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[2014] ZAFSHC 65
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Bon Accor Safaris (Edms) Bpk and Others v Masilonyana Municipality (4138/2009) [2014] ZAFSHC 65 (27 March 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: 4138/2009
In
the matter between:
BON
ACCOR SAFARIS (EDMS) BPK
…........................................................................
First
Plaintiff
DAL
TEMPE BOERDERY BK
….................................................................................
Second
Plaintiff
BAREND
JACOBUS WESSELS
….................................................................................
Third
Plaintiff
WILLEM
JOHANNES PIENAAR N.O.
…...................................................................
Fourth
Plaintiff
DORATHEA
PIENAAR N.O.
…........................................................................................
Fifth
Plaintiff
and
MASILONYANA
MUNICIPALITY
…...................................................................................
Defendant
HEARD
ON:
11 FEBRUARY 2014
JUDGMENT
BY:
C.J. MUSI, J
DELIVERED
ON:
27 MARCH 2014
[1]
On 23 September 2007 a fire raged in the Winburg district leaving the
following farms damaged in its wake:
(i)
Little Saxony (various parts)
(ii)
Bon Accor
(iii)
Dal Tempe
(iv)
Hattingskraal
(v)
Chateau Therry
(vi)
Hartebeesfontein
[2]
The respective owners and/or lessees of the aforementioned farms
issued summons against the Masilonyana Municipality alleging
that the
fire originated on and spread from its farm. They alleged that
the municipality was negligent in one, more or all
the following
respects:
2.1 By allowing its
farm to be utilised as an initiation school where open air fires are
made;
2.2 By neglecting to
keep flammable material or grass in the vicinity of the initiation
school short or by not removing it;
2.3 By neglecting to
have adequate fire extinguishers or fire fighting equipment available
alternatively failing to provide its
employees with such equipment;
2.4 By failing to
give proper or adequate training to its employees with regard to the
danger and handling or control of fires;
2.5 By failing to
give proper or adequate training to its employees with regard to fire
fighting and extinguishing of fires that
may originate on municipal
property.
[3]
They further alleged that the defendant was aware that veldfires
occur in the Winburg district and specifically at the initiation
school, and in light of the prevailing weather conditions and long
dry grass, the defendant was negligent in one or more or all
the
following respects in failing to prevent the fire:
3.1 By failing to
properly or adequately train its employees in fighting and
extinguishing fires that may occur on municipal property;
3.2 By failing to
make the necessary firebreaks on municipal property, as prescribed by
law;
3.3 By failing to
alert those that may be affected by the fire immediately after it
started;
3.4 By failing to
fight and/or prevent the fire; and
3.5
By failing to take reasonable steps to prevent the fire from
spreading from its property to the property of the plaintiffs.
[4]
The plaintiffs also alleged that the defendant is not a member of a
fire protection association and is therefore presumed to
have been
negligent in relation to the veldfire until it proves the
contrary.
[1]
[5]
The defendant denied that the fire was a veldfire. It also
denied that it was negligent.
[6]
We held an inspection
in loco
and I put my observations on record. Both the plaintiff and the
defendant confirmed the correctness of what was put on record.
In accordance with the agreement between the parties and because I
deemed it convenient to do so, I ordered that the merits should
be
separated from the quantum in terms of Rule 33(4) of the Uniform
Rules.
[7]
The plaintiff called a single witness, while the defendant called six
witnesses.
[8] Mr Jacobus
Lourens Griessel testified that he is an ex-policeman. He is
currently a professional hunter. He was raised
in Winburg and stayed
and worked there for approximately thirty-two years. He knows
the area very well,
inter alia
, because as a police officer he
used to patrol the entire district.
[9]
He used to hunt lions on Bon Accor farm and had a key to the farm’s
gate. Bon Accor shared a perimeter fence with
municipal grounds
681, the property of the defendant. He testified that part of
the defendant’s property is used as
an initiation school.
According to him, the defendant’s property has always been used
as an initiation school, because
as a boy he used to see and tease
the initiates there.
[10]
On 23 March 2007 between 13h00 and 14h00, he was driving a police
vehicle from Bloemfontein to Winburg on the N1 national road.
He noticed smoke. He drove in its direction, passed the
Wolwasdam,
which is also situated on the defendant’s property, to the
place where the initiates meet and eat. He noticed between
ten
and fifteen initiates who stood there watching the fire. They
were aggressive and did not want him to get close to them.
In
the circle, which is used as a meeting place, he saw that a hut or
similar structure was destroyed by the fire.
He also saw pots
and pans and he could clearly see that a fire was made in the
circle. The fire burned in a V form with the
epicentre of the
fire being in the circle. The fire burned in the direction of a
hillock. There was a strong wind which
fanned the fire.
When he saw that it is a runaway fire, he called the police and Mr
Frikkie de Wet, the farm manager of Little
Saxony. He and the latter
arranged to meet at the gate of Little Saxony, where De Wet handed
over a Land Cruiser pick-up with fire
fighting equipment to him.
Other farmers also came to assist. They tried to extinguish the
fire to no avail.
The fire spread to Little Saxony, Rheezicht,
Bon Accor, Dal Tempe, Chateau Therry, Hartebeesfontein, Eirene and
Hattingskraal where
it was finally extinguished.
[11]
He further testified that there was no firebreak on the defendant’s
property.
[12]
Mr Malefetsane Eric Mogethi, the acting unit manager at the
defendant, was the customer care officer during September 2007.
[13]
He testified that persons applied at the defendant’s offices to
hold initiation schools. He referred them to Ms
Maphobole, who
is attached to the social and community services at Theunissen,
because the Winburg office does not have authority
to grant such
applications.
[14]
He knows Mr Majoro Ntema, who is a teacher at the initiation school.
Mr Ntema never approached their offices in order
to seek permission
to hold an initiation school. He does not know where
initiations are held, but he knew that Mr Ntema coached
or counselled
initiates.
[15]
During cross-examination he testified that Ms Maphobole and Mr
Monaheng worked together and that they approved applications
to hold
initiation schools on the defendant’s property.
[16]
Mr Molefe Phanis Magosi testified that he worked for the defendant at
the Theunissen offices. His duties included the
installation of
stop streets signs, painting roads and fire fighting. Fire
fighting is done by means of a vehicle that has
a water tank
installed on it. Although they had two such vehicles, only one
worked during September 2007.
[17]
On 23 September 2007 he and his colleague, Mr Hitchcock, were called
upon to extinguish a fire in Winburg. They drove
to Winburg
where they met Mr Grobbelaar, a traffic officer at Winburg. He
could see that the fire is burning from the hillock
downwards towards
the road. He also noticed lions were trapped in the fire.
They extinguished the fire at the wind
pumps. According to him,
the fire only burned on one side of the road. They left the
scene at approximately 17h00.
[18] During
cross-examination it was put to him that the fire raged on both sides
of the road and that it begun at the foot of the
hillock and not on
top as he testified. It was also put to him that Grobbelaar was
not there on the day of the incident,
because he was on leave.
[19]
Mr Mohau Petrus Makwaela testified that he and his friend took five
initiates to the initiation school on the defendant’s
property. Messrs Dladla and Dithabe were in charge of the
initiation school. He and his friend stood approximately
150
metres from the initiation school where they lit a cigarette and
threw the match in the veld. A fire started. They
tried
to extinguish the fire, without success. The fire started at
the hillock and spread.
[20]
Mr Isaac Samadula Mofokeng testified that on 23 September 2007 he was
with Mr Makwaela at the initiation school. He confirmed
that he
lit a cigarette with a match and that he threw the match away
thinking that it was safe to do so. A fire started.
They
tried, unsuccessfully, to extinguish it.
[21]
Mr Majoro Ntema, an 87 year old man, testified that he cannot
remember the date of the fire. He remembered that the fire
started on the defendant’s property and burned in the direction
of the hillock. He had the defendant’s permission
to hold
initiations on its property. He denied that Mr Griessel was
there on the date of the fire.
[22]
Mr Anthony John Emiry, a director of Emross Consulting, is an expert
in geographic information systems. He testified
about the
mapping and spread of the fire based on data that he extrapolated and
analysed from satellite images. His conclusion,
in a nutshell,
is that there were two distinct fires and not a single fire.
The aforesaid conclusion was based largely on
visual images that the
witness observed. His evidence and observations were
strenuously challenged and disputed.
[23]
After the defendant closed its case, Mr Van Rooyen, on behalf of the
plaintiff, requested me to give judgment in the plaintiff’s
favour, because the defendant did not rebut the presumption in
section 34 of the Act. Mr Ploos van Amstel, on behalf of the
defendant, made no submissions.
[24]
Mr Mogethi’s evidence does not take the matter much further.
[25]
I accept Mr Ntema’s evidence that he had permission to conduct
initiation schools on the defendant’s property.
[26]
Mr Magosi’s evidence is totally at variance with the totality
of the facts before me and the defendant’s case.
If the
fire was started by Mofokeng and Makwaela, then it could not have
spread as he testified. It could therefore only
have spread
towards the hillock and not from the hillock. He testified that
Grobbelaar was there when the fire raged.
This was pertinently
denied by the defendant, but Grobbelaar was not called although he
could have been of great assistance to
bolster Magosi’s
evidence and the defendant’s case.
[27]
I find the evidence of Mofokeng and Makwaela very strange indeed.
According to them they informed Mr Ntema that they
started the fire
at the time that the fire was started, but this was not the
defendant’s case. I also find their evidence
that
Griessel was not there improbable. It is clear that Griessel
attended at the place when the fire started and spread.
If
everyone knew then that they started the fire, why did the defendant
deny that the fire started on its property.
[28]
I do not intend to say much about Mr Emiry’s evidence.
His evidence was based on reports by other persons who were
not
called as witnesses in respect of the start and spread of the fire.
Although I accept his expertise in the interpretation
and analysis of
satellite data, it was clear that in this matter it was not an easy
task. He relied on Dr De Ronde’s
observations and Dr
Vorster’s reports. Lastly, the difference in colour
combinations may easily lead to misinterpretation
of satellite data.
It was pointed out to him that different colour combinations might
have led to a different interpretation.
It was also put to him that
the quality of the printer may also influence his interpretation. He
conceded it. He also conceded
that he will not be able to
contradict the evidence of eye witnesses as to where the fire started
and that it was only one fire.
Faced with the overwhelming evidence
pointing to a single fire spreading from the defendant’s
property, coupled with the
concessions made by Mr Emiry I cannot
accept his evidence that there were two different and distinct fires.
[29]
In my view Griessel’s evidence is clear, concise and to the
point. It is also corroborated by some of the defendant’s
witnesses. I say this because some of the defendant’s
witnesses testified that the fire moved in the direction of the
hillock. His evidence in relation to the extent of the spread
of the fire to different farms is also corroborated to some
extent,
by Mr Emiry. His evidence that the fire spread from the place
where the initiation school was, was also corroborated,
in broad
strokes, by the defendant’s witnesses.
[30] There are
essentially two issues to decide in this matter. Firstly,
whether the fire was a veldfire and secondly, whether
it was caused
by the negligence of the defendant. If I find that it was a
veldfire that started or was spread from the property
of the
defendant, then the defendant is presumed to have been negligent in
relation thereto, unless it proves the contrary.
The plaintiffs
will however have to prove that the veldfire was caused by a wrongful
act or omission by the defendant. If
I find that it was not a
veldfire, then the plaintiffs will not be assisted by the presumption
in the Act.
[31]
In section 2 of the Act a veldfire is defined as a veld, forest or
mountain fire. This fire was not a forest or mountain
fire.
In
West Rand Estates Ltd v New
Zealand Insurance Co Ltd
1925 AD
245
at 253 Solomon JA said:
“
It
is easier indeed to determine in a particular case whether a fire is
a veld fire than to give a satisfactory definition of the
term.
But generally it may be said that the expression grasveld conveys the
idea of an area covered with veld grass of considerable
extent and in
its original rough state. Any land, therefore, which had been
cultivated or which was immediately connected
with buildings, either
residential or industrial, would not, in my opinion, be included
under the word veld.”
See
also
Van Wyk v Hermanus Municipality
1963 (4) SA 285
(CPD) at 294A – C;
Gouda
Boerdery BK v Transnet
2005 (5) SA
490
(SCA) at paragraphs [8] – [10].
[32]
I harbour no doubt that the area where the fire started, even on the
defendant’s version, is indeed a veld. We
have, as I said
above, visited the scene and it is clearly a veld. There are no
houses in the vicinity. Likewise there
are no residential or
industrial buildings in the area. It is just open veld of
uncultivated land. The defendant’s
witnesses testified that the
fire started and spread from the defendant’s property. I am
convinced that the fire started
or spread from a veld and that it was
a veldfire.
[33]
I now consider the issue of wrongfulness. According to Mofokeng
and Makwaela they or rather Mofokeng started the fire.
They
informed the teachers at the initiation school how the fire was
started. They were called by the defendant. The
defendants initially denied that the fire started on its property.
[34]
It is clear from the evidence of Ntema, Mofokeng and Makwaela that
initiates are trained on the property of the defendant.
Despite
Mogethi’s denial, I am satisfied that it was indeed generally
known that initiates were trained on the defendant’s
property.
[35]
It is also clear from the totality of the evidence that the defendant
allowed persons access to its property, either to visit
the dam or as
grazing for their livestock or as an initiation school. People
had unfettered entrance to the property without
any control being
exercised.
[36]
The defendant must have known or it should reasonably have known that
initiates, who are trained on its property, will make
fire to cook or
for general heat purposes. It should also have known that
people will visit the initiates on the property.
The chance of
a veldfire starting or spreading on its property is therefore
increased. It had a legal duty to ensure that
initiates, their
teachers or their visitors do not start fires on its property or
where fires are started on its property, that
it should not spread to
the adjacent properties.
[37]
The defendant is a municipality with a fire fighting section and
personnel. It did not have any fire fighting equipment
or
trained personnel on its property where the danger of fires starting
was clear and present. It was unreasonable for the
defendant to
allow initiates and others to visit and be trained on its property,
to make fire there without putting in place any
measure to prevent
the fire from spreading to other properties.
[38]
I am of the view that the plaintiff established on a balance of
probabilities that the veldfire was caused by the wrongful
act, by
allowing the public and initiates unhindered access to its property,
or omission, by failing to take any precautionary
measures, of the
defendant. Public policy would, under these circumstances, demand
that the defendant take steps to prevent and
or control fires on its
property. It did nothing. I have already found that it was a
veldfire. The defendant is therefore
presumed to have been
negligent in relation to the veldfire until the contrary is proved.
In my view the defendant did not
rebut the presumption of negligence.
[39]
I, therefore, find that the fire that damaged the farms mentioned in
paragraph [1] of this judgment was caused by the wrongful
and
negligent act and or omission of the defendant.
[40]
There is no reason why costs cannot be granted in favour of the
successful party at this stage of the proceedings.
[41] I, therefore,
make the following order:
Judgment
granted in favour of all the plaintiffs with costs.
__________
C.J.
MUSI, J
On
behalf of plaintiff: Adv P.C.F. van Rooyen SC
Instructed
by:
Symington
& De Kok
BLOEMFONTEIN
On behalf of
defendant: Adv C. Ploos van Amstel SC
Assisted
by:
Adv
N. Snellenburg
Instructed
by:
Peyper
Sesele Inc
BLOEMFONTEIN
[1]
Section
34 of Act 101 of 1998 reads as follows:
“
(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.
(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.”