs in fighting the fire in the amount
of R7 850,00. He used his vehicles and two
firefighters.
The vehicles used 120 litres of diesel at R10, 00 per liter and the
firefighters used 20 liters of petrol at
R10, 00 per liter. He
employed four people to help fight the fire and paid them a total
amount of R850,00. One of the
vehicle’s gearbox had to be
replaced after it was damaged by driving over a rock while fighting
the fire, in the amount of
R5700,00.
37.
The fences
on Barker which burnt were measured by Strauss personally using his
vehicle and where the vehicle could not reach he
paced out the
distance – 14430 meters of fence proof and 11 815 meters
of inside wires. He repaired the fences
himself and paid R18.00
per meter for the fence proof and R11,00 per meter for the inside
fences (6 wires). A pipeline which
was laid above ground had
also burned and had to be replaced in an amount of R7 200, 00.
Strauss’ total infrastructure
claim amount to R396 905,
00.
38.
His
production claim is based on 104 calves at a weight of 250 kilogram
and a price of R17, 67 per kilogram over 3 years.
39.
Long term
loss to grazing amount to R160 797,00, which together with the
transport costs and fire fighting costs brings the general
damages
claim to R1 94 897.00. Strauss’ total claim amounts
to R1970 062.00.
40.
The 9
th
plaintiff, Mr Sarel Weideman, is the owner of the farm Dunroven
where
he farms exclusively with the Santa Gertrudes breed of cattle.
The farm is 1861.63 hectares in extent. The fire
was confined
to two camps totalling 300 hectare, which is also the extent of his
affected area. The burnt area had been calculated
at about 90
hectares, but Weideman’s evidence of the affected area accords
with the defendant’s expert, Mr Du Toit’s,
report in this
regard, and which he accepted as correct.
41.
Weideman
measured the burned fence on the farm himself by multiplying the
length of fence between the equidistant metal droppers
in the fence
and arrived at 500 meters. He accepts the price of R11, 78 per
meter advised by the plaintiffs experts and claims
for inner fence (6
wires) an amount of R5890. 00.
42.
After the
fire Weideman reduced his herd by selling 30 cows at an auction in
Kuruman and withdrew the affected camps from grazing
for 3 years.
His production claim in accordance with the experts agreement of 1
large stock unit per 10.5 hectare is based
on 28.5 cows with a
calving rate of 80%, which he stated he consistently achieved, over 3
years. Weideman claims separately
for each of the 3 years from
2010 to 2012, based on the average weight he sold his calves at and
the average price obtained for
a specific year. He presented
these figures with reference to invoices of calf sales for the
specific years. His total
loss of production claim amounts to
R2 867 60.20.
43.
Under
general damages Weideman claims for transport costs relating to the
30 cows that were sold in Kuruman, a distance of 120 kilometres
from
the farm. He used his own truck to transport the cattle in two
loads for which he claims R25.00 per kilometre.
This rate
according to Weideman, is the standard rate charged by transport
contractors in the area, and brings his transport claim
to R6000.00.
44.
Weideman
had also been involved in fighting the fire and employed two
labourers over two days at R75,00 per day. He used two
vehicles
and two fire-fighters and claims for 50 litres of diesel at R7.36 per
litre and 5 litres of petrol at R8.16 per liter
respectively.
He had to repair 3 punctured tyres at R50,00 per tyre. Two of
the tyres eventually had to be replaced
at R600, 00 per tyre.
He also claims for wear and tear of the two vehicles which each
covered 200 kilometres, at a rate of
R10.00 per kilometre. The
total claim relating to fighting the fire amounts to R6 567.60.
45.
Weideman
estimates his loss of trees at 36, a figure he arrived at after
counting the trees per hectare on certain areas of the
farm.
His claim for R5000, 00 per tree is made on the advice of the
plaintiffs experts.
46.
Weidemans’
long term loss of grazing is calculated in a different manner from
that of the previous plaintiffs. Relying
on the advice of the
plaintiffs experts, that it would take 10 years for the veld to
recover in order to bring production back
to full capacity, his
calculation is based on bringing back cattle to the affected area
gradually from the 4
th
year after the fire (the first 3 years being the total withdrawal on
which the production claim is based) at 30% capacity, the
5
th
year at 40% and so on with 10% increments annually until the 10
th
year at 90% capacity. So for instance the 4
th
years loss determined in relation to calves is as follows: 30%
of 28.5 cows at 80% calving rate + 6.8 calves which is 16
fewer that
what he would have produced had it not been for the fire. In
the 5
th
year at 40% capacity, the difference would be 13.7 calves. On
this basis the total difference in calves from year 4 to year
10
amounts to 63.9. Weideman then uses an average calf selling
weight of 240kg at an average of R20.00 price per kilogram
which
amounts to a total long terms loss of grazing claim of R306 720.00.
47.
Weideman’s
total claim amounts to R792 019.40.
48.
The 8
th
plaintiff is the executor of the estate of the deceased Mr Alwyn
Lubbe. Mr Marthinus Matthee
,
the son-in-law of the deceased, gave evidence on behalf of the 8
th
plaintiff. The deceased had been sickly for some years before
his death during January 2010, and Matthee who resides in Kathu,
had
assisted with the farming operations on Ouplaas over weekends and
during the school holidays. Matthee thus has personal
knowledge
of the farming activities of Ouplaas.
49.
In this
instance, the parties are in agreement that the burnt area on Ouplaas
measures 167.2 hectare (in accordance with the South
African Space
Agency (SANSA) measurements). Matthee was also willing to
accept the defendant’s expert Du Toit’s
calculation of
the affected area as 300 hectares.
50.
Matthee was
not present during the time that the fire raged over the area and did
not assist in fighting the fire. Since he
had no personal
knowledge of the costs incurred in fighting the fire, this portion of
the 8
th
plaintiff’s claim was abandoned.
51.
Matthee
testified that two of the camps on Ouplaas had been partially
burned. The result was that cattle had to be removed
from those
camps to other camps. In the result there was not enough
grazing for the cattle and eventually from about January
2010 some 20
to 30 cows were sold. Calves were also sold. The affected
camps were only utilized again about 3 years
after the fire.
52.
Matthee
measured the burned fences with a range finder, an instrument used to
measure distances when hunting, and which he then
compared to the
distances as measured with his vehicle. According to Matthee,
the measurements accorded. Fence proof
burned measured 2 984
meters. Half of this fence bordered a neighbours farm and was
fixed by the neighbour. The
claim for fence proof was therefore
reduced to 1492 meters at R42.30 per meter. Stock proof fence
(6 wires) was measured
at 483 m at R33.90 per meter.
53.
The 8
th
plaintiffs production claim is based on an 80% calving rate.
Matthee states in this regard that the late Lubbe was very meticulous
in the selection of his breeding cows. The old cows were
replaced with younger cows, if heifers did not calve after being
placed with a bull, he would sell the heffer after 2 years. The
result was, Matthee testifies, that the calving rate at Ouplaas
was
more in the region of 95% . Be that as it may, the production
claims for 2010, 2011 and 2012 were proven separately at
the hand of
invoices for calf sales during those years. The average weight
calves were sold at during 2010 was 194.29kg at
an average price of
R15, 68 per kg. During 2011 calves were sold at an average
weight of 205.56 kg and at an average price
of R17. 48. During
2012 calves were sold at an average weight of 215. 69 kg and at an
average price of R16.54 per kg.
These figures in relation to
the 22.8 calves lost over the 3 year period bring the total
production claim to R232 723.43.
54.
The
alternative production claim based on Proffesor Dube’s formula
totals R479 655.00.
55.
Under
general damages the 8th plaintiff claims for the loss of 41 trees at
R5000,00 each as determined by the plaintiff’s
experts.
Long term loss of grazing is calculated on the same basis as that of
the 9
th
plaintiff, Weideman – by gradually, from the fourth year after
the fire, returning cattle to the affected areas until the
veld is
fully recovered in the tenth year. The 8
th
plaintiff’s long terms loss of grazing claim thus amounts to
R217 248.30. The total claim for 8
th
plaintiff is R734 458.03 alternatively R1 186389.60 should
Dube’s formula be accepted.
56.
The 3
rd
plaintiff is the close corporation Thaba Letsele CC, represented by
its only member Mrs Huibreght Scholtz
.
The claim is in respect of the farm Darehope which is registered in
the name of the 3
rd
plaintiff. Darehope measures 2844.4 hectares in extent of which
Scholtz claims 2260 hectares burned. The claim is based
on a
total affected area of 2400 hectare.
57.
Scholtz
testified that she and her husband, Mr Allen Scholtz, measured the
burned area with GPS co-ordinates. De Jager, plaintiff’s
expert from Agricultural Technical Services (Department of
Agriculture) also assisted in measuring the burnt area. Scholtz
stated that where half a camp had burned the whole camp was taken
into consideration in determining the affected area. Scholtz
testified that when the fire started she moved all the cattle, some
230, to a kraal close to the homestead. The fire eventually
burned all the camps at Darehope with the exception of two and a half
camps. There was not enough veld left over for the
cattle and
there was also not enough water for them since the pipes leading from
dams to watering points had melted and she was
therefore forced to
move all the cattle from the farm a day or two after the fire had
been extinguished.
58.
The cattle
were transported to Scholtz’ sister’s farm in the
Griekwastad area some 120 kilometres from Darehope in seven
truckloads for which she was charged R50.00 per kilometre.
Scholtz testified that the decision was made afterwards that her
sister buys the cattle since there was not enough grazing left at
Darehope. The purchase price for the cattle was paid in
monthly
instalments sufficient to pay the monthly bond instalments on the
farm. In any event, the veld at Darehope was left
to recover
until 2013 when some 160 cattle were purchased to start restocking
the farm.
59.
The fire
had caused substantial damage to the infrastructure on Darehope.
Fences were not only burned but Scholtz and her
husband testified
that military vehicles had also flattened some of the fences in their
fire fighting efforts. Scholtz stated
that she and her husband
had, as with the burned area, measured the burned fences with the
help of a GPS. De Jager also assisted.
Jackalproof fence
was measured at 19 800 m, inside fence (7 wires) at 20 390
meters, game fence at 4 400 meters.
The inside fence (13
wires) claimed for was dealt with in the evidence of Scholtz’
husband, who gave the length measured
as 10 302 meters.
60.
The plastic
pipeline damaged in the fire are two differend sizes – 50 mm at
6 bar and 40 mm at 3 bar. The pipeline was
measured in the same
way as the fences and Mr Scholtz testified that the damaged 50mm pipe
measured 1710 meters and the 40mm pipe
was also 1710 meters.
The prices of R18.08 per meter and R6.95 per meter respectively were
obtained from the local Co-Operative.
Mr Scholtz testified that
the price and formula for the fence claim was determined by the
plaintiffs’ experts, which he reckoned
was reasonable.
61.
The 3
rd
plaintiff also claims for two zinc dams with cement bases which were
damaged in the fire. Scholtz tesitified that the cement
bases
had cracked due to the heat of the fire and could not hold water
anymore. To replace these dams R40 416.00 is
claimed.
62.
A 5000
litre water tank for domestic use had also melted in the fire.
This tank had been replaced at a cost of R3 761,
00.
Scholtz also testified that a few wood corrals, where the vaccination
of the cattle was done, also burned down and that
the replacement
value of the wooden poles used to construct the corrals was R15000,
00 – which the 3
rd
plaintiff also claims. The total infrastructure claim amounts
to R2 075 641.00.
63.
The
production claim of the 3
rd
plaintiff is calculated taken into consideration a calving rate of
80% and a selling weight of 250kg. Scholtz testified that
she
had helped her now deceased father on the farm since she left school
in 1988. The calving rate of 80% is an average of
what was
achieved over the years. The calves were marketed at 250 kg and
the price obtained averaged R17.67 per kilo.
The production
claim over 3 years amounts to R2 423 314.28.
64.
Under the
general damages claim I have already dealt with the transport costs.
There is also a claim for 43 Springbok which
Scholtz states she
bought during the winter of 2008 at R750, 00 per animal. The
buck which had been on the farm before the
fire were nowhere to be
found after the fire, with the exception of one burnt carcass.
Scholtz can only assume that the springbok
had either fled the farm
due to the fire or had died in the fire.
65.
As far as trees lost in the fire are concerned, Scholtz testified
that the farm had wild olive, karee and camelthorn trees and
that the
plaintiffs’ experts had determined that 271 trees had been lost
at R5000. 00 each.
66.
With regard
to the long term loss of grazing claim Scholtz testified that the
grazing on Darehope had not returned to normal yet
(she testified
during March 2015) since the grasses seem to have recovered but not
the shrubs and bushveld which the cattle consume
over the winter
months. The long term grazing loss calculated from after the 3
year withdrawal period until the 10
th
year after the fire amount to R2 826 316. 50. The 3
rd
plaintiff’s total claim amounts to R8 754 521.78.
67.
Mr Jacob
Steyn represents the 4
th
plaintiff, the Steyn Farming Trust, in his capacity as a trustee
.
He is also the father-in-law of Coetzee who represents the 5
th
plaintiff, De Brak Farming CC. De Brak Farming CC sold the farm
Owendale portion 5 to Scarlet Sun 25 (Pty) Ltd on 1 December
2010.
Steyn who is the sole director of Scarlet Sun 25 (Pty) Ltd confirmed
that he, on behalf of the company verbally ceded
its rights to claim
damages on 1 December 2010 to De Brak Farming CC. Confirmation
of the cession was later reduced to writing
and forms part of the
papers before court.
68.
Owendale
portion 4 which belongs to the Steyn Farming Trust is adjacent to
Owendale portion 5. Steyn testified that he on
behalf of the
Trust, and Coetzee on behalf of De Brak Farming CC agreed that the
Trust would repair the boundary fences between
the two farms and
claim damages in respect thereof. These fences together with
the fences that burnt on Owendale portion
4 were measured by a land
surveyor, a certain Mr S Burger. Burger who was to testify to
this effect at the last minute refused
to attend court, according to
Steyn. Steyn testified that he then himself measured the fences
during a break in the court
proceedings and arrived at measurements
somewhat longer than that of Burger, most probably due to the ridges
and gullies on the
farm. He stated however that he was prepared
to accept Burger’s measurements as reflected in the charts
before court.
The prices of fences were determined by the
experts, De Jager and Swanepoel.
69.
Owendale
portion 4 in extent measures 1591 hectare of which 1200 hectare was
burned in the fire. Only two camps did not burn.
Steyn
calculated the affected area as the total area less the two camps,
which brings the affected area to 1297 hectare.
70.
Steyn
testified that the calving rate achieved on the farm was 80% and that
the average weight at which calves were sold was 257.17kg.
The
auction invoices from which this weight was determined are exhibits
before court. The price per kilogram was likewise
determined to
average R14, 37.
71.
According
to Steyn the Trust had farmed with 159 cattle on the farm.
After the fire the cattle grazed on the two camps which
did not burn
for about a month whereafter there was no grazing left. The
cattle were then transported to a relative’s
farm some 80
kilometers away. Steyn took care of the transportation himself
and testified to 4 loads of cattle at R50, 00
per kilometre.
According to Steyn the transport costs were in line with what
contractors charged at the time.
72.
Three years
after the fire the cattle were brought back to the farm bit by bit.
At the time of his evidence Steyn stated that
only 40 adult cattle
had been brought back.
73.
Pipes on
the farm had also been damaged in the fire. It was replaced
with spare pipe which had been kept in storage on the
farm.
Steyn measured the lengths of the burned pipes himself at 100 meters
for 50 mm 6 bar pipe and 800 m for 40 mm 3 bar
pipe. The prices
he obtained from the local Co-Operative, as R18, 08 per meter and R6,
95 per meter respectively.
74.
The 4
th
plaintiff also claims for 7 cows which died during the fire, at
R8000, 00 per cow, which according to Steyn was the going rate
at the
time. There is also a claim for 151 trees lost in the fire at
R5000, 00 per tree. Steyn states that the number
of trees lost
was determined according to a formula used by the experts. He
is of the opinion however that the actual number
of trees lost should
be much higher. The price per tree was also determined by the
experts. The 4
th
plaintiff also has a long terms loss of grazing claim calculated on
the same basis as the other plaintiffs
75.
An unusual
claim is that for the value or a Nissan 1400 LDV at R25 000,
00. This vehicle was, according to Steyn, bought
at that price
just a month before the fire to be utilized by a young farm worker.
This vehicle was written off during the
fire when a truck collided
with it in the smoke engulfed surroundings. The young
farmworker unfortunately lost his life in
the accident. The 4
th
plaintiff also claims for the tow truck costs relating to the wreck
at R2 211, 60.
76.
The 4
th
plaintiff’s infrastructure claim amounts to R73 5973. 20, the
production loss claim is for R1 090 921.31 and the general
damages
claim is for R2 126 953. 13. The total claim amounts
to R3 953 847. 64.
77.
Mr
Freddie Markram is a trustee of the Freddie Markram Family trust, the
12
th
plaintiff
,
regarding the farm Fhoresby, which is an asset of the Trust.
This claim by the 12
th
plaintiff is rather controversial in that whereas the fire had raged
over the rest of the plaintiffs’ farms from 6 to 8 September
2009, the fire affecting Fhorsby took place on 13 September 2009.
I will revert to this aspect later.
78.
Fhorsby in
extent measures 832.233 hectares. Markram testified that 152.67
hectares burned in the fire. He personally
measured the
circumference of the burnt area with a measuring wheel at 4386 meters
and by using a mathematical formula arrived
at the burnt extent.
The affected area he calculated at 298 hectares, being the total area
of the various camps affected
in the fire, with the exception of one
camp of which only a small area burned. Markram however does
not rely on the affected
area to calculate the 12
th
plaintiff’s production claim, but rather the burnt area and in
accordance with the Dube formula.
79.
The Dube
formula which has been adopted by some of the plaintiffs as the basis
for an alternative production loss claim is contained
in Prof Dube’s
expert report and is expressed as follows:
Burnt
area x 2.5 ton production per hectare x R850. 00 per ton x 0.2 (20%
utilisation level)
80.
The
plaintiffs have adjusted this formula to reflect a 45% utilisation
level over a 3 year withdrawal period. Applying the
adjusted
Dube formula to the 12
th
plaintiffs claim for production loss, the claim is formulated as
follows:
152.67
hectares @2.5 ton feed per hectare@ R850.00 per ton x 45% grazing
utilisation x 3 years, totalling R437 972.06.
81.
Markram
testified that fences burnt during the fire, the measurements of
which he had taken personally also by means of the measuring
wheel.
The fence proof fences measured 298 meters and he accepted the
plaintiffs expert, Swanepoel’s price of R42. 30 per
meter.
Cattle proof fence measured 3432 meters, which had to be replaced
completely. He likewise accepted the plaintiffs
expert’s
pricing of R33, 90 per meter. The total infrastructure claim is
thus R12 8950, 20.
82.
Under
general damages the 12
th
plaintiff claims for the transport costs of 2 loads of cattle over 60
kilometres at R30, 00 per kilometre. Markram states
that the
Trust had to sell 30 cows at the Kuruman auction since there was not
enough grazing left on the farm after the fire.
Fhoresby is
situated about 30 kilometers from Kuruman. The R30. 00 per
kilometre was the rate charged at the time.
Transport costs
thus amount to R3600. 00.
83.
Markram
testified that when the fire entered the 12
th
plaintiffs farm on 13 September he had employed six labourers to help
fight the fire and keep watch until the fire was completely
extinguished at R75, 00 per labourer (R450, 00). Food and
overtime pay for the labourers amounted to R600, 00. Two
vehicles and two firefighters were used to extinguish the fire.
The diesel for the vehicles he calculated at R368. 00 (R7.26
per
liter). The firefighters used 10 liters of petrol for which the
claim is also R7. 36 per litre. The tyre of one
of the vehicles
was irreparably damaged when it went over a tree trunk and had to be
replaced at R1500. 00. Two tyres got
punctured and had to be
fixed at R50. 00 each. The total costs claimed for fighting the
fire is thus R3 091.60.
84.
Markram
states that Fhoresby had camelthorn trees which burned in the fire.
21 of these trees had died in the fire for which
the 12
th
plaintiff claims R5000. 00 per tree as advised by the plaintiffs
experts.
85.
The 12
th
plaintiff abandoned its original claim for long terms loss of
grazing. The general damages claim thus amounts to R111 691.
60 and the total claim for the 12
th
plaintiff is R678613.98.
86.
Mr
Alexander Abrahams, the 11
th
plaintiff leases the farm Carterblock 458 (also known as Warrendale)
from the Department of
Agriculture and this had also been the position at the time of the
fire. In terms of a written agreement
of lease entered into
between Abrahams and the Department of Agriculture for the period 1
August 2011 to 31 July 2014, which agreement
forms part of the
record:
The
Lessee shall keep all buildings and improvements (movable and
immovable) on the property in a good state of repair, fair wear
and
tear excepted … (clause 10);
No
claim for compensation in respect of care for and maintenance of such
improvements or of services or any materials used in maintaining
such
improvements shall be paid by the lessor. (clause 11);
The
lessee shall maintain all boundary and camp fencing in a good state
of repair and shall hand them over in the same condition
as at the
commencement of this agreement... (clause 20); and
The
Lessee shall be liable for any damages on the property or elsewhere
caused by fire, which occurs on the property and shall be
liable to
compensate the Lessor for such damages and indemnifies the Lessor
against claims for damages resulting from such fire
. . . . (clause
39).
87.
Abrahams testified that the terms of the written lease agreement
existing at the time of the fire were exactly the same.
He had
also after the expiry of the agreement mentioned above, on 31 July
2014 entered into a similar lease agreement for a further
3 years.
Abrahams states that the Department of Agriculture had not assisted
him in repairing the damaged infrastructure
after the fire. He
had also not instituted any claims against the Department for damages
suffered as a result of the fire.
88.
The extent
of the farm is 1724 hectares. At least three of the camps on
the farm had burned more than 10% according to Abrahams.
Abrahams testified that he had to move his cattle, of which he had
about 60 cows, from the burned camps to unaffected camps in
hilly
areas on the farm. The grazing in those areas could not sustain
his herd and he eventually, over a period of 4 months
after the fire
had to sell 47 cattle comprising of cows and heifers – animals
he would not have sold had the fire not occurred.
89.
Abrahams
testified that be brought some of his cattle back to the burned areas
after about seven months but that the veld had not
recovered fully
yet, which was the situation even after 3 years. He only
started buying replacement heifers during 2014 –
some 20
heifers, and another 5 heifers during 2016.
90.
The
original loss of production claim relating to Warrendale was based on
the affected area and on concomitant production losses.
This
claim was amended during the course of Abrahams’ testimony to a
loss of production claim based on the 47 cows which
Abrahams was
forced to sell – apparently due to the fact that Abrahams did
not know the extent of the area burnt or affected.
91.
Be that as
it may, Abrahams stated that his pre-fire calving rate was 80% and
that he usually sold his calves when they were between
220 kg and 250
kg. He also proferred an average price per kilogram of R17.
67. His loss of production claim over 3
years a selling weight
of 250kg, amounts to R498 294. 00.
92.
Abrahams
also testified to fences which have burned in the fire – the
measurements of which he had personally undertaken by
using a
measuring wheel. In total he measured burnt fence proof at
4 500 meters and burned inside wires (6 wires) at
1393 meters.
The pricing of the fences was calculated according to the formula
suggested by the plaintiffs’ experts.
Abrahams’
total infrastructure claim amounts to R228 161. 00.
93.
Abrahams
also claims for 61 trees lost in the fire. He states that he
counted the trees personally – and was advised
by the experts
to claim R5000. 00 per tree thus totalling R305 000. 00.
Long
terms loss of grazing for 7 years after the 3 year loss of production
claim was likewise advised by the experts and is based
on the 47 cows
sold after the fire. This claim amounts to R5 81 343. 00.
94.
Abraham
testified that he did not incur any cost in fighting the fire or the
transporting of animals after the fire.
The
total claim of Abrahams amount to R1 612 798. 00.
95.
The
first plaintiff, Mr Gert Johannes Vermeulen has three farms which
were affected by the fire Gladwyn, Lemoenkloof and Doornvlei
(Erfdeel).
96.
Vermeulen
testified that he had initially calculated the burnt areas on the
farms based on maps obtained from the Department of
Agriculture.
He later commissioned the services of a land surveyor, Mr Liebenberg,
to measure the farms and draw up a new
map. On the basis of the
new map handed up as exhibit “AA”, Vermeulen transposed
the burnt areas from the old
maps onto AA and recalculated the burnt
areas. The result is that the burnt area of Gladwyn previously
calculated at 1500
hectare is now recalculated to be 1501 hectare,
that of Lemoenkloof, previously 1673 hectare is now 1482 hectare and
that of Doornvlei,
previously 702 hectare is now 550 hectare.
The total burned area is therefore calculated at 3533 hectares.
97.
As far as
the affected areas are concerned, Vermeulen testified that the
plaintiffs’ experts had advised that where more than
10% of a
camp had burned, the whole camp should be withdrawn. In
applying this advice he determined that 1605 hectare was
affected at
Gladwyn, 1813 hectare at Lemoenkloof and 757 hectare at Doornvlei.
The total affected area is therefore 4175
hectares.
98.
Vermeulen
measured the lengths of the fences damaged on the farms with
reference to the measurements on “
AA”
.
On Gladwyn the fence proof burnt totalled 4765 meters, the inside
fences (6 wires) totalled 16 134 meters and the game
fence 9 632
meters. On Lemoenkloof the fence proof burnt totalled 4 326
meters, the inside fences (6 wires) totalled
17999 meters, and the
game fence 6076 meters. On Doornvlei the fence proof burnt
totalled 2713 meters, the inside fences
(6 wires) 1582 meters and the
game fence 7665 meters.
99.
The prices
of the various types of fencing were determined by Agri Assessors the
(the expert Swanepoel’s business) at R42,
30 per meter for
fence proof, R33, 90 per meter for inside fences and R61,77 per meter
for game fence. The total amount claimed
for the fences burnt
is R3 153 797.00
100.
Vermeulen
testified that he had repaired and replaced the inner fences in the
meantime as well as the game fencing. He is
the only farmer in
the area who farms extensively with game (kudu) and as a result had
to repair/replace the game fencing bordering
other farms also
affected by the fire, out of his own pocket. The fence proof or
jackal proof fencing has also been repaired
and replaced at points
where it was most damaged.
101.
On a rocky
area at Lemoenkloof, pipes which were laid above ground against the
fences, also burned. The length hereof was
measured at 1400
meters for 40 mm, 3 bar pipes at R6, 99 per meter, thus totalling
R9730, 00.
The
total claim for infrastructure is therefore R3 163 527, 90.
102.
Vermeulen
testified that he had farmed with 584 cattle on the three affected
farms. After the fire there was not enough grazing
for all the
cattle and he had to remove 404 head of cattle from the farms.
He transported the cattle with his own truck over
58 kilometres to
another of his farms, Kranskloof, where he kept them temporarily in a
game camp. Under general damages he
claims for 12 loads of
cattle over 58 kilometres at R25, 00 per kilometre. Vermeulen
stated that the transportation costs
claimed were what contractors,
including himself, charged at the relevant time. The total for
transportation costs is thus
R17 400, 00.
103.
Vermeulen
was also instrumental in fighting the fire over two days – not
only on his own farms but assisting with the neighbouring
farms as
well. He made use of a Buffel firetruck and two bakkies.
These vehicles all had firefighters on them which
consumed fuel but
Vermeulen testified that he could not keep track of the fuel
consumption of the vehicles and firefighters in
all of the
confusion. He therefore bases his claims for the use of these
vehicles in fighting the fire on the basis of vehicle
rental prices
which he himself would charge when renting out vehicles to the mines
in the area – which is apparently a sideline
of his. For
the Buffel he claims R600, 00 per day and for the bakkies each R700,
00 per day.
104.
Vermeulen
also claims for food and wages of 15 labourers employed in fighting
the fire. The claim for labourers is calculated
at R15, 00 per
hour for a period of 48 hours, totalling R10 800, 00.
According to Vermeulen some of these labourers
were in fact
contractors, including a mechanic, who earned much more than what he
claims for, but for practical purposes he only
claims R15.00 per
hour. As far as the claim for the labourers food, I disallowed
evidence hereon, since it boiled down to
hearsay in that Vermeulen’s
wife bought and provided the food and was not going to be called as a
witness.
105.
Vermeulen
also testified as to trees lost in the fire. In this respect
his evidence was that he had personally traversed the
various camps
on the three farms with a quad bike and had counted 10 301 trees
completely burned down on Lemoenkloof, 626
on Gladwyn and 42 on
Doornvlei. In total 1969 trees (wild olive, karee and
bessiebos) were lost on the farms. He claims
R5000, 00 per tree
as advised by the experts, thus totalling R9 845 000, 00.
106.
Vermeulen
also claims for long term loss of grazing, calculated for 7 years
after the initial 3 years recommended by the plaintiffs’
experts for withdrawal from the affected areas. This claim is
premised on his production loss claim (which I deal with hereafter)
and is calculated on the withdrawal of 398 cows with an 80% calving
rate sold at 250 kg at an average price of R16, 93 per kilogram.
The claim for long term grazing loss amounts to R4 710 772,
50. The total claim for general damages (exclusive
of food for
labourers) thus amounts to R14 586 572, 50.
107.
Unlike the
other plaintiffs Vermeulen does not sell his weaned calves to auction
lots or feeding lots. He has his own feeding
lots on one of his
farms. His farming operation in short work as follows. He
takes his own weaned calves as well as
other weaned calves which he
buys in from other farmers and first put them in separate camps for
about 5 months where they gain
an average of 30 kilograms in weight.
Thereafter the animals are placed in the feeding lots for about 75
days where they
are fed full time and gain an average of about 2.5
kilograms per day until they average about 513 kilograms per animal.
They
are then taken to abattoirs where they are slaughtered and
distributed to meat markets and butcheries. Vermeulen then gets
paid the slaughtered prices by the retailers.
108.
The upshot
of this method of farming is that Vermeulen could not provide precise
weaning weights of his calves or prices obtained
for calves sold at
that stage as the other plaintiffs did. In order to prove a
weaning weight of 250 kg he then proceeded
to make a reverse
calculation taking into account the average weight at which his
cattle were slaughtered and the average weight
gains in the separate
camps and feeding lots, he came to an average weaning weight for his
own calves of more than 250kg.
He also testified that his
calving rate fluctuated between 70% and 94% and that he used an
average of 80%. As far as prices
per kilogram obtained for
weaned calves were concerned and since he did not sell weaned calves,
he used the average prices obtained
by the plaintiffs Hugo, B
Markram, Lubbe and Freddie Markram NO - deducted a small amount from
their average prices obtained since
his weaners were generally
heavier in weight, which would command a lower price - in order to
present a claim according to the
formula used by the plaintiffs.
109.
Vermeulen’s
main production claim – a somewhat artificial claim, is based
on an affected area of 4175 hectares which
at 10.5 ha per large stock
unit equals 398 cows with an 80% calving rate, therefore totalling
318 calves.
His
claim for 2010 is made up of the 318 calves at 250kg and a selling
price of R15,60 per kilogram which equals R1 240 200.00.
During
2011 he uses an average selling price of R19, 20 p/kg and obtains a
figure of R1 526 400.00.
During
2012 the average selling price he uses is R16, 00 p/kg and calculates
a loss of R1 272 000.00.
Vermeulens
total main claim for loss of production thus amounts to
R4 038 600,00.
110.
As a first
alternative production claim Vermeulen applies Prof Dubes formula to
his burnt area of 3533 hectares and obtains an amount
of
R9 196 065,00.
111.
Vermeulen’s
second alternative claim is related more specifically to his actual
experience after the fire, though still based
on the average prices
per kilogram obtained by the other plaintiffs mentioned above.
As
mentioned in paragraph 102 above Vermeulen was compelled to move 404
head of cattle to his farm Kranskloof after the fire as
a temporary
measure.
Kranskloof
could not accommodate all the cattle. Vermeulen was forced to
sell 216 head of cattle. He retained 168 head
of cattle on
Kranskloof and the remaining 20 cattle (heifers) were divided into
his other camps.
112.
The 168 head of cattle retained at Kranskloof were kept in a game
camp and when the grazing there was exhausted Vermeulen
rented the
farm Taaibos some 92 kilometres away from Kranskloof for 2½
years where he then moved the cattle to in 6 loads.
In this
second alternative production loss claim Vermeulen claims damages in
the total amount of R3 044 300, 00 calculated
as follows:
-Loss
of production in respect of the 216 cows he had to sell, at a 80%
calving rate, at 250 kg per calf at the average prices as
explained
above which relates to amount of R674 700.00 for 2010,
R830 400.00 for 2011 and R692 000.00 for 2012.
He
claims for transportation of the 168 cows to Taaibos at R25 per
kilometre over 92 kilometres and 6 loads at R13 800.00.
He
also claims for the cost of grazing at Kranskloof for the 168 cattle
for 3 months at R100.00 per month per head equalling R50 400.00.
The rental at Taaibos amounted to R120.00 per hectare per year for
2060 hectares for 2½ years totalling R618 000.00.
And finally the costs of two additional labourers at Taaibos
calculated at R2500.00 per month per labourer for 33 months equalling
R165 000.00.
113.
Vermeulen’s claim totals R21 789 400.00 if the
production loss claim is based on the plaintiffs formula,
R26 946 865. 40 if the production loss is based on the Dube
formula and R20 795 100.40 based on the second
alternative
claim.
114.
I now turn to the expert witnesses. The plaintiffs called four
experts, Prof HA Snyman, Mr L De Jager, Mr J Swanepoel
and Mr A
Emery. The defendant called Prof Dube, the counterpart to Prof
Snyman.
115.
Prof Snyman is an expert in grazing science, attached to the
University of the Free State where he specialises in research
on the
sustainable utilization of the grazing ecosystem in the more arid
areas. He has also done extensive research on the
impact of
fire on plants and soil. His evidence relates more specifically
to the main bone of contention between the parties
– the period
of withdrawal from grazing after a fire.
116.
Prof Snyman’s research and trials have been conducted in the
central grassland area of Bloemfontein and Zastron
which averages
rainfall of 530 mm to 600 mm per year. His research has shown
that in these areas animals should be withdrawn
for two growing
seasons after a fire to ensure sustainable production. He is
not aware of any scientifically based information
regarding the
necessary withdrawal period in the Danielskuil area where the fire
raged, but gave his opinion based on extrapolations
from
inter
alia
his
central grasslands scientific data.
117.
With his research in the central grassland area as a guideline, Prof
Snyman is of the opinion that a withdrawal period
of at least three
full growing seasons applies to the veld
in
casu
–
depending on the rainfall which follows the fire. Should the
rainfall be low and erratic in the seasons following
the fire a
longer withdrawal period may apply.
118.
Prof Snyman explains that in contradiction to the grasslands and
higher rainfall experienced in his research area, the
Danielskuil
area experiences much lower rainfall per year and the composition of
the veld can also be distinguished. The
grass land has a
shorter withdrawal period because of the quicker recovery of the
grasses and rainfall is not a limiting factor
which influences plant
production. The sweet veld (categorised as such because of an
average annual rainfall of less than
500 mm) is more fire sensitive
and requires a longer resting period.
119.
The plant composition of the Danielskuil area specifically is made up
of grasses, bushes, shrubs and trees, each with
its own ecological
requirements and recovery abilities. The bushes, shrubs and
trees would need a longer recovery period
than the grasses and
although the grasses contribute towards 60% of the intake of cattle
and the bushes 20%, with the remaining
20% made up of shrubs and
trees – it is necessary for the recovery of the whole ecosystem
to allow a period of withdrawal
of at least three growing seasons.
Three growing seasons according to Prof Snyman means three years.
120.
Should the veld be grazed too soon after a fire the recovery period
will be prolonged.
121.
Based on his research in the Free State, burnt grass veld generates
only half of unburnt veld’s production within
the first year
after a fire and it takes two full growing seasons to make up
production after a fire. According to Prof Snyman
the grass
production in the Danielskuil area would be lower as a result of the
lower rainfall but the added utilization of bushes,
shrubs and trees
would increase the total utilization value up to 50% as opposed to
factoring in only grass production.
122.
Prof Snyman is also of the opinion that if more than 10% of a camp
has burnt the whole camp should be withdrawn from
grazing since the
animals tend to concentrate on the tasty new growth on the burnt area
which leads to over grazing and veld degeneration.
123.
Prof Snyman visited the affected farms once, with the inspection
in
loco
,
and is of the opinion that it would be senseless and unscientific to
determine the impact the fire had on the vegetation 4 years
and 3
months after the fact when, as in the present case, there is no
scientific record of what the veld looked like before the
fire.
124.
I now turn to the evidence of the dependant’s expert in this
regard. Prof Dube is a Professor of ecology
– all
ecologies inclusive of rangeland ecology and ecological science.
He compiled an expert report jointly with Dr
Mashimbye who was not
called upon to give evidence. Prof Dube however confirmed the
correctness of the report.
125.
Prof Dube and Prof Snyman are well acquainted – they attend the
same conferences, sit on advisory boards together,
recognize and
acknowledge each others research but as these things go, have
divergent opinions on various aspects of this matter.
126.
Whereas Prof Snyman was loathe to comment on the state of degradation
of the farms based on mere sight during the inspection
in
loco
and without comparable data pre and post the fire or reliable input
on climatic and other external factors after the fire, Prof
Dube was
of the opinion that degradation was obvious and could clearly be seen
on parts of the farms he visited based on the poor
quality of the
soil and the presence of invasive plants. Such degradation
according to Prof Dube was a result of poor farm
management over a
long period of time as well as climate. The farm of the 2
nd
plaintiff was singled out as being particularly degraded due to sheep
farming operations of the previous owners. The farm
of the 3
rd
plaintiff which stood ungrazed for years after the fire was at the
opposite/positive side of the scale. The issue of degeneration
became relevant in the utilisation calculation of Prof Dube which I
deal with later herein.
127.
Prof Dube is of the view that fire is a handy tool in the management
of grazeland even in the semi-arid sweetveld areas
as it encourages
new and healthy growth of the grass layer. Prof Snyman on the
other hand does not deem fire necessary in
the management of
grazeland in this area with its low rainfall and where the quantity
of the vegetation rather than the quality
can be problematic.
128.
With regard to the withdrawal period after the fire Prof Dube is of
the view that one growing season in this specific
instance would
establish sufficient growth for the animals to be returned to
grazing. The explanation is as follows.
The growing
season would normally be from September/October to February/March –
a period of about 175 days. Since the
fire took place early
September, the growth points of the grasses which occur just below
the surface will be largely unaffected
and regrow normally until the
grasses have reached peak biomass, formed seeds and start going
dormant. Once this cycle has
been completed, there is no reason
why the cattle could not be returned to grazing.
129.
Prof Dube’s evidence in this regard differs from the view he
held during the meeting of the experts under chairmanship
of Adv Van
Niekerk, where he was of the opinion that two growing seasons would
be sufficient for recovery of the veld.
130.
Prof Dube is also of the opinion that where up to 30% of a farm has
burned, the remaining extent can be reworked and
adapted for purposes
of grazing and that where a small portion of a camp has burned, the
burned portion can be excluded from grazing
by
inter
alia
fencing off the area, placing branches over the burned area or
herding animals, which would avoid withdrawing an entire camp from
grazing.
131.
With regard to the value of trees in the grazing system, Prof Dube is
of the opinion that cattle spend 15% of their time
browsing on
trees. The plaintiffs experts on the other hand estimate the
intake of trees (leaves, fruit, berries) to be about
15% of the total
intake of cattle. The difference in these views relating to the
amount of actual intake is unclear to me.
132.
But be that as it may, Prof Dube is further of the opinion that the
leaves of evergreen trees and with particular reference
to the wild
olive (one of the species claimed by the plaintiffs) contain high
levels of tannin which not only make the leaves unpalatable
(sharp,
bitter tasting) but also cause bloating in the animals. These
factors reduce the utilization of the leaves by the
animals since
animals will not frequent vegetation which has a negative effect on
them. The tannins in the wild olive leaves
have the further
disadvantage in that, although the leaves are high in protein, the
tannin binds with the protein in the guts of
the cattle causing the
protein to become indigestible and the leaves to be of little
nutritional value to the animals.
133.
At this stage I pause to mention that the grazing/nutritional value
of the wild olive tree is not mentioned at all in
Prof Dube’s
report. This issue first came to light during cross-examination
of Mr Swanepoel for the plaintiffs who
based his calculation of the
value of trees on a comparison with lucerne which apparently does not
have very high levels of tannin.
A large amount of time was
spent on this subject during cross-examination of Mr Swanepoel but
not canvassed at all with Prof Snyman,
the plaintiffs grazing expert.
134.
What was commonly referred to as Prof Dube’s formula for loss
of production during the trial is in fact a standard
formula devised
by a Prof Nico Smit who on all accounts is an expert in this
particular field. Prof Snyman in his report
also recognizes
this formula as long as the correct input data is used.
135.
As already mentioned herein above the formula is the following:
Burnt
area x production per hectare x value of a ton of grass x percentage
utilization.
In
his report Prof Dube explains the values he attach to the formula as
follows:
“
As already
alluded to in the introduction and under the discussion of vegetation
survey the estimation of loss of available forage
will be done for
the period October 2009 to February 2010, approximately 175 days of
feed requirement. This will be based
on the estimated value of
natural grass and not high value Lucerne or Eragrostis hay.
Utilizable material is about 30% of
what is produced and by September
the end of the dry season this can be down to 15%. A 20%
utilization level will be used
on the standing DM estimate for
September. Where less that 30% of the farm is burnt then no
loss will be assumed as animals
could be moved to other portions of
the farm while recovery occurs in the burnt area.
The total actual loss
of grazing is shown in table 8. The total of grazing loss is
about ZAR 2.4 million. It is our
educated opinion that those
farms with less than 30% loss to grazing will not have been adversely
affected by the fire. Animals
could have been moved to other
parts of farm. A recent visit to the farm revealed that most of
the farms have animals grazing
in the previously burnt areas.
Further negating the argument that it would take about 5 years for
grasses to recover unsupported
by evidence and science.
Based on standing crop
estimates in the unburnt area and non-grazed within Lohatla one can
estimate production in the area to be
2.5 tonnes per ha at pristine
areas. If, therefore, compensation is to be made for the period
October to February, one will
have to assume this loss per ha for
that whole period. Revising the figures upwards to total
compensatory loss of ZAR 3,829,
547.50 calculated as follows
9010.7 ha burnt X
2.5ton.haˉ¹ X0.2 (20% utilization level)”
136.
During his evidence on the subject Prof Dube distanced himself
somewhat from the values given to the formula as contained
in his
report.
137.
The assertion in his report that he estimated the production in the
area based on the standing crop estimates in the
unburnt area
and
non-grazed
areas within Lohatla now according to Prof Dube was not based on the
unburnt farmland since it was not pristine and as
such the 2.5 ton
per hectare was solely based on the non-grazed areas within Lohatla,
and therefore that the total compensatory
loss as calculated in his
report is the maximum possible loss that the plaintiffs will have
suffered, on condition that their land
was pristine.
138.
The R850 per ton which is the value put in the report on natural
grass, was during his evidence considered to be too
high a value
since it was wild grass with no exact commercial value and which
could be bought on the roadside for R450 per ton
or even less.
139.
When it comes to the utilisation factor of 20% Prof Dube explains
that utilisation is the extent to which grown material
can be
harvested and used by animals to ensure the continuation or
sustainability of the ecosystem. That a 50% utilisation
level
as advanced by the experts for the plaintiffs is not applicable in
this particular area where the vegetation consist not
only of grass
but also shrubs and other woody vegetation. Considering the
composition of the vegetation and the fact that
a fire went through
the area, which necessitated light grazing, the utilization level
should, according to Prof Dube, be in the
region of 20% to 25% with a
maximum of 35%. Later on during his evidence Prof Dube also
attributed the low utilisation level
to the inaccessibility of
vegetation.
140.
I now turn to the evidence of Mr J Swanepoel, an agricultural loss
assessor who has established the business Agri Assessors
since 1994.
He has an M.SC in Agriculture and has during the course of this
trial, in July 2015, registered as a professional
natural scientist
in the field of animal science with the SA Counsel for Natural
Scientific Professions. Mr Swanepoel has
been involved in
hundreds of agricultural claims including about 500 veld fire
claims. Interestingly enough Mr Swanepoel
was initially
appointed by the defendant as an expert on the merits of this matter
until his services were terminated, or as he
states, he was “
fired”
since the defendant did not agree with his views on the merits.
141.
Be that as it may Mr Swanepoel has been involved in about 10 veld
fire claims in this specific area (Danielskuil, Olifantshoek,
Kuruman) and is well acquainted and experienced with the specific
conditions endemic to this area.
142.
He agrees with Prof Snyman that the recovery period after a fire is
longer in the Danielskuil area than in the central
grasslands because
of the lower rainfall, the difference in topography, soil type and
the composition of the habitat. Mr
Swanepoel advocates a
withdrawal period of 5 years but with allowance for light grazing
from after the first frost in the third
year following the fire.
All factored in, his withdrawal period amounts to 3.8 years.
143.
As to Prof Dube’s opinion that the farms with less than 30%
loss of grazing due to the fire will not be adversely
affected, Mr
Swanepoel gives the reasons for his difference of opinion at the hand
of a simple analogy. If one assumes that
the carrying capacity
of a farm is 1 large stock unit per 10 hectares, a 100 hectare farm
would carry 10 cattle. If 30% of
that farm is burned then the
10 cattle will only have 70 hectares on which to graze which would
lead to overgrazing of the remaining
area and all 10 cattle being
underfed with its concomitant problems. The other factor which
cannot be ignored is that the
plaintiffs farms are divided into camps
for specific reasons
inter
alia
access
to water, topography, to keep weaners separated from their mothers,
for breeding purposes etc. An unplanned veld fire
disrupts the
farms plan and it is not merely a simple matter of redistributing
cattle to the unburned areas.
144.
The plaintiffs have placed a value of R5000, 00 per tree on the trees
lost in the fire. Mr Swanepoel explains this
claim with
reference to trees contributing 15% of the intake of cattle and
converting the 15% to kilograms of tree product consumed
by the
animals. The weight of the tree product is compared to the
price of lucerne, which he states is a good quality rough
feed with
energy and protein levels in accordance with the needs of a large
stock unit. He then multiplies this value by
10 to make
provision for a period of 10 years that the trees will be lost to the
animals as feed. The value he attains in
doing so is in fact
higher than R5000, 00 per tree. It is this evidence of Mr
Swanepoel which resulted in the protracted
cross-examination on the
nutrional value of the wild olive tree.
145.
Mr Swanepoel had visited the plaintiffs farms on four occasions
during 2013 and although he did not measure the extent
of the fences
burned in the fire, he testified that he clearly observed the damage
to the fences which had not yet been replaced
in that lines were
sagging and wooden droppers showed fire damage. The plaintiffs
claims relating to the fences (price per
meter) were calculated on
the basis that the fences were not new when damaged and in Mr
Swanepoel’s opinion these claims
were market related and
reasonable.
146.
Mr Swanepoel also testified that the further claims relating to
infrastructure were market-related and reasonable.
Claims
relating to firefighting and transportation of animals were
reasonable as were the replacement values of dead animals.
Mr
Swanepoel also testified that the selling prices claimed by the
plaintiffs for their cattle were reasonable as well as Mr Vermeulen’s
slaughtered cattle prices. Mr Swanepoel confirmed the
reasonableness of Mr Vermeulens’ 2
nd
alternative claim as well.
147.
Mr L De Jager also testified for the plaintiffs. He is the
holder of an Honours degree BSC (Agri) and has majored
in
Agricultural Economics and Business Economics. At the time that
his expert notice and report were filed during 2013 he
had been
employed at the Department of Agriculture: Northern Cape since 1983.
His position was that of Assistant Director:
Extension Services and
his duties included farmer support services and the training of all
farmers, especially the historically
disadvantaged emerging farmers.
He has over the years presented numerous lectures to the farmers on
subjects such a financial
planning, farm management, grazing systems,
cattle management etc. He retired at the end of 2014 and gave
his evidence during
March 2016.
148.
Mr De Jager was based in the Postmasburg area and has experienced
many veld fires in the area. His evidence is
that he over the
years regularly visited farms after veld fires and that he knows how
the veld reacts to a fire. He testified
that veld in the sweet
veld region recovered very slowly after a fire and that it was
Departmental policy, and also his advice
to the farmers, to withdraw
the veld from grazing for a long period to allow for sustainable
recovery. He states that he
prescribes to the farmers to rest
the veld completely for the first rainy season, thereafter and after
the first frost, the veld
can be grazed lightly for a very short
period, mainly to soften the soil to allow seeds to infiltrate the
soil. Thereafter
the cattle must be removed from the veld until
the following winter where the same procedure must be followed.
He also recommends
that the cattle be withdrawn for a third season,
whereafter it can be introduced back into the system after the first
frost of
the winter.
149.
Mr De Jager also testified on the value of trees in the grazing
system, especially during winter when the grasses have
died and
provide little nutritional value. The withdrawal period
recommended by Mr De Jager to the farmer is 3 years or 3
rainy
seasons with light grazing after the first frost.
150.
Mr De Jager also testified that it was a Departmental recommendation
that a whole camp be withdrawn from grazing even
if a small portion
of the camp had burned in order to avoid the overtrampling of the
burned area and overgrazing of the unburned
area. He disagrees
with Prof Dubes contention that if less that 30% of a farm burned the
cattle could be moved to the remainder
of the farm, since this would
lead to overgrazing.
151.
Mr De Jager had assisted the 10
th
plaintiff, Mrs Steenkamp (and her husband when he was still alive)
with advice and more since they started farming on Darehope
2.
He had also taken the measurements of Mrs Steenkamp’s fire
damaged fences and transmitted the information to the
plaintiffs
attorney of record. Mr De Jager’s evidence is that he
visited Mrs Steenkamp’s farm (and other plaintiff’s)
shortly after the fire and thereafter did regular follow-up visits
and he could clearly observe where the fire went through the
fences –
at places wooden droppers had burnt out completely, and at other
places the fences had snapped off. Further
damage was also
caused where fire fighting vehicles flattened the fences.
152.
The 10
th
plaintiffs’ main production loss claim is based on a 75%
calving rate to which Mr De Jager having knowledge of her herd,
expressed the opinion that 75% would be too low since he impresses
upon the farmers that their businesses will not make economic
sense
if they achieve calving rates of less than 85%.
153.
The last witness I intend to deal briefly with is Mr Emery, an
environmental GIS (Geographic Information System) specialist.
His evidence relates primarily to the determination of the burned
areas and the purely mathematical calculation thereafter, based
on
the plaintiffs contention that if more that 10% of a camp is burned
the whole camp should be withdrawn, of the affected areas
of the
various farms. Mr Emery’s counterpart is Dr Z Mashimbye
who compiled a joint report with Prof Dube. Dr
Mashimbye
however did not testify neither did the defendants’ Mr J Du
Toit a professional valuer, who is not an expert in
this field but
who had used the South African National Space Agency (SANSA) reports
of the fire in his report relating to the determination
of the
quantum.
154.
One of the main disputes between the parties relating to the
determination of the fire scar was the fact that Dr Mashimbye
indicated in his report that several fires had burned on several of
the plaintiffs’ farms during the period 4 to 6 September
2009,
before the Lohatla fire started. Mr Emery attributed this
finding of Dr Mashimbye to be incorrect due to the data being
used
incorrectly and beyond its capability. I do not intend to go
into detail regarding the methodology employed by Mr Emery
in his
determination of the burned area or the dates on which the fire
occurred since (i) the defendant eventually conceded that
there were
no other fires in the area prior to the Lohatla fire and (ii) Mr
Emery after having travelled from White River on three
occasions to
give evidence, to the surprise of one and all conceded that the SANSA
fire scar determination is scientifically sound
and can be accepted
as reliable.
155.
What is useful about Mr Emery’s evidence is that he had
calculated the affected areas on the farms not only in
terms of his
own determination of the fire scar but also according to the SANSA
fire scar. The differences between Mr Emery’s
fire scar
and that of SANSA and the concomitant affected areas are not
substantial. The Emery total burned area is 9306.1
hectares and
that of SANSA 8955.1 hectares, while the Emery affected area amounts
to 12460.6 hectares and that based on the SANSA
fire scar to 12654.9
hectares, should one accept that if more that 10% of a camp had
burned, the whole camp is affected.
156.
There are however in some instances vast differences between the
plaintiffs’ measurements of burned areas and that
of Mr Emery
and SANSA. For instance the 11
th
and 12
th
plaintiffs claim to have a burned areas of 600 hectares and 130
hectares respectively while their SANSA determined burned areas
amount to 2.1 hectares and 4 hectares respectively, with nil affected
area.
157.
Mr Emery testified in this regard, that a plaintiff who physically
walked the boundaries of a fire scar with a GPS and
calculated the
burned area accordingly could get a more accurate measurement than
using satellite images which may or may not be
able to pick up small
areas (up to 6 hectares) or certain areas where for instance the
vegetation is sparse or the area is mountainous.
158.
Mr Knoetze has accordingly argued that where plaintiffs have measured
their burned areas physically and have obtained
a larger extent that
SANSA, I accept the physical measurement. I will revert to this
aspect.
159.
Before dealing with the specific claims there are preliminary issues
which need to be addressed.
159.1 The claim of the
12
th
plaintiff, the Freddie Markram Family Trust,
originates from a fire which burned on the farm Thorensby on 13
September 2009.
The other plaintiffs’ claim damages based
on the fire of 6 to 8/9 September 2009. The fire of 13
September originated
on Lohatla as a result of the same military
exerciseswhich also started the fire on 6 September 2009. There
is no cloak and
dagger about this. The plaintiffs’
attorney Mr Reitz wrote a letter to the defendant concerning the 12
th
plaintiff’s claim on 30 October 2009 already, wherein he
states:
“
Ons sluit
hierby in as Eis 12, die eis van Markram Familie Trust welke eis
ontstaan uit ‘n brand veroorsaak deur die skietoefening
op 13
September 2009. Dit is ‘n kleinerige eis en dien dit geen
doel om dit alleenig as ‘n ekstra verdere brandeis
op sy eie in
te dien nie. Ons vertrou dat u dit so kan akkomodeer en verneem
graag indien daar enige probleem, in die verband
bestaan.”
159.2 No response was
forthcoming and on 4 October 2010 the summons in these proceedings
was issued, to which was attached the aforesaid
letter as annexure
“
B”.
159.1.2 The defendant
never took the point, in whatever way, that whatever damages suffered
by the 12
th
plaintiff was not caused by the fire of 6 to 9 September 2009.
In fact paragraph 1 of the order obtained by agreement upon
settlement of the merits on 6 September 2012, and may I add after an
inspection
in
loco
and negotiations between the parties, reads as follows:
“
That the
defendant is liable for the proven or agreed damages of the first to
the fifth plaintiffs, and the ninth and twelfth plaintiffs
qua owners
of the properties described in the particulars of claim.”
159.1.3 On 30 September
2013, a bit more than a year after the order on the merits, the
defendant launched an application seeking
to rescind the order of 6
September 2012 in so far as it relates to the 12
th
plaintiff. This application was never proceeded with and as
such the order still stands.
159.1.4 Mr Memani now
argues that the 12
th
plaintiff’s claim should be dismissed with costs since the
order could not have been intended to apply to any damages a
plaintiff might be able to prove “
irrespective
of the identity of the perpetrator, the cause and the date on which
the perilous event occurred.”
159.1.5 This contention
by Mr Memani is obviously not correct in the light of the letter
annexure “B” which formed part
of the summons and which I
would like to assume the defendant and her legal representatives read
and were fully aware of when the
order of 6 September 2012 was
obtained. No explanation was provided as to why the application
for rescission was abandoned
and I see no reason why the order should
be interpreted to the prejudice of the 12
th
plaintiff.
159.2 Another issue which
was raised by Mr Memani is the contention that in the instances where
the plaintiffs were leasing land
from the government,they have no
claim against the government for damaging its own property.
That those plaintiffs cannot
claim that their contractual duty to
return the property in a good state of repair also covered instances
where the owner’s
own conduct caused the state of disrepair.
159.2.1
In
casu
there
are three different scenarios relating to government owned property.
Firstly there is Ms Mietjie Steenkamp, the 10
th
plaintiff who has been allowed the right to occupy and farm for her
exclusive benefit the farm Darehope 2, which as far as I can
glean
from the evidence, was bought by the Department of Agriculture and
allocated to the Tsantsabane Municipality. Secondly
there is Mr
Alexander Abrahams, the 11
th
plaintiff, who leases the property Warrendale from the Department of
Agriculture. Thirdly there is Mr Chris Strauss, the
6
th
plaintiff who subleases from a Mr Balapile who has a lease agreement
with the Department of Agriculture similar to that of Mr Abrahams.
159.2.2 Ms Steenkamp had
been farming on the specific property (initially with her husband)
since 2000. She presented to court
a letter signed by the
Director: Community Services of the Tsantsabane Municipality dated 14
Augustus 2012 which reads as follows:
“
This letter
serves as confirmation that Me Steenkamp from 2000 until now is the
rightful claimant and occupant of the farm Klein
Darehope (Darehope
2). She is entitled to farm on the abovementioned farm for her
exclusive benefit. It is also her
obligation to keep all the
improvements on the farm in a neat and good order and to pay for all
damages whatsoever, that occur
on the farm or to the improvements.”
159.2.3 I have already in
paragraph 86 above referred to the clauses in Mr Abrahams’
lease agreement with the Department of
Agriculture, which confer on
him as lessee the responsibility to keep the improvements on the
property, including boundaries and
fencing in a state of good repair
and that he is liable for all damages on the property caused by fire.
159.2.4 Both Ms Steenkamp
and Mr Abrahams, as possessors and lawful occupiers of the respective
properties bear the risk of damage
to the property and clearly have
an interest in the property. As such they may claim damages
from the defendant to the extent
of her or his loss. See
Smit
vs Saipem
1974(4)
SA 918(A)
159.2.5 Their claims are
in any event not just for damage to the property (infrastructure and
improvements) but also for damages
as a result of loss of income, by
not being able to utilize the property for the purpose it is occupied
i.e. to make an income.
Mr Memanis contention that these
parties cannot claim damages from Government for damaging its own
property, unsupported as it
is by any authority, in my view holds no
water and these plaintiffs should be allowed their proven damages.
159.2.6 The position of
Mr Strauss is a different kettle of fish. In this instance it
is the absent Mr Balepile who entered
into a lease similar to that of
Mr Abrahams, with the Department of Agriculture and to whom the risk
of damage passed. The
evidence of Mr Strauss was that he had a
verbal agreement with Mr Balepile that he would return the property
to him in the same
state of repair as he had received it whenever Mr
Balepeli decides to take possession of the property again. The
evidence
relating to the verbal agreement of sublease is rather
vague, with Mr Strauses being unable to remember the date on which
the agreement
was entered into, there also appears to be no terms
attached to the sublease. Mr Balepile did not testify to
confirm the
agreement entered into with Mr Strauss – in fact Mr
Straus testified that he could not trace him.
159.2.7 But be that as it
may even if Mr Balepile had confirmed the agreement with Mr Strauss
in terms of which the risk had passed
inter
se
to
Mr Strauss, the lease agreement that Mr Balepile entered into with
the Department of Agriculture which was handed into court
as an
exhibit, contains a prohibition against subleasing without the prior
written consent of the lessor. Needless to say,
no such written
consent was entered into evidence. Mr Strauss therefore finds
himself in the position of the unlawful occupier/possessor.
As
such one of the prerequisites referred to by Jansen JA in
Smith
v Saipem
for the extension of the Aquilian remedy to a claimant who is not the
owner of the property, that of “
regmatige
houer”
or
lawful occupier (possessor), is absent. That being the case, Mr
Strauss is not entitled to claim for damages to the infrastructure
and improvements. There is in my view however no reason why he
should not be entitled to claim for the other damages suffered.
160.
The plaintiffs or witnesses on their behalf testified to the fact
that their fences were damaged in the fire and that
it needed to be
replaced. Despite it having been put to certain plaintiffs that
fire in fact enhances fences (which was denied),
no expert evidence
to this effect was presented by the defendant. In my view it
makes sense reasonably and logically that
fire would damage fences.
161.
The plaintiffs presented evidence of the lengths of the fences
damaged in the fire and the methods used to measure the
lengths.
The defendant’s expert in this regard, Mr Du Toit, had
apparently undertaken this exercise himself (whether
it be physically
or at the hand of charts) and had provided a written opinion on the
replacement costs of the plaintiffs’
fences. Despite
being present in court for most of the proceedings and the plaintiffs
and/or their witnesses being subjected
to lengthy cross-examination
on the lengths of these damaged fences, based on Mr Du Toits report,
Mr du Toit was not called as
a witness. As such I am satisfied
that the plaintiffs have succeeded in proving on a balance of
probabilities the lengths
of the various fences to be replaced.
162.
As far as the replacement costs of the fences go, the basis on which
this claim was initially calculated was explained
by the plaintiffs’
attorney in the letter annexed as “
B”
to the particulars of claim and also by Mr Swanepoel in his
evidence. It was calculated, taking into account the price of
fencing accepted by the defendant in previous fire claims during
2003, 2005 and 2008, that the prices of fencing had escalated
from
2003 to 2008 by 188%. Since the plaintiffs fences were not new
when burned a discounting of 20% was included in the
formula.
The formula for the various types of fences therefore reads as
follows – length of fence x the price per meter
(in 2003) x 80%
+ 188%.
163.
With the exception of the 1
st
,
8
th
and 12
th
plaintiffs who relied on fence replacement prices for 2009 as
established and testified to by Mr Swanepoel, and the 9
th
plaintiff who used the old 2003 price without adapting it for his
inside wired claimed, the rest of the plaintiffs based their
fence
claims on the above-mentioned formula.
164.
In this regard Mr Swanepoel testified as to the fact that both the
formula based claims and those of the 1
st
,
8
th
and 12
th
plaintiffs were reasonable and market related. It stands to
reason that the 9
th
plaintiffs claim for his fence is much lower since it has not been
adapted and should also be considered to be reasonable.
165.
In my view the plaintiffs should succeed with their claims relating
to the fences damaged in the fire.
166.
The 1
st
and 3
rd
plaintiffs also claimed for pipe lines damaged in the fire. Mr
Vermeulen and Mrs and Mr Scholtz testified with regard to
the sizes
and measurements of the damaged pipelines. In this regard Mr
Swanepoel who, as in the case of fences, has years
of experience and
knowledge of the prices of such pipes testified that the 1
st
and 3
rd
plaintiffs claims relating to their pipelines were reasonable and
market related. The same applies with regard to the 3
rd
plaintiffs claims relating to the two sink dams and cement and the
5000 litre water tank damaged in the fire, which Mr Swanepoel
confirmed as reasonable and market related.
167.
The 3
rd
plaintiff also claimed for the loss of wood coralls burnt in the
fire. This claim has not been dealt with by Mr Swanepoel
and
having no measure by which to determine whether this claim is at all
reasonable, it should in my view be disallowed.
168.
This case has been fraught with difficulties. The fire, it is
common cause, had spread fast and wide. The
plaintiffs had to
act fast and almost instinctively in protecting their property.
It is entirely natural, in my view, that
little or no record was kept
of exactly how much fuel was used in fighting the fire or the
kilometres traversed with the fire fighting
vehicles. In these
circumstances, the fact that the plaintiffs did not have invoices
relating to their claims for food for
labourers for instance or the
wages paid to labourers can hardly be held to be fatal for such
claims. The situation relating
to the lack of documentary proof
(invoices etc.) in support of the claims relating to
inter
alia
the infrastructure, sales of cattle, transportation costs – is
not ideal, but should be seen against the background of previous
fire
claims against the defendant being settled on the basis of an
accepted formula and agreed prices relating to infrastructure
and the
like. I do not want to be perceived as condoning the plaintiffs
attorney’s lack of foresight in not preparing
the plaintiffs
properly in the event their claims become opposed, as has happened,
however it would be unjust to the plaintiffs
where expenses have
obviously been incurred and damages suffered as a result of the
defendant’s wrongdoing, not to attempt
to quantify such damages
with the evidence available.
169.
In
Esso
Standard SA (Pty) Ltd vd Katz 1981(1) SA 964 AD at 969 J tp 970 H,
the court held as follows:
“
It
has long been accepted that in some types of cases damages are
difficult to estimate and the fact that they cannot be assessed
with
certainty or precision will not relieve the wrongdoer of the
necessity of paying damages for his breach of duty. Among the
authorities cited in the Lazarus case is Hall v Ross 111 English Law
Reports 672 which was decided as long ago as 1813. Not only
is the
principle not a novel one but the English precedents which have given
some guidance on the problem have gone so far as to
hold that the
Court doing the best it can with insufficient material may have to
form conclusions on matters on which there is
no evidence and to make
allowance for contingencies even to the extent of making a pure
guess. See, for example, Chaplin v Hicks
(1911) 2 KB 786
(CA) at 792.
In the case of Arendse v Maher
1936 TPD 162
GREENBERG J was faced
with the problem of assessing damages claimed by a wife arising out
of the death of her husband owing to
the defendant's negligence. As
there was no actuarial or other expert evidence before the Court, it
was argued that absolution
from the instance should be granted.
Having refused absolution the learned Judge went on to say at 165:
"It remains,
therefore, for the Court, with the very scanty material at hand, to
try and assess the damage. We are asked to
make bricks without straw,
and if the result is inadequate then it is a disadvantage which the
person who should have put proper
material before the Court should
suffer."
In the present case it
might be said with some justification that the plaintiff should have
sought the assistance of an accountant.
He failed to do so, but it
does not follow that he should be non-suited. Whether or not a
plaintiff should be non-suited depends
on whether he has adduced all
the evidence reasonably available to him at the trial and is a
problem which has engaged the attention
of the Courts from time to
time. Thus in Hersman v Shapiro & Co
1926 TPD 367
at 379
STRATFORD J is reported as stating:
"Monetary damage
having been suffered, it is necessary for the Court to assess the
amount and make the best use it can of the
evidence before it. There
are cases where the assessment by the Court is very little more than
an estimate; but even so, if it
is certain that pecuniary damage has
been suffered, the Court is bound to award damages. It is not so
bound in the case where evidence
is available to the plaintiff which
he has not produced; in those circumstances the Court is justified in
giving, and does give,
absolution from the instance. But where the
best evidence available has been produced, though it is not entirely
of a conclusive
character and does not permit of a mathematical
calculation of the damages suffered, still, if it is the best
evidence available,
the Court must use it and arrive at a conclusion
based upon it."
See,
too, a more recent decision given in this Court in Mkwanazi v Van der
Merwe and Another1970 (1) SA 609 (A) where VAN WINSEN
AJA sets out in
detail at 632 the reasons for granting absolution when the plaintiff
has failed to place before the Court evidence
he is in a position to
lead.
The
critical question then is whether the plaintiff, having successfully
proved that he has suffered damage through loss of petrol
and that
that damage was caused by the defendant, has produced all the
evidence that he could reasonably have produced to enable
the Court
to assess the quantum of damage.”
170.
Fortunately, I am not in such a dire position with the evidence
before me that I have to make bricks without straw.
The
plaintiffs have all impressed as credible and honest witnesses and
despite being accused my Mr Memani of fabricating claims
(to the
point of tears in some instances), they have all withstood
cross-examination valiantly. There is no reason for me
to doubt
the veracity of their versions. As already mentioned though,
there are some instances, especially relating to the
firefighting and
transportation claims, where the plaintiffs have not been able to
produce documentary proof of expenditure.
In these instances I
have regard to the expertise of Mr Swanepoel with respect to the
reasonableness thereof.
171.
As far as the transportation of cattle after the fire is concerned,
the various claims range from R8, 00 per kilometre
to R50, 00 per
kilometre. According to Mr Swanepoel the rate of R50, 00 per
kilometre is reasonable in the circumstances
and that of R8, 00 per
kilometre more than reasonable. Mr Swanepoel has given cogent
reasons for his opinion on the transportation
costs and I therefore
accept these costs as claimed as reasonable.
172.
The fuel usage claimed by the plaintiffs for their vehicles and
firefighters have likewise been confirmed by Mr Swanepoel
as being
reasonable. I accept that this is so. So too the claims
relating to the wages of labourers who helped with
fighting the
fire. Mr Swanepoel has also confirmed the reasonableness of the
plaintiff claims regarding the cattle which
have died in the fire.
Mr Vermeulen, the 1
st
plaintiff’s, claim for the use of his two vehicles in fighting
the fire has also been confirmed as reasonable my Mr Swanepoel.
The above claims are therefore all allowed.
173.
There are claims which Mr Swanepoel could not give an opinion on (the
lost springbok of the 3
rd
plaintiff) and those he was not asked to give an opinion on such as
repairs to vehicles and tyres, replacement of tyres and firefighter
equipment, replacement of engine parts, the wear and tear of
vehicles, the Nissan bakkie which was wrecked and the tow truck
charges
thereof. These claims I will not allow as it has not
been proven on a balance of probabilities. I may just mention
that even though in certain instances like the claims relating to the
Nissan bakkie, gearbox and towing charges, invoices have been
presented, such is not sufficient to determine whether the claims are
reasonable in the absence of expert evidence thereon.
See
Heath
v Le Grange
1974(2) SA 262 (CPD). The further problem with the claim
regarding the bakkie is that no evidence regarding the circumstances
of the accident was tendered.
174.
I now turn to the loss of production claims. In simplistic
terms the plaintiffs hold forth a formula for calculating
the
production losses based on the affected areas over a withdrawal
period of 3 years. The defendant’s Prof Dube used
a
formula which basically establishes the value of replacement feed in
respect of the burnt areas for 1 growing season. Some
of the
plaintiffs have amended their particulars of claim to include as an
alternative a production claim based on the formula
espoused by Prof
Dube, but with certain adaptations.
175.
Neither of these formulae seem to be objectionable on the basis that
it is unscientific. The disputes between the
parties arise out
of, for want of a better description, the input data, used in these
formulae. In the case of the plaintiffs’
formula these
disputes are the affected areas, the calving rates, the weights at
which calves were sold, the price obtained per
kilogram and the
withdrawal period. In the case of the defendant’s formula
the disputes which have arisen during the
course of the trial are the
amount of feed per hectare and its price per ton, the utilization
level and also the withdrawal period.
176.
In coming to a conclusion with regards the disputes relating to the
production claims, the evidence of the expert witnesses
is germane.
In this regard it is worthwhile to note the exposition given by Davis
J as to the role of an expert in
Schneider NO v AA
2010 (5)
203 (WCC) at 211E to 212 B, where he states the following:
“
In Zeffertt and PaizesThe
South African Law of Evidence National Justice Compania Navierasa v
Prudential Assurance Co Limited ,
(Second Edition), at 330 the
learned authors, citing an English judgment of 1993(2) Lloyd's
Reports 68 at 81, set out the duties
of an expert witness thus:
"1. Expert evidence presented
to the Court should be, and should be seen, to be the independent
prod uct of the expert uninfluenced
as to form or content by the
exigencies of litigation;
2. An expert witness should provide
independent assistance to the Court by way of objective, unbiased
opinion in relation to matters
within his expertise... An expert
witness should never assume the role of an advocate;
3. An expert witness should state
the facts or assumptions upon which his opinion is based. He should
not omit to consider material
facts which could detract from his
concluded opinion;
4. An expert witness should make it
clear when a particular question or issue falls outside his
expertise;
5. If an expert opinion is not
properly researched because he considers that insufficient data is
available, then this must be stated
with an indication that the
opinion is no more than a provisional one. In cases where an expert
witness who has prepared a report
could not assert that the report
contained the truth, the whole truth and nothing but the truth
without some qualification, that
qualification should be stated in
the report."
In
short, an expert comes to Court to give the Court the benefit of his
or her expertise. Agreed, an expert is called by a particular
party,
presumably because the conclusion of the expert, using his or her
expertise, is in favour of the line of argument of the
particular
party. But that does not absolve the expert from providing the Court
with as objective and unbiased opinion, based on
his or her
expertise, as is possible. An expert is not a hired gun who dispenses
his or her expertise for the purposes of a particular
case. An expert
does not assume the role of an advocate, nor give evidence which goes
beyond the logic which is dictated by the
scientific, knowledge which
that expert claims to possesses.”
177.
In
Menday v Protea Assurance Co Ltd
1976(1) SA 565 (E) at
569B, Addleson J stated the following with regard to the function of
an expert:
“
In
essence the function of an expert is to assist the court to reach a
conclusion on matters on which the Court itself does not
have the
necessary knowledge to decide. It is not the mere opinion of
the witness which is decisive but his ability to satisfy
the Court
that, because of his special skill, training or experience, the
reasons for the opinion which he expresses are acceptable.
(Cf.
Phipson, Evidence 11
th
ed., paras. 1280 et seq.; Hoffmann, Evidence, 2
nd
ed., pp. 78 et seq.; R. v. Nksatlala, 1960(3) S.A. 543 (A.D) at p.
546).
Phipson
and Hoffmann, op. cit., both point out the dangers inherent in expert
testimony. For example, the inability of the
Court to verify
the expert’s conclusions and the tendency of experts to be
partisan and over ready to find and multiply confirmation
of their
theories from harmless facts (Phipson, para. 1286). Nonetheless the
Court, while exercising due caution, must be guided
by the views of
an expert when it is satisfied of his qualification to speak with
authority and with the reasons given for his
opinion.”
178.
Based on the above authorities I intend to make short shrift of the
weights at which calves were sold and the prices
obtained therefore.
As already mentioned not all of the plaintiffs provided invoices of
their calf sales from which it would
be able to determine average
weights and prices for each individual plaintiff. The 1
st
plaintiff for instance made use of the invoices of other plaintiffs
with certain adjustments in an attempt to formulate his claims
which
are based on weights and prices. The 3
rd
,
6
th
,
7
th
,
10th, and 11
th
plaintiffs left the determination of average calf weights and prices
to be proven by Mr Swanepoel. The last mentioned group
of
Plaintiffs’ production claims were based on average selling
weights of 250kg and an average price of R17. 67 per kilogram.
Mr Swanepoel who gave evidence in this regard stated that the weight
was acceptable and reasonable and so also the price obtained
per
kilogram – regard being had to the fact of fluctuating prices
offered by the auction lots and feeding lots. The
prices
provided by 1
st
plaintiff were deemed acceptable for the same reason. This
evidence of Mr Swanepoel stands uncontroverted and I have no reason
not to accept it. Following logically upon my acceptance of Mr
Swanepoels opinion of the reasonableness of the weights and
prices of
calves for these plaintiffs, the claims of plaintiffs calculated at
lower weights and prices should also be regarded
as being reasonable.
179.
The plaintiffs have all testified to their calving rates. I
have no reason to doubt their evidence to this effect
and such
evidence is supported by Mr Swanepoel who reckons an 80% calving rate
(the highest claimed) to be achievable and reasonable
in this
region. Mr De Jager in fact testified that the 10
th
plaintiff’s calving rate of 75% is bordering on the low side.
I therefore also accept the calving rates provided by
the plaintiffs
as being reasonable.
180.
The only aspects left to deal with is relation to the plaintiffs’
formula are those of the affected areas and the
withdrawal period.
181.
The evidence of Mr Emery and his acceptance of the SANSA fire scar
has had the effect at least that the disputes relating
to the
plaintiffs burnt areas (and affected areas in so far as their
calculation thereof can be accepted) has been settled with
the
exception of the 1
st
,
7
th
,
9
th
,
11
th
and 12
th
plaintiffs.
182.
The 1
st
plaintiff, Mr Vermeulen claims a total affected area of 4175
hectares, while his affected area calculated from the SANSA fire scar
is 4119.08 hectares – a difference of 55.9 hectares. Mr
Vermeulen had calculated his affected area at the hand of the
map
“
AA”
drawn up by Mr Liebenberg and which was later accepted by the
defendant as correct.
183.
The 7
th
Plaintiff Mr B Markram had calculated his affected area as 931
hectares while the SANSA scar determines it to be 497.8 hectares.
See paragraph 23 above.
184.
The 9
th
plaintiff Mr Weideman testified that two of his camps burned.
These camps totalled 300 hectares which he accepted as his
affected
area which also accorded with Mr Du Toit’s report in this
regard. He withdrew the cattle from these camps
and ended up
having to sell 30 cattle. The SANSA fire scar relates to an
affected area of 269.3 hectares.
185.
The 11
th
plaintiff Mr Abrahams, according to the SANSA scar, has a burnt area
of 2.1 hectares with no affected area. Abrahams gave
evidence
of the fences which had burned on his farm and that his farm had
burnt to such an extent that he had to remove 47 animals
from the
burned camps, which he then eventually had to sell. He also
counted 61 burnt trees on his property.
186.
The 12
th
plaintiff based its claim on the Dube formula in terms whereof the
burnt area is used in the calculation. The SANSA fire
scar
reflects that only 4 hectares of the farm Thoresby had burned with no
affected area. Mr F Makram’s evidence is
however that he
personally measured the burned area of 298 hectares. He
testified in addition of the fences which burned
and that he had
counted 21 burned trees. This evidence of Mr Markram was not
countered during cross-examination at all.
187.
Given the credibility of these witnesses, with even Mr Memani
praising the honesty of Mr Abrahams, and the fallabilities
of the
satellite imagery as explained by Mr Emery (see paragraph 157 herein)
I have no hesitation in acceding to the request by
Mr Knoetze that in
these instances the physical measurements of the burned and/or
affected areas be accepted. I pause to
mention that since Mr
Abrahams was not sure of the extent of his burnt area his claim is
based purely on the loss of production
relating to the cows he had to
sell and is not determined by a burnt or affected area.
188.
The next question to be answered is whether the plaintiffs’
reliance on an affected area based on the withdrawal
of an entire
camp, should more than 10% of it had burned, is justified.
189.
In this regard Prof Snyman held the view that if it is not practical
or economically possible to isolate a burnt area
of 10% or more
within a camp the whole camp should be withdrawn. This is also
the opinion of Mr Swanepoel. Their reasons
herefor are
persuasive. Mr De Jager has even testified that it was the
Department of Agriculture’s recommendation that
a whole camp be
withdrawn if a small portion had burned and that he had advised the
farmers accordingly.
190.
The plaintiffs who were cross-examined on this aspect (at length) all
denied that it was possible, reasonably and practically
to isolate
the burnt areas of their camps so that the unburnt areas could be
utilised. No evidence was presented by the defendant
as to how
each of the individual plaintiffs could have put measures in place on
their particular farms to mitigate the impact of
the fire on the
grazing veld. The onus is on a defendant to prove that the
plaintiff should have restricted his or her damage
or that the
plaintiff should have used a better or alternative method. See
Everett
v Marion Heights
1970(1) SA 198(C) at 201.
191.
Prof Dube’s opinion that a farm that has burnt up to 30% can be
reconfigured to accommodate all the cattle seamlessly,
does not take
into account that the plaintiffs one and all use a camp system.
The difficulties pertaining hereto were convincingly
explained by Mr
Swanepoel.
192.
In my view the plaintiffs succeeded in proving their affected areas.
193.
The reasons for the withdrawal period of 3 years relied on by the
plaintiffs was fully, reasonable and logically explained
by the
plaintiffs’ experts as well as the plaintiffs. With
decades of experience of fires in the area under discussion,
Messrs
Swanepoel and De Jager’s expertise in this field cannot be
doubted. Prof Snyman also has decades of experience
of the
effect of fires on grazing land and the management of the veld
thereafter. From his experience of the central grasslands
he
gave a cogent opinion on why the withdrawal period should be more
than the two years recommended after fires in the central
grasslands. He was consistent in his opinion.
194.
Prof Dube on the other hand see-sawed from an opinion of the
withdrawal of two growing seasons in the meeting of the
experts under
chairmanship of Adv Van Niekerk, to a mere 175 days during the
evidence. This despite the fact that he had
in fire claims in
the Free State, where he and Mr Swanepoel were counterparts, reached
agreements relating to grassland fires and
where the rainfall is
higher, of withdrawals of 2 years to 2½ years. When
confronted during cross-examination with
this anomaly he merely
shrugged it off, saying that the time of year those fires took place
guided the agreements. This explanation
may hold some water for
a fire which took place during November when the growing season was
midway but not for a fire which occurred
during June when the grasses
are dormant.
195.
He also co-authored a paper on the long-term effects of different
burning frequencies on the dry savanah grassland in
South Africa,
which was accepted in January 2008. This paper which was
referred to by Mr Memani during his cross-examination
of Prof Snyman,
was included in a list of scientific papers on the effects of fires,
in order to discredit Prof Snyman by attempting
to show that he is
not the only expert on the effects of fire on grazing. Instead
of discrediting Prof Snyman, the above
mentioned paper had the
opposite effect in that the conclusion reached by Prof Dube and his
co-authors was that the study showed
that the recovery period for
optimum productivity of vegetation and soil variables after a fire is
three years. This study
was done in the Eastern Cape where the
mean annual rainfall is recorded as 500 mm.
196.
When confronted during cross-examination with this paper Prof Dube
once again shrugged it off explaining that the research
sought to
establish the effect of fires on the vegetation in areas where fires
were frequently used as a management tool and cannot
be compared to a
once off fire as
in
casu
.
A reading of the paper does not bear out this response however.
The experiment was to establish the effect of different
burning
frequencies (annual, biennial, triennial, quadrennial and sexennial)
and which led to the conclusion reached.
197.
Prof Dube has unfortunately created the impression of the hired gun
expert referred to by Davis J in the Schneider case
supra
and I cannot place any reliance on his evidence with regard to the
necessary withdrawal period after the fire.
198.
The same applies to the disputes relating to the interpretation of
the formula he once espoused and the values to be
reckoned into the
formula. I suspect that once it was realised that the
plaintiffs would use the formula, with the values
as advised by their
experts resulting in much higher production loss claims than the
original claims, he had to back-track from
his original opinion.
The resultant absurdity was that the price for natural grass used by
Prof Dube in the formula which
was never before an issue in dispute
and which was in fact stated by Mr Memani to be common cause, had
during Prof Dube’s
evidence become completely incomparable to
the “
wild
grass”
of
the plaintiffs which according to him had little commercial value.
199.
The same can be said of Prof Dube’s estimate of biomass
production, which according to his report is estimated
at 2.5 ton per
hectare based on “
crop
estimates in the unburnt area and non-grazed areas within Lohatla.”
During
his evidence Prof Dube turned around and stated that the estimation
was based solely on the pristine areas within Lohatla
and that none
of the farms were pristine since they were working farms and
generally suffered from degradation. I assume
this difficulty
arose because the estimate was made for the growing season of October
to February where peak biomass is achieved.
However if it is
so, it could easily have been explained by Prof Dube. But be
that as it may, Prof Dube has not proffered
any other reasonable
estimate for consideration.
200.
As far as the utilisation factor is concerned I have already referred
to Prof Dube’s explanation of the low level
of utilisation he
attaches to this area. It make no sense to me that an estimate
of utilisation levels to be used in the
calculation of the
replacement value of lost grazing can be made based on the
utilisation of recently burned veld. In this
regard the
utilisation value of 45% which the plaintiffs' experts have accepted
in an attempt to reach agreement with the defendant,
is more
acceptable.
201.
With regard to the long term loss of grazing claims of the plaintiffs
I am of the view that the plaintiffs have not succeeded
in proving
these claims on a balance of probabilities. None of the
plaintiffs experts committed to the reasonableness of
this claim.
The fact that the plaintiffs have testified that the veld had not
fully recovered after 4 years is too vague
an assertion to place me
in any position to make a determination on the extent of nonrecovery
in order to make a justifiable award.
This claim cannot
succeed.
202.
I am of the view however that the claims relating to the trees lost
in the fire have been sufficiently proved.
Mr Memanis
contention that the plaintiffs cannot claim for wild trees which grow
naturally in the veld flies in the face of the
defendant’s own
expert placing a value on natural grass. The value of the trees
lost have been adequately explained
by Mr Swanepoel, Prof Snyman, Mr
De Jager and the plaintiffs, especially Mr Vermeulen. The
controversy about the tannins
found in the wild olive tree has in my
view been nothing but smoke and mirrors, since Prof Dube himself
stated that there are very
few species of evergreen trees on the
farms and it is in any event not denied that the cattle do browse on
the olive trees.
201.
That being the case I am of the view that the plaintiffs have all
succeeded in proving damages suffered as a result of
the fire to the
extent that I have dealt with regarding the infrastructure and
general damages claims. The only question
remaining is on what
basis the production loss claims should be awarded. Mr Knoetze
has argued in this regard that I consider
awarding all the plaintiffs
their production loss claims on the formula of Prof Dube as adjusted,
since it is a much more practical
way of dealing with these claims
and which does not involve the issues relating to affected areas,
calving rates, weaning weights
and the like.
204.
I have however made a point of dealing with all the issues since; (i)
not all the plaintiffs have amended their particulars
of claim to
include as an alternative a production loss claim based on the Dube
formula and I am bound by the pleadings and; (ii)
the Dube formula as
adapted by the plaintiffs results in loss of production claims in
most instances double the amount of the main
and original claims,
which leads me to believe that the values attached to the formula in
some way need further adjustment to accommodate
reasonably and
economically sound, a three year withdrawal period.
205.
In the circumstances I intend to award damages for loss of production
based on the plaintiffs’ main claims.
The
exceptions are the 1
st
plaintiff who will be awarded damages based on his 2
nd
alternative production loss claim, which is a more realistic
reflection of his actual loss. The 12
th
plaintiff has only pleaded production loss based on the Dube formula
and although I have indicated my reservations about the adaptation
of
this formula, the difference between the 12
th
plaintiffs original (before amendments) claim and the present is not
such that it can be considered unreasonable.
206.
There is one aspect I need to deal with before I go over to the issue
of costs. During the course of the trial
I made an order that
the defendant (the Minister) send a representative, preferably a
senior member of her staff, to attend the
trial. At that stage
the attitude of Mr Memani had become almost unbearable and the idea
was that his behaviour be brought
to the attention of the Minister
and that possibly the presence of the Minister’s representative
in court would have a positive
effect on the further proceedings.
This was not the case however. Mr Memani continued to badger
the witnesses with
his disrespectful attitude and endless
cross-examination on mostly irrelevant matters – Mr Vermeulen
for instance was cross-examined
for more than 20 days with no
discernable positive outcome for the defendant. Mr Swanepoel
especially was treated with the
utmost disrespect. The
plaintiffs were unfairly accused of being liars, so too Mr Knoetze.
Even I have been accused
of being dishonest in open court by Mr
Memani. Rulings made by me were disregarded. This is conduct
totally unbefitting of
counsel.
207.
This is a matter which should have been settled between the parties,
at the very least in part, but I got the distinct impression
from Mr
Memani’s attitude, that he was the driving force behind the
continued proceedings. Unfortunately the tax payer
will have to
bear the costly brunt of these proceedings.
208.
Consequently Mr Knoetze has asked that I consider making a punitive
cost order against the defendant. I have given this
issue due
consideration but am of the view that enough tax payers money have
been wasted. Mr Memani, I intend to deal with
by instructing
the Registrar to forward a copy of this judgment to the Johannesburg
Bar Council.
209.
In this instance then, the plaintiffs being successful in proving
damages, the normal order as to costs should follow.
210.
I am further of the view considering all the circumstance of this
case, that the plaintiffs be awarded interest on their claims
a
tempore
morae
at the prescribed statutory rate from date of service of summons.
The following orders
are made;
Damages are awarded to
the plaintiffs as follows:
1)
1
st
Plaintiff is awarded damages in the amounts of:
a)
R3 163 527,
90 for his infrastructure
claim;
b)
R3
044 300,00 for loss of
production;
c)
R9
875 800,00 for
general damages.
1.1 Interest on the
above amounts at the prescribed legal rate from 13 October 2010 to
date of payment.
2. 2
nd
Plaintiff is awarded damages in the following amounts:
a) R466 445.55
for infrastructure;
b) R5 54 617,00
for his production claim;
c) R510 270,00
for general damages
2.1 The defendant is
to pay interest on the above amounts at the prescribed legal rate
from 13 October 2010 to date of payment.
3. 3
rd
Plaintiff is awarded damages as follows.
a)
R2
060 641,00
for infrastructure;
b)
R2 423 314,00
for production loss;
c)
R1 397 000,00
for general damages;
3.1 The defendant is
to pay interest on the above amounts at the prescribed legal rate
from 13 October 2010 to date of payment.
4. The 4
th
Plaintiff is awarded damages as follows:
a) R735 973,20
for infrastructure;
b) R1090 921,31
for loss of production;
c) R827 000,00
for general damages;
4.1 Defendant is to
pay interest on the above amounts at the prescribed legal rate from
13 October 2010 to date of payment.
5. 5
th
Plaintiff is awarded damages as follows:
a) R382 758,00
for infrastructure;
b) R806 553,75
for loss of production;
c) R526 850,00
for general damages;
5.1 Defendant is to
pay interest on the above amounts at the prescribed legal rate from
13 October 2010 to date of payment.
6. 6
th
Plaintiff is awarded damages as follows:
a) R1 378 260,00
for loss of production;
b) R28 400,00
for general damages;
6.1 Defendant is to
pay interest on the above amounts at the prescribed legal rate from
13 October 2010 to date of payment.
7. The 7
th
Plaintiff is awarded damages as follows:
a) R131 659,79
for infrastructure;
b) R779 068,80
for production loss
c) R488 102,00
for general damages
7.1 Defendant is to
pay interest on the above amounts at the prescribed legal rate from
13 October 2010 to date of payment.
8. 8
th
Plaintiff is awarded damages as follows:
a) R79 485,30
for infrastructure;
b) R232 723,54
for production loss;
c) R205 000,00
for general damages;
8.1 Defendant is to
pay interest on the above amounts at the prescribed legal rate from
13 October 2010 to date of payment.
9. 9
th
Plaintiff is awarded damages as follows.
a) R5890,00
for infrastructure;
b) R286760,20
for production loss;
c) R187 217,60
for general damages;
9.1 The defendant is
to pay interest on the above amounts at the prescribed legal rate
from 13 October 2010 to date of payment.
10. 10
th
plaintiff is awarded damages as follows:
a) R285 184,00
for infrastructure;
b) R662 625,00
for loss of production;
c) R6 600,00
for general damages;
10.1 The
defendant is to pay interest on the above amounts at the prescribed
legal rate from 13 October 2010 to date of payment.
11. 11
th
Plaintiff is awarded damages as follows;
a) R228 161,00
for infrastructure;
b) R498 294,00
for loss of production;
c) R305 000,00
for general damages;
11.1 The
defendant is to pay interest on the above amounts at the prescribed
legal rate from 13 October 2010 to date of payment.
12. 12
th
Plaintiff is awarded damages as follows:
a) R128 950,20
for infrastructure;
b) R437 972,06
for production loss;
c) R110 091,60
for general damages;
12.1 The defendant is
to pay interest on the above amounts at the prescribed legal rate
from 13 October 2010 to date of payment.
13. Defendant is to
pay the costs of this action, which includes the qualifying costs
(inclusive of preparation, attending trial
and reasonable travelling
expenses) of the following experts:
Prof H Snyman
Mr JP Swanepoel
Mr L De Jager
Mr C Liebenberg
Mr A Rossouw
Mr E Emery.
____________________________
C
C WILLIAMS
JUDGE
For
Plaintiff:
Adv.
B Knoetze (SC)
Oosthuizen
Sweetnam & Reitz
c/o
Elliott Maris Wilamans & Hay
For
Defendent:
Adv
FR Memani
State
Attorneys