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[1992] ZASCA 165
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Simon's Town Municipality v Dews and Another (677/91) [1992] ZASCA 165; 1993 (1) SA 191 (AD); [1993] 1 All SA 238 (A) (23 September 1992)
Case No 677/91
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE
DIVISION
)
In the matter between:
THE SIMON'S TOWN
MUNICIPALITY
Appellant
versus
CYRIL DEWS
First Respondent
and
ALAN McKAY GARLICK
Second
Respondent
CORAM
: CORBETT CJ, VIVIER, NIENABER, VAN DEN HEEVER, JJA, et VAN
COLLER AJA.
DATE OF HEARING
: 4 September 1992
DATE OF JUDGMENT
: 23 September 1992
JUDGMENT
CORBETT
CJ /
2
CORBETT
CJ:
The prevention and combating
of veld, forest and mountain fires are objects of major concern in South Africa;
and part VI of the Forest
Act 122 of 1984 ("the Act") is devoted to enacting a
general scheme designed to achieve these objects. This scheme provides, inter
alia, for the declaration of fire control areas and regions (sec 18 of the Act)
; for the establishment of a fire control committee
for each fire control area
and a regional fire control committee for each fire control region (sec 19); for
the preparation by fire
control committees and by regional fire control
committees of fire protection schemes for their respective areas of jurisdiction
and, subject to ministerial approval, for the public notification of the schemes
(sec 20); and for the clearing and maintenance of
fire belts in fire control
areas (sec 22). A "fire belt" is defined in the Act as meaning -
3
"a strip of land, whether under trees or
not, prepared and maintained for the
purpose of preventing the spread of veld,
forest or mountain fires".
On 2 May 1988 certain employees of the appellant, the Simonstown Municipality
("the Municipality"), acting within the course and scope
of their employment,
undertook the clearing of a fire belt on vacant land (situated on the
mountain-side) in an area known as Murdoch
Valley. The land lies within the
Municipality and is owned by it. The method of clearing employed by the
municipal workers consisted
of progres-sively setting fire to the vegetation
within the boun-daries of the fire belt by means of what are called drip
torches.
The operation was carried out by six labourers under the supervision of
a Mr C J Payne. The so-called "controlled" burning commenced
at about 08h00 on
the day in question and continued without any untoward event until about 14h30.
Then suddenly the fire spread to
the
4
open veld on the mountain-side above the fire
belt, got out of control and, driven by a northerly wind, fanned out up the
mountain
and also in a southerly direction along the coast in the direction of
Cape Point. It reached areas known as Miller's Point and Castle
Rock. There a
number of houses and other buildings were damaged or destroyed, including those
belonging to the two respondents.
These events resulted in the respondents instituting jointly an action in the
Cape of Good Hope Provincial Division in which each
claimed damages for the loss
suffered by him by reason of the fire. In their particulars of claim the
respondents alleged, inter
alia, that the spread of the fire to their properties
was caused by the negligence of the Municipality's employees engaged in the
clearing of the fire belt. Various grounds of negligence were alleged. The
Municipality defended the action and in its plea, inter
alia, denied
5
negligence on the part of its employees; in the
alternative pleaded that, if its employees were negligent, such negligence was
not
the cause of any damage suffered by the respondents; denied vicarious
liability; and, in addition, raised the defence that it was
absolved from
liability by sec 87 of the Act. By arrangement between the parties the matter
went to trial on these four issues only,
other issues, including the quantum of
damages suffered, being left over for determination at a later stage.
The trial Judge (Foxcroft J), having heard evidence and argument, held
against the Municipality on all four issues. That is, he held
that respondents
had established negligence on the part of defendant's servants acting within the
course and scope of their employment;
that this negligence caused damage to the
respondents' properties; and that the Municipality did not enjoy any immunity
from liability
by reason of sec 87
6
of the Act. Thereafter, the parties having settled
the outstanding issues between them, the trial Judge gave judgment in favour of
the respondents. The judgment has been reported: see
Dews and Another v
Simon's Town Municipality
1991 (4) SA 479
(C). The trial Judge further gave
leave to the Municipality to appeal to this Court on the issue as to whether sec
87 afforded the
Municipality a defence to the respondents' claims. Accordingly
that is the only issue before us on appeal.
Clearly anyone who lights a fire
in the open veld is under a duty at common law to take all reasonable
precautions to keep it under
control and to ensure that it does not spread
beyond the area of the intended burn. Because of the inherently dangerous
character
of fire the standard of care and diligence is a high one and the
person concerned must have, or have at his disposal, the skill and
equipment
needed to keep the fire under control. This is a case where
imperitia culpae
adnumeratur
.
7
(See
Fourie v Sang
1924 OPD 153
, 155-6;
Van Wyk v Hermanns Municipality
1963 (4) SA 285
(C), 300 D-E.) One of the
hazards of veld-burning is wind. For wind can readily and rapidly cause the fire
to spread and get out
of control. This should be obvious to any reasonable
person; and in particular to officials charged with the duty of preventing the
spread of veld fires by,
inter alia
, the clearing of a fire belt by
burning.
In this case the evidence indicates that when, on 2 May 1988, the
clearing of the fire belt by burning commenced there was virtually
no wind
blowing. Initially, it was, therefore, a suitable day on which to carry out this
operation. Later, however, the wind came
up and this was almost certainly the
prime cause of the fire spreading to the mountain-side adjacent to the fire
belt.
The evidence also shows that shortly after 14h00 a Mr W A Barten, the deputy
fire-chief of the Simonstown Municipal Fire Brigade,
visited the scene of
operations. The fire chief, Mr Gildenhuys had previous-
8
ly been alerted to the fact that at Murdoch
Valley, a wind had arisen and he had asked Barten to go there and to investigate
the position.
Barton did so; and on his arrival he found that a wind had indeed
come up, although it was not blowing consistently. He was of the
opinion that
conditions were no longer suitable for burning. He accordingly instructed Payne
to cease operations and to ensure that
the fires that were still burning were
extinguished. He then left. Payne, however, decided to continue the last part of
the burning
operation. While this was in progress he suddenly noticed that a
fire had broken out in the veld and bushes on the mountain-side
above the fire
belt. He ordered his labourers to put out this fire, but they were unable to do
so and it spread rapidly, with the
results already described.
At the time when this happened Payne had with him, at the site of the burning
operations, only three of the six labourers constituting
his work force. The
9
other three were at the vehicle, referred to in
evidence as "the Unimog". It was the vehicle which had conveyed Payne and his
team
and their equipment from the premises of the municipal fire department to
the area where the burn was to take place. The Unimog was,
as it were, their
operational base. It was equipped with a fire-fighting hose over 200 metres
long. At the time of crisis the Unimog
was parked below the fire belt in
Rocklands Road with its hose still rolled up. The distance from the vehicle to
the place where
the fire broke out above the fire belt was 149 metres. There was
a water hydrant in the vicinity of where the Unimog was parked.
The trial Judge's finding that Payne had failed to take adequate precautions
to ensure that the fire did not spread is contained in
the following paragraph
of his judgment (see reported judgment at 485 D-F):
"To my mind, the crucial issue is whether Payne, having decided to
continue
10
with the last part of the burning operation after
Barten's instruction to stop burning, took adequate precautions to ensure that a
fire did not break out. At the very least he should have ensured that all his
men were on site and not down at the Unimog mixing
more fuel, making tea or
anything else. He should also have seen to it that the hose from the Unimog was
rolled out and on hand in
case there should be any difficulty with the last part
of the burn. Most important of all, he should have ensured that sufficient
of
his men were watching carefully the area around the fire-belt so that if a fire
had broken out it could have been seen very quickly.
His own evidence which I
have referred to that he heard rather than saw the fire breaking out is an
indication of the failure to
keep a proper look-out. He could not have been
keeping an all-round watch nor could any of his men, for a proper watch would
have
ensured a much more rapid observation of a fire breaking out. If the hose
had been readily available it would in all probability
have been possible to
stop the fire in its early stage before it was racing away."
This finding is fully justified by the evidence and, as I
have indicated,
is not open to attack on appeal.
Sec 87 of the Act provides as follows:
"No person, including the State, is liable
11
in respect of anything done in good faith in the
exercise of a power or the carrying out of a duty conferred or imposed by or
under
this Act."
It was appellant's general contention in the Court below
(and the same contention is advanced on appeal) that this
section creates
a legal immunity in favour of a person
who in good faith exercises a power
conferred by or under
the Act even in cases where the person concerned is
"negligent", in the sense that in exercising the power he
fails to take
reasonable precautions to eliminate or
minimize the risk of injury which his
action may cause to
others. This is a far-reaching proposition. It
would
provide a licence to persons exercising, for example, the
fairly drastic powers under part VI of the Act to do so
carelessly and without proper regard for the interests of
others, provided only that they did so in good faith.
The potentially devastating consequences of such conduct
are manifest. In the circumstances, it would, in my
opinion, require clear language to establish such a
12
legislative intent.
As I see it, sec 87 is
reasonably clear, but it does not mean what appellant contends that it does. It
must be interpreted against
the general background of the law relating to
statutory authority as a defence to a delictual claim. Conduct which would
otherwise
give rise to delictual liability may be justified and rendered lawful
by the fact that it consists of the exercise of a statutory
power. Whether a
particular statutory enactment in fact authorizes interference with or the
infringement of the rights or interests
of another depends upon the intention of
the legislature, which is determined in accordance with the usual canons of
statutory interpretation.
Of especial significance in this connection is whether
the statutory provision is directory or permissive in character. Most of the
decisions from which these general principles are derived were referred to by
Hoexter JA in the recent case of
13
East London Western Districts Farmers'
Association and
Others v Minister of Education and Development Aid
and
Others
1989 (2) SA 63
(A).
A further important principle is that, even
where the statute does authorize interference with the
rights of others, the person or authority vested with the
power is under a duty, when exercising the power, to use
due care and to take all reasonable precautions to avoid
or minimize injury to others. Failure to carry out this
duty has been described as "negligence", but, as pointed
out by Prof J C van der Walt in 8 LAWSA par 30, in this
context the word is used in a special sense; and -
"The presence of 'negligence' in this special sense in the exercise of a
statutory power is, however, a conclusive indication that
the defendant has
exceeded the bounds of his authority and has therefore acted wrongfully." (8
LAWSA par 30.)
See also Neethling, Potgieter and Visser, The Law of
Delict, pp 91-2; Van der Merwe en Olivier, Die Onreg-
14
matige Daad in die Suid-Afrikaanse Reg, 6 ed, p
10 5-6; Boberg, The Law of Delict, Vol 1, pp 771-3. In my view,
these writers all correctly state that jurisprudentially the consequences of
the repository of the statutory power having exercised
it without due care and
without having taken reasonable precautions to avoid or minimize injury to
others, are that the repository
must be taken to have exceeded the limits of his
authority and accordingly to have acted unlawfully. Save for a fleeting remark
in
Kenly Farms (Pty) Ltd v Minister of Agriculture
1984 (1) SA 406
(C),
at 410 G, so far as I am aware, there has hitherto been no judicial
pronouncement specifically to this effect. I am nevertheless
satisfied that the
analysis is sound and that it accords with modern distinctions in our law of
delict between fault and unlawfulness.
The principle of statutory authority
renders lawful what would otherwise have been unlawful; and if the implied
limits of the statutory
authority are
15
not observed the repository of the power acts
without authority, or in excess of his authority, and consequently
unlawfully.
I return to sec 87. In my opinion, the section postulates two requirements
for legal immunity: (a) the act in question must have been
done in good faith,
and (b) the act in question must have been done in the exercise of a power or
duty under the Act. It is common
cause that the person seeking to rely on sec 87
bears the onus of establishing that his conduct falls within the ambit of the
section.
"Good faith" here relates to the subjective state of mind of the repository
of the power and, broadly-speaking, requires that in exercising
the power he
should have acted bona fide, honestly and without ulterior motive. (Cf.
Oude
Meester Groep Bpk and Another v SA Breweries Ltd
;
SA Breweries Ltd and
Another v Distillers Corporation (SA) Ltd and Another
1973 (4) SA
16
145 (T), at 150 G-151 D;
Bloems Timber Kilns
(Pty) Ltd v Volkskas Bpk
1976 (4) SA 677
(A), at 689 A-E.)
As to (b), it
seems to me that the section is clear. The person sought to be held liable must
show that he acted within the authority
conferred by the power in question. It
necessarily follows that if, owing to a failure to exercise due care or to take
reasonable
precautions, he exceeded the power and acted without authority, he
will be unable to establish requirement (b) and his reliance on
sec 87 must
fail.
It was submitted by appellant's counsel that if sec 87 be interpreted in this
way, it in effect adds nothing to the common law and
is redundant. This would
suggest that this was not the legislative intent. I do not think that this
argument is sound. As I have
indicated, a party relying on statutory authority
as a defence must first establish that the statutory enactment under which he
acted
authorizes interference with or the
17
infringement of the rights or interests of
others. This is a matter of interpretation. The effect of sec 87 is to dispense
with any
such enquiry as far as powers or duties conferred or imposed by or
under the Act are concerned. At the same time sec 87 introduces
as a positive
element the requirement of good faith, the onus of establishing which would be
on the party claiming immunity. It is
thus not correct to say that the
interpretation which has been placed on sec 87 renders it redundant. But even if
it does, this would
not be the first time that a legislative provision was
declaratory of the common law or was inserted ex
abundanti cautela
.
Moreover, as I have emphasized, the alternative inter-pretation which would
create a general licence for carelessness and indifference
to the interests of
others would conflict with the very purpose of the statute. Respondents' counsel
advanced a number of grounds
for holding that "negligence" apart, Payne and
18
his fellow employees exceeded their powers under
the Act and the relevant fire protection scheme, but I do not find it necessary
to
deal with these; nor with an argument that Payne acted without good faith.
For in my view, for the reasons stated the finding that
Payne failed in the
respects listed by the trial Judge, to take adequate precautions to ensure that
the fire did not break out and
spread, means that the Municipality cannot
satisfy requirement (b) of sec 87. Accordingly I hold that the trial Judge
reached a correct
conclusion as to the applicability of sec 87.
The appeal is dismissed with costs, including the costs of two counsel.
M M CORBETT
VIVIER JA)
NIENABER JA) CONCUR
VAN DEN HEEVER JA)
VAN COLLER AJA)