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[1991] ZASCA 144
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Steenberg v De Kaap Timber (Pty) Ltd. (241/89) [1991] ZASCA 144; [1992] 1 All SA 337 (A) (8 November 1991)
CASE NO. 241/89
L J STEENBERG
APPELLANT
and
DE KAAP TIMBER (PTY)
LIMITED
RESPONDENT
Judgment by: NESTADT, JA
CASE NO 241/89
/ccc
IN THE SUPREME COURT OF SOUTH
AFRICA (APPELLATE DIVISION)
In the matter between:
L J STEENBERG
APPELLANT
and
DE KAAP TIMBER (PTY)
LIMITED
RESPONDENT
CORAM
: BOTHA, NESTADT JJA
et VAN DEN HEEVER AJA
DATE HEARD:
19 AUGUST 1991
DATE
DELIVERED:
8 NOVEMBER 1991
JUDGMENT
NESTADT, JA
:
The parties to this appeal are
owners of adjoining farms in the Barberton district of the Eastern
Transvaal. Appellant's farm (Snymansbult)
lies roughly to the west of
respondent's property (De Kaap). On the
2/
2.
afternoon
of Thursday, 12 September 1985 a fire, which emanated from
Snymansbult, spread eastwards to De Kaap. It caused certain of
respondent's timber plantations to be set alight and destroyed.
Claiming that the fire had been negligently started by appellant
or
his servants (acting as such) and that they negligently failed to
control it, respondent sued appellant for payment of the sum
of R1,6
m. This represented the damages allegedly suffered by respondent as a
result of the fire. The action was tried by DE VILLIERS
AJ in the
Transvaal Provincial Division. The learned judge granted judgment
against appellant in the sum of R540 000 together with
mora
interest and costs. Against that order appellant now appeals, leave
to do so having been granted by the trial judge. In what follows
I
refer to appellant as the defendant and to
respondent as the plaintiff.
3/
3.
On
the pleadings, two broad issues arose for determination, viz, (i)
whether defendant acted negligently and (ii) whether plaintiff
proved
its damages.
I
propose
to deal with the latter issue first. This can be briefly done. During
the course of the trial, plaintiff reduced its claim
to R540 000 (the
sum eventually awarded). At the same time defendant made two
admissions. One was that on the day in guestion a fire
spread from
his property to that of plaintiff. The other was that plaintiff
suffered damages in the amount of R540 000 as a result
of certain of
its forests having at the time been set on fire. Implicit in these
admissions is an acknowledgment that
part
of plaintiff's damages resulted from the fire which
originated
on Snymansbult. There was, however, no admission that such f ire was
the only cause of
plaintiff's plantations
having been set alight and
4/
4. destroyed. It was left open to
defendant to contend that another fire (for which he was not
responsible) contributed to plaintiff's
damages. And this was indeed
the case that defendant sought to make out. In support thereof, he
testified that at about 2:45 pm on
the Thursday (at a time when the
fire which admittedly started on Snymansbult was raging) he actually
saw certain workers of a Mr
Pelser, the plantation manager of a farm
(called Twello) to the north-west of De Kaap, burning a fire- break
near the south-eastern
boundary of such farm; that this fire then
spread to De Kaap; and that it also caused trees of plaintiff to be
burnt. The argument
was that plaintiff had, in these circumstances,
failed to establish what separate damages had been caused by each of
the two fires;
in particular it was not clear what (lesser) amount of
damages was attributable to the fire which came from Snymansbult;
5/
5. and that plaintiff should
therefore, on this ground alone, have been non-suibed. There is no
merit in the argument. Pelser, who
gave evidence for plaintiff,
denied that his workers started a fire. The resulting dispute gave
rise to a credibility issue. DE VILLIERS
AJ resolved it in favour of
plaintiff's version. The learned judge found that there was no second
fire of the kind alleged. It is
unnecessary to canvass his full
reasons for so doing. Suffice it to say that they are cogent and, in
my view, unassailable.
It foliows that it was the fire
which originated on Snymansbult that caused the timber plantations on
De Kaap to be destroyed. This
being so, plaintiff was entitled to
judgment in the sum of R540 000 - if defendant (or his servants) were
legally responsible for
it. This brings me to what was the main issue
in the trial, viz, that of negligence. It will
6/
6.
be apparent
from what nas already been said that this is
not
one of those cases (such as
Van Wyk vs
Hermanus Municipality
1963(4) SA 285(C)
and
Minister of Forestry vs Quathlamba
(Pty) Ltd
1973(3) SA 69(A)) where
liability rests on the failure of a land-owner to take reasonable
precautions to prevent the spread from
his
property
of a fire started on it or elsewhere by a third
party.
As
I
have said,
plaintiff's case was that defendant's servants started the fire. This
defendant denied (though, as indicated, he admitted
that the fire
originated on Snymansbult).
In seeking to prove that it was
defendant's servants who started the fire and that they had acted
negligently, plaintiff relied on
the statutory presumption of
negligence which applies
inter alia
to forest fires. It is
contained in sec 84 of the Forest Act, 122 of 1984 ("the Act").
The section reads:
7/
7.
"When in any action by virtue
of the provisions of this Act or the common law the guestion 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."
The date of commencement of the
Act was 27 March 1986,
ie, after the fire, but before the
issue of summons.
There was a dispute whether in
these circumstances the
predecessor to the Act, namely,
the Forest Act, 72 of
1968 did not apply. It too (in sec
23) provided for a
presumption of negligence. However
sec 23, though in
similar terms to sec 84, did not
require the land in
question to be situated outside a
fire control area.
Initially Mr
Zeiss
, on
behalf of defendant, contended
that it had not been shown that
Snymansbult was outside
a fire control area (as defined by
sec 1, read with sec
18(1), of the Act). If this was so
and the Act applied,
then the presumption would not,
for this reason alone,
operate. Counsel later, however,
abandoned the point.
8/
8.
It
was conceded that the matter had to be decided on the
basis
that the fire occurred on land outside a fire control area. In the
result,
I
(like
the court a
quo
)
find it unnecessary to decide which of the two Acts apply.
I
shall assume that it is sec 84 of the Act
that must be looked to.
The term "forest...fire"
in sec 84 is not
defined by the Act, but it was
common cause that the fire in guestion was such a fire. This
notwithstanding, defendant disputed that
the presumption operated.
Reliance was placed in this regard on what FANNIN J said in
Quathlamba (Pty) Ltd vs Minister of Forestry
1972(2) SA 783(N)
at 788 H, The learned judge, in dealing with sec 23, held that a
"question of negligence" can only be
said to "arise"
where (i) negligence is alleged against the defendant and (ii) the
plaintiff establishes a
nexus
or connection between the
9/
9. fire and the party against whom
the allegation is made, which is consistent with such negligence. The
submission on behalf of defendant
was that such
nexus
had not
been proved; plaintiff had in its summons and further particulars
alleged that the fire had been started at a particular place
on
Snymansbult, namely, the maize lands; the allegations of negligence
were limited to the burning of dried mealie stalks there;
being bound
by such allegations, the presumption could only be invoked if there
was proof that the fire on 12 September originated
in the maize
lands; such proof was lacking; and the trial court was therefore
incorrect in holding, as it did, that the presumption
applied.
The
Quathlamba
case went on
appeal to this Court (see
Minister of Forestry vs Quathlamba (Pty)
Ltd
,
supra
). Though overruling FANNIN J's finding that the
presumption had not been rebutted by the defendant,
10/
10.
OGILVIE
THOMPSON CJ affirmed the principle that the presumption cannot be
invoked merely by averring negligence. The learned Chief
Justice did
not, however, adopt the approach of FANNIN J. It was simply held that
the additional element required could be satisfied
by
proof that the fire originated upon iand owned and
controlled
by the defendant. On this basis the presumption would apply in
casu
.
Snymansbult was not only owned by defendant, but was under his
control. As will be seen, he was actively farming the property. And,
of course, the fire admittedly originated on defendant's land.
I
shall, however, assume (in defendant's
favour) that for the purpose of deciding whether the presumption
created by sec 84 operates,
it was necessary for plaintiff to prove a
nexus
or
connection between the fire and defendant.
I
further assume that such
nexus
or connection had not only to be consistent (ie compatible) with
defendant's negligence
11/
11.
as pleaded but must also have been
of the nature and have arisen at the place so pleaded.
Proceeding on
this premise, the first question that arises is whether, on a proper
construction of the pleadings, plaintiff is confined
to the case that
defendant was negligent in starting the fire in the maize lands. DE
VILLIERS AJ answered the question in the negative.
I
am of a different opinion. It would unduly
lengthen this judgment were the relevant parts of the summons and
further particulars to
be quoted.
I
content
myself with shortly stating my conclusions. The one is that the
allegations that defendant failed "to provide adequate
means
for...controlling the fire or any fires which had been started on his
property" and that defendant's workers "did
not take all
reasonable precautions to ensure that the fire which they had started
did not spread to neighbouring properties"
do not relate solely
to what happened on the maize lands. They obviously embrace conduct
or omissions pertaining
12/
12. not only to the maize lands
but to that part of Snymansbult which lies to the east thereof. This
is because the maize lands are
not on the (eastern) boundary of
Snymansbult and De Kaap. Between them and the western edge of De Kaap
is an expanse of grazing land
(containing a large donga) as well as a
timber plantation of defendant. The fire had perforce to, and did,
traverse these areas before
it could reach plaintiff's trees. The
following reproduction of one of the exhibits at the trial, namely, a
drawing of the relevant
part of Snymansbult, shows this.
See
Original Judgement Image
13.
The
area marked 1 is the maize lands in question; 6 is the grazing
section (the donga is the small part within it); and 7 is the
plantation.
(The boundary with De Kaap is along the line marked 13 on
the right-hand side.) The other conclusion is that notwithstanding
the
width of the allegations referred to, defendant's interpretation
of the pleadings must be upheld. On an
analysis
of the further particulars,
I
am
satisfied that
foundational to all the
allegations of negligence is a fire which was allegedly started in
the maize lands.
The next question is: did
plaintiff sufficiently show that the fire which spread to De Kaap on
12 September began in defendant's maize
lands? It follows from what
has been said that only if the answer is in the affirmative, will the
presumption operate. Most of the
evidence at the trial was devoted to
this issue. In terms of Supreme Court Rule 39(11), the Court
14/
14.
ruled that the onus of adducing
evidence was on
plaintiff. This it proceeded to
do. A number of
witnesses were called. The main
one was Mr Pelser (to
whom
I
have already referred). He testified that
on
Tuesday 10 September 1985 (ie two
days before the fire)
he saw workers of defendant
burning maize stalks in the
maize lands. He had previously
noticed this being done
on various occasions during the
preceding weeks. He
saw no further signs of burning on
11 September. At
about 1 pm the following day, he
was at his house in the
vicinity when he received a report
of the fire. He
hastened to the scene. His
description of where the
fire was when he then, for the
first time, observed it,
is of importance. It is necessary
in this regard to
quote certain extracts from his
evidence. He said:
"I
noticed
flames burning on the defendant's property next to his maize lands
going in a south-easterly direction towards the gum plantation...
15/
15.
There was a small burnt area on
the rear side
of the dongas towards the maize
lands but it
was not a very big area that had
already
burnt, where the fire had already
finished
burning...
No
I
did not see the
fire start,
I
just
saw
flames burning in that area there.
In the area of the donga? -- In
the area on
the top, the top part of the donga
yes.
And that is 25 to 30 metres from
the maize
fields? â That is correct,
yes...
(F)rom there
I
saw the fire the first time and
there it was burning close to the
maize fields
in a south-easterly direction
towards the gum
plantation.
And how close to the maize field
was it
burning? -- How close to the maize
fields? It
was approximately five, ten
metres,...
(T)here was already a burnt area.
Did the burnt area completely abut
the maize
lands?-- Yes it went, bounded the
maize
lands...
I
saw
the fire burning on the maize lands and
when
I
came ...
You saw it burning on the maize
lands? -- No
burning a couple of metres away
from the maize
lands, as
I
explained just now.
In the grazing? -- In the, it was
burning in
the grazing.
Yes. â But it already backburnt
into the
maize lands.
I
mean that area was already
burnt.
Did it burn into the maize lands?
â Yes it
burnt into the maize lands...
16/
16.
The maize land itself could not
burn, there
was nothing to burn in the maize
land...
That area, in my opinion the fire
started and
was burning from the maize lands
towards the
gum plantation and down to the
dongas, down
towards Twello property...
I
only
saw flames on top of the donga.
Yes, and you cannot exclude the
possibility
that that is where it started,
although you
did not see it start? â There
could be a
possibility but
I
think it is
highly
unlikely...
(W)hen
I
first saw the flames it was burning
on the top part of the donga and
the area
between the donga and the maize
lands had
already been burnt...
My opinion is that it started on
top of the
donga.
I
did not see the fire start,
I
only
saw the flames.
When
I
saw the
flames it was
the flames were on the top part of
the donga,
spreading down into the donga...
Yes it was burning into the donga
from close
to the maize lands there, burning
into the
donga down towards the gum
plantation...
Approximately fifteen metres, ten,
fifteen
metres away from the donga.
I
see.
Yes. -- That is the first, when
I
saw
the flames the first time...
No
I
saw the fire starting next to the maize
lands, you know in the grazing
area. That is
where
I
saw the fire."
It cannot be gainsaid that this
evidence
(which
I
think is fairly
representative of what Pelser
17/
17. said) is somewhat
inconsistent. Moreover, the allegation that workers of defendant
started a fire in the maize lands on 10 September
was denied by
defendant. Though admitting that stalks in his land were burnt, his
version was that this took place on 2 and 3 September;
no burning
took place after this date. The court a
quo
, however, accepted
Pelser's evidence and rejected that of defendant. In the result it
was held that defendant's workers did burn
maize stalks on 10
September 1985. Here, too, there is, despite Mr
Zeiss'
earnest
argument to the contrary, no warrant for interfering with what is
essentially a credibility finding. Pelser made a favourable
impression on DE VILLIERS AJ. Defendant, on the other hand, was
regarded as an untruthful witness. The record discloses good reason
for this assessment. There was acceptable evidence that shortly after
the fire, he
18/
18.
admitted to an insurance assessor
who interviewed him that he had indeed, two days before the fire,
caused mealie stalks to be burnt
in his lands. And, with
justification, the testimony (on behalf of defendant) of his ex-wife
that no burning took place on 10 September
was found to be mistaken.
How then, on Pelser's evidence, do
matters stand? The (alternative) submission on behalf of defendant
was that in the absence of any
evidence by Pelser that stalks in the
maize lands were burnt after 10 September, plaintiff had to prove
that it was the burning of
maize on that day which resulted in the
fire on the 12th; it had not discharged this onus; the presumption
could therefore not be
invoked. Reliance was placed on the evidence
of a witness who testified for defendant. He was a Mr Kilian, a
neighbouring farmer.
He said that in his experience maize stalks
normally do not smoulder for longer than 3-4 hours; it
19/
19.
was impossible that they could
smoulder "vir dae". Furthermore, plaintiff had given a Rule
36(9) notice of its intention
to call an expert witness regarding the
length of time that burnt mealie stalks can smoulder. But no such
witness testified. There
was, therefore, so the argument went, no
evidence of how the burning of maize stalks could, two days later,
have caused the neighbouring
grazing area to be ignited.
The approach of counsel for
defendant was that in order to comply with the second requirement of
FANNIN J in the
Quathlamba
case, it behoved plaintiff to
establish as a fact that the fire on 12 September originated from the
burning in the maize lands two
days earlier. Only then would the
necessary
nexus
between the fire and defendant exist. What
LEON J said in
Titlestad vs Minister of Water Affairs
1974(3)
SA 810(N) may be said to support the argument. Dealing with the
second requirement of FANNIN J, the learned judge held
20/
20.
(at
815B) that (on the facts in that case) "(t)he enquiry is whether
the Court is able to say that it is more probable than not
that the
fire broke out on land under the control of the defendant".
I
am, however, not sure that this quantum of
proof was required in
casu
.
Here, as
I
have
said, it is common cause that the f ire originated on Snymansbult. It
may be that in these circumstances the proposition that
for the
presumption to operate, plaintiff had to establish on a balance of
probabilities that the fire of 12 September was caused
by the burning
that took place in
the maize lands two days
earlier, cast too heavy an onus
on it.
Perhaps, if a
nexus
or connection of the kind under consideration is required, it would
have sufficed for this to have been only
prima
facie
established. If this be so,
evidence on which a reasonable man might find for plaintiff would
suffice. On this basis, the
21/
21 .
test would be
the same as that applied to determine whether there should be
absolution from the instance at the close of a plaintiff's
case. It
is, however, unnecessary to express a firm view on the issue and
I
refrain from doing so.
I
shall assume (also in defendant's favour)
that plaintiff had to prove the
nexus
or connection required by FANNIN J on a balance of
probabilities.
Kilian's evidence loses some of
its force when regard is had to the precautions that defendant
himself says he took against the danger
of fire spreading from
smouldering maize stalks. Despite also asserting that maize stalks
"brand feitlik onmiddellik uit",
he conceded that it was
nevertheless his practice to inspect his lands for a day or two after
burning "om seker to maak dat
alle brandende materiaal wel
geblus is"; this was a reasonable precaution to take.
Nevertheless, applying the postulated standard
of proof,
22/
22.
I
am
inclined to agree that, for the reasons advanced, a
link between the burning which
took place in the maize
lands on 10 September and the fire
which Pelser saw on
the 12th cannot properly be
inferred. That, however,
is not an end to the matter. In
the further
particulars to plaintiff's
summons, it is alleged that
burning of stalks in the maize
lands occurred not only
on 10 September, but on the
following two days as well.
In answer to a guestion:
"Precisely when was the fire
started," it is alleged:
"The 10th September 1985,
and/or the 11th September and/or the 12th September 1985. The
Defendant commenced burning mealie fields
on his property on the 10th
September 1985. Fires were also burning on the Defendant's property
on the 11th September and on the
12th September 1985."
So plaintiff was entitled to rely
on a burning of the
maize lands by defendant's
servants on 11 September or
the morning of the 12th as having
been the source of the
23/
23.
fire which Pelser saw a little
later.
Did plaintiff
establish this on a balance of probabilities? It is true, as
I
have indicated, that there was no direct
evidence that maize stalks were burnt on the 12th. The guestion then
is whether this can
be inferred. This brings me back to the facts. On
20 September 1985 a Mr Shewring (a so-called industrial surveyor
experienced in
assessing fire risks) inspected the area from the air.
His evidence (on behalf of
plaintiff) was
that what he termed the apex of the fire,
ie
the point of its commencement, was " in the donga area".
Defendant relied on this as indicating that the fire did not
start in
the maize lands. There might have been some merit in this contention
were it not for the witness' later statement that
"I
cannot say where the f ire started".
So one is lef t with Pelser' s evidence. His statement (at the end of
the quotation)
24/
24.
that he saw the fire "starting
next to the maize lands" may be said to indicate that the fire
did not start in the maize
lands. But it cannot be taken literally or
out of context. As he explains in the next sentence, "that is
where (he) saw the
fire". The same applies to his earlier
assertion that the fire "started on top of the donga".
Indeed, he had already
said that "in my opinion the fire started
and was burning from the maize lands". Nor does his reference to
what is called
"backburning" assist defendant. Backburning
is apparently a slow burning which tákes place against the
wind. If
this had occurred from the place where Pelser first saw the
fire back to the maize lands, it would obviously indicate that the
fire
had not started in the maize lands. But this is not the true
effect of what Pelser says. Immediately after his assertion that "it
already backburnt into the maize lands" he corrects
25/
25.
himself by
explaining
"I
mean
that area was already burnt". It follows that the fire must have
started from the maize lands. Pelser says as much.
I
have in mind his assertion that "the
burnt area...bounded the maize
lands...It burnt into the maize
lands". And,
consistent with this, is the
proximity of the fire to the maize lands when, according to Pelser,
he first saw the flames. His estimates
of the distance vary between
"next to", "25-30 metres", "close to",
"approximately five, ten metres"
and "a couple of
metres away" (from) the maize lands. On 12 September a fierce
north-westerly wind was blowing (ie in a
south-easterly direction).
This would, of course, have facilitated the fire in the maize lands
spreading to the adjoining grazing
area where Pelser saw the flames.
It is true that plaintiff produced no evidence that the wind might
have carried a smouldering part
of a stalk to the grass
26/
26.
(called "spotting"); or
that flames from the burning stalks spread directly to the grazing.
Nevertheless, what has been
stated was, in my judgment, strongly
probative of the fire of 12 September having originated from the
burning of stalks in defendant's
maize lands within say a few hours
before Pelser's observations. Defendant produced no evidence to
counter this. The only other possible
cause of the fire which was
suggested by him was that unauthorised persons might have set fire to
the grass in the donga when attempting
to smoke out bees there (in
order to extract their honey). But this can be discarded. It was
based on mere speculation.
On a conspectus
of all the evidence,
I
have
come to the conclusion that the probabilities favour a finding that
the fire on 12 September was caused by the burning of stalks
in the
maize lands by workers of defendant on 12 September shortly before
Pelser came on
27/
27.
the scene. The
nexus
pleaded was therefore established. It was not in dispute that the
fire was consistent with defendant's negligence. It follows that
the
court a
quo
correctly found that plaintiff proved that the
presumption of negligence created by sec 84 applied.
The effect of this was that the
onus then rested on defendant to show (on a balance of probabilities)
either that in the particular
circumstances harm to plaintiff was
not, and cculd not reasonably have been, foreseen or, alternatively,
that, notwithstanding the
exercise by him of such care as the
circumstances reasonably required, he could not prevent the fire from
extending beyond the boundaries
of his property and occasioning harm
to plaintiff (see the AD judgment in the
Quathlamba
case at 84
H as also
Clan Syndicate (Pty) Ltd vs Peattie and Others NNO
1986(2) SA 791 (A) at 796 G) . The . last question is whether he
28/
28.
discharged it. Reference has
already been made to the
fact that a particularly strong
wind was blowing on 12
September. Because of this, allied
with the dry
condition then
prevailing, it must,
I
think,
be accepted
that once the fire took hold, at
least on reaching the
plantation on Snymansbult, it
became uncontrollable.
Indeed, that is the effect of the
evidence. In
considering whether defendant
rebutted the presumption
of negligence one must, therefore,
look primarily to his
conduct in (via his servants)
burning his maize lands so
that it thereafter spread to the
grazing area to the
south-east. What was required of
defendant was an
acceptable explanation,
inconsistent with his negligence, of what precautions he took in this
regard. More particularly is this so
if account is had of the high
degree of risk of a forest fire breaking out at that time of the year
and the serious consequences
to
29/
29.
the owners of adjoining farms if
that happened. Under
cross-examination defendant
conceded this in the
following terms:
"(I)n daardie wêreld in
die winterseisoen, sê maar so van Julie tot Oktober bestaan
daar 'n brand gevaar...Brand
in 'n mielieland in September...kan...'n
gevaarlike aktiwiteit wees ... as dit nie behoorlik geblus is
nie...Brand is verbode daardie
tyd...(Ek was) bewus dat 'n brand wat
handuit ruk miljoen rande se skade kan berokken".
In my opinion, defendant wholly
failed to lay
any factual foundation which could
serve to discharge
the onus resting on him. His
suggestion that the fire
could have been caused by
passengers from buses that
used a road which skirted the
plantation on Snymansbult
was based on speculation only. It
was also inconsistent
with the fact of the grazing area
to the north-west
having been burnt. Defendant's
evidence that from 3
September up to and including 12
September he carefully
inspected his lands "om te
kyk of daar enige brandende
30/
30.
materiaal
(was)" cannot be taken seriously.
I
agree with DE VILLIERS AJ's observation
that "op sy weergawe van die gebeure sou dit natuurlik ook nie
nodig gewees het nie aangesien
hy reeds op 2 en 3 September sou
gebrand het". None of defendant's workers were called
to
explain how they went about burning and extinguishing
fires
in the maize lands. So we do not know whether earlier on the 12th
conditions were such that it was safe to burn; what steps
were taken
to ensure that all burning stalks were rendered harmless; whether
there was an adequate fire break between the maize lands
and the
grazing area; and what precautions were taken to prevent the fire
from taking hold. It is true that on the 12th conditions
were
abnormally windy and dry. But
I
do
not believe that they were unforeseeably abnormal as was submitted.
The exceptional often has to be
31/
31 .
anticipated. Defendant also relied
on a fire-break, 50 metres in width, between the grazing and his
plantation which he testified
he had burnt in about June 1985. The
overwhelming weight of evidence was that this assertion was untrue;
that there was no such fire-break.
Mr
Zeiss
was rightly
constrained to concede this.
To sum up. The fire that resulted
in plaintiff's damages not only originated on defendant's land, but
was caused by his servants.
The duty to prevent a fire from spreading
when you yourself have lit it is a high one (
Van Wyk vs Hermanus
Municipality
,
supra
, at 300 D). Defendant failed to show
that he discharged such duty. He was therefore correctly held liable
to plaintiff.
32/
32.
The appeal
is dismissed with costs. Such costs are to include the fees of two
counsel.
NESTADT,
JA
BOTHA,
JA â CONCURS
CASE
NUMBER: 241/89
IN THE SUPREME COURT OF SOUTH
AFRICA (APPELLATE DIVISION)
In the matter between:
L J STEENBERG
Appellant
and
DE KAAP TIMBER (PTY) LIMITED
Respondent
CORAM
: BOTHA, NESTADT JJA
et VAN DEN HEEVER AJA
HEARD ON
: 19 AUGUST 1991
DELIVERED
ON
: 8 NOVEMBER 1991
JUDGMENT
VAN DEN HEEVER AJA
2
I
agree
that defendant did not succeed in rebutting the presumption that he
was negligent in relevant respects alleged in plaintiff's
pleadings
and with the order proposed.
In my view the link between a
defendant and a fire alleged to make him responsible in law for
damage caused by it, and his negligence
leading to that damage, are
distinct and separate issues. It is only on the second of these that
the statutory presumption assists
a plaintiff. Support for such a
view is to be found in the fact that there are various grounds on
which a person may be held "responsible"
for a fire:
because he started it; or because he is the person who was in control
of either the ground from which it escaped, or
the fire itself - cf
the provisions of section 21(1)(c)(ii)(a) of the 1968 statute. The
issues may overlap in cases like the present,
where the nexus relied
on is that defendant caused the fire in question. Under the weather
3
conditions that prevailed proof of
that fact would amount to res ipsa loquitur and plaintiff would not
require statutory assistance
in discharging the onus of proof. It is
probably because of those weather conditions that plaintiff did rely
on that specific nexus
and not merely allege that the fire originated
on and escaped from defendant's farm. (Plaintiff could not control
another fire that
originated on its own property.)
Although the
separate issues of nexus and negligence overlap in the matter before
us because of the facts of this case any suggestion
that they may do
so as a matter of principle should in my view be avoided. Were a
plaintiff's case based, for example, on his labourer's
report that
"I
saw Mr Smit knock out his pipe on your gate
post as he passed, shortly before the fire started in that very area"
and should
Mr Smit deny having been in the vicinity at the relevant
time, the normal approach to quantum of proof must in my view apply.
That
there may
4
be a lesser quantum, not of proof,
but of evidence required in a case such as the present, should not be
sought in the terms of the
statute but again in the facts: an adverse
conclusion may be more readily drawn against someone, like the
defendant, who should be
able to answer a prima facie case with ease
but fails to do so by remaining silent or by telling palpable
untruths.
MARINE AND TRADE INSURANCE CO LTD v VAN DER SCHYPF
1972 (1) SA 26
(A); Hoffmann and Zeffertt,
SA LAW OF EVIDENCE
,
4th ed at 596 et seq. esp. at 598; Schmidt,
BEWYSREG
, 3rd ed,
p 46-47 and cases in n.2.
Plaintiff succeeded in discharging
the onus which burdened it by reason of its pleadings, of
establishing that it was more probable
than not that the fire that
swept from Snymansbult across De Kaap resulted from defendant's
activities in burning his maize fields
during the relevant time: the
10th to the 12th September. It is in my view unnecessary to exclude
as
5
being causally irrelevant his
proven activities on the 10th. Defendant's concession that it was
proper to inspect for at least two
days after burning "om seker
te maak dat alle brandende materiaal wel geblus is" leads to the
inescapable inference that
he knew that his maize lands could well
contain some or other material - not necessarily cattle dung,
although Pelser saw defendant's
cattle in the maize fields and dung
may smoulder - other than maize stalks and cobs, which would
constitute a danger. No factual
as opposed to speculative evidence
was adduced of any other possible origin of a fire "coincidentally"
commencing in the
very vicinity where defendant had been recently
seen burning.
VAN DEN HEEVER AJA