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[2016] ZAGPPHC 139
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Government of the Republic of South Africa and Another v David Roux Gesinstrust (A287/2014) [2016] ZAGPPHC 139 (27 January 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
number: A287/2014
Date:
27/1/2016
Reportable
Not
of interest to other judges
Revised
In
the matter between:
THE
GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA FIRST
APPELLANT
THE
MINISTER OF SAFETY AND
SECURITY SECOND
APPELLANT
And
DAVID
ROUX
GESINSTRUST FIRST
RESPONDENT
DJH
ROUX SECOND
RESPONDENT
JUDGMENT
2
PRETORIUS
J,
(1)
This is an appeal against the findings and judgment of Louw JW J who
sat as court of first instance. Leave to appeal was granted
to the
Full Bench of this division on 2 April 2014 by the Supreme Court of
Appeal.
(2)
The respondents' claims are for damages suffered to farms, cattle and
equipment, except for Mr Rontgen, who is claiming for
personal
injuries suffered during a veldfire. Fifteen respondents had claimed
against the appellants for damages suffered during
the veldfire. The
fifteen claims were consolidated, by agreement between the parties.
It was further agreed that the fifteen matters
would be dealt with
simultaneously for purposes of merits.
(3)
The appellants were found to be jointly and severally liable for
damages suffered by the respondents as a result of a veldfire
which
started on 28 August 2008 at the Thabazimbi Training Institute
("Verdrag"), the property of the first appellant.
This
property was under the control and supervision of the South African
Police Services ("SAPS"). The fire had spread
from Verdrag
to the respondents' properties. The appellants were also held liable
for the personal injuries Mr Rontgen had suffered
during the fire.
(4)
The appellants initially relied on contributory negligence of the
respondents and requested the court to apply the provisions
of the
3
Apportionment
of Damages Act No 34 of 1956.
(5)
The appellants amended their plea on 1 December 2011 and pleaded that
on Sunday, 31 August 2008, a second fire had started on
Mr Coetzer's
farm, which fire spread through the institute in a north to
north-easterly direction through Bravo Camp, on Verdrag,
through Verd
rag and onto adjoining property to the north-east of the institute.
(6)
On 1 December 2011 third party notices were served on
"Dabchick
Wildlife Reserve (Pty) Limited, Casspir Johannes Coetzer, Petrus
Johannes Le Roux N.
0.
as Trustee of the Kliprivier Trust, and
in personal capacity . . ."
(7)
The third party notices alleged that should the appellants be held
liable to compensate the respondents, the third parties were
jointly
and severally negligent with the appellants in the causation of the
spread of the first, alternatively the second fire
to the properties
of the other respondents, alternatively an order declaring the
appellants and the third parties joint wrongdoers
against the other
respondents with a determination of the respective degrees of blame.
The third parties pleaded, denying all liability
to compensate the
appellants and denied that there was a second fire which had caused
damage to the respondents.
4
(8)
At the two pre-trials held respectively on 28 September 2010 and 26
January 2011 the parties agreed to a separation of issues
and
formulated it as follows:
"The
question of negligence of Defendants
as
alleged in the
respective Particulars of Claim, together with the question of
contributory negligence
as
pleaded in the respective Pleas,
together with the question of causation of damages
as a
result
of any negligence of Defendants in respect of each particular
Plaintiff."
And
further:
"The
Court will then be asked to make
a
determination in respect of
each of the separate matters whether Defendants are liable to
compensate the relevant Plaintiff(s) for
damages suffered, and if
so,
what percentage of damages should be covered by
compensation
so
paid."
(9)
At the conclusion of the trial certain facts were common cause. A
veldfire had started on Verdrag, comprising of the farms,
Buffelspoort and Buffelskloof, as well as Groenfontein, which was
owned by the first Appellant and known as the Thabazimbi Training
Institute. Due notice had been given to the appellants in terms of
the
Legal Proceedings Against Certain Organs of State Act No 40 of
2002.
The
locus standi
of the respondents were initially
in issue, but it is common cause at present that all the respondents
have
locus standi.
It was further common cause at the end of
the trial that the appellants were not members of a Fire Protection
Association ("FPA").
(10)
The fire which had started at Verdrag was a veldfire as defined in
section 1 of the
National Veld and Forest Fire Act No 101 of 1998
("the Act"). Therefor the appellants had to prove on a
balance of probabilities that the members of the appellants were
not
negligent in any respect alleged by the respondents. Furthermore the
appellants had to prove that the conduct of the officials
of the
SAPS, if it fell short of the standards required of them, that those
failings would have had no effect as section 34 of
the Act provides:
"Presumption
of negligence
(1)
If a person who brings civil proceedings proves that he or she
suffered loss from
a
veldfire which-
(a)
the defendant caused; or
(b)
started on or spread from land owned by the defendant,
the
defendant is presumed to have been negligent
in relation
to the veldfire until the contrary is proved,
unless the
defendant is
a
member of
a
fire
protection association in the area where the fire occurred.
(Court's
emphasis)
(2)
The presumption in subsection (1) does not exempt the plaintiff
from the onus of proving that any act or omission by the defendant
was wrongful."
(11)
Although the appellants had initially relied on a second fire which,
6
purportedly,
had started on Mr Coetzer's farm, counsel for the appellants informed
this court that it was no longer an issue. Therefor
this court has to
deal with the one fire and its' consequences.
(12)
Both counsel for the appellants and the respondents, referred the
court to the decision of
HL & H Timber Products (Pty) Ltd v
Sappi Manufacturing (Pty) Ltd 2001(4) SA 814 SCA
where Nienaber
JA set out the principle objectives of the Act at paragraph 21 as:
"One
of the principal objectives of the Act is the prevention and control
of veld, forest and mountain fires (cf Prinsloo v
Van der Linde and
Another (supra at 1016E
-
H)).
Landowners in areas
outside fire control areas are saddled with the primary
responsibility, falling short of an absolute duty, of
ensuring that
such fires occurring on their land do not escape their boundaries
...Similar considerations in my opinion apply when
there is
uncertainty as to whether the actions or inaction of a defendant had
or would have had a bearing on the state and course
of the fire.
These are issues arising within the context of the
'question of negligence'."
(Court's emphasis)
(13)
This court is aware that the grounds of appeal pertain to factual
issues and not on the interpretation and application of the
law. An
appeal court will only interfere in the instance where the appeal
court can establish that the judgment was wrong. Should
this court
find that the
7
court
a
quo
misdirected itself, this court will come to its own
conclusion on the evidence.
THE
FACTS:
(14)
On 27 August 2008 there was a weather forecast warning for Limpopo
due to the prevailing heat and wind at the time. On 28 August
2008 at
approximately 12h30 a veldfire started on Verdrag at the Skirmish
Range where recruits were being trained. At that stage
the fire
danger rating was average. The fire was reported to the Rankin's Pass
Police Station at 14h57 as being out of hand due
to the dry
conditions in the veld. At 15h00 Warrant Officer Kruger informed Mr
Haupt at Dabchick, the adjoining property to Verdrag,
that the fire
was under control and according to the witnesses, backburns were
being made from the Urban Centre on the farm to
the T-junction east
of Verdrag. At that stage the fire had spread into the mountain, but
the fire had been extinguished on the
flat surfaces at 18h00.
(15)
Sergeant Reichel testified that there was no citizen's band radio on
Verdrag at the time and cellphone reception was almost
non-existent.
Captain Macheke, who was acting as commanding officer at the time,
left for Pretoria on 29 August 2008, the Friday
morning at 6h30. At
7h00 the Blesbok vehicle, containing 7000 litres of water, was sent
to Bravo and Charlie camps to extinguish
the fire around both camps.
On the same date at 11h00 Mr Weilbach, who was the chairperson of the
Modimolle Fire Protection Agency
("FPA") was requested to
help with the fire on Verdrag by Warrant Officer Kruger. Subsequently
he spoke to Captain Mienie,
who was acting commanding officer in the
absence of Captain Macheke, who informed him that Verdrag did not
require any help. At
14h00 Warrant Officer Kruger once more asked for
assistance from Mr Weilbach. They fought the fire at Verdrag south of
block Z.
At 16h00 Captain Mothoni, Captain Mienie and all the
permanent staff, apart from four members, left Verdrag for the
weekend as
it was the end of the month. Two helicopters took off to
Verdrag at 16h20 after Sergeant Reichel and Captain Mienie requested
their
assistance. Between 17h00 and 21h00 backburns were made east of
where the backburns had been made the previous day. At 20h00 on
29
August 2008 the fire in the mountain at Dabchick had been contained.
(16)
Captain Macheke's evidence was that the SAPS had withdrawn whilst the
fire was still burning in the mountain on Verdrag. Both
Messrs
Dippenaar and Henning's evidence were that they had noticed fire on
the mountain during the night of 29 August 2008. According
to Warrant
Officer Kruger there was no effort on the ground on 30 August 2008 to
extinguish the fire until 12h00, as they had relied
on the
helicopters to extinguish the fire. This evidence has to be
questioned as to Warrant Officer Kruger's knowledge to fight
fires as
it was common cause that the helicopters assisted ground crews in
cooling the fire down, to enable the fire fighters to
combat the fire
on the ground. On 30 August at 12h00 both the Yorks and Mr van der
Merwe
9
drove
on the main road and could smell and see smoke, but did not see any
fires. At 12h00 Captain Keshebang was requested to assist
with the
fire at Meletsi Lodge.
(17)
Mr van der Merwe testified that at 13h00 he was at Weltevrede
crossing where there was chaos as farmers were collecting their
cattle and there was heavy smoke. The fire was on its way to
lnnie-Sak Beleggings' property and Mr Gildenhuys was warned that the
fire was on its way to Goedehoop. Mr Gildenhuys arrived at Goedehoop
and found that it had already burned and that the fire was
on Mr
York's farm at 15h00, while the fire had also burned to Coetzer's
farm over the top of the Hoekberg. At 16h00 the fire had
been
contained at Dabchick, where according to Mr Weilbach a backburn had
been made to the southern part. At 17h00 Captain Keshebang,
who was
the course leader on the farm and was assisting beating the fire at
Meletsi Lodge, left and took the trainees for supper.
Mr Henning's
evidence was that the fire had spread to Marones and was burning. At
18h00 the fire on Mr Coetzer's farm had been
contained by backburns.
(18)
Between 18h00 and 21h00 Captains Keshebang, Macheke and Warrant
Officer Kruger combatted the fire in block Z with backburns.
Mr
Pretorius noticed fire burning on Hoekberg at 18h00, whilst Mr
Henning and others contained the fire at Marones between 18h00
to
23h00 and at 19h00 the fire was contained on the northern part of
lnni-
10
Sak
Beleggings. Between 19h00 to 20h00 Mr Roux saw the fire at Kralingen
and smouldering at Rankin's Pass opposite Weilbach's property.
(19)
On 31 August 2008 Mr Visser at 4h00 arrived at his farm to find that
it had already burnt. Mr van der Merwe confirmed that
the fire was
still burning in the mountains at 4h00. At 5h00 Captain Macheke left
to monitor the fire at Meletsi Lodge. At 6h00
Mr Dippenaar warned Mr
Mokaba of the fire on the south western side of the Main Road
property. Just after that Captains Keshebang
and Macheke noticed fire
at the back of Bravo camp, whilst Warrant Officer Kruger told Mr
Weilbach the fire was under control.
At 8h45 the wind changed. At
9h00 Mr Weilbach and other farmers made a backburn at the Rankin's
Pass - Bela Bela road. At 11h00
the fire was burning from
Groenfontein on both sides of the Almaffhabazimbi road and the
Coetzers testified that the fire was on
the way to the lodge. At that
time lnni-Sak Beleggings burned down.
(20)
The Thabazimbi Fire Brigade assisted in fighting the fire, but could
not prevent the fire burning through Mr Roux's farm and
from jumping
the Alma road into the Main Road property. The De Coning house burnt
down as well as the Botha property. Coetzer's
lodge was saved with
the assistance of the helicopters, but his farm could not be saved
from the ferocious fire. Thereafter Mr
Dippenaar's farm burnt. On 1
September 2008 at 13h00 the fire flared up once more on Botes'
11
property,
and it was only extinguished in the early hours of 2 September 2008.
(21)
The appellants' own expert, Mr Strydom, confirmed that the reaction
time to get to a veldfire is crucial. The sooner you get
to the fire
the better your chance of extinguishing it immediately. His further
evidence was that he had not inspected the firebreaks
at Verdrag. He
was of the opinion that there was enough fire fighting equipment on
Verdrag, until he was told that three of the
water tanks were not in
use in August 2008 due to their disrepair. His evidence was that
initially he had found that the personnel
at Verdrag were adequately
trained in fighting veldfires, until he received the certificates
which indicated that the personnel
had been trained to fight in-house
fires. He further conceded that he was not an expert in the
field of veldfires.
(22)
The court
a quo
found that the appellants were negligent by
not having sufficient suitably trained personnel for extinguishing
veldfires; that the
fire had crossed the most southern firebreak road
as a result of the appellants' failure to properly maintain the
firebreak; that
the appellants' had failed to notify the neighbours
and the FDA in terms of section 18(1)(b) of the Act; that the
negligence of
the appellants was relevant to the spread of the fire
to the properties of the respondents and to the harm and damage the
respondents
had suffered to their properties and the personal
injuries suffered by Mr Rontgen.
12
THE
LEGAL PRINCIPLES:
(23)
The appellants relied on non-causative negligence and disagreed with
the court a
quo
where it was found:
"The
defendants accepted that if I found that they were negligent in the
said respects, the uncontrollability of the fire on
the Sunday would
not
assist
them."
(24)
Counsel for the appellants contended that if such a concession was
made it was wrongly made and should be disregarded.
(25)
In
Neethling, Potgieter & Visser Law of Delict,
5th
Edition,
the learned authors sets out at para 2.4 page
185:
"The
existence of
a
factual causal chain must therefore be
demonstrated in view of the proved relevant facts.
A
test for factual causation therefore depends on the facts of each
case and is not something of a general nature that can be applicable
to all factual complexes.
In other words, there are
probably
as
many
"tests"
for causation
as
there are causal links."
(Court's emphasis)
(26)
In
Minister of Safety and Security v Van Duivenboden 2002(6) SA
431 (SCA)
the court held at 449:
"The
first enquiry is whether the wrongful conduct was a factual cause of
the loss. The second is whether in law it ought to
be
13
regarded
as
a
cause. Regarding the first enquiry he said the following:
'The
enquiry as to factual causation is generally conducted by applying
the so-called "but-for" test, which is designed
to
determine whether
a
postulated cause can be identified as
a
causa sine qua non of the loss in question. In
order to
apply this test one must make a hypothetical enquiry as to what
probably would have happened but for the wrongful conduct
of the
defendant.
This enquiry may involve the
mental
elimination of the wrongful conduct and the substitution of
a
hypothetical course of lawful conduct and the posing of the
question as to whether upon such an hypothesis plaintiff's loss would
have ensued or not. If it would in any event have ensued, then the
wrongful conduct was not
a
cause of the loss; aliter, if it
would not have ensued.' ..
.A plaintiff is not required to
establish the causal link with certainty, but only to establish that
the wrongful conduct was probably
a cause of the loss, which calls
for a sensible retrospective analysis of what would probably have
occurred, based upon the evidence
and what can be expected to occur
in the ordinary course of human affairs rather than an exercise in
metaphysics."
(Court's emphasis)
(27)
To determine factual causation the court has to decide what would
probably have happened if the SAPS had acted positively by
14
extinguishing
the fire earlier and if the SAPS had acted differently in maintaining
the firebreaks and notifying the FPA and neighbours
timeously of the
fire and had trained personnel to fight the fire with adequate
equipment.
(28)
In issue is whether the reasonable person would have foreseen and
prevented the spreading of the fire in the circumstances
that
prevailed in this instance from 27 August 2008 to 2 September 2008.
(29)
Unlawfulness or wrongfulness is a requirement for delictual
liability. In
Gouda Boerdery BK v Transnet 2005(5) SA 490 (SCA)
at
paragraph 12, Scott JA held:
"Where
the element of wrongfulness gains importance is in relation to
liability for omissions and pure economic loss. The inquiry
as to
wrongfulness will then involve
a
determination of the
existence or otherwise of
a
legal duty owed by the defendant
to the plaintiff to act without negligence: in other words to avoid
negligently causing the plaintiff
harm.
This will be a
matter for judicial judgment involving criteria of
reasonableness, policy and, where appropriate, constitutional norms.
If
a
legal duty is found to have existed, the next
inquiry will be whether the defendant was negligent. The test to be
applied will be
that formulated in Kruger v Coetzee, involving
as it does,
first, a determination of the issue of
foreseeability and, second, a comparison between
15
what
steps a reasonable person would have taken and what steps, if any,
the defendant actually took."
(Court's emphasis)
(30)
The facts in the present matter are similar to
Gouda's case
(supra)
and in paragraph 13 Scott JA agreed with the court
a
quo
in that matter as follows:
“
As
to the former, he expressed himself as follows:
'I
am of the view that the legal convictions of the community would, in
a
case such as the present,
expect that if the
defendant's negligent conduct leads to harm by fire to a
neighbour's property, such harm should be regarded as having been
wrongfully
inflicted, or, put another way, that the defendant should
be regarded as having been subject to a duty not to cause such harm.
In arriving at this conclusion I particularly bear in mind
the fact that the defendant
is
a
commercial entity, all
of whose shares are held by the
State, and that its purpose is
to conduct
a
commercial rail operation. That being the case,
and if it can be shown to have acted negligently and in
a
manner
to have caused harm, there can be no reason to excuse it from
liability. In arriving at this conclusion, I take into account
the
fact that the net of liability will not be cast too wide as
a
plaintiff still needs to establish both negligence and causation
before it is entitled to succeed.
'"
(Court's
emphasis)
(31)
In this instance the court had to decide whether the appellants had
succeeded in disproving negligence on their part of containing
and
extinguishing the fire. In
Van der Eecken v Salvation Army
Property Co 2008(4) SA 28 (T)
paragraph 36 it was stated:
"That
neighbouring landowners can be expected by the legal convictions of
rural communities to owe a duty of care not to cause
harm to each
other by negligently spreading fires from their land seems so obvious
as to be undeserving of comment. Lest there
be any doubt, such
convictions are conveniently captured in the provisions of the
National Veld and Forest Fire Act 101 of 1998..."
(32)
In
Kruger v Coetzee 1966(2) SA 428 (A) at 432 E - G
Holmes JA
set out the position of a
diligens paterfamilias:
"(a)
a diligens paterfamilias in the position of the defendant
-
(i)
would foresee the reasonable possibility
of his conduct
injuring another in his person or property and causing him
patrimonial loss; and
(ii)
would take reasonable steps
to guard against such occurrence;
and
(b)
the defendant failed to take such steps ...Whether
a
diligens
paterfamilias in the position of the person concerned would take any
guarding steps at all and, if so, what steps would
be reasonable,
must always depend upon the particular
17
circumstances
of each case. No hard and fast basis can be laid down. Hence the
futility, in general, of seeking guidance from the
facts and results
of other cases."
(Court's emphasis)
(33)
In
Lee v Minister for Correctional Services 2013(2) SA 144 (CC)
Nkabinde J dealt with causation at paragraph 38 as follows:
"The
point of departure is to have clarity on what causation is. This
element of liability gives rise to two distinct enquiries.
The
first is a factual enquiry into whether the negligent act or omission
caused the harm giving rise to the claim.
If it did not,
then that is the end of the matter. If it did, the second enquiry,
a
juridical problem, arises.
The question is then whether
the negligent act or omission is linked to the harm sufficiently
closely or directly for legal liability
to ensue or whether the harm
is too remote. This is termed legal causation."
(Court's
emphasis)
And
at paragraph 58:
"Substitution
and elimination in applying the but-for test are no more than
a
mental evaluative tool to assess the evidence on record. In my
view, this hypothetical exercise shows that probable causation has
been proved."
(34)
In paragraph 68 the Judge held that if the court found that a causal
link exists, the next enquiry regarding legal liability
must follow.
18
(35)
It is clear from all the evidence that veldfires on Verdrag were not
a novel concept as veldfires had previously been a common
feature on
Verdrag and had previously even lead to loss of life. The risk of
veldfires at Verdrag in 2008 was reasonably foreseeable.
The
appellants were obliged to take precautionary steps to prevent
veldfires and should such a fire occur, to prevent it from spreading
to neighbouring farms.
(36)
The respondents relied in their particulars of claim that the
appellants were under a legal duty:
"(a)
to prepare and maintain firebreaks on the inside of the
boundary
of Verdrag between Verdrag and adjoining properties, which firebreaks
should have been wide enough and long enough to have
a
reasonable
chance of preventing
a
veldfire from spreading to neighbouring
land;
(b)
to have equipment, protective clothing and trained personnel for
extinguishing fires which may spread to adjoining land, and
to ensure
that responsible persons were present who, in the event of fire,
would extinguish the fire or assist in doing so;
(c)
to take all reasonable steps to alert the owners of adjoining land
and the relevant fire protection association of any veldfire;
19
(d)
to inform owners of adjoining land of
a
veldfire on Verdrag
and to do everything in their power to stop the spread of the fire."
(37)
A breach of one or more of the legal duties provided for in the Act
will constitute unlawful conduct. The particulars of claim
makes the
allegation that the appellants were negligent in one or more of the
following respects:
"(a)
No firebreaks, alternatively insufficient firebreaks were made around
Verdrag, in particular around the skirmish shooting
range;
(b)
They proceeded with firearm training with live
ammunition,
including mortars, notwithstanding
a
fire hazard
tracers
and flares warning and in
circumstances in which
it was
dangerous
and
unreasonable to do so;
(c)
No arrangements were made to detect fires which might have started on
Verdrag, and no steps, alternatively inadequate steps,
were taken to
prevent fires from spreading to neighbouring properties;
(d)
No provision, alternatively inadequate provision, was made for
personnel to fight fires, and adequate equipment for fire fighting
was not available;
(e)
They omitted to notify, alternatively to give timeous notice, to
neighbouring property owners that a veldfire
had
started on Verdrag, and neighbouring owners and the relevant fire
protection association were not alerted, alternatively not
timeously
alerted;
(f)
They omitted to put out the fire which started on Verdrag under
circumstances where they could and should have done so.
(g)
They omitted to prevent the fire from spreading to neighbouring
farms, when they could and should have done so."
(38)
The court a
quo
found that the cause of the respondents'
damage was the fire which started on Verdrag. The question the court
had to deal with was
whether the appellants had been negligent in any
of the respects alleged by the respondents and/or if their conduct,
at the time
of the fire fell short of the standards required of them
and that their failure to adhere to such standards would have had no
effect
on the spread of the fire and the resultant damage the
respondents suffered.
(39)
It was clear that the possibility of veldfires was taken into account
by the appellants when they went for training to the
Skirmish Range
on 28 August 2008 as they took the precaution to take fire
extinguishers with them. There was evidence by Warrant
Officer
Reichel that he had previous to August 2008 experienced veldfires
being started by the shooting of regular bullets. He
was the person
responsible for the in house training of Captains Macheke,
Warrant Officer Kruger and
21
Sergeant
Ramoshabana relating to veldfires.
(40)
It is common cause that neither the trainers nor the trainees had any
training or experience in fighting veldfires, although
they were
aware of the danger of starting a veldfire because they took fire
extinguishers to the Skirmish Range as a precaution.
(41)
The personnel who had training in combatting veldfires on Verdrag
were Warrant Officer Reichel and Warrant Officer Kruger.
On 28 August
2008, Sergeant Reichel was absent from Verdrag and only Warrant
Officer Kruger was present, although he at no stage
during the
following days took the lead to combat the fire.
(42)
This court has scrutinized the record and came to the same conclusion
as the court a
quo
that there was no individual who took
control of the process of fighting the fire. The evidence was that
when the fire was detected
it was still a small fire, which the
trainees, regrettably, tried to extinguish with fire extinguishers.
The evidence by the expert
was that the use of fire extinguishers
exacerbated the situation as it fanned the fire. Warrant Officer
Reichel's evidence was
important in that his evidence was that water
had to be used to combat a veldfire and not fire extinguishers. This
court cannot
fault the findings by the court a
quo
that the
probabilities were that the fire extinguishers had caused the fire to
grow and spread rapidly and if a suitably trained
person with proper
equipment had been present at the start of the fire the small fire
would probably have been extinguished immediately.
(43)
Captain Macheke, the acting officer in command, arrived on the scene,
but had no knowledge of fighting veldfires, he only knew
how to make
backburns. Section 17(1) provides:
"Readiness
for fire fighting
(1)
Every owner on whose land
a
veldfire may start or bum or
from whose land it may spread must-
a)
have such equipment, protective clothing and trained personnel for
extinguishing fires as are-
(i)
prescribed; or
(ii)
in the absence of prescribed requirements, reasonably required in
the circumstances;
b)
ensure that in his or her absence responsible persons are present
on or near his or her land who, in the event of fire, will-
(i)
extinguish the fire or assist in doing so; and
(ii)
take all reasonable steps to alert the owners of adjoining land
and the relevant fire protection association, if any."
(44)
The only person trained to combat veldfires on Verdrag at that time
was Warrant Officer Kruger, who did not take control at
any stage to
extinguish the fire. The court a
quo
correctly found
that a single
23
trained
person on a huge farm like Verdrag, where there was a history of
veldfires and the nature of the vegetation at the time
was not
sufficient.
(45)
The court
a quo
correctly found that the fire was fought in a
"haphazard" manner. It was further exacerbated by the
permanent members
on Verdrag leaving the property on 29 August 2008,
leaving only four members behind, whilst the fire was still burning
in the mountain.
There was no evidence that the appellants tried to
prevent the fire spreading to the neighbouring farms. The court
a
quo
was correct to find that the appellants were negligent by not
having sufficient trained personnel for extinguishing veldfires on
the farm - Warrant Officer Kruger was the only trained fire fighter
regarding veldfires.
(46)
The second ground of appeal by the appellants was the finding by the
court
a quo
that the appellants had failed to notify the
neighbours and the FPA timeously of the imminent threat of the
veldfire.
(47)
Debchick is the neighbouring property directly adjacent to the east
of Verdrag and there was no evidence that anybody from
Dabchick was
informed of the outbreak of the veldfire on 28 August 2008. The
extent of the fire was downplayed as can be gathered
from the
evidence that when Mr Weilbach phoned Captain Mienie on 29 August
2008 at 11h00 she informed him that no assistance was
required and
then at
24
14h00
Warrant Officer Kruger requested assistance from Mr Weilbach. Captain
Mienie, who was the officer in command at the time,
left Verdrag on
29 August 2008 at 16h00, although the fire had not been extinguished.
She had also promised to let Mr Weilbach
know the extent of the fire,
which she never did. She never inspected the fire to ascertain what
the position was before she left
Verdrag.
(48)
Colonel Seroma arrived on 30 August at 15h00 and although none of the
other witnesses mentioned it, he had according to him,
a meeting with
Sergeant Reichel, Warrant Officer Kruger and Captain Macheke. The
misleading message from Captain Mienie on 29 August
2008 caused the
farmers not to assist fighting the fire at Verdrag. Both the fire
brigade and Working-On-Fire were only called
out on Saturday evening,
30 August 2008, after Colonel Seroma's arrival. On 28 August 2008
Verdrag was not a member of the FPA.
The only evidence was that
Rankin's Pass Police Station was informed of the fire at 13h32 and
there was no evidence that the owners
of the adjacent properties had
been informed of the veldfire at Verdrag. A further call was made to
Meletsi Lodge at 14h37, but
there is no evidence that anybody on
Dabchick was informed of the fire on 28 August 2008. Sergeant Reichel
assumed that the police
at the Rankin's Pass Police Station would
alert the adjoining properties. There was no evidence that it was
actually done.
(49)
This court has to agree with the finding of the court a
quo
that
the appellants were negligent in not complying with their statutory
obligation of immediately notifying the FPA and owners
of adjacent
farms. The court
a quo
found that the issue whether if the
appellants had informed the FPA and the owners of the adjacent farms
of the fire when it started,
would or would not have prevented the
fire spreading to the adjacent properties could not be determined on
the evidence or on probabilities
and therefor the issue was decided
against the appellants. Having regard to all the evidence, facts and
applying the principles
as set out in
HL & H Timber
(supra)
and the other authorities mentioned above this court finds that
the court
a quo
was correct in its finding.
PREVENTING
THE SPREAD OF THE FIRE:
(50)
Section 18(1)(b) of the Act provides:
"Actions
to fight fires
(1)
Any owner who has reason to believe that a fire on his or her land
or the land of an adjoining owner may endanger life, property
or the
environment, must immediately-
(a)
…
(b)
do everything in his or her power to stop the spread of the fire."
(51)
The respondents argued that the appellants could have extinguished
the fire on 28 August 2008 where the fire started. Unfortunately
this
did not happen due to various factors, of which the lack of
leadership in combatting the fire, was one of the more serious
reasons. At the onset of the fire trainers and trainees tried to
extinguish the fire with fire extinguishers and branches taken
from
the trees. Colonel Seroma's evidence was that on 28 August 2008 there
was no radio communication on the ground. His further
evidence was
that the course leaders were warned that the risk of veldfires was
high and that the trainers and trainees had to
take firebeaters with
them to the Skirmish Range, which they failed to do.
(52)
The only person trained to combat veldfires was Warrant Officer
Kruger, who was only informed of the fire more than an hour
after it
had started. The evidence by the appellant's witnesses were that
Captain Macheke, Warrant Officer Kruger and Captain Keshebang
were in
control fighting the fire. The evidence was that Warrant Officer
Kruger thought Captain Macheke was in control and Captain
Keshebang
did not know who was in control. It is thus clear that nobody took
responsibility for preventing the fire to spread to
the adjacent
farms. Captain Mienie who was in charge on 29 August 2008 did not
even go to the trouble to go out and see for herself
what the
situation was and left at 16h00 for the weekend.
(53)
In this instance, where a state organ like the appellants, own a huge
farm on which a training facility is being conducted,
it is expected
that there would be at least somebody to have taken control and to
have co-ordinated the combatting of the fire
and preventing it to
spread to
27
neighbouring
farms. It is important to note that the fire in the mountain was left
to burn on the southern slope of Hoekberg, despite
Colonel Seroma's
evidence that there was a part of the mountain that could easily have
been ascended as the vegetation was not
as high and dense as in the
flat parts. Even if it was not possible to ascend the mountain at
night, it could have been done during
the day, when there was a lull
in the wind and if there were fire fighters equipped with backpacks.
(54)
It is clear from the evidence that the main aim of the appellants was
to preserve Verdrag and therefor backburns were made
on 28 and 29
August 2008 on the north-western side of the fire at Verd rag. The
only exception was the effort to assist Meletsi
Lodge. There was not
any attempt to make a backburn on the eastern side adjacent to
Dabchick or on the southern side of the fire.
As the wind was
predominantly north-west, the expert's opinion was that it could be
expected that a backburn would be made from
the south-east. This was
confirmed by Captain Keshebang when he testified:
'"'No,
I know you did it, because you did not have any experience
whatsoever?
---
Of course M'Lord.
In
fighting field fires and you did not have equipment, because all the
equipment of Verdrag was centred at the Urban Centre and
you never
thought of making
a
back bum at the southern fire break, is
that not true?
---
Yes, that is true."
(Vol
39 page 3524, lines 12 - 18)
28
(55)
The finding by the court a
quo
that it was not unreasonable
not to attempt to extinguish the fire on the mountain at night, but
that there had been nothing which
prevented the SAPS during the day,
Friday and Saturday mornings, when the wind had died down to
extinguish the fire on the mountain,
must be confirmed. This court
must agree with the court a
quo
that the actions by the
appellants during the fire on Verdrag were to protect the property of
Verdrag and not to prevent the fire
from spreading to the adjacent
farms. The fire was under control on 31 August 2008 to such an extent
that Warrant Officer Kruger
was planning to go to church on the
Sunday morning, although none of the appellants' personnel knew how
far the fire had spread
over the mountain and what the conditions
were on the other side of the mountain. The uncontrollable fire would
not have burnt,
on Saturday and Sunday had the SAPS made use of the
periods of calm on Friday, Saturday and Sunday to bring the fire
under control.
(56)
In any event, the members of Verdrag must have foreseen that the wind
may change direction as it did on 31 August 2008 when
the fire burnt
down the slope of the Hoekberg mountain and was blowing strongly in a
north-easterly direction. The court a
quo
was correct in
finding that the fire which burnt down the northern slope of the
mountain above Bravo camp on Sunday, was the same
fire, which as a
result of a change in the wind direction, was blown back to Verdrag
from the southern side of the mountain.
29
(57)
This court must agree with the conclusion by the court
a quo
that
the appellants failed to do everything in their power, whether
immediately or during the course of the fire to stop the spread
of
the fire.
(58)
It is important to note that the appellants averred in the further
particulars that the assistance of the South African Air
Force
("SAAF") was requested on Thursday, 28 August 2008, to
assist by deploying helicopters. This is patently inconsistent
with
all the evidence, but it is even more important that it is
inconsistent with the evidence of the appellants' own witnesses.
On
28 August 2008 at 14h57 Captain Mienie was already of the view that
the fire was out of hand due to heavy winds and dry veld
conditions.
Nevertheless the assistance of the SAAF was only requested later on
29 August 2008 which resulted in the helicopters
only reaching
Verdrag late in the afternoon on 29 August 2008.
(59)
The excuse by Sergeant Reichel for not calling for assistance from
the helicopters on 28 August 2008 cannot be entertained
as the same
conditions existed on the Friday, 29 August 2008, when the call went
out and two helicopters assisted. Had the helicopters
assisted
immediately on 28 August 2008 the fire in all probability would have
been extinguished on the Thursday. This inaction
on the part of the
appellants on the Thursday is further evidence of the appellants not
acting immediately and doing everything
in their power to stop the
fire,
30
by
not extinguishing the small fire at the Skirmish Range due to a lack
of experience, a lack of proper equipment, using unsuitable
equipment
and not eliciting the help of the SAAF when the fire got out of hand
at 14h57. This resulted in the fire spreading as
the appellants did
not make a backburn along the southern road from the T-junction to
the Urban Centre.
(60)
The fact that the SAPS failed to extinguish the fire on the mountain,
while it was able to do so, lead to the fire spreading
further. The
appellants conceded that there were no firebreaks in the mountain.
The further evidence by
inter alia,
Captain Keshebang, was
that nobody took control of the situation. He further testified there
had been too little transport on Verdrag
to contain the fire and in
his experience the roads had not been properly maintained. This
evidence was confirmed by Colonel Seroma
who testified that he had no
knowledge of backburns and no training or experience in the combat of
veldfires and that there was
not enough fire fighting equipment on
Verdrag at the time. This is supported if the further particulars are
taken into account,
where it was set out that there were:
"(a)
A self-propelled watertanker vehicle ("Blesbok'J with
a
water tank capacity of
7
000 litres equipped with its own
engine and
a
100 meter hose which exerts water under pressure;
(b)
Two trailer watertankers with
a
tank capacity of 6 000
litres each capable of being drawn by
a
tractor or similar
31
vehicle,
each equipped with its own engine and
a
hose which exerts
water under pressure;
(c)
Three transportable watertanks with
a
capacity of 750
litres each, each equipped with an engine and hose which exerts water
under pressure."
(Vol
4 p 359).
In
actual fact there were only two bakkie-sakkies and the Blesbok. There
were no backpacks to enable fire fighters to ascend the
mountain and
to fight the fire.
(61)
The appellants rely on the strong wind of Saturday afternoon and
Sunday to submit that the fire was uncontrollable at that
stage and
therefor they were not liable for the damage caused by the fire on
the Sunday.
(62)
This court cannot agree with this submission, the damage was caused
by the fire that had started on 28 August 2008. The fact
that the
appellants failed to contain or extinguish it timeously, which they
would have been able to do had they been trained to
fight veldfires,
had been equipped with sufficient fire fighting equipment, employed
the use of the helicopters already on 28 August
2008 and if somebody
had taken the lead and co-ordinated the operation to fight the fire.
The same fire raged throughout until
2 September 2008 when it was
finally extinguished at Mr Botes' farm.
CONTRIBUTORY
NEGLIGENCE - DABCHICK:
(63)
The appellants submitted in argument that the finding by the court a
quo
that the fire was uncontrollable on the Saturday afternoon
and Sunday later in the morning and Dabchick was therefore not
negligent
and responsible for the fire spreading to neighbouring
farms, to be incorrect.
(64)
The allegation was that Dabchick did not have adequate firebreaks,
which resulted in the fire spreading to the properties of
the other
respondents. The complaint was that the firebreaks on Dabchick had
been slashed and not graded. This submission must
be considered
against the fact that on the Saturday afternoon the fire had become
uncontrollable due to the strong wind to such
an extent that the fire
jumped over Dabchick's main access road, which was graded. It is also
important that the court a
quo
found that the fire had spread
to Dabchick and that the fire burning from Verdrag had crossed the
Dabchick firebreak where Verdrag
had not made any firebreak. Messrs
Weilbach and Haupt's evidence was that the grass was tall on
Verdrag's side and overgrown with
sickle bush, which was later
confirmed by Captain Keshebang. Their further evidence was that they
could not make a backburn there,
due to the density of the bush on
Verdrag's side. No evidence was presented by the appellants that they
had not contemplated that
a fire burning from Verdrag would cross
Dabchick's firebreak, where they themselves had not made a firebreak.
(65)
This court agrees that the facts of this case is distinguishable from
the case of
Porritt v Molefe 1982(3) SA 76 AD
where Mr Porritt
had testified that he did not think a fire would cross his own
firebreak, which was evidently not the case in the
present matter.
(66)
The conclusion by the court a
quo
that no negligence can be
contributed to Dabchick is thus confirmed.
NON-CAUSATIVE
NEGLIGENCE:
(67)
Mr Ferreira, on behalf of the appellants, argued that the negligence
by the SAPS did not cause the damage on the Saturday and
the Sunday.
The appellants rely on paragraph 21 of the
HL & H Timber
matter (supra).
(68)
The argument is that it was irrelevant what had happened before the
Saturday and the Sunday as the negligence was non-causative.
The
submission was that it could not have been expected of the appellants
to know what was happening behind the mountain. This
court cannot
agree, the SAPS saw the fire burning right up to the crest of the
mountain, which was the border of Verdrag, and was
negligent in not
ensuring that the fire in the mountain was extinguished.
(69)
There was no attempt to demonstrate that the unreasonableness of
34
the
SAPS actions were irrelevant. In these circumstances the operation of
the presumption must therefore be held against the appellants.
(70)
This court finds that had the appellants not been negligent in the
manner described, the fire would have been extinguished
much earlier
and would not have caused the extensive damage on the Saturday and
the Sunday. Therefor the findings in this respect
by the court a
quo
must be confirmed.
INJURIES
TO MR A RöNTGEN:
(71)
The appellants contend that Mr Rontgen was the author of his own
misfortune. Mr Rontgen's evidence was that he was a passenger
in Dr
Henning's bakkie on Saturday, 30 August 2008. He, his wife and son
were standing on the back of the bakkie when Dr Henning
drove to
investigate where the fire had spread to. On the way from the farm,
Marones, the fire cut them off and Dr Henning had
to drive through
the flames to escape the fire. There was no time for Dr Henning to
stop and Mr Rontgen to get into the passenger
seat as the fire was
ferocious and burning fast.
(72)
He could not lie down as his wife and son did, due to the recent back
operation he had undergone and therefor he sustained
burns to his
face, hands and arms. He was taken to hospital due to the seriousness
of the injuries.
(73)
This court finds that the court
a quo
was correct when it
found the appellants liable for the injuries suffered by Mr Rontgen.
CONCLUSION:
(74)
This court has considered all the arguments, evidence and the
judgment of the court
a quo.
The court has applied the
principles as set out in the
HL & H Timbers
case
(supra)
and the
Lee
case
(supra)
and other authorities and
can come to no other conclusion, but that the court
a quo
was
correct in its findings.
(75)
It follows that in the court's view the appellants failed to convince
the court on a balance of probabilities that they were
not negligent
and not liable for the damages of all the respondents, including the
farms that were damaged on the Saturday, Sunday
and Monday as well as
the personal injuries sustained by Mr Rontgen. In such an instance
the appeal must accordingly fail.
(76)
The appeal is dismissed with costs.
__________________
Judge
C Pretorius
36
We
agree.
__________________
Judge
VV Tlhapi
__________________
Judge
N Ranchod
37
Case
number
: A287/2014
Matter
heard on
: 11
November 2015
For
the Applicant
: Adv AC Ferreira SC/Adv
HOR Modisa/ Adv NAR Ngoepe
Instructed
by
: State Attorney
For
the Respondent
: Adv JG Bergenthuin SC
Instructed
by
: Van Zyl Le Roux Inc
Date
of Judgment