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[2000] ZASCA 187
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H L & H Timber Products (Pty) Ltd v Sappi Manufacturing (Pty) Ltd (281/98) [2000] ZASCA 187; [2000] 4 All SA 545 (A); 2001 (4) SA 814 (SCA) (29 September 2000)
Case
No 281/98
IN
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
In the
matter of
H
L & H TIMBER PRODUCTS (PTY) LTD
Appellant
And
SAPPI
MANUFACTURING (PTY) LTD
Respondent
CORAM
:
NIENABER, HOWIE, SCHUTZ JJA, FARLAM
et
MTHIYANE AJJA
DATE
OF HEARING
:
18 September 2000
DATE
OF JUDGMENT
:
29 September 2000
J U D G M E N T
NIENABER JA/
NIENABER JA :
[1] On 22 August 1992 a runaway
fire broke out on Langfontein, a timber
farm belonging to the appellant
and situated alongside the Melmoth-Babanango road in northern KwaZulu
Natal. The exact cause of
the fire was never established. It started
in a narrow valley, also referred to as a ravine, some 50 to 70 m
wide, which was covered
in scrub and grass. The valley runs
approximately north-east to southwest and is bordered on both sides
by farm roads. The fire,
fanned by a strong north-westerly wind,
escaped on both sides of the valley. On the western side it destroyed
some of the appellant's
own timber plantations. On the eastern side
it devastated timber plantations belonging to MTE Limited (referred
to throughout the
trial as "Mondi ") and eventually spread
to the respondent's plantations, which adjoined the Mondi plantations
further
towards the east, some 2 to 3 km distant from where it
started, where it caused the extensive damage to the respondent’s
wattle and gum plantations which form the subject matter of these
proceedings.
[2] The respondent, as
plaintiff, sought to recover the losses it suffered as a result of
the fire from both the appellant as the
first and Mondi as the second
defendant. Shortly before the commencement of the trial a settlement
was reached with Mondi and the
matter accordingly proceeded against
the appellant as the only defendant. The trial court (Combrinck J
sitting in the Natal Provincial
Division) agreed to separate the
issues of liability and quantum and to deal, at the outset, only with
the former. I shall refer
to the parties remaining as the plaintiff
and the defendant respectively.
[3] The plaintiff blamed the
defendant for negligently failing to control and contain the fire
which started on its property. The
trial court agreed with the
plaintiff and granted an order “that the first defendant is
liable to compensate the plaintiff
for any damage which it may prove
it suffered as a consequence of the fire which originated on the
first defendant's property,
Langfontein, on 22 August 1992”.
This is an appeal, with leave granted by the court
a
quo
, against that
order.
[4] Saturday 22 August 1992 was
a so-called code red day. It was hot and dry. A strong
north-westerly wind was blowing and the
fire danger index had moved
from orange to red indicating that conditions were especially
dangerous and conducive to the outbreak
of fires. By 12 noon the wind
speed was 70 km an hour and the fire danger index had reached 88.
Just after midday smoke was detected
on Langfontein from three
separate lookout towers, the plaintiff’s, Mondi’s and the
defendant’s.
[5] The plaintiff's Nineve
lookout tower reported to Van der Merwe, the plaintiff's forest
manager at Mooiplaas, one of the plaintiff's
properties, that a fire
had been spotted on the defendant’s property. Van der Merwe
immediately notified the Kataza air strip.
All the parties concerned
belong to an association, the Zululand Inland Fire Protection
Association (“the Association”),
which provided air
support in case of fire. The aircraft used were owned by a company
which was contracted to the Association.
The Kataza air strip was 2
to 3 minutes flying time from Langfontein. Because of the day’s
red alert status planes were at
the strip ready for take off at the
first sign of crisis.
[6] The alarm having been
raised, a spotter plane and a water bomber took off at 12:14. Jaco de
Vries was the pilot of the spotter
plane, Martin Buchler his
spotter/observer and Willem Oosthuizen was flying the water bomber.
All of them gave evidence for the
plaintiff. The function of the
spotter plane was to communicate by radio with the fire-fighters on
the ground and to advise the
bomber where to drop his load. Each load
consisted of approximately 1 500 l of water and when dropped could
cover an area of some
60 - 70 m by 20 - 30 m. They estimated the fire
at that stage to be about 50 m in width and 100 m in length but
spreading in all
directions. The wind was fanning the fire towards
the east but it was
also burning against the wind
and up the slope on the western side.
[7] Meanwhile the Mondi
Ferncliff lookout tower, also having spotted the fire at Langfontein
at more or less the same time, sent
out a radio message to that
effect which was overheard by Peter Walker. Walker was an independent
forestry contractor, contracted
to Mondi, who resided on a property
not far from where the fire broke out. He testified for the
defendant. On hearing the message
at his home he went outside where
he could see the fire. He immediately gathered his standby crew and
drove towards the fire. Along
the way he encountered Gilbert Plant,
the defendant’s forestry area manager, who was in his bakkie
and told him that he was
busy trying to establish radio contact.
Walker informed Plant that he would in the meantime proceed to the
fire. When he arrived
there he took up a position at the south
eastern end. He could hear but not see (because of the pall of smoke
hanging over the
valley) planes operating and dropping water bombs.
By means of backburning he was able to contain the fire at the
southern end.
[8] Unbeknown to Walker Mondi
had sent in its own tender and crew to the site of the fire where
they took up a position along the
Mondi boundary on the east, some
200 - 300 m from the fire. For reasons which were never properly
explained they did not participate
actively in the efforts of the
others to battle the rapidly increasing blaze.
[9] The fire was also observed
by the defendant’s lookout tower which alerted Plant, also a
witness for the defendant. He
was, at that moment, on the road, not
far from the site of the fire, on his way to the farm Wonderdraai
some 10 km distant to inspect
the fire-fighting crew there. He
immediately radioed Wonderdraai and summoned the crew to the fire.
They were already on their
way. He then drove to the top of the hill
to pinpoint the exact location of the fire. He tried, but did not
succeed, in contacting
the plaintiff’s operations (or “ops”)
room as well as Mondi (Melmoth). He did succeed in raising Mondi
(Babanango).
The defendant’s properties in the area consisted
of four farms, two of which, Langfontein and Wonderdraai, together
some
3 100 ha in extent, were managed as a single unit. Plant resided
at Langfontein which was 2 - 3 km away from the site of the fire.
One
fire-fighting crew with full equipment was stationed at Wonderdraai
and another at the farm Ntonjeneni some 25 km from Langfontein.
The
equipment at each station consisted of a 2 500 l tender, drawn by a
tractor, with a crew of 12. After alerting both crews Plant
returned
to his homestead and workshop at Langfontein to load his
bakkie-sakkie (a bakkie fitted with a water tank). He then drove
to
the fire where he stationed himself and operated his bakkie-sakkie on
the western side of the valley. He could see Walker but
he could not
communicate with him. Some time later he was joined by the crew with
equipment from Wonderdraai and eventually by
a Mondi crew from
Babanango. Plant agreed under cross-examination that Oosthuizen had a
better overview of the situation than he
had and that it was a real
problem that he was not in two-way communication with the spotter
plane, the plaintiff’s ops room
and the Mondi crew on the Mondi
boundary.
[10] The combined forces (but
excluding the Mondi reserves) fought the fire as best they could. By
13:31 Oosthuizen had dropped
eight loads. It was his impression that
by 13:00 the fire had started spotting into the plantations on the
east and had effectively
escaped the valley. It was common cause that
once that happened the fire had for the time being become
unstoppable. As stated earlier,
the plaintiff, Mondi and the
defendant itself lost large tracts of afforestation in the ensuing
conflagration.
[11] The plaintiff’s main
complaint on the pleadings is that the defendant through its
employees was negligent in failing
to detect, control and extinguish
the fire which originated on its property and eventually spread onto
the plaintiff’s property.
Harm to the plaintiff in those
circumstances was manifest. The central issue is therefore whether
the defendant by the exercise
of reasonable care could have prevented
the fire from jumping its own boundaries and spreading onto the
plaintiff’s land.
[12] It is in this connection
that s 84 of the Forest Act 122 of 1984 (“the Act”) plays
a pivotal role. This section
reads:
“When in any action by virtue of the provisions of this Act or
the common law the question of negligence in respect of a
veld,
forest or mountain fire which occurred on land situated outside a
fire control area arises, negligence is presumed, until
the contrary
is proved.”
It was common cause between the
parties that the fire in this case was a veld or forest fire and that
it occurred on land situated
outside a fire control area.
[13] The overall effect of the
section (which in a recent decision by the
Constitutional Court was held
not to be unconstitutional :
Prinsloo
v Van der Linde and Another
1997
(3) SA 1012
(CC)) is to shift the
onus
in respect of the
“question of negligence” from a plaintiff to a defendant.
The plaintiff’s claim in this case
is founded on delict. As
with delictual claims in general the essential elements are:
a) conduct, initiating
wrongfulness, by the defendant; b) fault, in this instance
negligence, by the defendant; c) harm suffered
by the plaintiff; d) a
causal connection between (a) and (c). The section is only concerned
with element (b), where negligence
is the fault complained of. While
the
onus
remains
on the plaintiff to establish elements (a), (c) and (d) the section
relieves him of, and instead encumbers the defendant
with, the burden
of proving or disproving element (b).
[14] Conduct (element (a) above)
can take the form of a
commissio
,
eg where the fire causing the loss was started by the defendant (cf
Steenberg v De Kaap
Timber (Pty) Ltd
1992
(2) SA 169
(A)) or an
omissio,
eg the failure to
exercise proper control over a fire of which he was legally in charge
(cf
Simon’s Town
Municipality v Dews and Another
[1992] ZASCA 165
;
1993
(1) SA 191
(A) 194C-E) or the failure to contain a fire when, in the
absence of countervailing considerations adduced by him, he was under
the legal duty, by virtue of his ownership or control of the
property, to prevent it from escaping onto a neighbouring property
thereby causing loss to others (
Minister
of Forestry v Quathlamba (Pty) Ltd
1973
(3) SA 69
(A); and compare
Administrateur,
Transvaal v Van der Merwe
[1994] ZASCA 83
;
1994
(4) SA 347
(A)). This is such a case.
[15] Ever since
Van
Wyk v Hermanus Municipality
1963
(4) SA 285
(C) 295A it has been received dogma that a mere allegation
of negligence by a plaintiff will not be enough to activate the
statutory
presumption against his defendant. The reason is the use of
the word “arise” in the section instead of “allege”.
(The word used in the Afrikaans text is “ontstaan”.) Thus
it was said by Fannin J in
Quathlamba
(Pty) Ltd v Minister of Forestry
1972
(2) SA 783
(N) 788H (with reference to the similarly worded precursor
to s 84 of the Act):
“ I would prefer, therefore, to suggest that ‘the
question of negligence’ in respect of veld or forest fires
can
be said properly ‘to arise’ in any proceedings only where
-
a) negligence is alleged against a party to such proceedings; and
b) the party making such allegation has established a
nexus
or
connection, between the fire and the party against whom the
allegation is made, which is consistent with such negligence.”
On appeal (
Ministry of Forestry v
Quathlamba (Pty) Ltd, supra
) this court,
while
confirming that
“the section cannot be invoked merely by averring negligence,
without anything more” (84C), did not
find it necessary to
redefine the additional requirement. It was said (at 84H):
“The effect of this was that the
onus
thereafter rested
upon defendant to show either that in the particular circumstances
harm to the plaintiff was not, and could not
reasonably have been,
foreseen or, alternatively, that, notwithstanding the exercise by him
of such care as the circumstances reasonably
required, defendant
could not prevent the fire from extending beyond the boundaries of
its property and occasioning harm to plaintiff.”
(I do not read the concluding
words “and occasioning harm to the plaintiff” as meaning
that a defendant also bears the
onus
of disproving
causation - element (d) referred to in par 13 above - eg that another
fire caused the harm or that the ultimate harm
was too remote in
time, distance or circumstance.) Since there was proof, which
satisfied the court, that the fire in question
originated on and
emanated from landed property owned and controlled by the defendant
it was held that the
onus
thereafter rested
upon it to show that the fire could not by reasonable means and
measures have been prevented from extending beyond
the boundaries of
its property, thereby occasioning harm to the plaintiff (84H). In
Steenberg v De Kaap
Timber (Pty) Ltd supra
(where
the fire was started by an employee of the defendant) this court once
again reverted, albeit by dint of an assumption (175A-B),
to the
requirement formulated by Fannin J of a
nexus
between the fire and
the defendant which “must be consistent with negligence.”
Whether such a
nexus
had to be proved
prima facie
or
on a balance of probabilities was a point of contention deliberately
left open in
Steenberg
’s
case
supra
(at
178C-E).
[16] The stated requirement is a
nexus
between
the fire and the defendant. That requirement will, in my opinion, be
satisfied by proof by the plaintiff of conduct by the
defendant, in
the form of a
commissio
or an
omissio
,
which would render the defendant answerable in law for the fire or
its course. (Compare the manner in which the section has been
applied
in matters such as
Titlestad
v Minister of Water Affairs
1974
(3) SA 810
(N) and
Louw
and Others v Lang
1990
(3) SA 45
(E) 55C-D, 56E.) Such proof may well avoid an order of
absolution at the end of the plaintiff’s case. Otherwise the
question
of the
quantum
of proof required to
establish such a
nexus
can be left open, as
it was in
Steenberg
’s
case
supra
.
[17] The justification for the
further requirement that the
nexus
must be “consistent
with negligence” is to be found in another dictum of Fannin J
in
Quathlamba (Pty)
Ltd v Minister of Forestry supra
at
788G:
“But it may be argued with some force, I think, that to require
only some
nexus
is not enough, for unless the
nexus
between
the fire and the person alleged to have been negligent is such as to
be at the least
consistent
with negligence, the plaintiff will
have taken the matter no further than if he had merely alleged
negligence and done no more.”
Such proof (by the plaintiff) if
truly required will of course have to be on
prima
facie
basis for
otherwise it would be in direct conflict with the statutory
presumption which requires proof (by the defendant) on a balance
of
probabilities. In my respectful view this additional requirement
(that the proof of conduct constituting the
nexus
between the fire and
the defendant must in addition be consistent with negligence) is
perhaps an unnecessary refinement - but again
it is not necessary to
express a conviction on the point.
[18] In the instant case the
necessary conduct constituting the
nexus
between the fire and
the defendant (the failure to prevent the spread of the fire beyond
the defendant’s boundaries) was never
in dispute. The statutory
presumption accordingly applied. That meant that the defendant
“
at the trial bore the
onus
of
proving on a balance of probabilities that its employees were not
negligent either in causing the fire to start or in failing
to
prevent its spreading onto Broughton [a neighbouring
property].”
per Botha JA in
Clan
Syndicate (Pty) Ltd v Peattie and Others NNO
1986
(2) SA 791
(A) 796G).
[19] The defendant, accepting
that the
onus
rested
on it, offered a two-fold defence:
a) that the court
a
quo
erred in finding
that the defendant’s employees, Plant in particular, were and
was negligent;
b) alternatively, that any
negligence that may be found on Plant’s part was
essentially irrelevant since the
fire would in any event have escaped the
boundary of the defendant’s
property regardless of anything the defendant
could reasonably have attempted
to do to prevent it from happening.
According to counsel for the
defendant the
onus
in
respect of the first leg of its defence rested on it and in respect
of the second leg on the plaintiff. I agree with the first
proposition but, for the reasons that follow, not with the second.
[20] There is essentially but
one question posed: whether the defendant acted reasonably in
relation to the spread of the fire beyond
its boundary. Had it not
been for the section in the Act the
onus
in respect of the
“question of negligence” (which arose in the action by
the plaintiff against the defendant) would
have been on the plaintiff
to prove the two aspects of that question, namely a) that the
defendant was negligent ie that harm which
was reasonably foreseeable
could reasonably have been averted and b) that such negligence was
relevant to such harm ie to the spread
of the fire from the
defendant’s property to that of the plaintiff. But because of
the interposition of the section the situation
is reversed and it is
now for the defendant to prove on a balance of probabilities a) that
it was not negligent in any of the respects
alleged by the plaintiff;
or b) if its conduct did fall short of the standards required of it,
that such failings would have had
no effect on and hence would not
have been relevant in relation to the escape of the fire ie to the
ultimate harm suffered by the
plaintiff.
[21] One of the principal
objectives of the Act is the prevention and control of veld, forest
and mountain fires (cf
Prinsloo
v Van der Linde and Another supra
1016E-H).
Landowners in areas outside fire control areas are saddled with the
primary responsibility, falling short of an absolute
duty, of
ensuring that such fires occurring on their land do not escape their
boundaries. This philosophy is also reflected in
s 84. Its purpose
was described in these terms by Fannin J in
Quathlamba
(Pty) Ltd v Minister of Forestry supra
at
788B-D:
“It was argued on behalf of the plaintiff that the presumption
was created in recognition of the peculiar difficulties faced
by a
person who suffers damage as a result of a fire whose origin he may
be wholly unable to establish, and of the fact that, in
most cases,
if not all, a person from whose land a fire spreads will be in a much
better position to show how and where the fire
originated, whether it
was lit by himself or by anyone for whose acts he is in law
responsible and the manner in which the fire
was dealt with, if at
all, by him or by his servants or agents. This, I think, is
undoubtedly correct.
Furthermore, a person who has suffered as a result of a fire which
has come from another’s land will often not be in a position
to
embark upon any investigation as to the origin or cause of the fire,
and will certainly have no right to enter upon that land
to conduct
any such investigation.”
Similar considerations in my
opinion apply when there is uncertainty as to whether the actions or
inaction of a defendant had or
would have had a bearing on the state
and course of the fire. These are issues arising within the context
of the “question
of negligence”. The section as I read it
fixes a defendant with the
onus
not only to justify
the reasonableness of his actions or inaction but also to demonstrate
the irrelevance of his unreasonableness,
if that is indeed his case,
to the harm complained of by the plaintiff. In short the legislature
for reasons of policy encumbered
a defendant with the
onus
to exonerate his
conduct in circumstances where the presumption operates. It follows
that if there is uncertainty (which cannot
be determined as a matter
of credibility or probability) as to whether the defendant’s
conduct fell short of the required
standard and, if so, whether it
had any bearing on the fact that the fire escaped his property, those
issues must be resolved,
by virtue of the operation of the
presumption, against the defendant.
[22] Against that background I
propose to examine the two aspects of the
“
question of negligence”
raised by the defendant as a defence and referred to in paragraph 19
above.
[23] The first issue is whether
Plant had been negligent. The presumption is that he was. The court
a
quo
held that the
defendant failed to rebut it. It is the correctness of that finding,
based on the court
a
quo
’s
impression of the witnesses, its assessment of the facts and its
reasoning in regard thereto, that is in dispute. The court
a
quo
preferred the
evidence of the eye-witnesses to that of the experts. As between the
experts it preferred the opinions of the plaintiff’s
expert, Le
Roux, to those of the defendant’s expert, Venter. As between
the eye-witnesses it ranked Oosthuizen above the
others. He was
described as an impressive witness. The court
a
quo
made no
credibility findings against Walker and Plant but it regarded the
evidence of Oosthuizen, Buchler and De Vries more highly
because they
were in a better position to observe the course and extent of the
fire than Walker and Plant who were on the ground,
enveloped in smoke
and battling the fire. No compelling reasons were advanced in
argument why this court should depart from the
court
a
quo’
s
assessment of the various witnesses. It must accordingly follow suit.
[24] The court
a
quo
accepted
Oosthuizen’s evidence that the fire was localized in the valley
and that after he dropped his first two loads his
clear impression
was that the fire was “actually acting reasonably peacefully
under the severe conditions that we had”
and that it could have
been contained in the valley if, in the initial critical stages,
there had been adequate ground crew support.
It was not then in De
Vries’s words, “a raging inferno”. Even without
proper ground support, according to Oosthuizen,
“we were
holding it, but we weren’t beating it.” That too was
Buchler and De Vries’s impression. It is
an impression
supported by the fact that it took almost an hour for the fire to
escape from the valley. The witnesses were all
agreed that the bomber
was the most potent weapon available but that it tended to be
ineffectual without adequate ground support.
[25] The problem, then, was the
lack of adequate ground crew support in the initial stages for the
bombing operations along the
eastern side of the valley. Was Plant
partly to be blamed for this state of affairs? He was certainly
criticised both by the court
a
quo
and by counsel
for the plaintiff in this court. These categories of criticism may
conveniently be summarised as follows:
a) He was inadequately prepared
to meet the crisis.
That a crisis was foreseeable
(if not perhaps looming) is clear. It was a code red day and the
north-westerly was picking up. Everybody
concerned was on standby.
There was no suggestion that the outbreak of the fire could not have
been anticipated at the particular
time and place where it eventually
occurred or that its initial intensity was wholly unprecedented. By
the time the bomber had
arrived on the scene at 12:18 the Mondi crew
was already in place alongside the Mondi boundary on the east, some
200 - 300 m from
the site of the fire, and Walker had already
commenced fighting the fire in the south. Only the defendant’s
fire-fighting
team was conspicuous by its absence. Plant estimated
that he received the message at 12:10 and that it would have taken
him another
18 - 20 minutes to arrive at the scene - an estimate that
was queried by counsel for the plaintiff but which may be accepted
for
present purposes. By that time the fire had already expanded
alarmingly. The reason for the delay was, as stated earlier, that
Plant, having been alerted by radio about the outbreak of a fire some
3 km from his homestead, had to return there in order to load
his
bakkie-sakkie. He was unaccompanied by any crew even though
fire-fighting equipment for a crew of four as well as spares had
been
stored at his homestead. Not to have been accompanied by a crew
during his tour of inspection that morning, having regard
to the very
real danger that a fire could break out anywhere at any time was, in
my opinion, a lapse that was rightly criticised.
The consequence was
that Plant, arriving at the scene of the fire without beaters, was
ill-equipped to contribute to the efforts
to combat the blaze.
b) Lack of communication.
Another aspect on which Plant
was justifiably criticised was his failure to
check his lines of communication
during the course of that morning, particularly with the plaintiff’s
ops room which was the
nerve centre of fire-fighting activities in
that area. For the reasons discussed earlier he was not in two-way
radio communication
with the spotter plane or the ops room. That
effectively disqualified him from assuming the position of
“fire-boss”
and from directing operations on the ground
which, as the representative of the owner of the land on which the
fire occurred, should
primarily have been his responsibility. In turn
that precluded the spotter plane from communicating with him in order
to direct
him to the eastern side where ground crew support was most
needed. The court
a
quo
said of this:
“I consider that it has failed to produce evidence to prove
that it was not at fault in regard to the breakdown of communication
and that it had taken all reasonable steps to get its ground crew to
the fire timeously. Given the extremely dangerous conditions
prevailing on the day in question I would have expected Plant to have
been in a greater state of readiness than he was. I would
have
firstly expected of him to have tested his radio either early in the
morning or during the course of the morning when conditions
got
progressively worse to ensure that he was in contact with the Sappi
Ops room and the Kataza air strip.
Had he done so, he would have been aware that his radio was
malfunctioning and he would have also had time to arrange a frequency
upon which he could be contacted by Sappi.”
c) The late arrival of the
Wonderdraai crew.
As stated earlier the
Wonderdraai crew arrived only some 30 - 40 minutes
after the alarm was first
sounded. It was argued that the defendant could not fairly be
criticised for not having had a full crew
stationed at Langfontein,
since a fire could break out anywhere on the property which was an
extensive one. That may be so, but
to the extent that the Act, as
stated earlier, places the initial responsibility on a landowner to
confine a fire, if it occurs,
to his own property, he runs the risk
of an imputation of lack of foresight if his fire-fighting crew is
unable to reach the location
of a sudden flare-up within a reasonable
time. What a reasonable time will be will of course depend on a
number of factors, such
as the distances involved, the nature of the
terrain and the accessibility of the site of the fire. No evidence
was led on these
matters in this case. That the Mondi crew was able
to reach the site of the fire without delay is some indication that
the defendant
should have done better. The court discussed the issue
in these terms:
“One would have expected that the bulk of your ground crew
would be in the proximity of the large estate of 3,000 hectares
or at
least stationed in such a place that they could quickly and
sufficiently be deployed should a fire break out on Langfontein
or
Wonderdraai. ... it must again be stressed that it is for SilvaCell
[the defendant] to prove that it was reasonable to have
the crews
where they were and not for Sappi [the plaintiff] to prove that it
was unreasonable to have the crews situated at Ntjonjeneni
and
Wonderdraai. The fact of the matter is that the one crew [the
Wonderdraai crew] arrived 40 to 50 minutes after the fire was
observed and the other [the Ntjonjeneni crew] at the stage when the
fire had already escaped from the valley and nothing could
be done to
stop it. ... The reason for the fire not being contained was
primarily the fact that there was no communication between
Plant and
the spotter aircraft but also because the ground crew were late in
arriving at the fire...”
d) Plant stationed himself on
the western side of the valley whereas his priority should have been
to fight the fire on its eastern
side.
Plant’s decision to move
to the western side was not
per
se
negligent. It was
based on his assessment of the situation on the ground. But that
assessment was in turn informed by his inability
to communicate with
the spotter plane. Had he been in touch with the spotter plane and if
he had a crew with him on the day and
had arrived on the scene a
little earlier, it is likely that he would have deployed his crew on
the eastern side. One knows that
Walker was able to contain the fire
on the southern side. It is not unlikely that Plant would have been
able to do likewise on
the eastern side if he had been directed to
position himself there, if he had arrived earlier and if he had some
crew support.
Admittedly that would then have left the western flank
of the valley exposed. But the wind was driving the fire eastwards
and his
priority was, in order to protect the defendant against a
claim for damages from his neighbours, to prevent the fire from
escaping
eastwards into the Mondi and thence into the plaintiff’s
property. Because he was on his own and largely
incommunicado
he was unable to
render the ground support to the bombing operations which the
situation demanded.
[26] There is a further
consideration, not mentioned by the court
a
quo
, to be taken into
account. It is this. Because of Plant’s earlier failure to
properly check his lines of communication and
the time he had to
waste to return to his homestead to load his bakkie-sakkie he arrived
at the fire at the wrong time and stationed
himself at the wrong
place. He thereby effectively disqualified himself from being able to
testify at first hand about actual conditions
on the eastern side.
Such evidence might conceivably have supported a defence that it
would have been unreasonable to have required
him to fight the fire
on that side. As it happened, there was no evidence from anyone as to
the conditions on the ground on the
eastern side where the action
should have taken place. It was for the defendant as the landowner on
whose property the fire occurred
to adduce all the evidence which it
needed to rebut the presumption of negligence against it. Its failure
to do so, due to Plant’s
prior neglect, left a vital gap in the
evidence and precluded the defendant from presenting a fuller picture
which might have assisted
it in its defence.
[27] The court
a
quo
found that Plant
acted unreasonably in the several respects mentioned by it. I agree
with that conclusion. The call may be a marginal
one. Even so, I
believe that the defendant failed to show that Plant’s
management of the crisis that morning measured up
to the standards
required of a forester in his position. That finding does not, of
course, conclude the enquiry. The defendant’s
alternative
response, as stated earlier, was that the court
a
quo
’s findings
of negligence were irrelevant since the plaintiff failed to prove
that the fire would not in any event have escaped
onto the Mondi
property and thence onto the plaintiff’s property. There are,
in my opinion, two complete answers to this
response. The first is
based on the overall probabilities; the second on an aspect discussed
earlier in this judgment, the
onus
in respect of
non-causative negligence. I deal with them in turn.
[28] If Plant a) had arrived
earlier at the site of the fire and b) had been accompanied by a
crew, even a reduced one, with proper
fire-fighting equipment and c)
had been able to communicate with both the spotter plane and the
Mondi crew, then I believe it is
more likely than not that he would
have been directed by the spotter plane to render ground support to
the bomber on the eastern
flank of the fire and, as Walker was able
to do in the south with a mini crew at his disposal, that he would
have been able, by
concentrating all available resources on that
side, to subdue or at least contain the fire when it was still
manageable and so
possible to do so. Thereafter he could have
proceeded to the western side where the fire might well not yet have
reached the ridge
where it would have met the full force of the wind
which could have caused “spotting” eastwards across the
valley and
onto the Mondi property. To illustrate the point I quote
from certain exchanges that took place between the court
a
quo
and Plant:
“So, did you consider that Walker and his crew was sufficient
ground back-up for the bomber? --- No, I didn’t consider
it
sufficient, but it was all we had.
And was it feasible at all that - I know it was an emergency
situation, but that with your training you would throw all the
resources
that you had in assisting the bomber, and once everybody
had extinguished and contained the fire on the eastern side then the
whole
lot could then concentrate on the western side? Was that not
feasible?
--- It would only have been feasible if we’d had a lot more
people, M’lord. If I may just add something to that. I
was
expecting that Mondi, with their great numbers of labour and
considerable equipment, would have been able to come in and then
- I
was absolutely certain they were aware of the fire because Mondi,
Babanango certainly was - that they would have come in to
help Peter
on that side.
That’s on the eastern side. --- Eastern side, yes. And that is
because Mondi would be threatened as being the next in line?
---
Absolutely. Absolutely, M’lord.”
And further:
“Can I just ask you a hypothetical question? What would have
happened if you did have radio contact with the spotter, and
the
spotter said to you, ‘This is where the loads are going down,’
and you knew where the bomber was going to put the
loads? Just put
yourself in that position. What would have happened? --- I would have
told him to keep on the eastern side, to
keep putting loads down on
the eastern side, because of the danger of the fire running directly
across the boundary if it didn’t
spot, and it was going to get
...(intervention)
Because of the prevailing wind. --- With the prevailing wind. And it
was going to get into Mondi, and I knew that Mondi had this
huge sea
of brushwood just behind that first compartment.
Yes, and apart from that if he’d then said to you, as
apparently he complained, ‘There’s insufficient - there’s
no ground support.’ If he’d radioed that to you what
would you have done? --- We’re still working on the assumption
that I had radio contact with people?
Yes. --- I’d have asked Mondi please to come in and give us the
ground support to try and stop it where it was before it
crossed
over, but preferably on both sides of the valley, because I knew
...(intervention)
But you and your crew would have remained on the western side? --- I
still believe it would have been important to do that, M’Lord.”
Plant obviously believed that he
could have persuaded Mondi to enter the fray more actively that it
did and that such intervention
would have been significant. The
chances are that he was right in thinking that. To answer the
hypothetical question posed by the
court
a
quo
- a primary
technique for testing probabilities: if Plant had been better
prepared it could well have made a difference in the long
run. On
that basis and as a matter of probability I therefore believe that it
has not been shown that the criticism of Plant’s
conduct on the
day in question related to matters which were of no consequence.
[29] I turn to the further
reason for concluding that the statutory presumption had not been
rebutted by the defendant. As stated
earlier the
onus
also rested on the
defendant, as part of the “question of negligence”, to
show that a finding by the court (that its
conduct was adjudged not
to be reasonable) did not matter because the fire would in any event
have escaped across the defendant’s
borders ie that any failure
on its part would have made no difference to the eventual spread of
the fire.
It was submitted by counsel for
the defendant that the possibility cannot be excluded that spotting
in the east took place from
either the fire in the valley, even while
it was being fought from the air and on the ground, or from the
western ridge when the
fire eventually reached the full force of the
north-westerly. That may or may not be so. Because the
onus
is on the defendant
in that respect it does not avail the defendant to rely on
speculation as a defence. Any uncertainty about the
matter must count
against the defendant, for it is the defendant which had to bear the
brunt of placing evidence before the court
which could have disposed
of any such uncertainties. The evidence leaves many other questions
similarly unanswered.
So, for example, one is left in
the dark about the Mondi crew’s reluctance to come to the
defendant’s assistance on
the eastern flank. Mondi’s
reply given to Buchler and De Vries on the radio in response to their
request for ground crew
support, that there was a difficulty of
access, is hard to square with the evidence. It was for the defendant
to explain or clarify
this and the many other obscurities in the
case. It failed to do so.
[30] On either of the above
approaches (the probabilities or the burden of proof in respect of
non-causative negligence) the defendant
failed to rebut the
onus
placed on it by s 84
of the Act. The appeal must accordingly fail. The following order is
made:
“
The appeal is dismissed
with costs.”
...........................
P M NIENABER
JUDGE OF APPEAL
Concur :
Schutz JA
Mthiyane AJA
HOWIE JA/ . . .
HOWIE JA
:
I
agree with the judgment of my colleague, Nienaber JA, as regards the
nature and extent of the onus on defendant. It was to
disprove
causative negligence on the part of Plant and his crew. I also
agree that defendant failed to show that Plant was adequately
prepared, both as regards his own readiness to proceed to the fire
and in respect of the efficiency of his radio communications.
I
shall also assume that, without negligence on their or Plant’s
part, the crew from Wonderdraai would have reached the
fire
appreciably sooner than they did and that they, under Plant’s
direction, would have focused their attention on the eastern
side of
the valley. However, I consider that defendant discharged the onus
of showing that even had Plant and his men acted without
negligence,
the fire would still have spread to Mondi’s and plaintiff’s
properties. I therefore respectfully disagree
with my learned
colleague’s conclusion as to the fate of the appeal. Even
had Plant been able to radio the Mondi crew
I think that the evidence
shows, as a probability, that they would have stayed where they were.
De Vries testified that when
he radioed them their response was
that they were unable to get down to the fire area. That was
certainly so if regard be had
to Plant’s evidence that the
fire-break connecting the valley to the Mondi boundary was
unaccessible by vehicle. And although
there were other alternative
routes, taking any of them would have involved appreciable time in
getting to the fire and, more importantly
for them, valuable time in
getting back to their boundary if events so required, which they
would have left unguarded in the interim.
Their predicament of
choice - and, indeed, choice of predicament - was not unlike the one
facing Plant. However, his position
was worse. His task was to
prevent the fire crossing into neighbouring land to the east as a
result of spotting. Spotting obviously
occurred from the eastern
side of the fire but Plant’s evidence was that spotting would
have occurred in any case had the
fire reached the western ridge
bordering the valley. That evidence, which was not countered, was
convincing. It reads –
“
My intention, when I saw that the fire was going
onto the western side, was to try and prevent initially the spread of
fire into
the plantations on the western side, which would then have
prevented a general spread of fire up a steep slope.
In your experience how does a fire behave up a
steep slope?--- It accelerates.
What was your concern about the fire going up that
hill on the western side?--- Firstly the wind had a tendency to
veer in that
direction, which was more or less against the prevailing
wind, but it definitely was pushing in that direction. My concern
was
that if the fire went up that slope and hit the ridge it would be
subjected to the full force of the north-west wind, and cause
the
fire to run along the ridge and spread in a south-easterly direction,
thereby causing a catastrophic spread of fire across
in the
direction of SAPPI and Mondi, and some severe spotting, which would
virtually certainly have occurred when the wind hit
fire up at that
level.
If a burning plantation at the top of a ridge is
hit by a 70 kilometre per hour wind, can you give the Court an
indication how far
- over what distance can spotting take place?---
Two kilometres is to be expected.
Is that in your experience?--- Yes.”
The
position was aggravated, said Plant, by the presence of a great deal
of highly inflammable forest litter under the trees on
the west
slopes of the valley. And it must be remembered that Oosthuizen’s
evidence was that when he first reached the
fire it was spreading in
many directions, also against the wind. This spread westwards and
north-westwards against the wind
was because of the topography,
namely, the steep western slope of the valley.
Despite
Plant’s efforts and those of his crew when they joined him,
they were unable to stop blocks 3A and 5A burning out
and this
occurred because the fire went up the western slope to the top of the
ridge referred to. Obviously this would have happened
much sooner
had Plant and his crew fought the fire on its eastern front and left
the western front totally unattended. This part
of the fire would
therefore have met the full force of the wind at the western ridge
and, as the most probable inference, have
spotted across the narrow
valley and into Mondi’s property. The further probable
inference is that the eventual course
of the fire would have been no
different from what it was in fact.
I
would accordingly allow the appeal.
------------------
C T HOWIE
/FARLAM AJA:
FARLAM
AJA
[1] I have had the advantage of reading the judgments
written in
this matter by my colleagues Nienaber JA and Howie JA.
[2] I agree with the conclusion to which Howie JA has
come
and the reasons given therefor in his judgment, save
that I do not share
his view (in respect of which he agreed with Nienaber
JA) that the onus
was on the defendant to disprove
causative
negligence on the part of
Plant and his crew.
[3] In my view the onus cast by
section 84 of the Forest Act 122 of 1984 on the defendant was to
disprove the plaintiff’s
allegation that it was negligent.
For the rest the plaintiff had to prove the other essential elements
of liability on the part
of the defendant:
viz,
wrongful conduct which caused loss to the plaintiff.
[4] I
cannot agree that when “the question of negligence”
arises the effect of the section is to fix a defendant with
“the
onus not only to justify the reasonableness of his actions or
inaction but also to demonstrate the irrelevance of
his
unreasonableness, if that is indeed his case, to the harm complained
of by the plaintiff” (to quote the formulation given
by
Nienaber JA in paragraph [21] of his judgment).
[5] In my view if Parliament had
intended the onus transferred to the shoulders of a defendant in a
fire case covered by section
84 to extend that far it would have
used the expression “causative negligence” or some
equivalent to indicate its
intention in this regard. The
interpretation of the section favoured by Nienaber JA involves the
amendment of the common law
in two respects, firstly as regards the
question as to whether the conduct of the defendant deviated from
that of the reasonable
forester in the circumstances and secondly as
to whether such deviation caused the loss in the sense that if it had
not occurred
the damage in question would not have been suffered.
The presumption against amending or altering the common law no more
than
is necessary (as to which see,
e g,
such cases as
Johannesburg
Municipality v Cohen’s Trustees
1909 TS 811
at 823,
Dhanabakium
v Subramanian and Another
1943 AD 160
at 167 and
Commissioner
of Taxes v First Merchant Bank of Zimbabwe Ltd
1998 (1) SA 27
ZSC at 30 G - I) is well known and if Parliament had
intended to go as far as Nienaber JA suggests there was nothing to
prevent
it from making its intention on the point plain.
[6] Parliament
first enacted a provision providing for a presumption of negligence
in respect of a forest or veld fire in section
26 of Act 13 of 1941.
This section was replaced by section 23 of Act 72 of 1968, which
was in turn replaced by section 84 of
Act 122 of 1984.
[7] Parliament’s purpose in
enacting section 23 of Act 72 of 1968 was described by Fannin J in
Quathlamba (Pty) Ltd
v Minister of Forestry
,
1972 (2) 783 (N) at 788 B - D in a passage quoted by Nienaber JA in
para [21] of his judgment. I agree with this statement which
clearly applies also to the purpose underlying section 84 of Act 122
of 1984. It indicates why Parliament must have considered
it
necessary to transfer the onus from the Plaintiff to the defendant in
respect of the issue of negligence. I do not agree with
Nienaber
JA’s statement that “similar considerations apply when
there is uncertainty as to whether the actions or inaction
of a
defendant had or would have had a bearing on the state or course of
the fire”. Nienaber JA says that “[t]hese
are issues
arising within the context of the ‘question of negligence’
”. That may be so but what is important
is that after
speaking of the “question of negligence” Parliament
provides merely that “negligence is presumed”.
[8] There can be no unfairness (and
questions of onus generally depend on reasons of experience and
fairness:
Pillay v
Krishna and Another
1946 AD 946
at 954) in putting the onus of proof on a defendant to
show what he did in respect of a fire,
i e
,
whether,
e g
,
he or his servants started it and what, if anything, he or they did
to prevent it from spreading on to the property of the plaintiff.
These will be things a defendant will or should know and about which
the plaintiff may well be ignorant. If the negligence
which is
being considered relates to the starting of the fire then, provided
it is established that the fire in question is linked
to the
defendant’s damage, no causation problem will arise because
the fire will be a
causa
sine qua non
for
the damage suffered by the defendant: this must be so because if the
fire had not been started the damage would not have been
suffered.
The situation becomes more complicated where, as here, it is common
cause that the case against the defendant is not
based upon an
allegation that it or its servants started the fire but merely that
they failed to prevent it from spreading.
[9] In the present case I agree that
the defendant did not show that its servants did all that a
reasonable forester would have
done to prevent the fire from
spreading. But it is not self evident that if they had done all
that a reasonable forester would
have done in the circumstances they
would have been successful in preventing the spread of the fire.
After all, some fires will
spread even if all reasonable steps are
taken in an endeavour to prevent their spreading and a defendant,
even one who is unable
to rebut the onus of showing that he or his
servants acted without negligence in fighting the fire, may not be
able to show that
if reasonable steps had been taken the fire would
have been prevented from spreading. He may be unable to show this
because no-one
knows. I do not think that considerations of
experience and fairness require the onus to prove this aspect of the
case to be
put on the defendant:
a
fortiori
that these
considerations are so compelling as to justify the conclusion that
Parliament intended to amend the common law to that
extent and that
the language it used clearly indicates such an intention.
[10] It follows from what I have
said that I disagree with the second part of the statement appearing
(at 84H) in the judgment
of Ogilvie Thompson CJ in the
Quathlamba
case on appeal to this Court
(1973 (3) SA 69(A)
), which was clearly
obiter
and which has been quoted by Nienaber JA in para [15] of his
judgment, to the effect that the onus created by section 23 of Act
72
of 1968 rested upon the defendant in that case to show either that
harm to the plaintiff was not reasonably foreseeable or “
that,
notwithstanding the exercise by [it] of such care as the
circumstances reasonably required, [it] could not prevent the fire
from extending beyond the boundaries of its property and occasioning
harm to [the] plaintiff”
(my emphasis).
[11] I
agree, however, as I have said, with the rest of Howie JA’s
judgment. I accordingly share his view that on the facts
of this
case it was established that even if the defendant’s servants
had not been guilty of negligence the fire would inevitably
have
spotted into the plantations on the east and thus become unstoppable.
______________________
I
G FARLAM