Meter NO and Others v Geo Parkes & Son (Pty) Ltd (590/05) [2006] ZASCA 133; [2006] SCA 161 (RSA) (30 November 2006)

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[2006] ZASCA 133
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Meter NO and Others v Geo Parkes & Son (Pty) Ltd (590/05) [2006] ZASCA 133; [2006] SCA 161 (RSA) (30 November 2006)

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A
IN
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
NOT REPORTABLE
Case
no: 590/05
In
the matter between
CORNELIS
ARJEN METER NO First Appellant
RITA
ELLA METER NO Second Appellant
ALIDA
ELIZABETH BERMAN NO Third Appellant
and
GEO
PARKES & SON (PTY) LTD Respondent
Coram:
FARLAM, HEHER JJA and CACHALIA AJA
Heard:
10
NOVEMBER 2006
Delivered: 30 NOVEMBER
2006
Neutral citation: This
judgment may be referred to as
Meter NO v Geo Parkes & Son
(Pty) Ltd
[2006] SCA 161 (RSA)
__________________________________________________________________
JUDGMENT
__________________________________________________________________
HEHER
JA:
HEHER JA:
[1] This
appeal concerns liability for the consequences of a ‘veld fire’
within the meaning of s 2 of the National Veld and Forest
Fire Act
101 of 1998.
[2] The appellants
are the trustees of the A E Berman Children’s Trust. The Trust was
at all material times the registered owner
of portion 33 of Farm
Hoogekraal 182 in the registration division of George in extent some
10 hectares. The respondent is the owner
of portion 32, a portion of
portion 6, of the Farm Hoogekraal 182
,
in extent about 1800 hectares on which it has carried on a forestry
undertaking for many years. The Trust’s farm is contiguous
with a
stretch of the respondent’s property.
[3] The first
defendant in the court below (who is cited as the first appellant in
this court notwithstanding his demise before the
trial began) lived
in George. Until about the beginning of the year 2000 he carried on
an apiary operation on the property of the
Trust which was not
otherwise permanently occupied. Because of advanced age and serious
physical infirmity he found it impracticable
to continue his
activities on the property. On 17 March 2000 he entered into an
agreement with a masters student in apiculture at
the Port Elizabeth
Technikon, André de Jager, who worked at Saasveld Agricultural
Station. He sold to De Jager beehives, bees
and equipment kept by him
on the Trust farm and at other locations.
[4] The
agreement, which was little more than a series of hand written
points, contained two terms relevant to the occupation of the
property phrased as follows:
‘
7. ‘n Tydperk
van Gratis okkupasie op Hoogekraal 33 tot Junie 2001 word voorlopig
toegestaan.
8. Toegang
is reeds bevestig deurdat die Plaas en Hut se sleutels aan André
oorhandig is op sy risiko en sal vollediger bespreek
word so gou
moontlik.’
[5] It is common
cause that De Jager duly occupied the farm for the contemplated
purposes. Apparently he visited it in order to carry
out his
bee-keeping activities but did not reside there. He did not testify
at the trial but an affidavit made by him on 10 October
2000 was
handed in by consent and the parties accepted the correctness of its
contents. Since this statement is the only direct evidence
of what
took place at the crucial time I shall quote
in
extenso
from its contents. In De Jager’s words,
‘
5.
As deel van die
byeboerbedrywighede word dit vereis dat ‘n persoon opgelei moet
word in die hantering van ‘n byeroker. Ek is behoorlik
opgelei en
vertroud met die hantering en werking van ‘n byerokertoestel.
Tydens my opleiding onder Mnr Meter het hy op talle vorige
geleenthede die byeroker aangesteek op ‘n geplaveide area voor die
motorhuis op die betrokke plaas.
6.
Op die 23ste
September 2000 om ongeveer 08h00 die oggend het ek op die betrokke
plaas gearriveer tesame met my vriend, Mnr Heinrich
Kemp, ‘n
B.Tech-student aan die Port Elizabeth Technikon Saasveld Kampus.
Sekere onderhoudswerk moes aan die betrokke byekorwe
gedoen word en
Mnr Heinrich Kemp moes my daarin bystaan soos wat hy alreeds op
vorige geleenthede gedoen het. Ek self was verantwoordelik
vir die
opleiding van Mnr Kemp en het hom behoorlik in die hantering van die
byeroker opgelei.
7.
Op
die bogemelde datum het Mnr Kemp, onder my toesig, dennenaalde op die
bogemelde geplaveide area aan die brand gesteek waarna dit
in die
byeroker geplaas is vir gebruik. Ons het tesame ‘n kort afstand
geloop tot by die byekorwe. Mnr Kemp het die byeroker gebruik
om die
bye te kalmeer waarna ek inbeweeg het en die onderhoudswerk op die
korwe volbring het. Mnr Kemp het te alle tye die byeroker
behoorlik
en met redelike sorg, onder my toesig, hanteer.
8.
Wanneer
dit nodig was om die byeroker te hervul met brandende dennenaalde,
het Mnr Kemp dit te alle tye op die bogemelde geplaveide
area, onder
my toesig, gedoen soos voorheen aan my gedemonstreer is deur Mnr
Meter.
9.
Na
ongeveer vier ure se werksaamhede, om ongeveer 12h00 namiddag, terwyl
Mnr Kemp agter my was, het ek hom hoor uitroep waarna ek
omgedraai
het en gesien het dat die gras rondom sy voete aan die brand was.
10.
Mnr
Kemp het die byeroker in sy hand gehad en was besig om die vlamme met
sy voete te probeer blus.
11.
Terwyl Mnr Kemp die
vlamme met sy voete probeer blus het, het ek ‘n klein denneboompie
afgepluk waarmee ek self die vlamme probeer
blus het maar weens die
buitengewone droë plantegroei en die wind, het die vlamme vinnig
buite beheer geraak.
12.
Mnr Kemp het hom
gehaas na die plaashuis waarna hy teruggekeer het met ‘n emmer
water en ‘n streepsak. Met die streepsak en water
het hy gepoog om
die vlamme te blus maar sonder sukses. Ek was deurentyd ook besig om
die vlamme te probeer blus, maar sonder sukses.
13.
Ek het my sellulêre
telefoon by my gehad en het onmiddellik die noodnommer 112 geskakel
waartydens ek die noodbeampte versoek
het om dringend die brandweer
te ontbied.
14.
Ek en Mnr Kemp het
beide besef dat die vlamme besig was om in te beweeg na die rigting
van die plaashuis en het ons brandbestrydingspogings
gefokus op die
area rondom die gemelde woning.
15.
Die eienaar van die
aangrensende eiendom, Mnr Beatty, het op die toneel gearriveer waarna
ek aan hom meegedeel het wat gebeur het.’
[6] Mr Kemp was also
not called as a witness at the trial. Mr Beatty, who owned and
resided on a property adjoining to the Trust property,
testified
about the observations which he made within half an hour of the fire
breaking out. It will be necessary to refer to his
evidence in this
judgment.
[7] What
De Jager does not mention in his statement is that the fire spread
across the boundary fence into the respondent’s plantations
where
it burned for several weeks before being finally extinguished. The
damage which it caused was, as can be imagined, substantial.
[8] In
August 2002 the respondent issued summons against the trustees and De
Jager. It alleged that, at the time the fire started,
the Trust
property was in possession of the Trust and under its control.
Alternatively, it averred, the fire originated on a portion
of that
farm which was under the control of De Jager.
[9] The
respondent alleged that the Trust and/or De Jager were negligent in
the following respects:
(a) in
failing to take any or adequate precautions to prevent the fire from
starting;
(b) in
allowing the smoking of bees on the farm;
(c) in failing to
take any or adequate steps to prevent the fire from burning in an
uncontrolled fashion and spreading to the respondent’s
farm;
(d) in so far as the
Trust failed to ensure that adequate firebreaks were constructed and
maintained between its farm and the respondent’s
farm as required
by s 12(1) of the Act;
(e) in failing to
take reasonable steps to ensure that the fire could be timeously
extinguished or contained.
[10] The respondent
further alleged that in March 2000 the Trust had appointed De Jager
as its agent to discharge on its behalf its
obligations and duties as
owner of the farm, including the duty to refrain from negligent
conduct on and in relation to the Trust
property which might cause a
fire to originate on the property and to burn in an uncontrolled
fashion and spread to the respondent’s
farm. The respondent averred
in the premises, that the Trust was vicariously liable for damages
caused by the negligent conduct of
De Jager in relation to the
origin, control and spread of the fire.
[11] The
respondent contended that the fire had caused loss and damage to it
and claimed payment of R393 448,08 as damages against
the defendants
jointly and severally.
[12] The
trustees, while admitting ownership of the farm, pleaded what was, in
effect, a general denial. In the alternative and in
the event of
negligence being proved against the Trust, they raised contributory
negligence on the part of the respondent alleging
that:
(a) the respondent
had failed to construct and maintain adequate fire breaks, 20 metres
wide, between its property and the adjoining
properties;
(b) the
respondent had failed to keep fire fighting equipment on its property
and that such equipment had not been immediately available
to
extinguish the fire or stop its spread;
(c) the
fire fighting personnel on duty had no training in the fighting of
fires;
(d) the
said personnel and other employees did not take immediate steps to
fight the fire;
(e) the
respondent had no fire fighting plan;
(f) the
respondent did not have an adequate number of trained personnel on
duty to combat a fire during a yellow to red fire danger
index day;
(g) the
respondent had no vehicle available for the fire fighting personnel
on duty and other employees to convey themselves or the
fire fighting
equipment to the scene of the fire except for a bell and a tractor;
(h) the
respondent did not have a fire look out.
[13] De Jager did
not enter an appearance to defend the action. At the trial the
respondent called lay and expert witnesses, while
the appellants
relied on the evidence of the third appellant, who was managing
trustee at the time of the fire, and an expert witness,
Mr Cornelis
de Ronde.
[14] The trial
judge, Zondi AJ, in a carefully considered judgment, found for the
respondent. His reasons may be summarised as follows:
1. De Jager was
negligent in conducting bee-smoking operations on the day in
question; he should have foreseen the danger that the
fire would
spread and have guarded against it.
2. There
existed no relationship between the Trust and De Jager on which
vicarious liability in the former for the acts and omissions
of the
latter could be founded.
3. The
evidence proved that the fire had started on and spread from the land
owned by the Trust. Section 34(1) of the Act applied
and the Trust
was presumed to have been negligent in relation to the fire until the
contrary was proved. (It was common cause that
the Trust was not a
member of a fire protection association in the area where the fire
occurred.)
4. The
failure of the Trust to create and maintain firebreaks on its side of
the common boundary to prevent the escape of a fire started
on its
property was wrongful and contrary to the legal convictions of the
community and was also negligent.
5. The Trust failed
to prove on a balance of probability that the fire would not have
spread to the respondent’s property even if
a firebreak had been
created on its side of the common property, and, applying
H L &
H Timber Products (Pty) Ltd v SAPPI Manufacturing (Pty) Ltd
2001
(4) SA 814
(SCA) at 823H-I, the issue had to be resolved against the
Trust.
6. It would not be
just and equitable to give judgment separately against each of the
defendants in accordance with their respective
degrees of fault.
7. The
first to third defendants did not succeed in establishing the defence
of contributory negligence.
8. The court fixed
the respective measures of fault in relation to the damage suffered
by the respondent at 70% (De Jager) and 30%
(the Trust).
[15] In
the result the learned judge made the following order:
‘
1. Declaring
First to Third Defendants, in their capacity as Trustees of the AE
Berman Kinders Trust to be jointly and severally liable
with the
Fourth Defendant, the one paying the other to be absolved, for
damages as the Plaintiff may prove.
2. Directing
that in terms of section 2(8)(a)(iii) of the Apportionment of Damages
Act No 34 of 1956, the damages payable by the Defendants
between
themselves inter se are apportioned at the rate of 70% for the Fourth
Defendant and 30% for the First to Third Defendants.
3. The
costs of action to date to be paid by the First to Third Defendants,
in their aforementioned capacities, save that in respect
of the costs
of the proceedings on an unopposed basis, the First to Third
Defendants are jointly and severally liable with the Fourth
Defendant, the one paying the other to be absolved.’
[16] The appellants
appeal to this Court with leave of the court
a quo
against the
whole of the judgment and order.
The
negligence of De Jager
[17] De Jager (or
Kemp who was assisting him and was subject to his direction and
control) was beyond any doubt guilty of several
negligent acts and
omissions on the day of the fire. Without attempting to be
comprehensive, these included –
(i) his decision to
embark on and continue with bee-smoking activities on a day which was
hot and dry, while there was a berg wind
blowing;
(ii) undertaking
the operation on or near veld grass instead of on the impervious base
which the first defendant had laid for the
purpose;
(iii) commencing
the operation without having at hand buckets of water and beating
equipment to deal with the foreseeable possibility
that embers or
sparks might be brought into contact with the grass;
(iv) carrying out
the operation in such manner as to cause a fire to break out in the
grass.
The
liability of the Trust
[18] I have quoted
from the contract between the Trust and De Jager in terms of
which he occupied the property. The surrounding circumstances are
insufficient
to establish an employment relationship or, possibly,
one of agency, which gives rise to vicarious liability on the part of
the Trust
for De Jager’s conduct, even on the basis that he was to
take care of or manage the property on behalf of the Trust in
exchange
for obtaining free use and access to the property. The
agreement suggests rather that they contemplated some sort of tenancy
with
the obligation to look after the property as a
quid pro quo
.
[19] The
Trust has its own independent problems of negligence. Section 12(1)
of the Act provides:
‘
Every
owner on whose land a veldfire may start or burn or from whose land
it may spread must prepare and maintain a firebreak on his
or her
side of the boundary between his or her land and any adjoining land.’
It
was common cause at the trial that the Trust had not at any material
time before the fire constructed firebreaks along the margin
of its
property (including its common boundary with the property of the
plaintiff). When the first appellant entered into the agreement
with
De Jager he knew that the latter intended to carry on an activity
which would involve the use of fire and, as the evidence shows,
he
foresaw the inherent dangers, because he not only instructed De Jager
in the proper techniques of bee-smoking but also specifically
warned
him against doing so at any place other than the fire-proof base
which he had laid for the same purpose. Yet there is no indication
that the first appellant drew to his attention the absence of
firebreaks or took reasonable steps to ensure that De Jager was
provided
with adequate firefighting equipment in the form of knapsack
pumps and beating equipment (as distinct from mere ‘streepsakke’,
which were available) both of which the plaintiff’s expert witness
Mr Wilson regarded as reasonably necessary. The evidence disclosed
that the construction and maintenance of firebreaks is a basic
precaution that serves several purposes including
(a) stopping the
spread of fire from one property to another by depriving the fire of
fuel at ground level;
(b) providing
a means of access to men and equipment to reach and extinguish fires;
and
(c) forming
an area from which other fire fighting techniques such as back burns
can be used.
The Trust offered no
explanation for its failure to take any of these relatively simple
steps to protect itself and its neighbours.
Its default was wrongful
in the legal perceptions of the community and negligent inasmuch as
the Trust could thereby readily have
avoided or minimised the
foreseeable harm which the omissions presaged.
[20] Section
34 of the Act provides:
‘
(1) If a person
who brings civil proceedings proves that he or she suffered loss from
a veldfire which –
the defendant
caused; or
started 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.’
The onus cast by the
section embraces proof by an owner that it was not causally negligent
in relation to the damage suffered by a
plaintiff:
HL & H
Timber Products (Pty) Ltd v Sappi Manufacturing (Pty) Ltd
, supra,
at 823F-I.
[21] The Trust
sought to discharge this onus through reliance on the evidence of an
acknowledged expert in the determination of the
causes and
consequences of veld and forest fires, Dr de Ronde. He investigated
the weather conditions that prevailed on the day of
the fire, visited
the property and observed its physical and topographical features and
the vegetation both on the property and the
land contiguous to it. He
searched for indications of the path, breadth and intensity of the
fire. He was aware of De Jager’s description
of its beginnings and
he was in possession of contemporaneous photographs which showed
certain of the damaged areas on both properties.
As a tool to
determine the movement and effects of the fire he used a computer
programme developed overseas called ‘Behave Plus’
into which he
fed data which he considered to be relevant. Its accuracy is
dependent on the parameters put into the programme such
as fuel load,
wind speed and wind direction. Dr de Ronde explained the caution with
which fire simulation models must be approached.
In particular
‘
reliable
factual evidence is still the best …fire simulation should only be
used selectively, and then only for specific purposes/objectives.
Where possible fire simulation results should also be used in tandem
with other wild fire investigation methods, to verify and test
results, where possible.’
In
a number of passages in his testimony Dr de Ronde emphasised that the
computer model is used principally to verify other data.
[22] Dr de Ronde
concluded that the fire started by De Jager and Kemp at first spread
rapidly in a southerly direction fanned by the
wind. After a while
(the length of time is uncertain but the indications are that it
occurred at about 1 o’clock in the afternoon)
the wind swung around
some 140º and became south-westerly. The immediate result was
that the back of the fire became its head.
It burned fiercely over
grassland and through scattered pine trees into what Dr de Ronde
described as a narrow belt of gum trees
running approximately west to
the fence between the Trust’s property and that of the respondent.
At that point, the witness said,
the fire was probably burning in the
tops of the trees. Burning embers were carried by the wind over the
10m firebreak on the respondent’s
boundary and into the pine trees
of the plantation. Dr de Ronde expressed the opinion that, although
De Jager and Kemp could have
put out the fire if they had had water,
buckets and beating equipment ready to use, the fire became
uncontrollable within five minutes
of ignition. Moreover, the blaze
was so intense (causing a tremendous updraught) and the wind so
strong that spotting across the
boundary from the gum belt was
inevitable and not even a 20m firebreak would have prevented the fire
entering the plantation. (The
actual distance that embers can be
carried in such circumstances was debated between the experts, but
300m seems to represent a not
unusual occurrence.) For that reason,
testified Dr de Ronde, the absence of a 5m fire-break on the Trust’s
side of the common boundary
contributed not at all to the spread of
the fire to the neighbouring property.
[23]
The
critical input factors in the programme employed by Dr de Ronde were
(1) the fuel load of combustible material available and (2)
the wind
speed. The validity of the conclusions which he drew from his
observations is also important in the overall assessment of
his
evidence. Both experts were agreed that wind strength was a decisive
factor in determining the probability of whether the fire
would have
been carried across the Trust’s firebreak (if there had been one)
by spotting.
[24] The witness
first visited the site on 18 August 2004 some four years after the
fire. In his own words, he was obliged to rely
on ‘very restricted
field evidence’. He examined the density and compaction of the
existing surface material and he estimated
the degree to which its
content must have been influenced by extensive needle fall from the
pine trees in the area. His task was
necessarily one of
reconstruction. Mr Wilson, the expert called by the plaintiff, by
contrast, expressed the view that the amount
of needle drop from
young and vigorous pine trees would have been minimal. The conflict
between them was not resolved by the evidence.
As to the wind speed,
Dr de Ronde’s
modus operandi
was to make a careful analysis
of the records kept at the automated weather stations at George (28
kms south west of Hoogekraal) and
Knysna (32,5 kms to the south east)
from which relative humidity, air temperature, wind speed and
direction at those places could
be ascertained. There was no weather
station located closer to the site of the fire. In order to render
the information relevant
Dr de Ronde had of necessity to extrapolate
it to the site, building in the variables of distance, altitude and
landscape (all of
which were, as he conceded, significant) and a
further, unpredictable element which he described as the ‘extremely
variable’
state of a berg wind ‘particularly when it is gaining
strength’. The witness did not conduct any tests at the site in
order to
compare the results which might be obtained there with
results within the same time frame recorded at George or Knysna. A
further
uncertainty arose from the slope of the ground – a veld
fire burns more quickly uphill and certain parts of the Trust
property
sloped at 8º - Dr de Ronde clearly did not understand
how the programme coped with such a complication, although he
maintained
that it was able to do so.
[25] Neither did the
witness take into account the evidence given at the trial by the
first outsiders at the scene both of whom testified
for the
respondent. Mr Beatty went on his motorcycle to look for the source
of the fire after a neighbour phoned him. It was ‘around
midday,
around lunch time’. Some 10-15 minutes later he walked through the
gate of the Trust property and saw a fire burning around
the house.
The grass was burning and there were flames on the surrounding
smallish pine and wattle trees and a lot of smoke. He spoke
to De
Jager and Kemp who had no fire fighting equipment and were doing
nothing to extinguish the fire. Having approached from the
north, he
was able to breathe normally, probably because (he assumed in
evidence) the wind was behind him (ie it had not yet turned).
The
fire was not in the blue gum belt on the northern part of the Trust
land. He realised that he had no way of controlling the fire
as it
was already too big, so he rode back to his house, got into his
bakkie and drove off to collect as much help as possible. He
picked
up two men who were aware of the fire (one was the witness Nqala) and
offloaded them at the site about half an hour after
his first arrival
and then returned home to evacuate his own dwelling. As to the wind,
he said that he did not recall there being
a strong wind from behind
during his first visit to the scene. There was however a berg wind
blowing from the north, hot and dry,
which changed direction after
his initial visit. He did not take particular notice of the strength
of the wind but conceded that
the fire was spreading quickly. I think
it is fair to summarise his recollection by saying that he realised
that a wind was blowing
but that it made no impression on him beyond
that fact.
[26] Mr Thobile
Nqala was one of those taken to the scene by Beatty. He was employed
by the plaintiff, inter alia to drive the tractor
which pulled the
water tank to a fire scene. He was on his way to investigate the
source of the fire when Beatty met him. On his
arrival the fire was
already burning in the crowns of the pine trees on the Trust property
as well as in the grass and bushes. From
there it crossed to the
plaintiff’s side of the boundary and burned in the pine needles on
the floor. At second point lower down
(further south) this was
repeated. Both these points were to the south of the gum belt but the
gum trees were also already burning
at the boundary. There was a mild
wind blowing towards him as he stood on the plaintiff’s property
(ie the wind had already turned).
He then went to fetch the tractor
and trailer and returned with that and other equipment and assistance
to fight the fire. Asked
about the state of the wind when he first
arrived he said ‘Well the wind was blowing but it was not that
strong, it was not a storm
wind as they say . . . No it was not a
breeze, it was wind . . . if my memory serves me well the smoke and
everything was blowing
towards my direction.’ This witness too
seems not to have been unduly conscious of or disturbed by the force
of the wind. De Ronde
conceded that the low point of the range of
wind speeds (25 km) which he had entered into the programme could not
fairly be described
as ‘mild’. All in all it seems that his
assessment of the wind speed at the relevant time was dependent upon
the success with
which he was able to adjust the hard information
obtained from Knysna and George. The measure of that success is
impossible to guage
since there is no objective evidence against
which it can be tested. That a berg wind was blowing is clear;
whether it was such as
to overcome the obstacle of a properly cleared
firebreak on the Trust property is not. In addition it must be borne
in mind that
the spotting which de Ronde postulated as emanating from
the gum belt apparently occurred at a point where that belt met the
boundary.
If the firebreak had been cleared the trees which provided
the material for spotting would presumably not have been there
because
a strip of some 5 metres along the boundary would have been
free of vegetation.
[27] It appears
therefore that Dr de Ronde’s primary reliance on both fuel load and
wind speed are open to legitimate criticism.
In so far as the Behave
Plus programme depended on the reliability of such input, the value
of its assessment of the behaviour of
the fire is also an open
question. That the fire followed a path which involved spotting from
the gum trees into the respondent’s
plantation remains a
theoretical possibility but has to contend with the direct evidence
of Nqala which appears the more reliable.
But according to his
observations also, the source seems to have been trees within the
uncleared firebreak, which spotted on the
pine needles in the
respondent’s forest. Whether the same would have happened if the
Trust had cleared the firebreak one cannot
know.
[28] For these
reasons the trial court did not err in finding that the appellants
had failed to discharge the onus of showing that
their negligence was
causally unrelated to the respondent’s damage. It follows that the
main appeal must fail.
[29] The appellants
also appealed against the finding of the trial judge that they had
not proved contributory negligence on the part
of the respondent. Of
the original grounds relied on only two were persisted in, both owing
such strength and persuasion as they
possessed to de Ronde’s
opinions.
[30] The first
derived solely from the witness’s insight into certain photographs
taken shortly after the fire which appeared to
show signs of
burgeoning vegetation within the 10 m strip of the respondent’s
firebreak on the common boundary which should have
been clean of such
growth. On this evidence de Ronde was of the opinion that the
firebreak had not been properly maintained. The
contention followed
that such neglect contributed to the damage suffered by the
plaintiff. Of course if de Ronde’s evidence is
taken at face value
the absence or overgrowth of both firebreaks was causally unconnected
to the damage and the respondent must be
exonerated. In order to
succeed the Trust had to prove that the omission was indeed a
contributing factor. The Trust is in a cleft
stick. The trial judge
was unable to find that spotting across the firebreaks was the cause
of the spread of the fire and I agree
with him. But neither has that
possibility been excluded. The probabilities are in my view equally
balanced. The Trust is thus unable
to discharge the onus on this
issue either. I would, however, also add that the evidence of a few
photographs which do not adequately
depict the condition of the
firebreaks before the conflagration is hardly sufficient to prove
that, if the fire crossed the respondent’s
boundary on the surface,
it did so because of, or was assisted by, poor maintenance in that
area.
[31] The second
ground of contributory negligence was that the respondent failed to
have adequate personnel and equipment available
to fight the fire,
given that there was a high fire danger index on that day. The
respondent ran forestry operations at Hoogekraal
and in the Knysna
area (half an hour by road). It divided its resources between the two
plantations of which Hoogekraal was materially
the smaller. On
Hoogekraal it located four men and equipment more or less in the
middle of the property. There were tractor which
pulled a water tank
(of which two such were available) and portable knapsack sprayers as
well as beating instruments. Speaking for
myself, I would hesitate to
impugn the judgment of a farmer in circumstances such as the
respondent’s where the problem is not
neglect but more a case of a
considered though perhaps incorrect decision.
[32] However I think
the matter may be disposed of on other grounds. The failure to
maintain a firewatch originally raised in the
pleadings was not
persisted in and the Trust does not contend that the fire should have
been discovered earlier than it was by the
respondent’s employees.
Nqala testified that he had barely set out to investigate before
Beatty stopped to offer him a lift. He
thus first came to the scene
at least as rapidly as the Trust requires of him. It is true that he
arrived unequipped to deal with
what he found. Wilson did not agree
that he was negligent in embarking on a reconnaissance to see where
the fire was and what, if
anything was required to fight it. I agree.
There is no suggestion that he possessed an inkling of either before
he saw the problem.
Whether to set the whole team in motion was also
a matter of judgment and the decision which he made was one which
could reasonably
have been reached. But the evidence shows that by
the time he arrived the fire was already burning fiercely on the
ground and in
the crowns of trees in three different places along the
boundary with some spotting already apparent. The course of
destruction was
in all likelihood already irreversible or close to
that stage. In the circumstances, even if one assumes that Nqala had
arrived at
the scene with his whole team at that time or at least
within a reasonable time of being called out, the defendant failed to
establish
as a probability that the plaintiff could have prevented or
mitigated the damage which it suffered.
[33] The
trial court gave judgment against the trustees and De Jager jointly
and severally. In his heads of argument counsel for the
Trust
submitted that the appropriate order would have been separate
judgments against the parties in terms of s 2(8)(a)(ii) of the
Apportionment of Damages Act 34 of 1956.
[34] The same
submission had been addressed to the trial judge but he considered
that it would not be just and equitable to give judgment
separately
against each defendant in accordance with their respective degrees of
fault. He was persuaded by the real prospect that
the plaintiff’s
attempt to recover the apportioned amount from De Jager would be
frustrated by an inability to pay – there was
an unequivocal
statement to that effect in correspondence from attorneys
representing him. That probability was regarded as a valid
reason for
limiting the order to the terms of s 2(8)(a)(i) by this Court in
Grobbelaar v Federated Employers Insurance Co Ltd
1974 (2) SA
225
(A) at 230E-231E. Zondi AJ exercised a proper discretion in
regarding it as of importance in the case before him. There are no
grounds
for interference.
[35] I have in the
result upheld all the findings of the trial court. The appeal must be
dismissed with costs.
___________________
J A HEHER
JUDGE OF APPEAL
FARLAM
JA )Concur
CACHALIA
AJA )