Safire Crop Protection Co-Operative Ltd v Normandien Farms (Pty) Ltd (AR246/2023) [2024] ZAKZPHC 115 (29 November 2024)

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[2024] ZAKZPHC 115
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Safire Crop Protection Co-Operative Ltd v Normandien Farms (Pty) Ltd (AR246/2023) [2024] ZAKZPHC 115 (29 November 2024)

IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no:
AR246/2023
In
the matter between:
SAFIRE
CROP PROTECTION CO-OPERATIVE LTD
APPELLANT
and
NORMANDIEN
FARMS (PTY) LTD
RESPONDENT
Coram:
Olsen J, Mossop J and Nicholson AJ
Heard:
25 October 2024
Delivered:
29 November 2024
ORDER
On appeal from:
KwaZulu-Natal Division of the High Court, Pietermaritzburg
(P Bezuidenhout J sitting as court of first instance):
1.
Save to the extent set out in paragraph 2 of this order, the appeal
against the judgment of the trial court handed
down on 26 January
2023 is dismissed with costs.
2.
Paragraphs 1(i) and 1(ii) of the order of 26 January 2023 are set
aside and are replaced with an order declaring
the appellant to be
liable to the respondent for such damages as the respondent may prove
at a hearing in due course arising out
of the fire that occurred on
the farm Albany, situated in the Newcastle district, KwaZulu-Natal,
on 7 November 2015.
JUDGMENT
MOSSOP
J:
Introduction
[1]
The respondent in this appeal is a private company that owns several
farms. One of those is the farm Albany (Albany),
which is situated in
the district of Newcastle, KwaZulu-Natal and which is primarily
planted to timber. On 7 November 2015, there
was a fire on Albany
(the fire) and just over 300 hectares of trees were consumed by the
conflagration that swept through portions
of the farm.
[2]
The appellant is a co-operative company and is the insurer of the
respondent, having issued it with a document titled
‘Plantation
Fire Insurance Certificate’ (the certificate) and which covered
Albany. The appellant consequently received
the respondent’s
insurance claim for the damages to Albany that were occasioned by the
fire. After having the claim for approximately
eight months, and
after the period of cover of the certificate had lapsed, for it was
an annually renewable certificate, the appellant
repudiated the
respondent’s claim.
[3]
The respondent consequently sued the appellant for the alleged value
of the loss that it sustained. The trial came before
P Bezuidenhout
J, who, after hearing evidence over a protracted period for reasons
that will be mentioned shortly, delivered a
judgment in favour of the
respondent, and directed the appellant to make payment to it as
claimed. The appellant now appeals against
that judgment.
The
pleadings
[4]
In its particulars of claim, the respondent pleaded that the
certificate indemnified it against any loss by fire to standing

timber on Albany. It pleaded that there was such a fire on Albany on
7 November 2015, that standing timber to the value of R14 385 720.84

was destroyed by the fire and that despite complying with all its
contractual obligations, the appellant had unlawfully repudiated
its
claim.
[5]
The
appellant denied the occurrence of the fire in its plea,
[1]
but admitted issuing the certificate to the respondent. It pleaded
that any material misrepresentation, misdescription or non-disclosure

by the respondent rendered the certificate voidable by it at its sole
discretion. Such a misrepresentation had occurred when the
respondent
represented to it that the fire had originated in compartment A13a
(compartment A13a) of Albany when, according to the
appellant, it had
originated in, and spread from, a sawdust and timber waste area
situated on the north-western boundary of that
same compartment. The
sawdust and timber waste area is, in fact, not a single area, but is
comprised of two sawmill waste sites,
which I shall refer to
collectively as ‘the sawmill waste sites’ and, where a
single waste site is referred to, I shall
refer to it as either
sawmill waste site 1 or 2, as the case may be. Therefore, by virtue
of that misrepresentation, the appellant
contended that it was
entitled to reject the respondent’s claim arising out of the
fire on 7 November 2015.
[6]
In addition, the appellant pleaded that the respondent had permitted
the dumping of sawdust and timber waste in the sawmill
waste sites,
thereby substantially increasing the load of combustible material in
the vicinity of the insured area and increasing
the fire risk. The
appellant pleaded that the existence of the sawmill waste sites was
not disclosed to it by the respondent and
this non-disclosure
materially affected the risk indemnified by it and afforded it a
further ground upon which it was entitled
to reject the respondent’s
claim.
[7]
Two additional grounds allegedly entitling the appellant to avoid the
certificate were pleaded, but as they were later
not relied upon by
the appellant at the trial, there is no need for them to be
considered. Further pleadings in the form of a replication,

rejoinder, and a surrejoinder were delivered by the parties but it is
also not necessary to consider them either given the tight
focus of
the grounds of appeal.
The
trial and the judgment
[8]
The trial commenced on 13 November 2018 and judgment was finally
delivered on 26 January 2023, the length of the trial
being
unnaturally prolonged by the occurrence of the ruinous COVID-19
pandemic. During the period over which the pandemic held
this country
in thrall, both the presiding judge and senior counsel appearing for
the respondent contracted the COVID-19 virus,
became seriously ill,
and had to be hospitalised. There was thus a forced interregnum in
the trial that covered a period of approximately
three years.
[9]
The
judgment ultimately delivered by the trial court (the judgment)
[2]
reads as follows:
‘
1.
Defendant is ordered to pay to Plaintiff
(i)   The sum
of R14,385,720.84 (14 (sic) million, three hundred and eighty-five
thousand, seven hundred and twenty rand
and eighty-four cents)
(ii)   Interest
on the said sum at the rate of 9 per cent per annum from date of
service of summons to date of payment.
(iii)   Costs
of suit such costs to include the costs of senior counsel where
appropriate.’
[10]
The judgment thus upheld the respondent’s claim in its
entirety.
The
error
[11]
There is an unfortunate error in the judgment. When the trial
commenced, the parties requested the trial court to grant
an order in
terms of the provisions of Uniform rule 33(4), separating the issues
of liability and quantum. Such an order was duly
granted. Only
liability was thereafter to be determined by the trial court.
[12]
However, as appears from the judgment, the trial court ordered the
appellant to pay the respondent the exact amount claimed
by it in its
particulars of claim. It clearly ought not to have done so, nor could
it have done so, for it had heard no evidence
at all on the quantum
of the loss allegedly sustained by the respondent and the appellant
did not admit in its plea the quantum
of the damages claimed by the
respondent.
Leave
to appeal
[13]
The appellant consequently sought leave to appeal against the
judgment on the grounds that the trial court had erred
in three
principal respects:
(a)    It
determined quantum when it ought not to have done so;
(b)    It
incorrectly found that the alleged misrepresentation by the
respondent’s servants as to the point
of origin of the fire on
Albany did not entitle the appellant to repudiate the respondent’s
claim; and
(c)   It
incorrectly concluded that the existence and presence of the sawmill
waste sites on Albany were not material
to the risk insured against
by the appellant and therefore the respondent was not required to
disclose their existence to the appellant.
[14]
Leave to appeal was granted to the appellant by the trial court on
these defined grounds.
[15]
The respondent itself sought leave to cross-appeal from the trial
court, notwithstanding the fact that judgment was granted
in its
favour. It contended that the trial court had misdirected itself in
finding that the fire had, indeed, originated in the
sawmill waste
sites and had spread from there into compartment A13a of Albany and
contended that it ought to have found that the
fire started in
compartment A13a. Leave to cross-appeal was granted by the trial
court. However, before us, counsel for the respondent,
Mr Roberts SC,
indicated that the respondent no longer intended pursuing its
cross-appeal. This was, in my view, the correct decision
as no appeal
lies against reasons for a judgment. Nothing further need be said
about the cross-appeal.
The
layout of Albany
[16]
It may be helpful to provide a brief description of the location of
the principal features and landmarks of Albany that
have relevance to
the determination of this appeal to which some reference has already
been made, and to which more will be made.
[17]
The sawmill
owned by the respondent is situated on the extreme eastern flank of
Albany and was constructed there in either 2003
or 2004. The two
sawmill waste sites previously mentioned are located on the western
flank of the farm, almost opposite the sawmill,
but separated from it
by a distance of approximately 1.75 kilometres,
[3]
as the crow flies. Sawmill waste site 1 is located north of sawmill
waste site 2 but is very close to it, approximately 60 metres

away.
[4]
Both sawmill waste
sites are separated from the main part of Albany by an unnamed dirt
road that runs along the western boundary
of the farm (and elsewhere)
in a roughly north/south direction at that point. During the trial,
this road was referred to as the
‘blue road,’ a blue line
having been applied to it on the large aerial photograph to highlight
its sinuous presence.
I shall continue to refer to it as ‘the
blue road.’
[18]
The sawmill waste sites in the west are connected to the sawmill in
the east by an entanglement of dirt roads that have
been incised out
of the compartments that sit between the western and eastern flanks
of Albany. Immediately to the east of the
two sawmill waste sites,
and thus between them and the sawmill, is compartment A13a, which
covers approximately half the distance
between the two sawmill waste
sites and the sawmill itself. Beneath compartment A13a, that is to
the south of it, is compartment
A13b, which also stretches
approximately half the distance between the sawmill waste sites and
the sawmill.
[19]
As the
ubiquitous crow flies,
[5]
approximately 800 metres due south of sawmill waste site 2,
[6]
being the southernmost of the two sawmill waste sites, is a fire
tower (the fire tower), from where the first observation of the

emergence of the fire was made. The fire tower permits observations
to be made northwards into the plantations on Albany.
The
sawmill waste sites
[20]
A central feature of the trial, and the appeal, was the sawmill waste
sites. The sawmill generated sawdust from its operations
and whilst
some of that sawdust was disposed of either through sales or by
incineration at the sawmill, not all of it was. The
residue of the
sawdust, together with other materials mentioned below, were
transported westwards from the sawmill to the sawmill
waste sites for
disposal.
[21]
Mr Dennis Pretorius (Mr Pretorius), who was at the time of the fire
the respondent’s head of forestry harvesting
on Albany,
testified at the trial that he was also in charge of transporting a
mixture of materials from the sawmill to the sawmill
waste sites for
disposal. As to what was deposited there, Mr Pretorius said that it
was comprised of:
‘…
saagsels,
bas en dan grond en quarry klip’ (sawdust, bark, soil, and
quarry stone).
These
materials were collectively referred to by him as ‘the
scrapings’. I shall also use that term to describe this
mixture
of materials. His evidence was corroborated by the evidence of the
chief executive officer of the respondent, Mr Lawrence
Hoatson (Mr
Hoatson), who stated that the materials deposited in the sawmill
waste sites comprised:
‘…
clinker,
sawdust, wood chips, log yard scrapings which should include bark and
so on. In summer, a huge percentage of mud would
be in there.'
[22]
Mr
Pretorius described the area in which the sawmill waste sites were
located as being a ‘vallei’ (valley). Mr Hoatson
used the
term ‘donga,’ which is a steep-sided gully created by
soil erosion usually caused by the action of running
water, but which
is now dry,
[7]
meaning that the
area of land was craggy and irregular in form and, essentially, not
otherwise productively usable. Mr Pretorius
explained that the
scrapings would be placed in a heap in the valley but would then be
flattened with a grader. The stated purpose
behind doing so was to
rehabilitate that piece of land by filling in its deformities,
gradually levelling the land out and, finally,
collapsing the sides
of the valley inwards to form a flat, usable surface upon which more
trees could be planted in the future.
[23]
After a load of scrapings was placed in the sawmill waste site and
was graded flat, it would then be sealed with a further
layer of soil
and the whole deposit would be compacted, according to the evidence
of Mr Pretorius. This procedure was followed
with each deposit of
scrapings. This evidence was not seriously challenged by the
appellant.
[24]
I turn now to consider the three grounds of appeal.
The
appellant’s first ground of appeal
[25]
The appellant submitted that the trial court incorrectly gave
judgment on the issue of quantum. This excites no controversy
because
the respondent acknowledges this to be the case, and it abandoned the
money judgment granted in its favour by the trial
court when the
application for leave to appeal was argued.
[26]
The trial court clearly erred in giving judgment as it did, and the
first ground of appeal must therefore be upheld and
the order
directing the appellant to pay the respondent the amount of
R14 385 720.84, together with interest, must be
set aside.
[27]
Counsel for both sides agreed before us that the true issue before
the trial court was whether the appellant was liable
in law to the
respondent. Counsel were further agreed that the judgment that ought
to have been delivered should have been in the
form of a declaratory
order determining the appellant’s liability, if any, to the
respondent.
[28]
Implicit in the judgment of the trial court directing the appellant
to make payment to the respondent is an unexpressed
finding by the
trial judge that the appellant was, indeed, liable to the respondent,
as payment would not have been ordered if
there was no liability on
the part of the appellant to do so. It is upon the understanding that
the trial court intended to answer
the issue of liability by finding
the appellant to be liable to the respondent that the remaining
issues in this appeal will be
considered.
The
appellant’s second ground of appeal
[29]
The appellant contends that the respondent represented to it that the
fire originated in compartment A13a and that such
representation was
false. It contended in its plea that the fire, in fact:
‘…
originated
in and spread from a sawdust and timber waste area situated on the
north western boundary of compartment A13a.’
[30]
From this, it is evident that the appellant did not distinguish
between the separation of the two sawmill waste sites
and regarded
them as a single waste site. However, from the evidence that the
appellant itself led at the trial, about which more
later, it is
apparent that what was alleged was that the fire emanated from
sawmill waste site 1, the northernmost of the two sawmill
waste
sites.
[31]
How the misrepresentation was made was not specifically pleaded by
the appellant. It appears to me to be reasonably safe
to assume that
the representation relied upon by the appellant is to be found in the
respondent’s claim form submitted to
it. The respondent’s
claim for indemnification for its losses was submitted to the
appellant on 13 November 2015, six days
after the fire occurred. This
was done in the form of a written claim on a pre-printed document
prepared by the appellant that
featured the appellant’s
letterhead and logo on the first page, and the claim form appeared to
contain five pages. The document
was comprised of a mixture of
questions that had to be answered, in some instances by ticking
either a box marked ‘yes’
or ‘no’ or one or
more boxes showing multiple options, and questions which had blank
lines where explanations by the
respondent had to be inserted, as
well as questions which were a hybrid of these two types of
questions.
[32]
Paragraph 5 of the claim form required the respondent to state the
cause of the fire and its reasons for that statement.
No answer was
inserted in the claim form submitted to the appellant by the
respondent. Paragraph 12 required the respondent to
identify the
compartment first affected or threatened by the fire. The answer
inserted by the respondent was ‘A13a’.
At page 4 of the
claim form, the question was asked as to the cause of an uncontrolled
fire. The fire in question was undoubtedly
such a fire. Many
potential answers were listed in boxes in relation to this question,
which had to be identified and ticked if
appropriate. Under the
grouping ‘accuracy of ignition’ a number of alternatives
were identified. The choices available
were ‘definite’,
‘probable’, ‘unknown’ and ‘alleged
arson’. The respondent marked
the box reading ‘unknown’.
[33]
The certificate issued by the appellant contained clauses that would
permit the appellant to avoid liability in certain
circumstances.
Clause 1 of Section A of the certificate reads as follows:
‘
Misrepresentation,
misdescription or non-disclosure in any material particular shall
render voidable the particular item, section
or subsection of the
Certificate, as the case may be, affected by such a
misrepresentation, misdescription or non-disclosure.’
[34]
In addition, clause 8 of the same section of the certificate reads as
follows:
‘
If any claim under
this Certificate is in any respect fraudulent or if any fraudulent
means or devices are used by the Member or
anyone acting on their
behalf or with their knowledge or consent to obtain any benefit under
this Certificate, or if any event
is occasioned by the wilful act or
with the connivance of the Member, the benefit afforded under the
Certificate in respect of
any such claim shall be forfeited.’
[8]
[35]
It appears
to me that clause 8 refines the concept of a misrepresentation and
requires it to be a fraudulent misrepresentation.
To establish a
fraudulent misrepresentation, there must be evidence of a
statement
[9]
that was false
[10]
and that such misrepresentation was intended to induce the party
receiving it to act.
[11]
A
fraudulent misrepresentation is thus a false assertion of a fact that
most commonly takes the form of spoken or written words,
although in
some instances it may be inferred from conduct. Whether a statement
is false depends on the meaning of the words in
all the
circumstances, including what may fairly be inferred from them.
[36]
Whether the
respondent misrepresented where the fire first commenced burning is a
factual question that requires an assessment of
the evidence called
by both sides at the trial. If the fire did start in the sawmill
waste sites and the respondent said, falsely,
that it had started in
compartment A13a to claim a benefit under the certificate that it
might otherwise be denied, then there
may well have been a
misrepresentation by the respondent. On the other hand, if the fire
did start in compartment A13a and this
is what the respondent told
the appellant then, clearly, there could have been no
misrepresentation. In considering this issue
I bear in mind that the
findings made by a trial court are presumed to be correct and will
only be disturbed by an appeal court
if the evidence shows them to be
clearly wrong.
[12]
[37]
At the commencement of the appeal, the proposition was put to Mr
Troskie SC, who appeared for the appellant both at the
trial and
before us, that for the appellant to succeed on this ground, it would
have had to have established the true point of
origin of the fire, on
a balance of probabilities. In other words, it would not be
sufficient to merely suggest that the fire did
not start in
compartment A13a: the appellant would have to establish that it
started in the sawmill waste sites. Mr Troskie agreed
with the
proposition.
[38]
As a matter of fact, the trial court found that the fire did
originate in the sawmill waste sites. Its reasoning in this
regard
was encapsulated in this portion of its judgment:
‘
[114] ... The char
marks and the angle thereof is indicative that the fire burnt in a
westerly direction
[13]
from
west to east and therefore it would appear on the probabilities that
it commenced at the sawdust heap. There was no dispute
about the
direction of the wind and no credible evidence that contradicted the
conclusions drawn from the char marks. It entered
the compartment
A13(a) and from there due to the wind of at least 20 km per hour in a
westerly direction kept on burning up the
compartment away from the
sawdust heap. I accept for the said reasons that there was no back
burning as this does not appear from
the angle of char. If the fire
had started in compartment A13(a) as testified to by Pretorius the
fire must have burnt against
the wind. There was no evidence to
support this possibility as the wind speed was about 20 km per hour
or more at times. There
was no evidence direct or indirect that the
fire burnt from inside compartment A13(a) towards the dump site.
Although Pretorius
stated that the fire started in A13(a) he did not
testify that he saw it burning against the wind. The V shape also did
not show
burning towards the west.
[115]  Considering
all these factors and especially the direction of the wind the
charring on the remaining trees and the fact
that immediately after
the fire plaintiff commenced extensive work on the sawdust heap, it
has been proved on a balance of probabilities
that the sawdust heap
must have been the origin of the fire.’
[39]
Before considering this finding, it is necessary to make a general
observation about the evidence led at the trial. For
obvious reasons,
only the respondent led witnesses at the trial concerning the events
of, and the observations made on, 7 November
2015. This is perfectly
understandable because the appellant had no way of predicting that
the fire would occur and only had a
representative visit Albany, for
the first time, on Monday, 9 November 2015, two days after the
occurrence of the fire. But that
did put the appellant at somewhat of
a disadvantage regarding what was alleged to have occurred and what
was alleged to have been
observed on the day of the fire. The
appellant could in such circumstances only rebut the evidence of
direct observations made
by witnesses who were present with the ex
post facto evidence of an expert advancing theories about what could,
might, or should
have happened. While such expert evidence is not
inadmissible, the theories presented must, however, account for, and
accommodate,
all the known facts. The appellant led such evidence,
and I shall consider it shortly.
[40]
The respondent’s case was that the fire had commenced inside
compartment A13a, burnt eastwards away from the blue
road but also
burnt back towards the blue road. Its case was that the fire had not
first commenced in the sawmill waste sites and
had then been carried
from there into compartment A13a.
[41]
To
establish that the fire commenced inside compartment A13a, the
respondent led the evidence of three eyewitnesses at the trial.
I do
not deal with this evidence in the sequence in which it was presented
at the trial. Mr Paul Saayman (Mr Saayman), was the
manager of
forestry culture activities
[14]
on Albany and lived on the farm. He testified that on the morning of
the fire he was on another farm owned by the respondent, namely

Buffelshoek, inspecting some grass, when he received a report of a
fire on Albany. He returned to Albany and went to compartment
A13a,
where he observed the fire and tried to extinguish it, but was not
able to do so. He believed that the fire started in that
compartment
and marked the spot where he believed it began on the large aerial
photograph used at the trial.
[42]
The next witness called by the respondent on this issue was Mr
Pretorius, who testified that he was attending to some
cattle
elsewhere on the day of the fire when he first learnt of it over the
open channel radio in his motor vehicle. He hastened
to Albany and
when he arrived there, he described his observations in this fashion:
‘
Toe
ek op of by A13A kom toe kon ek sien waar die vuur onstaan het. Dit
was omtrent van die pad af ongeveer 10 tot 15 meter van
waar ek kon
fisies sien waar die vuur begin het. Ek het toe van daar af met my
voertuig in beweeg in die kompartement in om die
vuur te begin blus.’
[43]
Mr Dumisani Mfusi (Mr Mfusi), who is the head of the respondent’s
sawmill operation, was the third witness to testify
about where he
first saw the fire. His home is situated on Albany, and that is where
he was on the morning of Saturday, 7 November
2015, when he also
heard the report of the fire on the open channel radio that he kept
at his home. He quickly gathered a firefighting
team of 10 persons
and approached the area where the fire was said to be by driving on
the blue road that passed by the sawmill
waste sites. The following
exchange occurred when he was led in his evidence in chief by Mr
Roberts:
‘
Did you see any
fire? --- Yes, there is that I saw.
Where did you see the
fire? --- It was inside the plantation.
When you saw it, where
were you, were you on the road or were you in the plantation or what?
--- I was on the road.
Where in relation to the
sawdust were you? --- It was a bit far, about 20 metres.
Where in the plantation
did you see the fire? --- It was inside.’
[44]
The
appellant had no evidence to rebut the observations of these three
witnesses for the reason previously mentioned. That, however,
did not
necessarily mean that the fire did not first exhibit itself in the
sawmill waste sites. Notionally, it could have first
burnt there and
then, through the occurrence of spotting,
[15]
ignited compartment A13a where Mr Saayman, Mr Pretorius and Mr Mfusi
first observed its naked flames. But the respondent also led
the
evidence of four eyewitnesses who testified that there was no fire,
in any form, in the sawmill waste sites shortly before,
or when, the
fire was first observed in compartment A13a.
[45]
The first of those witnesses was Ms Ntombifuthi Kubheka (Ms Kubheka),
an employee of the respondent, who was assigned
to duties on the fire
tower on the morning of 7 November 2015. She testified that she had
walked past the sawmill waste sites at
05h35 on the morning of the
fire, en route to the fire tower to commence her duties at 06h00. Her
evidence in chief on what she
observed then was the following:
‘
The route that you
took that particular morning from where you were walking, could you
saw (sic) the sawdust there? --- Yes, I could
see it.
Did you see any smoke?
--- No, I did not see anything.’
[46]  Ms Kubheka
first raised the alarm about the fire via a radio broadcast that she
made from the top of the fire tower at
approximately 08h45 that
morning. This was the radio message that Mr Pretorius and Mr Mfusi
both heard and to which they both responded.
She first reported
seeing white smoke from atop the fire tower, which shortly thereafter
turned to black smoke.
[47]
The second witness led by the respondent on this issue was Mr
Saayman. He testified that he drove past the sawmill waste
sites
between 06h00 and 06h45 on the morning of the fire on his way to the
farm Buffelshoek. It appears that he used the blue road
for that
purpose. He observed nothing amiss in the sawmill waste sites and saw
no smouldering of any material occurring. Had he
seen that occurring,
given his responsibilities on Albany, it is reasonably certain to
assume that he would have acted.
[48]
Mr Pretorius also testified about this issue. He was emphatic
that the fire’s origin was not in the sawmill
waste sites. When
Mr Roberts put the following question to him, he responded thus:
‘
As
daar beweer word dat hierdie brand wat u daar opgemerk het in
kompartement A13A het sy oorsprong by die waste site, wat se u

daarvan? --- Dit is onwaar, meneer.’
[49]
Mr Pretorius did, however, testify that later, during the afternoon
of the fire and after it had been brought under control,
he returned
to the area of the sawmill waste sites. He described what happened
then as follows:
‘
Het
u iets toe opgemerk by die sawmill waste site? --- Ek het dit opgelet
by nommer 1 was daar tussen ’n halwe meter tot by
’n
meter wat gesmeul het.
Het u enige vlamme daar
gesien? --- Daar was geen vlamme gewees meneer.’
He
testified that he extinguished what was smouldering.
[50]
The fourth, and final, witness who testified on the state of the
sawmill waste sites at the time of the observation of
the fire in
compartment A13a was Mr Mfusi. Mr Roberts asked him the following
question:
‘
When you went past
the sawdust, did you see any fire or any smouldering in the sawdust?
--- No.’
[51]
Mr Mfusi said that he, too, had gone back to the sawmill waste sites
after the fire had been brought under control and
had seen Mr
Pretorius extinguishing ‘something little’ there, which
he described in cross-examination as being approximately
50
centimetres by 50 centimetres in size.
[52]
There was accordingly direct evidence from the respondent’s
witnesses that the fire was first observed in compartment
A13a, and
that there was no sign of any form of fire in the sawmill waste sites
immediately before, or when, that occurred. On
a factual level, none
of that evidence could be challenged by the appellant. There was,
moreover, no dispute at the trial that
compartment A13a was, indeed,
severely burnt by the fire.
[53]
The appellant met this direct evidence, essentially, with the
evidence of three witnesses, one of whom, Mr Abraham du
Preez (Mr du
Preez), was qualified as an expert. The other two witnesses were Mr
Michael Mullins (Mr Mullins) and Ms Ruth Bezuidenhout
(Ms
Bezuidenhout). The evidence of Mr du Preez must be considered first.
[54]
It appears that while Mr du Preez was qualified as an expert by the
appellant and had previously given evidence at trials
involving
fires, he had never given evidence as an expert. He explained that
his mandate was to establish, based upon the evidence
at his
disposal, the cause and origin of the fire.
[55]
Mr du Preez candidly acknowledged that the best possible scenario
would be for him to be at the site of a fire as soon
as possible
after its occurrence. His early arrival at the scene of a fire would
permit him to consider the typical signs left
behind in the aftermath
of a fire. However, in this instance, he found himself at Albany some
two years and eleven months after
the fire, a considerable period
after the occurrence of the fire and which period can only be
described as less than ideal for
his specific purposes. Indeed, as
will be expanded upon shortly, this made things very difficult for Mr
du Preez, as he himself
acknowledged.
[56]
Mr du Preez testified that when he first observed compartment A13a,
it had changed since the fire, as most of the trees
had been
harvested and only about half a hectare of trees that had survived
the fire on 7 November 2015 remained in that compartment.
He
acknowledged that this was a ‘small area of trees.’ He
testified that he inspected these trees and used what he
found there
as a building block to develop his theory about the origins of the
fire.
[57]
Fully fleshed out, Mr du Preez’s theory was that the sawmill
waste sites were the most probable place where the
fire first
started. It could have ignited, according to him, either by
spontaneous combustion within the sawmill waste sites or
from a
previous burning operation, such as the burning of a firebreak,
during which operation a fire could have entered the sawmill
waste
sites and smouldered there underground, unseen, for months. He
believed that the fire came from the roadside on the west
of Albany
and spread eastwards into the farm, entering the first compartment,
which was compartment A13a.
[58]
Mr du Preez stated that he ascertained the direction of the spread of
the fire by considering the angle of char on the
few remaining
standing trees in compartment A13a. The angle of char is a pattern of
burning left behind on a standing tree after
a fire has passed
through that enables the direction of the spread of the fire to be
ascertained. According to Mr du Preez, a fire
typically leaves a low
level of scorching on the side of the tree from which the fire
approached and a greater scorching on the
other, or leeward, side of
the tree. Based upon what was left on the remaining trees in
compartment A13a, Mr du Preez was of the
view that the fire had
spread from west to east. The following extract from his evidence in
chief is illustrative of his evidence:
‘
Before we move on
to the next aspect can there be any other explanation for this angle
of char, or the char that you observed, can
there be any other
explanation other than what you have told this court? --- No, sir, in
my view, in my experience, definitely
not. There are no signs of a
so-called back fire burning towards the origin of the fire.’
[59]
On the issue of back burning, Mr du Preez was asked the following
question by Mr Troskie:
‘
Is there any
indication, or what you could see on the ground that indicated that
the fire might have moved in the opposite direction,
from east to
west? --- No, no signs whatsoever were observable at the time of the
field visit.’
[60]
Mr du Preez was later cross-examined by Mr Roberts and was asked
whether the side of the tree from which the fire had
approached could
never exhibit charring to the same extent as the charring on the
leeward side of the tree. His answer was:
‘
It depends on the
velocity of the wind and the residence time of the fire in that
particular area. If there was little wind and
if it burnt severely it
could be equal on the other side.’
[61]
Mr du Preez was compelled to further acknowledge that the undergrowth
present in a compartment could also play a role
in how a tree was
burnt by an approaching fire. This emerged from the following
interaction when Mr Roberts cross-examined Mr du
Preez:
‘
So, the
undergrowth would have affected the extent to which a fire would go
up a tree.  --- That is normally the case, correct.
So, even if it is
situated on the leeward side of the tree. --- Yes.’
[62]
The point of contestation between the two parties was neatly summed
up in the following exchange between Mr Roberts and
Mr du Preez:
‘
Because
the factual evidence is that the fire started in the plantation and
it then burnt back towards the road and you are trying
to refute
that. I am putting it to you that depending on the fuel load inside
the pattern could have been same as you found. ---
But the fuel load
was not the same, that was not what I observed.’
[63]
Given the fact that Mr du Preez went to Albany two years and eleven
months after the fire, he did not, nor could he reasonably
have
expected to, observe the fuel load. Mr Roberts consequently put it to
Mr du Preez that the interval of time between the date
of the fire
and the date of Mr du Preez’s visit to Albany made:
‘…
it
difficult for any expert to really express a firm view without having
been on the scene shortly after the fire, correct? ---
That is
correct.’
[64]
The difficulty in the time lapse between the date of the fire and the
date of Mr du Preez’s visit to Albany was
highlighted, and
magnified, when Mr du Preez stated that when considering the origin
of the fire:
‘
I
had to rely on macro and micro indicators of which only two were
present three years after the fire, namely, the angle of char
and the
V pattern. So, curling, freezing, cupping, all those other indicators
were not possible to determine because of the time
which passed was
just too long, they were no longer present, so they were not
reliable.’
[65]
This, so it appears to me, meant that Mr du Preez’s theory of
the origin of the fire was based on very few of the
indicators that
he would ordinarily have utilised to develop a comprehensive theory
on the inception and spread of a fire.
[66]
While there is no doubt a possibility that the theories propounded by
Mr du Preez as to the origin of the fire may be
correct, they
suffered from an absence of facts that demonstrated that this is how
the fire commenced. Recognising this, Mr Roberts
put the following to
Mr du Preez:
‘
But you will agree
with me that you have no factual evidence to base this on. --- I was
not there on the day of the fire.
So, you have no factual
evidence to base this theory on. --- I can only reconstruct on
physical evidence, which I have already covered
in my statement, as
well as today, and that is the angle of char which is a very clear
indication of the fire spreading from west
to east.’
[67]
This, in my view, is the high-water mark of Mr du Preez’s
evidence: he could only confidently assert that the fire
spread from
west to east. Nothing more. He could not say how the fire started nor
could he say where the fire had started. Moreover,
what he could say,
namely that the fire burnt eastwards, was not really in issue at the
trial, for the respondent accepted that
the fire had moved from west
to east. The real point of dispute was whether the fire had started
inside compartment A13a and had
burnt back for a short distance to
the blue road. For this, the appellant had no countervailing evidence
to refute the evidence
adduced by the respondent that has already
been considered.
[68]
Concerning whether spontaneous combustion could have occurred within
the sawmill waste sites, Mr du Preez provided these
answers to
questions that were put to him in cross-examination:
‘
You are not an
expert on spontaneous combustion, are you? You have not been
qualified as such in any event. --- I am not qualified
but I have
seen several examples of spontaneous combustion elsewhere, so I know
it is possible.
But you have not seen it
here. --- No.
You have not seen the
evidence of that. --- I was not there on 7 November 2015.’
[69]
As regards his proposition that a fire could have entered the sawmill
waste sites when fire breaks had been burnt in
the vicinity of the
sawmill waste sites earlier in the year and had thereafter simmered
away underground, undetected, Mr du Preez
answered a question about
this in the following way:
‘
... Now you are
saying the fire if it went into the sawdust heap it remained there
unnoticed, dormant, for four, five months. ---
I would not use the
word dormant, it was just not visible, it was slowly but surely
creeping and it was sustained but it was not
visible to the naked eye
above ground.’
[70]
Thereafter followed a volley of questions directed to Mr du Preez on
this issue:
‘…
Now, you do not know when
it crept in there. --- No I cannot say with certainty.
You
do not know how it crept in there. --- No, I did not witness it
personally.
You
do not know where on the heap it crept into. --- No, I cannot point
out a specific area.’
[71]
Thus, Mr du Preez’s evidence was merely theoretical. As to why
he believed the fire to have started in the sawmill
waste site, he
stated that:
‘
The photographs
which were presented to me clearly show signs of smoke and burning
inside the sawdust heap.’
This
then was the basis for Mr du Preez’s assertion that the fire
started in the sawmill waste sites.
[72]
That brings me to the evidence of Ms Bezuidenhout. She was an
employee of the appellant and is the person who had largely
attended
to all the respondent’s insurance requirements with the
appellant for approximately 14 years. She attended Albany
on Monday,
9 November 2015, two days after the occurrence of the fire, and
observed the destruction wrought upon, inter alia, compartment
A13a
and also went to the sawmill waste sites. Mr Troskie asked her
whether there were any signs of fire in the sawmill waste sites
when
she went to Albany. She responded that:
‘
When we drew up to
the top end of waste sawmill dump one, before I could even get out
the car, I observed that there was smoke,
coming out of the sawmill
waste, in an area that had been bulldozed into almost, if I could
call it a tipi.’
[16]
[73]
Ms Bezuidenhout took several photographs that day, and she also made
a video recording of what she observed in the sawmill
waste sites.
These must have been the photographs to which Mr du Preez referred as
convincing him that the fire had started in
the sawmill waste sites,
for the respondent introduced no photographs showing this. Of the
photographs taken by Ms Bezuidenhout,
only two allegedly depicted the
smoke that she stated that she observed in sawmill waste site 1 (the
contentious photographs).
[74]
The contentious photographs were included in the appeal record but
were not of a particularly high standard, both as
to their resolution
and their print quality. I was not able to discern the smoke that was
allegedly present in those two photographs,
nor could I identify the
so-called ‘tipi.’ The court drew this to the attention of
both counsel at the appeal and it
was agreed that bigger, better
prints of the contentious photographs would be prepared by the
appellant’s attorneys and would
be submitted to us after the
appeal. This was later then done, and we received the larger,
allegedly improved photographs.
[75]
I am by no means certain that the reception of these apparently
improved photographs has resulted in an improved appreciation
on my
part of what is allegedly depicted therein. In one of the contentious
photographs, I can discern no smoke whatsoever. In
the other, I think
that I can discern a change in colour of a small portion of the image
that may be indicative of the presence
of smoke. But I cannot be
sure.
[76]
My misgivings about what the contentious photographs depict are
compounded by the fact that Ms Bezuidenhout admitted
in her evidence
that the video recording that she had made on 9 November 2015 did not
depict any smoke at all in the sawmill waste
sites. Why this should
be the case is not clear. If it could allegedly be captured in a
photograph, why could it not be recorded
in a video recording? The
answer may be that what was observed and captured in the contentious
photographs was fleeting in nature.
Because it was not sustained, it
defied being recorded in the video that was taken.
[77]
It appears that the idea of the fire having its origin in sawmill
waste site 1 was not initially that of Mr du Preez
but was rather
that of Ms Bezuidenhout. She herself did not speak to this but Mr du
Preez, who chronologically testified after
Ms Bezuidenhout had
testified at the trial, was asked if she had informed him of her
theory of how the fire began. There then followed
a most
uncomfortable and obvious attempt by Mr du Preez to avoid answering
what was, essentially, a very simple question:
‘
And she must have
informed you what her version is. --- She just showed me the
photograph.
Did she tell you what she
thought happened there? --- It was quite clear what I could see from
the photographs.
The question is, did she
tell you? You are evading the question. --- Yes, she did tell me.
Yes, why did you evade
the question? Do you not want to answer this question? Will it
incriminate you, or what? --- ... [no reply]
So, she told you what her
view is on how the fire started. --- She showed me the photographs
and I could make my own assumptions
from it.
No, but she told you what
she thought how it started. --- Yes, she did.’
[78]
Mr Mullins was called as a witness by the appellant. He has been a
professional loss adjuster for approximately 40 years
and specialises
in timber adjustments. He attended Albany on 11 November 2015 at the
request of Ms Bezuidenhout and he prepared
a written report on the
fire. Whilst he was extremely experienced in the performance of his
job, estimating that he had been involved
in over 1 000 fires during
his career, Mr Mullins readily conceded that he was not an expert on
fires.
[79]
In his report, Mr Mullins recorded, inter alia, that:
‘
The fire appears
to have started in or adjacent to compartment 13b, the fire spreading
rapidly in the south easterly direction due
to the strong
north-westerly wind with a wind speed of 19 KMP.’
However,
he later theorised in the same report that:
‘
There is a
possibility that, due to the prevailing continuous weather
conditions, that the saw dust/waste dump spontaneously ignited,

caused by the low humidity, high temperatures and strong winds.’
[80]
A consideration of his evidence leads me to the conclusion that Mr
Mullins was not necessarily a witness whose testimony
advanced the
appellant’s case. He conceded, when placed under pressure while
being cross-examined, that he may have incorrectly
referred to
compartment A13b in his report. Challenged on this, he indicated that
he may have intended to refer to compartment
A13a. He also conceded
that his theory about the fire occurring first in the sawmill waste
sites was not based upon any scientific
exercise that he undertook to
determine whether that was, indeed, physically possible. He further
conceded that the observation
by Ms Kubheka of first observing white
smoke from atop the fire tower could have been the result of grass
between the trees in
the plantation igniting. He, finally, answered a
question about the colour of the smoke from Mr Roberts as follows:
‘
So, you will agree
with me that it is not improbable that the white smoke that she saw
could have emanated from within a compartment
in amongst the trees.
--- That is quite a possibility.
Well, it could be a
probability. --- As well.’
[81]
It is upon an assessment of this evidence that the trial court came
to its conclusion that the fire first started in
the sawmill waste
sites. In its judgment, it did not define in which of those two waste
sites the fire originated but Ms Bezuidenhout’s
evidence
suggested that it had to be sawmill waste site 1. I am, however, not
satisfied that the evidence adduced by the appellant
was sufficiently
compelling to permit the trial court to come to the conclusion that
it did.
[82]
The theory
about the fire having its origin in the sawmill waste sites was, as
the evidence already considered reveals, the idea
of Ms Bezuidenhout.
There was, however, no objective evidence to establish this. The
trial court had the advantage of seeing and
hearing her evidence and
it is therefore important to consider what it thought of her
performance as a witness. It appears that
it did not think much of
her, for the trial judge found that:
[17]
‘
She was not the
best of witnesses. At times she could not answer the questions posed
to her or explain her conduct. Her conduct
does not seem to accord
with what she found and in my view no reliance can be placed on her
evidence as to the origin of the fire.’
It
is clear that she did not impress the trial court.
[83]
Ms Bezuidenhout shared her theory of the origin of the fire with Mr
du Preez. He accepted that theory and endorsed it
through his
evidence. It, however, appears that the only evidence that he
considered as to where the fire commenced was the theory
itself and
the contentious photographs that Ms Bezuidenhout took of smoke
allegedly rising out of sawmill waste site 1, two days
after the
fire. Mr du Preez apparently believed that the photographs clearly
showed ‘signs of smoke and burning inside the
sawdust heap.’
As already stated, I am by no means convinced that smoke is to be
seen in either of those photographs.
[84]
However, assuming for a moment that there was smoke depicted in both
photographs, I am not sure what inference, if any,
could properly be
drawn from that assumption. At best, it could be accepted that two
days after the fire there were vestiges of
smoke in sawmill waste
site 1. What would that prove? It could not be inferred therefrom
that the source of that smoke was present
two days earlier when the
fire occurred or that it was a remnant of the original fire that
sparked the inferno. There was no evidence
adduced that sawmill waste
site 1 ever burnt or that if it did burn, it burnt continuously from
the day of the fire until observed
by Ms Bezuidenhout two days later.
All this while work was being performed in the sawmill waste sites by
employees of the respondent,
who did not observe such smoke, or
having observed it, simply allowed it to continue burning. That seems
entirely improbable to
me.
[85]
Indeed, it was argued at the trial by the appellant that the work
that was done at the sawmill waste sites immediately
after the fire
was intended to obscure the fact that the fire had originated there.
The trial court in its judgment accepted the
work done in the sawmill
waste sites as one of the factors that persuaded it that the fire
had, indeed, started there. If the work
done in the sawmill waste
sites was intended to hide the origins of the fire, it seems unlikely
to me that a burning fire producing
smoke would in such circumstances
not immediately be extinguished by the respondent’s servants,
particularly when the respondent
knew that Ms Bezuidenhout would be
at Albany on 9 November 2015, as she had told Mr Hoatson that she
would be there then.
[86]
There are other explanations that may account for the smoke, if it is
accepted that it does appear in the contentious
photographs (it was
also suggested by Mr Hoatson that what was observed and captured in
the contentious photographs may have been
dust or water spray). Mr
Lucas Mthanti (Mr Mthanti) testified at the trial that the day after
the fire, he burnt a firebreak around
the sawmill waste sites for
fear that the wind may turn and blow what he referred to as
‘charcoal’ from compartment
A13a in the direction of the
sawmill waste sites. If smoke was captured in the contentious
photographs, it could, conceivably,
have been a remnant of that
activity. Additionally, depicted in the range of photographs taken by
Ms Bezuidenhout were several
heavy-duty earthmoving machines being
put to work in the sawmill waste sites. It was suggested to Ms
Bezuidenhout in cross-examination
by Mr Roberts that if there was
smoke in the contentious photographs, it may have been the exhaust
emissions of those machines.
Ms Bezuidenhout claimed to be able to
distinguish between the two. Perhaps she can. But the presence of
that equipment raises the
possibility that this is what she observed
and what was captured on the contentious photographs. Whatever she
observed, it appeared
to be momentary and could only be captured on
two photographs and not on a video camera at all.
[87]
In my view, even if there is smoke captured in the contentious
photographs, that does not establish that it is probable
that the
fire started in sawmill waste site 1, and I believe that Mr du Preez
was incorrect to attach the significance that he
did to the
contentious photographs.
[88]
The evidence of Mr du Preez, as an expert, was utilised to add
gravitas to the theory conceived of by Ms Bezuidenhout.
In doing so,
sight must not be lost of when he made his own observations. As
previously stated, he only went to Albany some two
years and eleven
months after the fire. Much had changed since the fire. Thus,
regarding the issue of back burning, not much weight,
if any, can be
attached to his evidence that he observed no signs ‘at the time
of the field visit’ of the fire burning
from east to west. Had
he been there earlier, there may have been such evidence to observe,
for despite the finding of the trial
judge that he accepted that
there was no back burning as that did not appear from the angle of
char on the few remaining trees,
there was direct eyewitness
testimony that the fire had, indeed, back burnt.
[89]
That evidence came from the testimony of Mr Mfusi. In his evidence in
chief, he was asked by Mr Roberts about the direction
in which the
fire that he observed was burning. His answer was the following:
‘
The one that I saw
was moving backwards towards the road.’
The
reference to ‘the road’ is a reference to the blue road.
Mr Mfusi was adamant that while the head of the fire had
moved on
towards the east by the time that he arrived at the scene, the fire
was contemporaneously burning back towards the blue
road on which he
was and from where he made his observations. The following was his
evidence in this regard:
‘
Is there a reason
why are you reason (sic) why you left the fire creeping towards the
road? --- Yes.
What is the reason? ---
The wind was not pushing it hard towards the road.
Was it burning with the
wind or against the wind towards the road there? --- It was against
the wind.
Was it moving fast or
slow what was the situation? --- It was moving slowly.’
[90]
Critically,
in my view, Mr Mfusi’s evidence on this point was not
challenged. It was not suggested to him when he was cross-examined

that there was no evidence that the fire burnt back, as Mr du Preez
later would assert when he testified. Not a single question
was put
to him in that regard. His observations consequently remain
unchallenged. The trial judge did not lose sight of his evidence
and
summarised it as follows:
[18]
‘
Mfusi indicated
that he saw the fire in the plantation burning against the wind. He
admitted that the wind was in a westerly direction.
Once again his
evidence as to where the fire was seen by him has to be considered
against the probabilities and the other factors
such as the wind
direction. He could not provide any explanation as to how this fire
would have burnt against the prevailing wind
which it was common
cause was at least 20 km per hour at the time. Therefore just as in
the case of Pretorius and Simon (sic) the
other factors such as the
wind direction and the other evidence which I will deal with later
makes one to conclude that no reliance
can be placed on their
evidence.’
[91]
The trial
judge appeared to find that it was not possible for a fire to burn
against the wind, contrary to what Mr Mfusi claimed
to have observed.
It is so that where the evidence of a witness is not challenged, it
does not necessarily follow that it must
automatically be accepted
because the fact that it has not been contradicted does not make it
true.
[19]
As was stated in
MacDonald
v Young
:
[20]
‘
It
is settled that uncontradicted evidence is not necessarily acceptable
or sufficient to discharge an onus. In
Kentz
(Pty) Ltd v Power
, Cloete J
undertook a careful review of relevant cases where this principle was
endorsed and applied. The learned judge pointed
out that the most
succinct statement of the law in this regard is to be found
in
Siffman v Kriel
, where
Innes CJ said:
“
It
does not follow, because evidence is uncontradicted, that therefore
it is true . . . The story told by the person on whom the
onus rests
may be so improbable as not to discharge it.”
[92]
But there was nothing inherently improbable about what Mr Mfusi said.
In coming to its conclusion, the trial court appears
to have lost
sight of the evidence of an expert witness called by the respondent,
namely Mr Willem Vorster (Mr Vorster). Mr Vorster
mentioned in his
report, which formed part of the appeal record, that:
‘
All fires burn
back a little as well.’
Asked
to explain this, Mr Roberts elicited the following response from Mr
Vorster:
‘
You make your
point here on page 106 that all fires burn back a little bit as well.
What do you mean by that? --- If a fire start
(sic) in the vegetation
and if there was no winds, it would have burnt in a circle outwards.
Now you put of (sic) wind so it burnt
to the one side and it also
burnt back into the wind.
Against the wind? Against
the wind.’
[93]
In my view, the trial court erred in simply dismissing the
reliability of Mr Mfusi’s evidence and the evidence
of Mr
Pretorius and Mr Saayman. The evidence of Mr Mfusi was both possible,
given the evidence of Mr Vorster, and uncontradicted.
It should
therefore have been accepted.
[94]
The trial court accepted that a further indicator that demonstrated
that the fire had started in the sawmill waste sites
was the fact
that work commenced on those sites on the day following the fire. I
am afraid that I do not see that the same way.
There was evidence
from Mr Mthanti that the wind direction rapidly changed in that area,
which was also not challenged, and in
working on the sawmill waste
sites to ensure that they did not later burn if there was another
fire driven in their direction by
a changed wind, I take the view
that the respondent acted proactively and sensibly. I cannot see any
basis therefrom to suppose
that what was really being done was to
hide evidence of the true origin of the fire nor that this fact,
either alone or when viewed
with others, established that the fire
commenced in sawmill waste site 1.
[95]
The trial court was faced with direct eyewitness testimony of what
occurred on 7 November 2015 and the countervailing
theory primarily
advanced by Mr du Preez. It preferred the evidence of the expert over
the evidence of the eyewitnesses. In my
view, it erred in doing so.
[96]
In
PriceWaterhouseCoopers
Inc and others v National Potato Co-operative Ltd and another
,
[21]
the Supreme Court of Appeal referred with approval to the Canadian
decision in
Widdrington
(Estate of) v Wightman
,
[22]
where the following was held:
‘
[326] “Before
any weight can be given to an expert’s opinion, the facts upon
which the opinion is based must be found
to exist.”
[327] “As long as
there is some admissible evidence on which the expert’s
testimony is based it cannot be ignored; but
it follows that the more
an expert relies on facts not in evidence, the weight given to his
opinion will diminish.”
[328] An opinion based on
facts not in evidence has no value for the Court.’
[97]
In
AM
and another v MEC for Health, Western Cape
,
[23]
Wallis JA remarked that:
‘
The opinions of
expert witnesses involve the drawing of inferences from facts. The
inferences must be reasonably capable of being
drawn from those
facts. If they are tenuous, or far-fetched, they cannot form the
foundation for the court to make any finding
of fact. Furthermore, in
any process of reasoning the drawing of inferences from the facts
must be based on admitted or proven
facts and not matters of
speculation. As Lord Wright said in his speech in
Caswell v Powell
Duffryn Associated Collieries Ltd
:
“
Inference must be
carefully distinguished from conjecture or speculation. There can be
no inference unless there are objective facts
from which to infer the
other facts which it is sought to establish … But if there are
no positive proved facts from which
the inference can be made, the
method of inference fails and what is left is mere speculation or
conjecture.”’ (Footnotes
omitted.)
[98]
In
Representative
of Lloyds and others v Classic Sailing Adventures (Pty) Ltd
,
[24]
Lewis JA considered the direct evidence of eyewitnesses and the
theoretical constructs of expert witnesses and concluded thus:
‘…
I must emphasise that
where there is eyewitness or direct evidence of an occurrence, this
may render the reconstructions of experts
less relevant or even
irrelevant …’
[99]
In the
earlier matter of
Van
Eck v Santam Insurance Co Ltd
,
[25]
the court observed that the evidence of expert witnesses:
‘…
is
inevitably based on reconstruction and cannot conceivably bear the
same weight as direct, eye-witness testimony of the event
in
question.’
[100]
In my view, these views remain valid, more so when the reconstruction
of the expert is attempted nearly three years
after the event in
question. When these authorities are considered, it is apparent that
theories and inferences drawn therefrom
must rest on a solid
foundation of facts. There must be some factual basis linking the
theoretical possibilities proposed by the
theory to the known facts.
[101]
It appears to me that Mr du Preez considered very few facts in coming
to his theory. Those facts appear to comprise
of the wind direction
and weather conditions prevailing on the day of the fire, the state
of a few trees remaining in compartment
A13a nearly three years after
the fire, and the content of the contentious photographs. In my view,
that was insufficient to permit
a proper conclusion on a balance of
probabilities that the fire started in sawmill waste site 1. Of those
factors just mentioned,
only one of them, the contentious
photographs, served to satisfy Mr du Preez that they showed evidence
of where the fire actually
commenced. That reasoning was not
justified because it did not account for all the known facts.
[102]
It seems to me that Mr du Preez was not aware of the evidence of Mr
Pretorius or the evidence of Mr Mfusi for he did
not mention either
of them or what they claimed to have observed. Of course, it is
possible that he knew of this evidence but chose
to discount it. His
theoretical explanation does not sit easily with the direct
observations of the respondent’s witnesses.
And, it appears to
me, that insufficient consideration was afforded, in particular, to
the evidence of Mr Mfusi by the trial court
for his unchallenged
evidence conclusively established that the fire had back burnt.
[103]
The appellant’s version of the fire having its origin in the
sawmill waste sites is simply a theory. It may be
possible that a
fire could have smouldered underground for months before sending out
a flame together with a burning ember, to
be carried aloft by the
wind into compartment A13a and that then ignited the inferno that
resulted. It may be possible that spontaneous
combustion occurred in
the sawmill waste sites. But there are no facts to give either of
these theories oxygen. They conflict with
the evidence of the
eyewitnesses, and they accordingly merely amount to speculation, in
my view.
[104]
The
consequence is that it may not be possible on the evidence adduced at
the trial to conclude precisely how the fire started.
It may have
been arson.
[26]
It may have
been through human error. It may have been from a carelessly
discarded cigarette thrown into compartment A13a. It may
have been
through any one of the theories proposed by the appellant. But the
fact of the matter is that there were at least three
witnesses who
observed the fire first burning in compartment A13a. No witnesses saw
the sawmill waste sites smouldering or burning
before the fire in
compartment A13a was observed.
[105]
In my opinion, and with the greatest respect to the trial court, it
erred in finding that the fire commenced in the
sawmill waste sites
and it ought to have found that it commenced in compartment A13a of
Albany.
[106]
It accordingly becomes readily apparent that in submitting its claim
form to the appellant, the respondent did not misrepresent
anything.
None of the responses by the respondent considered earlier appear to
me to be false or misleading. In fact, they appear
to me to be
truthful and accurate. It is important to note that the claim form
did not ask the respondent to specify where the
fire had first
started. The nearest that it came to such a question was the question
that asked which compartment had first been
affected. There was
therefore no misrepresentation and certainly no fraudulent
misrepresentation on the part of the respondent.
And the appellant
was not therefore entitled to avoid the terms of the certificate on
this basis.
[107]
The appellant, consequently, in my opinion did not establish that the
fire originated in the sawmill waste sites or
that the respondent
made any misrepresentation to it about its origins. The second ground
of appeal must consequently fail in my
view.
The
appellant’s third ground of appeal
[108]
The court’s
finding on the issue of the alleged failure by the respondent to
disclose the existence of the sawmill waste sites
and the alleged
increase in the fire risk posed by those waste sites was the
following:
[27]
‘
In the
circumstances due to the factors mentioned it does not appear that
there was a misrepresentation by Plaintiff nor that there
was a duty
to disclose the waste dump site to Defendant as an issue which would
affect the insurance policy or Defendants decision
to insure the said
property. Defendant has failed to prove that the non-disclosure or
representation induced it to conclude the
contract. The evidence of
its witnesses that it increased the fire risk in itself is not
sufficient to prove such materiality.’
[109]
It needs to be mentioned that the appellant’s case was not that
it had been induced to issue the certificate because
of the
respondent’s alleged failure to mention the existence of the
sawmill waste sites. Its case was that it was entitled
to avoid the
respondent’s claim, not the contract. This is affirmed by the
fact that after the appellant concluded, erroneously
in my view, that
the fire had started in the sawmill waste sites, it did not revoke
the certificate in its entirety because of
that alleged
non-disclosure. Instead, it merely issued a qualification to the
certificate to the effect that any future fire that
was established
to have commenced in the sawmill waste sites would not be covered by
the certificate. The certificate otherwise
remained in full force and
effect and was not cancelled by the appellant.
[110]
The respondent submitted that the existence of the sawmill waste
sites was not material on the facts of this matter,
whereas the
appellant claimed that it was. On the level of causation, it is
clearly not material because it has been found in this
judgment that
the fire did not commence burning in sawmill waste site 1, as alleged
by the appellant.  The presence of the
sawmill waste sites thus
played no active part in what occurred on 7 November 2015.
[111]
Whether an issue is material in the context of a short-term insurance
contract is explained by the wording of
s 53(1)
of the
Short-Term
Insurance Act 53 of 1998
, which reads as follows:
‘
(a)
Notwithstanding anything to the contrary contained in a short-term
policy, whether entered into before or after the commencement
of this
Act, but subject to subsection (2) -
(i)   the policy
shall not be invalidated;
(ii)   the
obligation of the short-term insurer thereunder shall not be excluded
or limited; and
(iii)  the
obligations of the policyholder shall not be increased,
on account of any
representation made to the insurer which is not true, or failure to
disclose information, whether or not the representation
or disclosure
has been warranted to be true and correct, unless that representation
or non-disclosure is such as to be likely to
have materially affected
the assessment of the risk under the policy concerned at the time of
its issue or at the time of any renewal
or variation thereof.
(b)
The
representation or non-disclosure shall be regarded as material if a
reasonable, prudent person would consider that the particular

information constituting the representation or which was not
disclosed, as the case may be, should have been correctly disclosed

to the short-term insurer so that the insurer could form its own view
as to the effect of such information on the assessment of
the
relevant risk.’
[112]
This legislation has been enacted:
‘…
to
preclude insurers from treating misrepresentations that are trivial,
and more recently non-disclosures that are trivial, as grounds
for
avoiding insurance contracts and rejecting claims.’
[28]
[113]
The test
when considering misrepresentations and non-disclosures is an
objective one in both instances.
[29]
The insurance company bears the onus of establishing materiality and
must establish that the non-disclosure or misrepresentation
induced
it to come on risk.
[30]
[114]
On a
factual level, it is difficult on the evidence led at the trial to
decide whether the existence of the sawmill waste sites
was ever
disclosed by the respondent to the appellant. I appreciate that in
making this statement, I am at odds with the finding
of the trial
court that found that it was common cause that the respondent did not
inform the appellant of their existence.
[31]
My hesitation in accepting that finding is based upon two factors.
[115]
The first
is that the sawmill waste sites were first created in either 2003 or
2004. The appellant was already at that time the
insurer of the
respondent and Albany was consequently the subject of inspections
performed by the appellant to consider such insurance.
The inspector
was not Ms Bezuidenhout at that stage, but a Mr Norris who was never
called as a witness at the trial. But in completing
his annual
inspection reports, he recorded that the areas adjoining Albany in
the years 2003, 2004, and 2005 posed no risk to the
insured area and
were thus scored by him as a zero. The sawmill waste sites, as
already described, adjoined the insured area, and
existed at that
time. In preparing his report, Mr Norris could conceivably either
have been told of the sawmill waste sites or
he could personally have
observed them. While there is a need for a party seeking insurance to
make a full and frank disclosure
of all the facts that may affect the
risk against which it seeks indemnification, there is no obligation
to disclose facts of which
the insurer is already aware.
[32]
[116]
The second reason for my hesitation regarding the proposition is that
Ms Bezuidenhout, whose evidence did not leave
a favourable impression
upon the trial judge, claimed that she had never seen the sawmill
waste sites in the 14 years that she
had done business on Albany. She
had, on her own admission, been granted unfettered access to Albany
and could visit and traverse
the farm as she desired. On her own
version, she did so. She agreed that she had travelled on the blue
road that would have taken
her past the sawmill waste sites but
claimed that she never drove so far along that road as to reach the
area where she would have
seen the sawmill waste sites. Given that
she did not impress the trial court, her evidence on this aspect
seems contrived to me.
In addition, the appellant was, until 2015,
the insurer of the sawmill. It thus knew of the sawmill and what it
did and produced.
I find it simply too fanciful to accept that Ms
Bezuidenhout, and therefore the appellant, had no knowledge of the
sawmill waste
sites.
[117]
Whether the sawmill waste sites were disclosed to the appellant, or
were known by it to exist is, in the final analysis,
of no moment
because their existence played no part in the fire. However,
accepting for the purposes of argument that the appellant
did not
know of the sawmill waste sites, I would nonetheless agree with the
trial court when it found that this was not material.
It follows that
I have reached the same conclusion as the trial court, albeit for a
different reason.
[118]
Finally, the appellant contended that the existence of the sawmill
waste sites substantially increased the load of combustible
material
in the vicinity of the insured area and thereby increased the fire
risk. No evidence was led by the appellant to establish
this
proposition. But the respondent did lead evidence on the mixture of
materials deposited in the sawmill waste sites. Mr David
Butt (Mr
Butt) testified that he was employed by the respondent as its head of
planning and took several samples from a sawdust
waste site at the
Franklin sawmill on the south coast of KwaZulu-Natal as well as from
the sawmill at Albany, sawmill waste site
1, and from another farm in
the area of Albany, namely the farm Kendal. These other samples
appear to have been taken for comparative
purposes. He personally
flew to Gauteng and handed over the samples to a laboratory in
Pretoria known as ‘Firelab’
(Firelab) for analysis. This
exercise was done approximately six weeks before the trial commenced
in November 2018 and was thus
not done in close proximity to the
occurrence of the fire.
[119]
Mr Butt testified that the sample that he took from sawmill waste
site 1 on Albany:
‘…
had soil
in it, bark, sticks, pieces of rock, gravel, mixed material. Maybe a
little bit of sprinkling of sawdust.’
[120]
The samples were received by Firelab and came to the attention of Mr
Jacobus Strydom (Mr Strydom), its proprietor. One
of the functions
that Firelab performs is the fire testing of materials. It is not
necessary to narrate how materials are tested
in any detail save to
say that a particular furnace is preheated to 400 degrees Celsius and
then the specimen to be tested is inserted
and the increase or
decrease in the heat within the furnace is then observed. In essence,
what is being measured is the heat contribution
of the specimen to be
tested.
[121]
The samples given to Firelab were tested and a report compiled. As
far as the sample from sawmill waste site 1 was concerned,
Mr Strydom
testified that the temperature of the furnace dipped slightly when
the sample was introduced and then the temperature
began to rise,
which then led to the sample beginning to ‘glow’.
Significantly, there was no flaming ignition, merely
smouldering. A
sample taken from the plantation floor of Albany comprising pine
needles and forest debris, ignited within six seconds
of being
introduced into the furnace but terminated within approximately 30
seconds, whereafter the material continued to glow
for approximately
four and a half minutes. A grass sample flamed within nine seconds
and increased the temperature in the furnace
to 520 degrees Celsius,
before decaying. A sample of fresh sawdust began glowing after
approximately 30 seconds in the furnace
and then began charring
superficially but did not flame.
[122]
Mr Strydom explained that the presence of sand would impact upon the
ignitability of a sample, as the sand absorbs heat
when exposed to it
and the heat temperature will be reduced because:
‘…
it cannot
ignite. So, it will absorb the heat. So, if it is mixed there, it
would be very difficult for something to burn.’
And
he also explained that there is a difference between ignition and
flaming ignition. The former results in slight glowing and
the
emission of smoke as the cellulose in the sample decomposes. Flaming
combustion, as the term would suggest, results in flames.
[123]
Mr Strydom concluded that the samples taken from Albany did not
constitute any special fire risk because it could
not burn, as
oxygen, an essential ingredient for burning, would not be able to
penetrate the interior of the dump. The result would
be a
smouldering, but flameless, combustion of the external surface of the
dump. As to the ease of ignition, he explained that
when a
cellulose-based substance burns, it is the gas that is released from
the substance that burns, not the substance itself.
Sawdust is a fine
substance comprised of small particles and does not burn easily
because it does not emit sufficient gas to combust
when heated. Mr
Strydom believed the presence of the scrapings may well have
decreased the fire load, contrary to what the appellant
pleaded,
because the most that could have occurred was smouldering on the
surface of the sawmill waste sites.
[124]
Under cross-examination, Mr Strydom fairly conceded that all that his
tests revealed was how a test substance had performed
under
controlled circumstances. He conceded that he did not know how
representative the samples taken from Albany were of the conditions

in the sawmill waste sites or at the sawmill itself. And he conceded
that it was not impossible for flaming combustion to occur
but
remained of the view that it would have been very difficult for this
to occur. It could occur if there was the introduction
of a strong
wind, which would then feed oxygen to the combustible material.
[125]
It seems to me that the strong wind would have to exist at the moment
that the fire first existed. It would have to
be present to permit
the flame to develop, and from that, spotting into compartment A13a
would have occurred on the theory advanced
by the appellant. However,
that did not accord with the evidence of Ms Kubheka, who was asked
the following question by Mr Troskie
regarding her first observation
of the smoke:
‘
Now you have
noticed that there are (sic) smoke and you are looking at the smoke
somewhere in the distance, is that correct? ---
Yes.
Do you remember whether
the smoke was moving from left to right or right to left or not at
all. Do you remember if it was moving
in that direction? --- I saw
smoke going up.
You saw smoke going up?
--- Yes, it was going up.’
[126]
That indicates to me that there was either no wind or, if there was a
wind, that it was not sufficiently strong enough
to dissipate the
smoke in a particular direction. In other words, the strong wind that
Mr Strydom testified about as being necessary
for a flame to develop
was not present.
[127]
After a consideration of this evidence, I am of the view that the
appellant did not establish that the existence of
the sawmill waste
sites created an increased fire risk.
[128]
It should be observed, however, that even if that conclusion is
wrong, the appellant faces another obstacle. This is
not a case in
which the insurer has established that the non-disclosure would have
led to no policy being issued, or only being
issued at a higher
premium. On the contrary, by its own conduct the appellant has shown
that if the disclosure had been made, it
would have qualified its
obligations under the policy, by excluding the obligation to
compensate if a fire originates in the sawmill
waste areas. If, as
held above, this fire was not one of those, the issue of
non-disclosure becomes academic.
[129]
In my view, the third ground of appeal consequently must fail.
Costs
[130]
The appeal
must succeed on the first ground raised by the appellant, but given
that the error underpinning that ground of appeal
was that of the
court, it can have no bearing on the issue of costs. The fact that
the respondent abandoned the money judgment
apparently does not
result in the extinction of the order, but merely renders it
unenforceable.
[33]
In this
case the order must accordingly be set aside to open the way to the
final determination of the action. The appellant has
failed on the
two substantive grounds of appeal. Costs must follow that outcome.
Order
[131]
The following order is accordingly granted:
1.  Save to the
extent set out in paragraph 2 of this order, the appeal against the
judgment of the trial court handed down
on 26 January 2023 is
dismissed with costs.
2.  Paragraphs 1(i)
and 1(ii) of the order of 26 January 2023 are set aside and are
replaced with an order declaring the appellant
to be liable to the
respondent for such damages as the respondent may prove at a hearing
in due course arising out of the fire
that occurred on the farm
Albany, situated in the Newcastle district, KwaZulu-Natal, on 7
November 2015.
MOSSOP J
OLSEN J
NICHOLSON AJ
APPEARANCES
Counsel
for the appellant:
Mr
A Troskie SC
Instructed
by:
Hay
and Scott Attorneys
Top
Floor, 3 Highgate Drive
Redlands
Estate
Pietermaritzburg
Counsel
for the respondent:
Mr
M G Roberts SC with Ms E Roberts
Instructed
by:
Vinnicombe
and Associates
Locally
represented by:
Stowell
and Company Incorporated
295
Pietermaritz Street
Pietermaritzburg
[1]
Despite such denial, it was common cause at the trial that the fire
had occurred on 7 November 2015.
[2]
Normandien
Farms (Pty) Ltd v SAFIRE Crop Protection Co-operative Limited
[2023] ZAKZPHC 6.
[3]
This distance is gleaned from the scale measuring tool that forms
part of a large aerial photograph of Albany (the large aerial

photograph) that was used at the trial and which forms part of the
appeal record.
[4]
This distance has been calculated using the previously mentioned
scale on the large aerial photograph.
[5]
I have twice used the phrase ‘as the crow flies.’ This
is intended to describe the shortest possible distance between
two
points. In fact, the crow does not fly straight to its destination.
The bird that does so is the rook, but as they are both
black in
colour, they have been popularly identified with each other: S Dent
Interesting
Stories About Curious Words: From Stealing Thunder to Red Herrings
(2023) at 19.
[6]
The distance has again been calculated with reference to the scale
measuring tool on the large aerial photograph.
[7]
Dictionary of South African English:
https://dsae.co.za/entry/donga/e02052.
[8]
Clause 8 reappears in identical form in Section B of the certificate
as clause 16.
[9]
Feinstein
v Niggli and another
1981
(2) SA 684 (A).
[10]
Ruto
Flour Mills (Pty) Ltd v Moriates and another
[1957]
3 All SA 28
(T).
[11]
Bill
Harvey’s Investment Trust (Pty) Ltd v Oranjegezicht Citrus
Estates (Pty) Ltd
1958 (1) SA 479
(A). See also generally L T C Harms and M Townsend
Amler’s
Pleadings
10
ed (2024) at 204-205.
[12]
Mkhize
v S
[2014] ZASCA 52
para 14;
S
v Hadebe and others
1997
(2) SACR 641
(SCA) at 645E-F.
[13]
This should have read ‘an easterly direction’ and not ‘a
westerly direction.’
[14]
Forestry culture is, essentially, the planting of trees and their
nurturing and development until they are ready for harvesting.
[15]
‘
Spotting’
refers to the transport of burning pieces of firebrand by wind,
which, at the time of landing, may ignite new
fires beyond the
direct ignition zone of the main fire.
[16]
‘Tipi’, or ‘teepee’, is a tent used by the
indigenous first peoples of the United States of America,
and which
generally has a conical shape.
[17]
The
judgment para 112.
[18]
The
judgment para 110.
[19]
Siffman
v Kriel
1909
TS 538
at 543.
[20]
Mcdonald
v Young
[2011]
ZASCA 31
;
2012 (3) SA 1
(SCA) para 6.
[21]
PriceWaterhouseCoopers
Inc and others v National Potato Co-operative Ltd and another
[2015]
ZASCA 2
;
[2015] 2 All SA 403
(SCA) para 99.
[22]
Widdrington
(Estate of) v Wightman
2011 QCCS 1788
(CanLII) paras 326-328.
[23]
AM and
another v MEC for Health, Western Cape
[2020] ZASCA 89
;
2021 (3) SA 337
(SCA) para 21.
[24]
Representative
of Lloyds and others v Classic Sailing Adventures (Pty) Ltd
[2010] ZASCA 89
;
2010 (5) SA 90
(SCA) para 60.
[25]
Van Eck
v Santam Insurance Co Ltd
1996
(4) SA 1226
(C) at 1229H-I.
[26]
The occurrence of the fire was reported to SAPS Normandien, and a
CAS number was issued to the respondent.
[27]
The
judgment para 127.
[28]
Regent
Insurance Co Ltd v King’s Property Development (Pty) Ltd t/a
King’s Prop
[2014] ZASCA 176
;
2015 (3) SA 85
(SCA) (
Regent
)
para 20.
[29]
Regent
para
23.
[30]
Qilingele
v South African Mutual Life Assurance Society
1993 (1) SA 69
(A) at 74C-H;
Regent
para 23.
[31]
The
judgment para 116.
[32]
Carter
v Boehm
(1766) 3 Burr 1905
at 1910.
[33]
Coetzer
v Wesbank t/a FirstRand Bank Ltd
2022 (2) SA 178
(GJ) at paras [26] to [27].