Minister of Water Affairs and Forestry and Others v Durr and Others (278/05) [2006] ZASCA 102; [2007] 1 All SA 337 (SCA); 2006 (6) SA 587 (SCA) (14 September 2006)

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Minister of Water Affairs and Forestry and Others v Durr and Others (278/05) [2006] ZASCA 102; [2007] 1 All SA 337 (SCA); 2006 (6) SA 587 (SCA) (14 September 2006)

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REPUBLIC
OF SOUTH AFRICA
THE SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
REPORTABLE
Case Number : 278 / 05
In
the matter between
THE MINISTER OF WATER AFFAIRS
AND FORESTRY FIRST APPELLANT
THE
WESTERN CAPE NATURE CONSERVATION BOARD SECOND APPELLANT
THE CITY OF CAPE TOWN THIRD
APPELLANT
and
HENDRICK JACOBUS STORM
DURR FIRST RESPONDENT
The
trustees for the time being of the PENNY TAYLOR CHILDRENS'
TRUST SECOND RESPONDENT
THE
SOUTH AFRICAN FORESTRY COMPANY LTD THIRD RESPONDENT
Coram
: ZULMAN,
PONNAN JJA and COMBRINCK AJA
Date of hearing
: 17
AUGUST 2006
Date of delivery
: 14
SEPTEMBER 2006
SUMMARY
Veld fire – failure by landowner to prevent spread
of fire to neighbouring farms – whether omission unlawful –
whether presumption
of negligence rebutted.
Neutral citation: This judgment may be referred to
as
The Minister of Water Affairs and Forestry and
Others v Durr
and Others
[2006]
SCA 101 (RSA)
___________________________________________________________________
J U D G M E N T
___________________________________________________________________
PONNAN JA
[1] The
South African Forestry Company ('Safcol') and the City of Cape Town
('Cape Town') own adjoining plantations in the Wemmershoek
River
Valley of the Western Cape. The Wemmershoek River flows between
their respective plantations. The course of the river altered
during
1959 as a result of the construction by Cape Town of the Wemmershoek
Dam. Separating the old and new river courses is an
elevated piece
of land described in the evidence as 'the island'. To the north,
Safcol's land borders on a mountainous area in respect
of which the
risk of loss was borne by the Western Cape Nature Conservation Board
('Nature Conservation'). The farms of Hendrik
Jacobus Storm Durr
('Durr') and The Trustees for the time being of the Penny Taylor
Children's Trust ('Taylor') are situated several
kilometres to the
north-west of the Wemmershoek River Valley.
[2] On 13 February 1999, a fire, the exact cause of which was never
established, broke out in the Wemmershoek River Valley immediately
below the dam wall. The learned trial judge found that it had been
conclusively proved that the fire originated on the island.
From the
island, the fire spread onto Safcol's property and from there in turn
to the properties of Nature Conservation, Durr and
Taylor. The fire
raged uncontrollably for several days before finally running its
course.
[3] Arising out of this fire three separate actions were instituted
in the Cape High Court. In each Durr, Taylor and Safcol sought
as
plaintiffs respectively to recover the loss suffered by them in
consequence of the fire. The first two were actions by Durr and
Taylor against Safcol, the Minister of Water Affairs and Forestry
('the Minister') and Nature Conservation. In each of those matters
Cape Town, the Minister and Nature Conservation were joined pursuant
to the provisions of rule 13 by Safcol as a third party to the
proceedings. The third was an action by Safcol against the Minister,
Nature Conservation and Cape Town.
[4] The trial, a consolidated hearing of all three actions, proceeded
before Fourie J. The trial court agreed to separate the
issues of
liability and quantum and to deal, at the outset, only with the
former.
[5] In each of the Durr and Taylor matters, the claim against Safcol
was dismissed and the Minister and Nature Conservation were
held
jointly and severally liable for such damages as may in due course be
proved. In the Safcol matter the Minister and Nature
Conservation
were held jointly and severally liable for 75 percent and Cape Town
25 percent of such damages as may be proved. The
cost orders made in
all three matters were to the effect that the Minister and Nature
Conservation were to pay jointly and severally
75 percent and Cape
Town the remaining 25 percent of the costs of Durr, Taylor and
Safcol.
[6] It is against those orders that the present appeal lies, leave to
do so having been granted by the learned trial Judge.
[7] Since approximately September 1997, employees of the Working for
Water Project ('WFW') had been endeavouring to rid the banks
of the
Wemmershoek River of alien invasive flora. To that end they had
felled vegetation, including wattle trees, which were stacked
and
left on the island and dry river bed. Although the WFW workers were
in the employ of the Minister they took their instructions
from
Nature Conservation who acted as the implementing agent of the WFW.
It was thus common cause between the parties that the Minister
(as
employer) and Nature Conservation (as implementing agent in control),
were vicariously liable for any delict committed by the
WFW workers
during their felling and stacking of wattle trees in the area below
the dam wall.
[8] It was not in dispute that the WFW workers created an extreme
fire hazard by stacking the felled wattle heaps in the manner in
which they did. That increased fuel load created what the Judge in
the court below rightly described as a ‘tinderbox’ during
the
hot, dry and windy summer months; the so-called fire season - a fact
it would appear that everyone was acutely aware of. On
13 February
1999, when the fire danger index was orange signifying that
conditions were dangerous and conducive to the outbreak and
spread of
fires, the tinderbox ignited. The fire spread through the dry river
bed onto Safcol's plantation and from there it eventually
reached the
farms of Durr and Taylor.
[9] A conspectus of all of the evidence reveals that once the fire
had spread on to Safcol's land and into its plantation, it was
highly
improbable that it could have been prevented from spreading on to
Nature Conservation's land and from there to, inter alia,
the farms
of Durr and Taylor. No one seriously contended otherwise. The
evidence shows that the fire crowned (burnt in the crown
of the
trees) immediately or soon after it entered Safcol's plantation. It
was fuelled by the wind and after reaching the mountainous
area on
Nature Conservation's land, the rate of spread of the fire increased.
It was then clearly out of control and could not have
been contained
by whatever means. The evidence of Dr De Ronde, Safcol’s expert,
that fire belts would have had no effect on the
raging fire once it
spread onto Safcol's plantation and the phenomenon of spotting
occurred (ie the propelling of burning material
by the wind over a
vast distance), was not seriously contested by any of the parties.
The evidence of Langenhoven, an employee of
Safcol, who initially
unsuccessfully attempted to contain the fire on the island, that even
with more people at his disposal there
would have been no prospect of
containing the fire once it had entered Safcol's plantation, was also
not seriously challenged. I
am thus satisfied that Safcol has shown,
on a balance of probabilities, that once the fire spread on to its
land, notwithstanding
the exercise of reasonable care, it would not
have been able to prevent the fire from extending beyond its
boundaries and occasioning
harm to Durr and Taylor.
[10] The Minister, Nature Conservation and Cape Town challenge the
judgment of the court below relating to liability, including the
finding that there was no contributory negligence on the part of
Safcol. This appeal raises questions of liability in delict for
so-called pure economic loss resulting from the ignition and spread
of the fire from the island to the neighbouring properties –
this
means dealing with the issue on the basis of liability for certain
omissions. The approach by a court to that enquiry is hopefully
by
now well settled
1
.
It is this:
'A
negligent omission is unlawful only if it occurs in circumstances
that the law regards as sufficient to give rise to a legal duty
to
avoid negligently causing harm. It is important to keep that concept
quite separate from the concept of fault. Where the law
recognises
the existence of a legal duty it does not follow that an omission
will necessarily attract liability – it will attract
liability only
if the omission was also culpable as determined by the application of
the separate test that has consistently been
applied by this court in
Kruger v Coetzee
, namely whether a reasonable person in the
position of the defendant would not only have foreseen the harm but
would also have acted
to avert it.'
(Per
Nugent JA Minister of Safety and Security v Van Duivenboden
2002 (6)
SA 440
(SCA) par 12).
Put
differently, in order to succeed, the plaintiffs in the court below
had to establish, first, that the omissions complained of
were
wrongful, second, that they were negligent and, third, that those
omissions were causally connected to the loss suffered by
them (
Local
Transitional Council of Delmas v Boshoff
2005 (5) SA 514
(SCA)
para 23).
[11] It was common cause between the parties that the fire in this
case was a veld, forest or mountain fire which occurred on land
which
fell outside a fire control area. In this regard s 84 of The Forest
Act 122 of 1984 ('the Act'), which provides :
'When
in any action by virtue of the provisions of this Act or the common
law the question of negligence in respect of a veld, forest
or
mountain fire which occurred on land situated outside a fire control
area arises, negligence is presumed, until the contrary is
proved.' ;
plays a
pivotal role. One of the principle objectives of the Act as this
Court has already stated (
H L and H Timber Products (Pty Ltd v
Sappi Manufacturing (Pty) Ltd
2001 (4) SA 814
(SCA) ('
H L and
H Timber
')) is the prevention and control of veld, forest and
mountain fires. Parliament's purpose in enacting s 23 of Act 72 of
1968, the
predecessor of s 84 was described by Fannin J in
Quathlamba
(Pty) Ltd v Minister of Forestry
1972 (2) SA 783
(N) at 788 B-D -
a passage quoted with approval by Nienaber JA in
H L and H Timber
(para 21).
[12] Although initially in dispute, during the course of the trial it
came to be admitted that the island was on land belonging to
Cape
Town. It follows, as was indeed held by the court
a quo
that
the fire originated on Cape Town's land. The philosophy underpinning
s 84 is that:
'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.'
(per
Nienaber JA in
H L and H Timber
para 21.).
[13] It was submitted however that s 84 of the Act does not find
application in this case. Foundational to that contention, which
was
advanced by all three of the appellants, is the suggestion that
Safcol knew of the dangerous situation on the island, which,
so it
was suggested,
was in its possession or under its control
, but
that it failed to take steps to remove the danger prior to 13
February 1999. Accordingly, so the submission went, the negligent
failure to eradicate the danger once it had been created by the WFW
workers was Safcol’s, as, any omission as may have been proved
in
respect of Cape Town was not wrongful inasmuch as Cape Town did not
owe the adjoining landowners a legal duty. Such duty, so it
was
submitted, was owed by Safcol the bona fide possessor or occupier of
the island.
[14] The argument advanced by Cape Town is that the construction of
the Wemmershoek Dam altered the course of the river resulting
in
employees of both Cape Town and Safcol, who acquired the neighbouring
property in 1993, labouring under the mistaken belief that
the new
wet riverbed was their common boundary and that the island and the
dry riverbed formed part of Safcol's property. It is
so that Cape
Town by constructing the dam had changed the course of the river and
that indeed may have caused confusion in the minds
of some of the
employees of both Cape Town and Safcol as to the actual boundary
between the adjoining properties. That however could
have been
resolved quite easily by Cape Town itself calling in aid its own Land
Survey Department.
[15] Would Cape Town have owed a legal duty to adjoining landowners
had a fire occurred on the island in similar circumstances as
are
here present shortly after Cape Town had purchased the land in 1948?
The answer would probably be yes. What, it must therefore
be asked
altered that situation? Cape Town suggests it is the following:
First, during April – May 1998 Cape Town’s manager
of the
Wemmershoek Catchment Area approached Safcol’s manager one Wilmot
for permission to excavate a channel to the west of the
dry river
bed. Wilmot gave his consent provided no expense would be incurred
by Safcol. Secondly, during November 1998 Wilmot gave
written notice
to Cape Town that he intended to burn heaps of stacked wattle in the
area where the ‘WFW teams have been working’.
Accompanying the
notice was a map which effectively depicted the entire width of the
dry river bed. Wilmot subsequently burnt heaps
of felled wattle
thereby clearing the dry river bed for an area of 450 by 20 metres.
Thirdly, on the day in question when the fire
was first spotted by
employees of Cape Town, believing that the fire was on Safcol’s
property they alerted Langenhoven, Safcol’s
manager then on duty,
who proceeded to fight the fire. No other factors were relied upon
in support of the contention that Safcol
was in control of the
island.
[16] Those factors in my view fall far short of establishing that
Safcol in fact controlled the island. I can see no good ground
for
holding that the action of Safcol’s employees in trying to
extinguish the fire on the island imposed any greater duty on Safcol
than if they had done nothing at all (
Van Wyk v Hermanus
Municipality
1963 (4) SA 285
(CPD) at 297A). The same it must be
said holds true for Wilmot’s burning of the felled wattle. Each of
those instances could be
construed as no more than an attempt by
Safcol’s employees to eradicate a source of danger to Safcol’s
property. Properly analysed,
the factors relied upon by the
appellants support the conclusion that the confusion in this case was
initiated and thereafter compounded
by Cape Town.
[17] Further insuperable obstacles stand, in my view, in the way of
the appellants’ contention. The right of ownership in its
unrestricted form confers the most comprehensive right of control
over a thing. No evidence was adduced by Cape Town that it with
deliberate intention abandoned or relinquished any of its rights,
especially the right of control, in respect of the island. (Inst.
2.1.47;
Van Leeuwen
CF 1.2.3.14). On the available evidence it
can hardly be said that Cape Town abandoned the island with the
intention of no longer
being the owner thereof
(Reck v Mills en ‘n
Ander
1990 (1) SA 751
(A) at 751 B – I;
Minister van Landbou
v Sonnendecker
1979 (2) SA 944
(AA) at 947 A – E). As to the
argument that Safcol was the bona fide possessor of the island:
Likewise, possession as well, it
bears noting, comes into existence
et animo et corpore
(
Grotius
2.2.4;
Voet
41.2.10) – involving as it does the physical control (corpus) of a
thing with the accompanying mental attitude (animus) towards
the
thing. Here again the evidence is wholly insufficient.
[18] The high water mark of the appellants’ case is that employees
of both Safcol and Cape Town laboured under a mistaken impression
that the island and the dry river bed formed part of Safcol’s
property. That impression coupled with the instances alluded to in
support of the proposition that Safcol exercised control over the
island fall far short, in my view, of establishing that Safcol
or its
employees actually held the island in whatever capacity for itself.
Not to be ignored as well is the fact that Cape Town,
by its conduct
in constructing the dam, for which purpose it specifically acquired
the land in question, changed the course of the
river. Moreover, for
a local authority such as Cape Town that is vested with oversight
over property within its jurisdiction to contend
that it did not know
the boundaries of its own property is untenable. In these
circumstances the argument that Safcol was either
in possession or
control of the island fails to be rejected.
[19] It has repeatedly been held by our courts that a landowner in
our law is under a duty to control or extinguish a fire burning
on
its land (
Lubbe v Louw
unreported SCA case number 531/03
par13). In my view the legal convictions of the community would not
on the aforegoing facts and
considerations relieve Cape Town of that
duty and visit it upon Safcol. I accordingly conclude that Safcol did
not owe a legal duty
to Durr, Taylor or any of the other adjoining
landowners to prevent the ignition and spread of the fire from the
island. Such duty,
in my judgment, was owed by Cape Town.
[20] As the fire in question emanated from and originated upon
property owned and controlled by Cape Town, the case in my judgment
is brought within the ambit of s 84. This court has held per Nienaber
JA
H L and H Timber
paras 13 and 14 that:
‘
The
overall effect of the section … is to shift the onus in respect of
the "question of negligence" from a plaintiff to
a
defendant. The plaintiff's claim in this case is founded on delict.
As with delictual claims in general the essential elements
are
(a)
conduct, initiating wrongfulness, by the defendant;
(b)
fault,
in this instance negligence, by the defendant;
(c)
harm
suffered by the plaintiff; and
(d)
a causal connection between
(a)
and
(c)
. The section is concerned only with
element
(b)
, where negligence is the fault complained of.
While the
onus
remains on the plaintiff to establish elements
(a)
,
(c)
and
(d)
, the section relieves him of,
and instead encumbers the defendant with, the burden of proving or
disproving element
(b)
.
Conduct (element
(a)
above) can take the form of
a commission, for example where the fire causing the loss was started
by the defendant (cf
Steenberg v De Kaap Timber (Pty) Ltd
1992
(2) SA 169
(A)), or an
omissio
for example the failure to
exercise proper control over a fire of which he was legally in charge
(cf
Simon's Town Municipality v Dews and Another
[1992] ZASCA 165
;
1993 (1) SA
191
(A) at 194 C-E), or the failure to contain a fire when, in the
absence of countervailing considerations adduced by him, he was under
the legal duty, by virtue of his ownership or control of the
property, to prevent it from escaping onto a neighbouring property
thereby
causing loss to others (
Minister of Forestry v Quathlamba
(Pty) Ltd
1973 (3) SA 69
(A); and compare
Administrateur,
Transvaal v Van der Merwe
[1994] ZASCA 83
;
1994 (4) SA 347
(A)). This is such a
case.'
[21] In the present case the necessary conduct constituting the nexus
between the fire and Cape Town’s failure to prevent its spread
beyond its boundaries, thereby occasioning harm to the other
landowners, was never really in dispute. Indeed the crux of Cape
Town’s
case was that Safcol could and should have prevented the
fire from spreading from the island to neighbouring properties. Well,
if
according to Cape Town, Safcol could and should have prevented the
fire from spreading from the island, then it goes without saying
that
Cape Town itself could and should have done so. What all of this
means is that at the trial Cape Town bore the onus of proving
on a
balance of probabilities that its employees were not negligent in
failing to prevent the spread of the fire to neighbouring
properties.
Put differently it was for Cape Town to rebut the statutory
presumption. That on any reckoning it failed to do. It must
follow
that Cape Town’s appeal is devoid of any merit and must fail. I
turn now to consider the appeal of the Minister and Nature
Conservation.
[22] All of the witnesses agreed that by felling and stacking the
wattle on the island, the WFW workers created what in the prevailing
weather conditions was one of the worst fire hazards imaginable.
Nature Conservation had knowledge of the dangerous situation as
early
as September 1997. That is when Safcol addressed a letter to it
informing it of the danger being created by its workers. That
letter
failed to yield a response. Nor did another despatched during
November of that year. Various discussions ensued regarding
the heaps
of felled wattle and the danger it constituted. During October 1998 a
letter was received by Nature Conservation advising
it that something
had to be done about the fire hazard being created by its workers.
Some three days later a meeting was held between
representatives of
Safcol and Nature Conservation where specific reference was made to
‘hot spots’ being created by WFW workers
in the Wemmershoek
Valley. In the circumstances, I have no hesitation in finding as did
the court below that the Minister and Nature
Conservation, as well as
the WFW workers, owed the surrounding landowners, including Safcol,
Durr and Taylor, a legal duty to avoid
negligently causing them harm
during the activities of the WFW workers on the island. No one
seriously contended otherwise.
[23] Quite clearly the conduct of the employees of the Minister and
Nature Conservation was firstly, wrongful and, secondly negligent.
Those conclusions by the court a quo were not seriously challenged.
That however is not the end of the enquiry in so far as the Minister
and Nature Conservation are concerned. It remains to enquire, as was
argued by counsel, what steps, if any, a reasonable person in
their
position would have taken to prevent the harm from materialising (see
Local Transitional Council of Delmas v Boshoff
2005 (5) SA 514
(SCA) para 26). It was urged upon us that such ameliorating measures
as could have been implemented were impractical and unduly expensive.
[24] It is so that the twin objectives of the WFW were: firstly,
poverty alleviation by means of capacity building and job creation,
and, secondly, the management and control of invasive and alien plant
species which had an adverse impact on water resources and
bio-diversity. As laudable as those dual socio-economic and
environmental objectives may have been they can hardly in and of
themselves
operate to exculpate the Minister.
[25] Little, if any, thought, it would appear, went into how the
vegetation was to be disposed of after it had been felled. The
hypothesis advanced by WFW that the felled vegetation was to be
abandoned to the elements and allowed to rot over a period of four
to
five years is no answer. To have commenced the felling without any
coherent plan in place for the disposal of the wattle can
only be
described as foolhardy. Stacking felled wattle often as high as 1,5
metres was not just ill-advised but plain reckless.
The recklessness
was born of the knowledge that drying, felled wattle stacked in that
fashion was an extreme fire hazard. Internal
assessments of the WFW
project are less than flattering. Training of employees was far from
adequate and management and supervision
barely existent.
[26] Both the Minister and Nature Conservation point to the high cost
implications and limited available trained human resources
to
eradicate the danger. Surely those are factors that should have gone
into the reckoning prior to the commencement of the project.
That a
decision could have been taken to commence with the felling without a
coherent plan for the disposal of the cut wattle is
nothing short of
alarming. Given the extreme nature of the hazard created by their
employees it ill-behoves the Minister and Nature
Conservation to call
in aid those factors to justify its failure to subsequently take
steps to eradicate the danger. The attitude
adopted by the Minister
and Nature Conservation to the danger created by their servants can
hardly be countenanced. Once it became
obvious that a hazardous
situation was being created the WFW workers should have been told to
cease all activities in so-called hot
spots, more especially as they
lacked the capacity to deal with the danger created by their
activities. That would have been the
most effective, practical and
least expensive way of dealing with the problem. After all, the
Minister and Nature Conservation were
not under any statutory or
other duty to rid the area of alien invasive species. Vegetation that
had already been felled could have
been disposed of, when conditions
were favourable to do so, by controlled burning. Had there been
proper consultation with landowners
and had controlled burning
occurred in conjunction with them the danger could have been
eradicated in a most effective and relatively
inexpensive way. Such
cost as may have been incurred in implementing those measures would
in financial terms have been materially
insignificant when compared
to the loss were the risk of harm to eventuate. It follows in my view
that the appeal by the Minister
and Nature Conservation is also
without merit and must fail.
[27] As regards the question of costs. In my view the trial judge
erred in ordering Cape Town to pay 25% of the costs in each of
the
Durr and Taylor matters, as neither Durr nor Taylor had sought, as
plaintiffs, to recover damages from Cape Town. It was Safcol,
who
had joined Cape Town as a third party to the proceedings. It claimed
a contribution from Cape Town in the event of it (Safcol)
being held
liable. The claim against Safcol was dismissed. There was thus no
warrant in those circumstances for mulcting Cape Town
with an adverse
costs order. The costs in each of those matters ought to have been
borne by the Minister and Nature Conservation
who were held jointly
and severally liable for such damages as may in due course be proved.
[28] In the result:
28.1 The appeal by the Minister and Nature Conservation is dismissed
with costs such costs to include those consequent upon the employment
of two counsel.
28.2 The
appeal by Cape Town is dismissed with costs such costs to include
those consequent upon the employment of two counsel, save
to the
extent that the order of the court
a quo
that Cape Town pay
25% of the costs in the Durr and Taylor matters is set aside and
replaced with an order that the Minister and
Nature Conservation
jointly and severally pay 100% of those costs.
V M
PONNAN
JUDGE
OF APPEAL
CONCUR:
ZULMAN
JA
COMBRINCK AJA:
[29] I have read the judgment prepared by Ponnan JA. I agree that
the first and second appellants’ appeal must fail. I respectfully
disagree that the third appellant’s appeal should suffer the same
fate.
[30] The facts I consider relevant to determination of the appeal are
set out hereinafter. I shall refer to the parties concerned
by their
names, hence the first appellant as ‘the Minister’, the second
appellant as ‘Nature Conservation’, the third appellant
as ‘Cape
Town’, the first respondent as ‘Durr’, the second respondent as
‘Penny Taylor Trust’ and the third respondent
as ‘Safcol’.
[31] Safcol and Cape Town own contiguous properties in the
Wemmershoek valley near Franschhoek in the Western Cape. These
properties
are planted to trees. The boundary between the two
properties described as Portion 2 Zachariashoek, (Cape Town’s
property) and
Zachariashoek, Portion 3 (Safcol’s property) is in
the deeds office reflected as being the Wemmershoek river course as
it was prior
to 1958. In that year Cape Town built a dam upstream
from the mentioned properties to augment the city’s water supply.
This caused
the river to alter its course and for a distance to run
to the east of its original course. It then rejoined its original
course
lower down thereby creating an island of some 550 m by 150 m.
In 1997
the Minister through the agency of Nature Conservation as part of the
goverment’s Reconstruction and Development Program
(‘RDP’)
launched a Working for Water project and deployed a number of
unskilled, unemployed persons to eradicate alien vegetation
in the
Wemmershoek valley. In 1998 and early 1999 they progressed to the
island referred to above and chopped down wattle trees and
stacked
the wood in heaps in order to rot. The stacks constituted an extreme
fire hazard. Inevitably on the 13
th
February 1999 a fire
broke out on the island, setting the heaps of wattle alight and then
spreading west, with the assistance of
an easterly wind over the dry
river bed, and into Safcol’s plantation. The fire raged for two to
three days before it was brought
under control. In the process it
devastated part of Safcol’s plantation, Nature Conservation
property to the west of Safcol and
ultimately the farms belonging to
Durr and the Penny Taylor Trust.
[32] As a consequence of these events Durr and the Penny Taylor Trust
in separate actions, sued Safcol, the Minister and Nature
Conservation
for damages. Safcol in each action joined the Minister,
Nature Conservation and Cape Town as third parties. In a third action
Safcol
sued the Minister, Nature Conservation and Cape Town for
damages it alleged it suffered. The three actions were consolidated
and
the trial proceeded before Fourie J in the Cape Provincial
Division on the issue of liability only.
[33] At the conclusion of a lengthy trial Fourie J made the following
order in respect of both the Durr and Penny Taylor Trust matters:
'
1. It
is declared that second and third defendants (the Minister and Nature
Conservation) are liable, jointly and severally, to pay
to plaintiff
(Durr) the amount of damages which plaintiff may prove he is entitled
to as a consequence of the damage caused to the
farm Hartebeeskraal,
district Paarl, Western Cape, by the fire referred to in paragraph 9
of plaintiff’s amended particulars of
claim.
2. The plaintiff’s claim against first defendant
(Safcol) is dismissed.
3. The second and third defendants are ordered, jointly
and severally, to pay 75% of plaintiff’s costs of suit and 75% of
first
defendant’s costs of suit.
4. The
third third party (Cape Town) is ordered to pay 25% of plaintiff’s
cost of suit and 25% of first defendant’s costs of suit.’
In respect of the Safcol action the order was the following:
‘
1. It is declared that first and second defendants
(the Minister and Nature Conservation) are liable, jointly and
severally, to pay
to plaintiff an amount equal to 75% of the damages
which plaintiff may prove it is entitled to as a consequence of the
damage caused
to the immovable property described as Portion 3 of
Zachariashoek No 874, Paarl, Western Cape, by the fire referred to in
paragraph
7 of plaintiff’s particulars of claim.
2. It is
declared that third defendant (Cape Town) is liable to pay to
plaintiff an amount equal to 25% of the damages which plaintiff
may
prove it is entitled to as a consequence of the damage caused to the
immovable property described as Portion 3 of Zachariashoek
No 874,
Paarl, Western Cape, by the fire referred to in paragraph 7 of
plaintiff’s particulars of claim.
3. The
first and second defendants are ordered, jointly and severally, to
pay 75% of plaintiff’s costs of suit.
4. The
third defendant is ordered to pay 25% of plaintiff’s costs of
suit.’
[34] The Minister, Nature Conservation and Cape Town with leave of
the court
a quo
appeal to this court against these orders. The
thrust of the Minister’s appeal according to the Notice of Appeal
and the argument
advanced before us is that the sole cause of the
damage suffered by the farmers and Safcol was the negligence of
Safcol. The Minister
did not seek to join Safcol as a third party in
the Durr and Penny Taylor Trust matters and there is no cross-appeal
by the plaintiffs
in those cases. If it were to be held that the
Minister was not solely liable but was contributory negligent to a
degree it would
not assist him/her in the appeal as there existed no
lis
between him/her and Safcol. In the Safcol matter,
contributory negligence and a prayer for apportionment having been
pleaded, an
apportionment on appeal may be made as between the
Minister and Nature Conservation on the one hand and Safcol on the
other.
[35] The court
a quo
had no hesitation in finding that the
Minister and Nature Conservation, who were vicariously liable for the
deeds of the RDP members,
were negligent. The finding was worded
thus:
‘
In my view, it has clearly been shown that a
reasonable person would have foreseen that in the prevailing weather
conditions, a fire
could ignite on the island and fuelled by the
stacks of dry wattle, it could spread to neighbouring land. A
reasonable person in
the position of the Minister, Nature
Conservation and the WFW (Working for Water) workers, would, in my
view, have taken steps to
get rid of the fire hazard created on the
island, by removing or destroying (eg by controlled burning) the
stacked wattle.’
I am in full agreement with this finding and the reasons advanced for
rejecting the Minister’s defences. I agree with the judgment
of
Ponnan JA on this aspect. That effectively disposes of the Minister’s
appeal in the Durr and Penny Taylor Trust cases.
[36] In my view the real issue in this appeal is the finding that
Cape Town was 25% liable and the exoneration of Safcol from all
liability. To refine it further, the question as I see it is whether
it was wrongful conduct on the part of Cape Town, as held by
the
trial court, or Safcol which in part resulted in the harm.
[37] Much of the evidence before the trial court centered on the
cause of the ignition of the fire and the steps taken by the various
parties to fight the fire and prevent it from spreading. The trial
judge found that on the evidence he could not make a finding as
to
who was responsible for the ignition. He further concluded that once
the fire ignited the stacks of dry wattle nothing any party
could
have done would have prevented the fire from spreading into Safcol’s
plantations and from there eventually onto the Durr
and the Penny
Taylor Trust farms. I am inclined to the view that there was
sufficient evidence to find on a balance of probabilities
that it was
an abandoned cooking fire of the RDP workers which was the primary
cause of the blaze. I find it unnecessary to go into
this issue as
the Minister is in any event liable. I have no quarrel with the
second finding. I consider the court was correct in
accepting the
evidence of the experienced foresters who were on the scene that the
fire was out of control. Their evidence was rightly
preferred to
expert evidence which
ex post facto
attempted to reconstruct
and theorize on what could have been done.
[38] Neither Safcol nor Cape Town were therefore held to have been
negligent on the day of the fire, and correctly so. Cape Town
was
however held to be liable to the extent of 25% for negligent conduct
preceding the date of the fire. The finding and conclusions
by the
trial court went thus:
(i) Cape Town was the owner of the land on which the fire started;
(ii) as owner of the
island on which the fire hazard was created and the fire originated
Cape Town owed neighbouring landowners a
duty of care to prevent the
possible ignition of a fire on, and the spreading thereof from, the
island to neighbouring land;
(iii) the
aforementioned duty stems from the owner’s control which is one of
the incidents of ownership;
(iv) Cape Town
negligently failed to take preventative measures to ensure that the
fire hazard in the form of the stacks of dry wattle
on its land was
not eliminated.
[39] Safcol, so the judgment went, could not be held liable for
negligent conduct preceding the day of the fire because:
(i) it could not be expected of Safcol who was not the owner nor in
occupation of the island to go onto Cape Town’s land and remove
the
potential fire hazard;
(ii) there was
accordingly no duty on Safcol to take precautions to avoid the
possible ignition and/or spread of the fire on and from
the island.
[40] On the face of it the reasoning cannot be faulted. There is
however an important factor which causes me to differ from the trial
judge. The evidence was overwhelming that everyone in the Wemmershoek
valley who were concerned with the Safcol and Cape Town plantations
believed that the boundary between the two’s land was the
Wemmershoek river as it now flows – referred to in the evidence as
the ‘wet river’ as distinct from the ‘dry river’. That this
belief was held was graphically illustrated by what took place
on the
day the fire broke out. The first smoke was spotted by a Cape Town
employee who reported it to his superior, one Adonis, the
senior
foreman. Adonis immediately telephoned Langenhoven, Safcol’s
resident forester in charge, and advised him that a fire had
started
on Safcol’s side of the river. Langenhoven went to where the fire
was burning on the island and with the help of a few
workers and the
use of two vehicles attempted to fight the fire. He at all times
accepted that the fire was on Safcol’s land.
Because Safcol forestry workers were on strike at the time
Langenhoven appealed to Adonis for assistance in the form of Cape
Town
workers. Adonis’s reply was that it was their duty to guard
against the fire spreading into Cape Town’s plantation on the
eastern
side of the flowing river. He could accordingly not offer to
release any workers to assist Safcol.
It is apparent that
even in the aftermath of the fire no one on Safcol’s side suggested
that the fire had originated on Cape Town’s
land. It is only when
the litigation started was it discovered where the true boundary was.
Indeed, even in the pleadings Cape Town
maintained that the island
was not its property and it was during the trial after it had caused
a survey to be done that it

conceded that it was the owner of the island.
It is understandable
that the parties held the belief that the flowing river was the
boundary. The dry river bed had over the years
become so overgrown
that it was unrecognizable as a former river bed. For a period in
excess of forty years it was accepted that
the flowing river was the
natural boundary. I have no doubt that had Safcol the day before the
fire approached the court for an order
that it had acquired the
island by acquisitive prescription it would have succeeded.
[41] The trial court held on various grounds that the mistaken belief
on the part of Safcol and Cape Town as to the boundary did
not shift
the well-established duty on a landowner to ensure that a fire did
not spread from his land onto his neighbour’s.
The grounds were these:
(i) Cape Town at no
stage formally or expressly relinquished control of the island;
(ii) Safcol did not
physically occupy or control the island;
(iii) Cape Town changed
the course of the river by building the dam;
(iv) At no stage did
Cape Town inform Safcol that it regarded Safcol as being in control
of the island;
(v) Cape Town at all
relevant times had the means to establish exactly where the boundary
was;
(vi) the fact that certain employees of Safcol and Cape Town held the
mistaken belief as to the boundary was of no moment as there
was no
evidence that the ‘directing mind and will’ of Safcol and Cape
Town held such belief (
Anderson Shipping (Pty) Ltd
v
Guardian National Shipping Insurance
1987(3) SA 506 (A)). Safcol
and Cape Town, so the judgment went, are juristic persons and their
knowledge can only be the knowledge
of their directors and managers
who represent their directing mind and will and control what they do.
[42] I consider the above reasons to be unpersuasive. The central and
to my mind decisive fact is that the responsible employees
of both
Safcol and Cape Town believed that the island formed part of Safcol’s
land. I will deal later with the ‘directing mind’
issue. It
matters not that Cape Town did not expressly relinquish control nor
advise Safcol that it considered it to be in control
of the island.
Neither Cape Town nor Safcol at any stage after the river changed its
course considered that Cape Town had any say
over the island. It
belonged in their mind to Safcol. The fact that it was the dam built
by Cape Town forty odd years previously
is to my view irrelevant.
[43] I cannot agree with the finding that Safcol did not occupy and
control the island. It is so that the piece of ground was an
overgrown sort of no-man’s land. Safcol did however on at least
three occasions demonstrate its possession and control thereof.
The
first was in April or May 1998. When the river ran strongly it came
so close to Cape Town’s plantation that it undermined the
trees on
the fringe and caused them to collapse into the river. Viljoen, Cape
Town’s manager of the Wemmershoek catchment area,
to alleviate the
problem decided to dredge a canal bisecting the island and thereby
diverting some of the flow away from the plantation.
As he believed
that Safcol was the owner he sought permission from Wilmot, Safcol’s
manager in charge of the area, to dredge the
canal. Wilmot gave
permission on the basis that there would be no cost to Safcol and
Viljoen went ahead and dug the canal with a
bulldozer. He again
sought Wilmot’s consent later when he burnt the trees and
vegetation which had been uprooted in the course
of the excavation.
The second event was in November 1998. Wilmot in a letter to Viljoen
advised that he intended burning . . . ‘heaps
of cut wattle in the
area that the Work for Water teams have been working’. To the
letter is attached a sketch plan indicating
that the burning would
take place on or adjacent to the island. The significance of the plan
is that the flowing Wemmershoek river
is indicated and labeled as
such and on the eastern side of the river the writer has added the
caption ‘CMC Property Wemmershoek’
ie Cape Town property. Wilmot
was not called as a witness by Safcol but other evidence established
that Wilmot burnt the stacks of
wattle in the old dry river bed. It
is clear from the aforegoing that Wilmot regarded his activities to
be taking place on Safcol’s
property and the letter was a courtesy
to the neigbour, Cape Town.
The third event demonstrating Safcol’s occupation and control is
of course the fire itself. As mentioned earlier, when notified
of the
fire, Safcol’s fire fighting team, such as it was, sprang into
action and for an hour or more fought the fire on the island.
[44] I turn now to the ‘directing mind and will’ issue. I am
unable to agree with the trial judge that an omission on the part
of
a juristic body such as Cape Town and Safcol cannot be regarded as
unlawful because the managers and directors were unaware of
the facts
as they existed in the Wemmershoek valley and were accordingly unable
to act in accordance with such knowledge. It is not
so that a
corporation or company can only be held liable if there was actual
knowledge on the part of the directors or managers.
The correct
position is set out in LAWSA (1
st
re-issue) volume 4, p
58-59
viz
:
‘
In addition to the attribution of knowledge to the
company in terms of the directing mind doctrine, knowledge is also
imputed to the
company on the principles of the law of agency. Thus
the knowledge of a director, officer, servant or agent of the company
is imputed
to the company where it was his duty to acquire that
knowledge for the company.’
See further
R v Kritzinger
1971 (2) SA 57
(A) at 59H-60F where
Hoexter JA said the following:
‘
Let
me begin by quoting the following from the speech of Viscount Dunedin
in the case of
JC Houghton & Co v Nothard, Lowe and Wills,
1928 AC 1
at p 14:
“
The person who is sought to be estopped is here a
company, an abstract conception, not a being who has eyes and ears.
The knowledge
of the company can only be the knowledge of persons who
are entitled to represent the company. It may be assumed that the
knowledge
of directors is in ordinary circumstances the knowledge of
the company. The knowledge of a mere official like the secretary
would
only be the knowledge of the company if the thing of which
knowledge is predicated was a thing within the ordinary domain of the
secretary’s duties . . . .”’
(See further
North & Son (Pty) Ltd v Albertyn
1962 (2) SA
212
(A).)
I agree with counsel
representing Cape Town that the job of determining on a day to day
basis where Safcol’s responsibilities ended
and Cape Town’s began
and
vice versa
is not in the board rooms of either but on the
ground with respectively, Wilmot the Safcol director in charge and
Viljoen the Cape
Town manager.
[45] I conclude therefore that Safcol under the mistaken belief that
it was the owner, exercised possession and control over the
island
where to its knowledge the wattle was stacked creating a fire hazard.
Cape Town, under the belief that it was not the owner
and that Safcol
was, exercised no control or possession and though aware of the fire
hazard did nothing as it was aware of Safcol’s
knowledge of the
hazard.
[46] The question then is: is the omission on the part of Safcol as
possessor and controller to be regarded as wrongful or is it
Cape
Town as owner’s omission which was wrongful.
[47] The importance of the element of control in matters of this
nature was emphasized in
Administrateur, Transvaal v Van der Merwe
[1994] ZASCA 83
;
1994 (4) SA 347
(A). The translated head note in part reads as
follows:
‘
That
the element of control is an important factor in the adjudication of
the question of unlawfulness cannot be disputed. (At 359I/J.)
It is
however not practicable to lay down in an
a priori
manner the
degree and scope of the control-element which is required to
establish liability. That should be determined on the basis
of the
facts of each case together with all the other circumstances which
have to be taken into account and weighed. (At 360D-E.)
The fact that
the Administrator has control and supervision over the road in
question is a necessary factor for the establishment
of the
Administrator’s liability, but in itself it is not sufficient. (At
360G/H-H.)
In the
absence of a positive danger-creating act, the mere control of
property and the failure to exercise such control with resultant
prejudice to another is not
per se
unlawful. The crucial issue
is whether the precautionary measures which the controller should,
according to the aggrieved party,
have taken in order to prevent the
prejudice can in the circumstances be reasonably and practicably
required of him. The underlying
philosophy is that a consequence is
only unlawful if in the light of all the circumstances it can
reasonably be expected of the defendant
to act positively and take
the suggested precautionary measures for the omission of which the
plaintiff holds him responsible. (At
361F/G-H.)’
[48] This court has in the last number of years confirmed the test
for wrongfulness involving an omission as formulated in
Minister
van Polisie v Ewels
1975 (3) SA 590
(A) and emphasized the
difference between the requirements of wrongfulness and negligence
necessary to establish liability. (See
Minister of Safety and
Security v Van Duivenboden
2002 (6) SA 431
(SCA) at par 12, 16
and 21;
Gouda Boerdery BK v Transnet
2005 (5) SA 490
(SCA) par
12;
Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising
Standards Authority
SA
2006 (1) SA 461
(SCA) par 14;
Trustees,
Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd
2006
(3) SA 138
(SCA) par 10 and 11 and
Steenkamp NO v Provincial
Tender Board, Eastern Cape
2006 (3) SA 151
(SCA) par 17.) It
would be a matter of supererogation for me to attempt to add to this
learning. The case does, however, I venture
to add, illustrate the
necessity to determine wrongfulness as distinct from the question of
negligence. Section 84 of the Forestry
Act, Act 122 of 1984 casts a
reverse onus on a defendant in a case of this nature to prove absence
of negligence. If it is found
that the omission was not wrongful the
question of negligence and the reverse onus does not arise.
[49] The test to be applied is that laid down in
Minister van
Polisie v Ewels (supra
) as summarised by Nugent JA in
Minister
of Safety and Security v Van Duivenboden
(
supra
) at par
13:
‘
In
Minister van Polisie v Ewels
it was held by this court that a
negligent omission will be regarded as unlawful conduct when the
circumstances of the case are of
such a nature that the omission not
only evokes moral indignation but the “legal convictions of the
community” require that it
should be regarded as unlawful.
Subsequent decisions have reiterated that the enquiry in that regard
is a broad one in which all
the relevant circumstances must be
brought to account.’
See further the extract
from FDJ Brandt’s inaugural professorial lecture as Professor
Extraordinary in Private Law (University of
the Free State) 8
th
March 20006 (as yet unpublished) quoted in the judgment of Ponnan
JA.
[50] Applying the above I am of the view that the legal convictions
of the community on the facts of this case would determine that
there
was a legal duty on Safcol rather than Cape Town to guard against the
fire hazard on the island and their omission not to do
so was
wrongful.
[51] The issue of negligence is not problematical. A reasonable
person in Safcol’s position with knowledge of the potential danger
would have taken steps (as Wilmot in part did) to remove the hazard
even though not created by it. I am in agreement with the trial
judge
that the Minister and Nature Conservation were negligent to a far
greater degree than Safcol and that the apportionment should
be 75%
against the former. Safcol however in my judgment was at fault to the
extent of 25%.
[52] It is not clear to me on what basis the trial judge ordered Cape
Town to pay 25% of Durr and the Penny Taylor Trusts’ costs.
The
latter did not sue Cape Town. It was joined by Safcol as a third
party and would only have been liable as against Safcol had
the court
found Safcol to be liable which it did not. On any basis Cape Town’s
appeal against that part of the order must succeed.
[53] I consequently agree that the appeal by the Minister and Nature
Conservation falls to be dismissed. I would however allow Cape
Town’s
appeal both against the costs order in the Durr and Penny Taylor
Trust matters and the apportionment of 25% against it in
the Safcol
matter, and grant an appropriate order declaring Safcol to have been
25% at fault.
P C
COMBRINCK
ACTING JUDGE OF
APPEAL
1
See
F D J Brand’s Inaugural Lecture as Professor Extraordinary in
Private Law delivered at the University of the Free State on
8 March
2006, which inter alia provides: 'Starting with decisions such as
Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage
(Pty) Ltd
and
Minister of Safety and Security v Van
Duivenboden
, the Supreme Court of Appeal has endeavoured on a
number of occasions in recent years, to eliminate this state of
confusion by
restating the principles involved. Having regard to
these judgments it is clear that the decision whether a particular
omission
or conduct causing pure economic loss should be regarded as
wrongful is a matter of legal policy. When we say, in this context
, that conduct is 'wrongful' we intend to convey that reasons of
legal policy require that
such
conduct, if negligent, should be actionable; that legal liability
for the resulting damages should follow. Conversely, when
we say
that negligent conduct causing pure economic loss or consisting of
an omission is not
wrongful,
we intend to convey that public policy considerations
determine that there should be
no liability; that the defendant should not be subjected to a claim
for damages, his or her negligence
notwithstanding. It follows
that, when a court is asked to hold a particular omission or conduct
that gave rise to pure economic
loss 'wrongful', in the absence of
any precedent, it is in reality asked to extend delictual liability
to a situation where none
existed before.
The
crucial question in that event is whether there are considerations
of public or legal policy, consistent with constitutional
norms,
which
require that
extension. And, as was pointed
out
in several
decisions
"what is called for in such event is not an intuitive reaction
to a collection of arbitrary factors but a balancing
against one
another of identifiable norms." '
See also
Trustees
,
Two
Oceans Aquarium v Katney & Templer (Pty) Ltd
2006 (3) SA 138
(SCA) par 10 and 11.