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[2017] ZAKZPHC 26
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Tartan Timbers (Pty) Limited and Others v Mondi Limited (AR457/16) [2017] ZAKZPHC 26 (23 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 8190/2011
AR457/16
In
the matter between:
Tartan
Timbers (Pty)
Limited First
Appellant
Vriendschap
Boerdery
CC Second
Appellant
Yourtrade
240
CC Third
Appellant
and
Mondi
Limited Respondent
JUDGMENT
Lopes
J
[1]
This is an appeal against a judgment of Balton J, delivered on the
10
th
May 2016. The appellants instituted an action against the respondent
for damages caused to their property during a fire which occurred
on
the 30
th
and 31
st
days of August 2008. The fire started on the respondent’s
Langfontein farm in Melmoth, Kwazulu-Natal on the 30
th
August 2008. On the next day the fire spread to the farms owned by
the appellants.
[2]
The grounds of negligence relied upon by the appellants in the
particulars of claim are divided into two categories:
(a) That the respondent
and/or its employees made a fire or caused a fire to be made when it
was dangerous and inopportune to do
so;
(b) Once the fire had
taken hold the respondent failed to combat the fire, as a result of
which it spread to the appellant’s
farms causing damage to
timber plantations and sugar cane.
[3]
After hearing six witnesses for the appellant, Balton J dismissed the
appellants’ claims with no order as to costs. On
the 21
st
June 2016 Balton J granted the appellants leave to appeal against her
decision. She also granted the respondent leave to cross-appeal
(which relates only to the question of costs) and reserved the
question of the costs of the application for leave to appeal for
decision by this court.
[4]
No acceptable evidence was placed before the court
a
quo
to
demonstrate how the fire started. Indeed the exact position where the
fire started could not be determined; only the general
area.
Nevertheless, the general area where the fire started was in
reasonably close proximity to the homesteads on the respondent’s
farm. Mr Henderson, who appeared as one of the experts for the
appellants opined that the fire had started within approximately
15
metres of one of the homesteads. Mr
Troskie
SC
, who
appeared for the appellants, accepted in argument that a case had not
been made out by the appellants on the first category
of negligence.
[5]
Mr
Troskie
submitted in his heads of argument that the second category of
negligence relates to the respondent’s awareness of the risk
of
a fire starting in the open grasslands where the homesteads are
situated on the farm. The evidence of the witnesses was that
homesteads constitute a risk of fire where they are built in the
vicinity of grasslands.
[6]
In this regard the appellants rely on the following:
(a) No firebreaks were
created around the homesteads such as would have prevented the spread
of the fire.
(b) The opinion of Mr
Henderson that the entire grassland should have previously been burnt
out as a precaution against the start
and spread of the fires.
[7]
Mr
Troskie
submitted
in argument that the appellants restricted the area of negligence to
the respondent’s failure to clear the grasslands
around the
homesteads. This was dealt with in the evidence of Mr Henderson.
[8]
Prior to dealing with these aspects of negligence it is necessary to
set out the relevant legislation as well as the role played
by the
appellants’ experts during the trial. The National Veld and
Forest Fire Act, 1998 became operative on the 1
st
April 1999 with the object of reforming the law on veld and forest
fires. The Act provides in s 4 for the establishment of a fire
protection association to be registered in an area for the purpose of
predicting, preventing, managing and extinguishing veld fires.
The
comprehensive duties of a fire protection association are set out in
s 5 of the Act, including, inter alia, the development
and
application of a veld fire management strategy for the area, making
rules which bind its members and set out the minimum standards
to be
maintained by members, and controlled burning to conserve ecosystems
and reduce the fire danger.
[9]
Section 6 of the Act provides for the appointment of fire protection
officers who are required to perform the function of the
chief
executive officer of a fire protection association. The tasks of the
fire protection officer includes inter alia, taking
control of any
fire-fighting in the area for which the fire protection association
has been formed if the veld fire is a threat
to life or property, and
the fire protection officer is reasonably able to take control of the
fire. The fire protection officer
is also required to enforce the
rules of the association and inspect the members’ land to
ensure compliance with the rules.
[10]
In the area with which we are concerned in this appeal, a fire
protection association named the Zululand Inland Fire Protection
Association was registered by the Minister of Water Affairs and
Forestry on the 1
st
November 2006. A comprehensive business plan for the Fire Protection
Association for the period from 2006 to 2011 was drafted setting
up
steps to be taken to prevent fires as well as a management strategy
for dealing with fires. Rules regarding fire breaks, etc
were also
laid down by the association.
[11]
As is clearly evident from the provisions of the Act, the position
which applied prior to its coming into operation has changed.
At that
time the relevant legislation was the Forest Act, 1984. Section 84 of
that Act made provision for a presumption of negligence
in respect of
a veld, forest or mountain fire occurring on land outside a fire
control area. Negligence would then arise where
it was alleged
against a party to proceedings, and the party making the allegation
established a nexus or connection between the
fire and the party
against whom the allegation was made, which was consistent with such
negligence.
See
H L &
H Timber Products (Pty) Limited v Sappi Manufacturing (Pty) Limited,
2001 (4) SA 814
(SCA), paragraphs 12 to 17.
[12]
The present Act contains no such presumption and it is accordingly
incumbent upon a plaintiff in an action to prove the common
requisites for negligence:
(a) Conduct initiating
wrongfulness, by the defendant.
(b) Fault, in this
instance, negligence by the defendant.
(c) Harm suffered by the
plaintiff.
(d) A causal connection
between (a) and (c).
See
H L & H Timber Products (Pty) Limited
at paragraph 13.
In
this regard Mr
Troskie
conceded that the appellants bore the onus of establishing negligence
on the part of the respondent.
[13]
The appellants led the evidence of Trevor Mark Wilson, the fire
protection officer for the Zululand Fire Protection Association
at
the time of the fire. Mr Wilson’s evidence may be briefly
summarised as follows:
(a) He operated as a
spotter pilot out of KwaMbonambi on the Kwazulu-Natal coast, and his
function in fire-fighting was to assess
the nature and extent of the
fire and direct the bomber pilots as to where to discharge their
loads of fire retardant treated water.
(b) He was also
responsible for weather warnings. In the present case he was aware of
a very strong cold front coming up to Kwazulu-Natal
from the Cape.
Such a weather pattern sets off what is commonly referred to as “berg
winds” – an offshore flow
of very dry air of low humidity
and high wind accompanied by high temperatures which create a
significantly high fire danger rating.
So concerned was Mr Wilson
about the potential for a fire at the time that he arranged for an
additional bomber to be present in
the area, and which was in fact
stationed on one of the appellant’s farms.
(c) Mr Wilson regarded
the weather indicators on the 30
th
August 2008 as
constituting “very extreme fire indicators”. The
temperature at 3pm was high, 26.3 degrees celsius,
the humidity 14%
and the average wind speed 33.8m/h. The highest wind gusts at that
time were 67.6 km/h. He referred to it as a
“very bad day.”
(d) Mr Wilson was
notified of the fire on the Saturday afternoon, and to complicate
matters the conditions for flying were turbulent
and difficult. The
conditions were in fact so bad that a less qualified pilot had
declined to fly, indicating that he was insufficiently
inexperienced
to fly in those conditions.
(e) Having flown over the
area within half-an-hour of the start of the fire, Mr Wilson was of
the view that the area of origin of
the fire was in the vicinity of
the homesteads on Langfontein farm. He ceased observing the fire
because one of the bomber pilots
had gone missing. It later emerged
that the bomber plane had crashed in the forest. Mr Wilson’s
view was that on Saturday
afternoon the fire was contained, meaning
that there was a dry break all around the fire. He was unable to see
any open flames,
but testified that there were still smoke patches
the next morning.
(f) The weather
conditions overnight had improved considerably, but later, again
deteriorated. By 8am on the 31
st
August the wind was
gusting up to 95km/h, and Mr Wilson’s view was that any
ignition on a wind of that speed would not be
able to be stopped. It
was extreme fire weather and they should not even have been flying in
that wind. The high wind speed remained
for most of that day.
(g) On the Sunday morning
Mr Wilson was flying a little way south of the fire when he suddenly
saw the smoke explode. The exploding
smoke was due to a phenomenon
called ‘inversion’ where layers of warm and cold air
reverse, resulting in the violent
re-ignition of a fire. He
flew closer in order to observe what was happening: the fire had
re-erupted, and as he put it ‘
running very quickly and
spotting on the left and the right flank’.
Spotting is when
it throws embers ahead.
(h) Mr Wilson testified
that the spotting could be from between 2 to 3 kilometres. He
described the fire at that stage as being
‘
absolutely
uncontrollable – man and beast have got no place to be there
’.
(i) Mr Wilson made no
criticism whatsoever of the conduct of the respondent in failing to
prevent the fire or failing to stop it
spreading.
[14]
The other main witness for the appellants was Clive Scott Henderson,
who has studied and worked in the farming and forestry
industries
since before 1970. From that time he was involved in a cross-section
of agricultural and forestry activities dealing
in the assessment of
where fires start, how they progress, and assessing the quantum of
damages.
[15]
Mr Henderson’s principal submission in the trial was that the
respondent could have easily prevented the fire by carrying
out what
he referred to as a ‘burn-out’ of the whole valley in
which the homesteads, near to which the fire started,
were situated.
His reason for advocating the ‘burn-out’ of the entire
grassland was because it is situated at the teeth
of the north-west
wind, and has many dwellings on it which are a known source of
danger. The grassland consisted of tall flammable
grass which abutted
onto the plantations. His view was that once you took into account
the likelihood of strong hot winds blowing
up a dry western slope,
the grassland area was particularly dangerous to the plantations
situated downwind of it.
[16]
Mr
Troskie
submitted that the concept of a ‘burn-out’ advocated by
Mr Henderson could have been achieved by cutting or hoeing
the
grassland or burning it. Mr
Troskie
submitted that no evidence was led by the respondent to suggest that
a ‘burn-out’ (or, indeed, hoeing or cutting) could
not
have been done. He submitted that no attention was paid to this
aspect in the judgment of the court
a
quo
[17]
Mr
Broster SC,
who appeared for the respondent, criticised Mr
Henderson’s evidence for the following reasons:
(a) His idea of a
‘burn-out’ of the entire valley was an afterthought, and
referred in essence to what is termed a ‘block-burn’
which is essentially a burning of grasslands for bio diversity
reasons, and not as a fire precaution.
(b) Unlike the evidence
which he gave in court, Mr Henderson’s expert summary referred
to a network of fire breaks, both external
and internal. No reference
to a ‘block-burn’ was made in his expert summary, and no
supplementary expert summary was
delivered.
(c) Mr Henderson did not
disagree with the suggestion that a ‘burn-out’ of the
entire valley of grassland would involve
approximately 300 hectares.
(d) Mr Henderson did not
regard it as important to look at the history of fires in the area,
and had not, prior to the trial, examined
the map depicting the areas
where the respondent had burned firebreaks and the dates upon which
those firebreaks were burned.
(e) Mr Henderson had made
no enquiries as to the actual cause of the fire, contenting himself
with hearsay evidence from one of
the occupiers of a residence
adjacent to the grassland.
(f) If a ‘block-burn’
was necessary or required, it would have been stipulated by the fire
protection association. It
was not.
[18]
In assessing the evidence of both Mr Wilson and Mr Henderson:
(a) Mr Wilson was the
fire protection officer for the area.
(b) Mr Wilson set out, on
behalf of the Fire Protection Association for the region, the steps
which had to be taken by farms in
the area in order to prevent fires.
(c) Mr Wilson had no
criticism whatsoever of the firebreaks and precautions taken by the
respondent in order to prevent fires.
(d) Mr Wilson’s
evidence was that firebreaks were intended only to enable
firefighters to obtain proximity to any fire in
order to enable them
to combat it. The firebreaks themselves are not intended to prevent
fires.
(e) Mr Henderson, on the
other hand, appeared not to appreciate the distinction between the
old Act and the new Act and the role
of the Fire Protection
Association in taking steps to predict fires and warn landowners in
the area under its control of the likelihood
of such fires. Mr
Henderson also failed to appreciate the function of the Fire
Protection Association in controlling and fighting
fires once they
had started.
(f) The blame apportioned
to the respondent by Mr Henderson may have been applicable under the
old Act, and established a
prima
facie
case of negligence against the respondent. The terms of the new Act
do not do so.
[19]
Mr
Troskie
submitted that the fire protection association
provided only a ‘macro-management’ of the problems
leading to fires
and the control and handling of them. In my view
this approach does not accord with the numerous functions and duties
of the fire
protection officer and the association, including
advising farmers on the correct fire prevention methods and ensuring
that these
methods are implemented by the farmers.
[20]
It was the evidence of Mr Wilson that on the evening of the 30
th
August the fire was contained on the premises of the respondent. His
evidence of what occurred the next morning when the inversion
of air
occurred, and the explosion which caused the fire to restart made it
clear that this was not something which could have
been prevented.
His description of the conditions on the day, together with his
evidence of what are ideal conditions for fires
to start and
continue, make it clear that nothing could have been done by anyone
to have stopped the fire on the 31
st
August.
[21]
The evidence of Mr Wilson is confirmed by Mr Smith, a member of the
second appellant. His evidence was that he had gone out
to
investigate the fire on the evening of Saturday the 30
th
August, and his view was that the fire had stopped. He was satisfied
that all naked flames and any immediate threat were under
control.
[22]
Mr
Troskie
also
criticised the fact that Mr
Broster
,
did not put to Mr Wilson that the fire protection association had
failed properly to carry out its duties to ensure that the fire
did
not take place. He submitted that the respondent cannot hide behind
the fact that the association did not carry out its functions.
I am
not persuaded that it was the task of the respondent or Mr
Broster
to do so. It was incumbent upon the appellants to establish
wrongfulness and negligence on the part of the respondent. They
failed
to do so.
[23]
In my view no criticism of the judgment of the learned Judge in the
court
a
quo
would
be sufficient to disturb the overall impact of the judgment and the
ultimate decision of the learned Judge that there was
no negligence
on the part of the respondent in either allowing the fire to start,
or failing to contain it and control it after
it started.
[24]
The only aspect of the judgment in the court
a
quo
which could be the subject of any appeal is the matter of costs. The
learned Judge found that there was no reason to mulct the
appellants
in costs on the basis that the weather conditions of the 30
th
and 31
st
August 2008 caused the fire to spread from the respondent’s
farm to the appellants’ farms. The learned Judge expressed
the
view that to burden the appellants with the costs of the action would
be unfair, and not in the interests of justice.
[25]
In my view this approach does not pay due regard to the fact that the
appellants instituted an action against the respondent,
and continued
to do so when they had been provided with the evidence which would be
given by Messrs Wilson, Henderson and Smith.
Faced with that evidence
and the applicability of the new Act and the marked disparity between
that Act and the old Act with regard
to the responsibility resting on
land owners to ensure that fires did not spread from their property
to the properties of others,
should all have been taken into account
by the appellants in the preparation of their trial. That should have
alerted them to the
fact that it was unlikely that the appellants
would be able to establish negligence on the part of the respondent.
That is how
it turned out to be at the trial, and the respondent
should not have been put to the costs of litigating in this matter.
[26]
The normal rule that costs should follow the result was applicable in
this case, and with respect to the learned Judge in the
court
a
quo
,
should have been applied. The appellants were not successful with any
part of their case, and there are accordingly no ‘special
circumstances’ which would warrant a deviation from the normal
rule.
[27]
In all the circumstances I make the following order:
(a) The appeal is
dismissed.
(b) The counter-appeal by
the respondent is upheld and paragraph 2 of the order of the court a
quo is amended to read:
‘
2. The plaintiffs
jointly and severally, the one paying the other to be absolved, are
to pay the defendant’s costs of suit.’
(c) The appellants are
directed to pay the costs of the application for leave to appeal and
the costs of the appeal.
_________________
Lopes
J
I
agree.
__________________
Seegobin
J
I
agree
__________________
Poyo-Dlwati
J
Counsel
for the Appellants: Mr A J Troskie SC
Instructed
by: Hay & Scott Attorneys
Top
Floor, 3 Highgate Drive
Redlands
Estate
1
George MacFarlane Lane
Pietermaritzburg
Counsel
for the Respondent: Mr L B Broster SC
Instructed
by: Woodhead Bigby & Irving Inc
c/o
Ngcobo Poyo & Diedericks Inc
190
Hoosen Hafejee Street
Pietermaritzburg
Date
of hearing: 8 February 2017
Date
of Judgment: 23 March 2017