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[2018] ZASCA 123
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Nieuco Properties 1005 and Another v Trustees for the time being of the Inkululeko Community Trust and Others (872/2017) [2018] ZASCA 123 (21 September 2018)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 872/2017
In
the matter between:
NIEUCO
PROPERTIES 1005 (PTY)
LTD FIRST
APPELLANT
JACOBUS
JOHANNES
BOSHOFF SECOND
APPELLANT
and
TRUSTEES
FOR THE TIME BEING OF THE
INKULULEKO
COMMUNITY TRUST FIRST
RESPONDENT
MINISTER
OF THE DEPARTMENT OF RURAL
DEVELOPMENT
AND LAND REFORM,
REPUBLIC
OF SOUTH
AFRICA SECOND
RESPONDENT
SIPHO
LEVY
MASEKO THIRD
PARTY
Neutral
citation:
Nieuco
Properties 1005 & another v Trustees for the Inkululeko Community
Trust & others
(872/2017)
[2018] ZASCA 123
(21 September 2018)
Coram:
Cachalia,
Saldulker, Dambuza, Van der Merwe and Schippers JJA
Heard:
31
August 2018
Delivered:
21
September 2018
Summary:
Fire –
National Veld and Forest Fire Act 101 of 1998 – interpretation
of definition of ‘owner’.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Peterson AJ sitting as court of
first instance):
1 The appeal is upheld
with costs, including the costs of two counsel.
2 The order of the court
a quo is set aside and replaced with the following:
‘
a
The question of law is answered in the affirmative.
b
The second defendant is directed to pay the costs of the hearing of
the separated issue, including the costs of two counsel.’
JUDGMENT
Van
der Merwe JA (
Cachalia,
Saldulker, Dambuza and Schippers JJA
concurring)
[1]
This appeal concerns the meaning of the definition of ‘owner’
in s 2(1) of the National Veld and Forest Fire Act
101 of 1998 (the
Act). The need to determine this issue arose from the facts and
circumstances set out below.
[2]
The first appellant, Nieuco Properties 1005 (Pty) Ltd, is the owner
of the remaining extent of portion 1 as well as the adjoining
portion
10 of the farm Glengarry 652 situated in the province of Mpumalanga.
I refer to these two portions of land collectively
as Glengarry. The
first appellant and the second appellant, Mr Jacobus Johannes
Boshoff, jointly farm on Glengarry and,
inter
alia
,
produce macadamia nuts.
[3]
The first respondent, the trustees for the time being of the
Inkululeko Community Trust IT490/63, is the owner of the farm
Rietvley 651 (Rietvley). The Government of the Republic of South
Africa is the registered owner of portion 1 and of the remaining
extent of the farm Hanging Stone 636 (collectively referred to as
Hanging Stone). Hanging Stone is thus ‘State land’
as
defined in the Act. The second respondent, the Minister of Rural
Development and Land Reform, is responsible for its administration.
The parties therefore agreed that the second respondent should be
regarded as the registered owner of Hanging Stone. Rietvley adjoins
Hanging Stone and both adjoin Glengarry.
[4]
On 20 April 2011 the second respondent (duly represented) entered
into a written agreement of lease with a third party, Mr Sipho
Levy
Maseko, in terms of which Hanging Stone was let to him for a period
of five years commencing on 1 April 2011. In terms of
the lease
agreement the second respondent relinquished possession, use and
enjoyment of Hanging Stone to Mr Maseko for the duration
thereof.
The agreement obliged him to make firebreaks on the boundaries
of Hanging Stone as well as within its boundaries
where necessary, to
protect the farm against internal fires and to comply with any
statutory fire protection requirements or conditions
imposed by any
competent fire protection authority (clause 11.16). In terms of
clause 11.6, Mr Maseko was obliged to keep all the
firebreaks open
and free from any combustible material.
[5]
On 7 June 2012 a veldfire started on Rietvley. From there it spread
to Hanging Stone and then to Glengarry. The veldfire was
extinguished, but flared up again on 8 June 2012 and spread to the
appellants’ macadamia orchards on Glengarry.
[6]
The appellants instituted action against the first and second
respondents in the North Gauteng Division of the High Court,
Pretoria. They alleged that the wrongful and negligent conduct of
both respondents had caused the destruction of thousands of macadamia
trees on Glengarry. In the result they claimed damages from the
respondents, jointly and severally, in the amount of R16 775 257.95,
consisting of the costs of replacement of the macadamia trees and
loss of income for the period until the replacement trees come
into
full production.
[7]
In their particulars of claim the appellants relied principally on
the alleged failure by the respondents to comply with the
obligations
placed on an ‘owner’ of land in terms of the Act. There
was some debate before us on the question whether
the particulars of
claim also placed reliance on the common law duties of landowners to
prevent veldfires and the spreading thereof.
In view of the
conclusion I have reached, it is unnecessary to determine this issue.
[8]
Chapters 4 and 5 of the Act provide for various duties of owners in
respect of the prevention of veldfires and fire fighting.
Non-compliance with these duties is a criminal offence under s 25 of
the Act. Chapter 4 places a duty on owners to prepare and
maintain
firebreaks. Section 12(1) provides that every owner on whose land a
veldfire may start or burn from, must prepare and
maintain a
firebreak on his or her side of the boundary between his or her land
and any adjoining land. Section 13 deals with the
requirements for
firebreaks. In essence, it provides that an owner is obliged to
prepare and maintain firebreaks that are wide
and long enough to have
a reasonable chance of preventing a veldfire from spreading to or
from neighbouring land.
[9]
Chapter 5 places a duty on all owners to acquire the necessary
equipment and to have personnel available to fight fires. Section
17(1)
(a)
provides that every owner on whose land a veldfire may start or burn
or from whose land it may spread, must have the fire fighting
equipment, protected clothing and trained personnel prescribed by
regulation or reasonably required in the circumstances. Section
17(1)
(b)
obliges an owner to ensure that in his or her absence responsible
persons are available to act in the event of fire. In terms of
s
17(2) an owner may appoint an agent to do all that he or she is
required to do in terms of s 17. Section 18 provides that any
owner
who has reason to believe that a fire on his or her land or the land
of an adjoining owner may endanger life, property or
the environment,
must immediately take all reasonable steps to notify the relevant
fire protection officer or authority and all
owners of adjoining land
and must also do everything in his or her power to stop the spread of
the fire.
[10]
The particulars of claim also foreshadowed that the appellants would
rely on s 34 of the Act. It provides:
‘
(1) If a
person who brings civil proceedings proves that he or she suffered
loss from a veldfire which –
(a)
the defendant
caused; or
(b)
started on or spread from
land owned by the defendant, the defendant is presumed to have been
negligent in relation to the veldfire
until the contrary is proved,
unless the defendant is a member of a fire protection association in
the area where the fire occurred.
(2) The presumption in subsection (1)
does not exempt the plaintiff from the onus of proving that any act
or omission by the defendant
was wrongful.’
It
is common cause that the second respondent was not a member of a fire
protection association in the area where the fire in question
occurred.
[11]
The plea of the second respondent focused on the control of Hanging
Stone. The second respondent pleaded that in terms of the
lease
agreement, Hanging Stone was at the relevant time under the control
of the third party. The plea postulated that only persons
in control
of land are owners thereof in terms of the Act and, therefore, that
the second respondent was relieved from performing
any of the
obligations in respect of Hanging Stone in terms of the Act.
[12]
In response to the second respondent’s plea, the appellants
added the third party as a party to the action. They claimed
that he
was liable for their damages, jointly and severally, with the first
and second respondents.
[13]
As between the appellants and the second respondent, however, the
central issue was whether, as a matter of law, the lease
agreement
absolved the second respondent from compliance with the obligations
in terms of the Act. They agreed to place this issue
before the court
for determination as a separated question of law on agreed facts. The
first respondent and the third party played
no part in these
proceedings. The question of law was formulated in these terms:
‘
Do the provisions of the Act
and more particularly the duties imposed on an owner referred to in
the various sections apply in relation
to State land where the
Minister of the Government Department (the Second Defendant)
concluded a lease agreement with a third party
whereby possession and
control of such land are given and made over to the lessee in terms
of the provisions of the lease agreement
including clauses 11.6 and
11.16 of the lease agreement,
Annexure
“B”
?’
[14]
The answer to this question depends on the proper interpretation of
the definition of ‘owner’ in the Act, namely:
‘“
owner”
has its common law meaning and includes –
(a)
a
lessee or other person who controls the land in question in terms of
a contract, testamentary document, law or order of a High
Court;
(b)
in
relation to land controlled by a community, the executive body of the
community in terms of its constitution or any law or custom;
(c)
in
relation to State land not controlled by a person contemplated in
paragraph
(a)
or a community –
(i)
the Minister of the Government department or the member of the
executive council of the provincial administration exercising
control
over the State land;
or
(ii)
a person authorised by him or her; and
(d)
in
relation to a local authority, the chief executive officer of the
local authority or a person authorised by him or her.’
[15]
In the court a quo the appellants contended, in essence, that the
definition determined that more than one person may be the
‘owner’
of a particular piece of land at the same time. Therefore, so it was
argued, both the second respondent and
the third party were saddled
with the obligations in terms of the Act at the relevant time. The
second respondent, on the other
hand, contended that on a proper
construction of the definition only a person who has the right of
control over the land in question,
is regarded as the owner and
because possession and control of Hanging Stone was handed to the
third party in terms of the lease,
only the latter was obliged to
comply with the Act. Thus, the appellants contended, the question of
law should be answered in the
affirmative, whereas the second
respondent contended that the answer should be ‘no’.
[16]
The court a quo (Petersen AJ) answered the question of law in favour
of the second respondent. It held that ‘the word
“
control
”
traverses the definition of “
owner
”
like a golden thread’. As the second respondent had
relinquished control over Hanging Stone to the third party, so
it
reasoned, the obligations in terms of the Act and the presumption of
negligence in terms of s 34 thereof did not apply to it.
[17]
The court a quo dismissed the appellants’ claim. Presumably
this only entailed dismissal of the claim against the second
respondent. In any event the court a quo erred in this regard. It was
not called upon to determine liability. It had to decide
only the
question of law. The court a quo, however, granted leave to the
appellants to appeal to this court.
[18]
In reaching its conclusion, the court a quo relied heavily on the
judgment in
Mondi
South Africa Ltd v Martens & another
2012
(2) SA 469
(KZP). There the first defendant was the owner of two
farms. In terms of a written agreement and power of attorney, the
first defendant
handed complete control of the farms, including the
right to alienate the farms, to his father, the second defendant. The
court
concluded that as the right of control over the farms was
divested in favour of the second defendant, the first defendant
ceased
to be an ‘owner’ of the farms.
[19]
The court in
Mondi
regarded the common law right of control over the property as the
decisive incident of ownership for the purposes of determining
whether the first defendant fell within the common law meaning of
owner (para 20). Although recognising that this did not apply
to para
(d)
of the definition, the court pointed out that the control of the land
was required by paras
(a)
to
(c)
thereof
(para 22). The court proceeded to say that it would be anomalous to
require control over the land in question to qualify
the other named
entities as an ‘owner’, but not in the case of the
‘common law meaning’ of owner (para
23). The court also
referred to decisions of this court that dealt with the delictual
liability of a landowner for damages
resulting from a fire that
spread from the property controlled by the landowner, including
Minister
of Forestry v Quathlamba (Pty) Ltd
1973
(3) SA 69
(A) (
Quathlamba
)
(paras 29-32). It held that ‘the historical judicial
requirement of control over the property as a determinant of
liability’
indicated that the common law meaning of owner in
terms of the Act must include the element of control over the
property in question.
The court also found it unpalatable that the
presumption of negligence in s 34 would operate against an ‘owner’
who
had no right of control over the land in question (para 34).
[20]
It is trite that the interpretation of the definition entails giving
meaning to the words used within the context in which
they were used,
including the purpose of the Act. As always, one has to start with
the language.
[21]
In this regard, the definition commences with a primary meaning of
‘owner’, namely its ‘common law meaning’.
In
terms of the common law ownership is the most extensive right that a
person may have with regard to a corporeal thing. The content
of
ownership is not capable of exhaustive tabulation. Nevertheless,
ownership is not absolute. Its full extent may be limited by
public
law or by the owner having granted private law rights over the
property to a third party. By doing so the owner only suspends
his or
her powers over the property to the extent of the rights granted.
When such rights of a third party come to an end, the
full content of
ownership is automatically restored. This is referred to as the
elasticity of ownership. Thus, at common law, it
is quite clear that
an owner who temporarily transfers the right of control over the
property to a third party, remains the owner
of the property. See CG
van der Merwe
Sakereg
2 ed at 171-175.
[22]
It follows that the definition of ‘owner’ in the Act
includes an owner, who temporarily relinquishes possession
and
control of the property in terms of a lease agreement. Taking into
account that para
(d)
of the definition also does not require control of the land, it is
clear that the definition of ‘owner’ is not limited
to
persons in control of land.
[23]
As a general rule, the word ‘includes’ is used as a term
of extension. Depending on the context, it generally serves
to extend
a primary meaning by adding matters not ordinarily included in the
primary meaning. See
R
v Debele
1956
(4) SA 570
(A) at 575-576 and
De
Reuck v Director of Public Prosecutions, Witwatersrand Local Division
& others
[2003] ZACC 19
;
2004
(1) SA 406
(CC) para 17-18. The court a quo correctly recognised that
this is the meaning of the word ‘includes’ in the
definition.
The common law meaning of owner is well known and the
persons mentioned in paras
(a)
to
(d)
of the
definition do not ordinarily fall within that meaning.
[24]
When regard is had to the word ‘and’ (not ‘or’)
between paras
(c)
and
(d)
, it becomes apparent that the
meaning of the language of the definition is that all the persons
referred to therein are conjunctively
regarded as owners. This is put
beyond doubt by the Afrikaans text of the Act. It provides that
‘owner’ means ‘.
. . dieselfde as in die gemenereg
en ook
’ (my emphasis) the persons tabulated in paras
(a)
,
(b)
,
(c)
and
(d)
. (In respect of the
permissibility of having regard to the unsigned text in these
circumstances, see
Bonitas Medical Fund v The Council for Medical
Schemes & another
[2016] ZASCA 154
;
[2016] 4 All SA 864
(SCA)
para 16).
[25]
It follows that more than one person may simultaneously be the
‘owner’ of a particular piece of land for purposes
of the
Act. The obvious example is that of landowner and lessee. The same
applies, for instance, to land owned by a local authority
that is
under the control of a person referred to in paras
(a)
or
(b)
of the definition. Therefore, all persons falling within the wide
definition of ‘owner’ in respect of a piece of land,
are
liable to comply with the obligations in terms of the Act, subject to
the provisions of s 2(5).
[26]
Section 2(5) of the Act provides strong contextual support for this
conclusion. It provides:
‘
(5) Where there is more than
one owner in respect of the same land, the proper performance by one
owner of a duty imposed in terms
of this Act exempts the other owners
from performing that duty.’
As
counsel for the second respondent fairly conceded, this section would
be wholly superfluous if only persons in control of land
were
regarded as the ‘owners’ of that land.
[27]
Thus, the definition of ‘owner’ does two things. First,
it extends the categories of persons liable for the obligations
in
terms of the Act. Second, it enhances effectiveness by nominating the
responsible body or persons in paras
(b)
,
(c)
and
(d)
.
[28]
This accords with my understanding of the purpose of the Act. The
judgment of the Constitutional Court in
Prinsloo v Van der Linde &
another
1997 (3) SA 1012
(CC) (which declared the predecessor of
s 34 of the Act not to be unconstitutional) commences with the
following:
‘
Much of South Africa is tinder
dry. Veld, forest and mountain fires sweep across the land, causing
immense damage to property and
destroying valuable forest, flora and
fauna.’
The
purpose of the Act is set out in s 1 thereof. It provides:
‘
(1) The purpose of this Act is
to prevent and combat veld, forest and mountain fires throughout the
Republic.
(2) The Act provides for a variety of
institutions, methods and practices for achieving the purpose.’
In
my judgment, the Act seeks to fulfil its purpose of preventing
enormous environmental and economical damage by veldfires by
assigning the obligations in terms of Chapters 4 and 5 of the Act as
widely and effectively as possible.
[29]
In
MTO Forestry (Pty) Ltd v Swart NO
[2017] ZASCA 57
;
2017 (5)
SA 76
(SCA), Leach JA found the following argument to be compelling
but unnecessary to decide:
‘
[24] In regard to the first of
these issues, the appellant argued that the court in
Mondi
v Martens
had conflated the
liability for certain duties under the Act and the presumption of
negligence contained in s 34(1) with delictual
liability. This was
particularly so in regard to its reasoning that it was necessary to
adopt a narrow meaning to the concept of
ownership so as to avoid an
owner, who had no right to control over land, being held liable. The
correct approach, so the argument
went, would have been for the court
to have held the registered owner to have been an owner in terms of
the Act – and therefore
liable to perform the prescribed duties
imposed by the Act – but not having been liable in delict as,
due to him not having
been in control of the property in question, he
had not acted wrongfully.’
[30]
Subject to one qualification this argument is sound. The provisions
of the Act are of course not entirely insulated from the
law of
delict. Non-compliance with a statutory duty in terms of the Act may
underpin a finding that a person negligently and wrongfully
caused
damages resulting from a veldfire and a plaintiff may rely on the
presumption of negligence contained in s 34 in a delictual
action.
But the Act does not determine delictual liabilitiy. That is done
only by the law of delict. It follows that whether or
not delictual
liability would lie, is not relevant to the interpretation of the
definition of ‘owner’ in the Act.
[31]
The qualification is this. It is well established that wrongfulness
is determined by a judicial evaluation of whether considerations
of
public and legal policy require that a particular act or omission be
visited with delictual liability. As Nugent JA said in
Minister
of Safety and Security v Van Duivenboden
2002
(6) SA 423
(SCA) para 12, this exercise is often assisted by
postulating negligence. Thus, in matters such as the present, the
question would
be whether public and legal policy considerations
indicate that a landowner be held liable for damages caused by his or
her negligent
omission to prevent a fire spreading to neighbouring
land, irrespective of whether that landowner has the right of control
of the
land or not. The answer must no doubt generally be in the
affirmative. It follows that in most cases a landowner without
control
of the land would, in these circumstances, escape delictual
liability because of the absence of causal negligence on his or her
part. That is the import of what Ogilve Thompson CJ said in
Quathlamba
at
82D-83H.
[32]
Seen thus, the application of s 34 to a landowner who temporarily
transfers possession and control of his or her land, presents
no real
difficulty. First, s 34 does not apply if the landowner is a member
of a fire protection association for the area in question.
Second,
the facts in respect of when, how, to whom and for what period such
transfer of rights took place, would generally not
be public
knowledge but would lie within the peculiar knowledge of the
landowner. Third, a landowner who transfers possession and
control of
the land to a responsible person who could reasonably be expected to
take reasonable steps to prevent and control veldfires
on the land
would seldom be sued and if so, would have no difficulty rebutting
the presumption of negligence. If not, a finding
of negligence
against him or her would not be unfair.
[33]
For these reasons the decision in
Mondi
v Martens
should no longer be followed. The court a quo should have answered
the question of law in the affirmative and the appeal must be
upheld.
[34]
The following order is issued:
1 The appeal is upheld
with costs, including the costs of two counsel.
2 The order of the court
a quo is set aside and replaced with the following:
‘
a
The question of law is answered in the affirmative.
b
The second defendant is directed to pay the costs of the hearing of
the separated issue, including the costs of two counsel.’
_________________________
C
H G van der Merwe
Judge
of Appeal
APPEARANCES
For
Appellant: F J Becker SC (with him T van der Walt)
Instructed
by:
Tim
du Toit Attorneys, Johannesburg
Phatshoane
Henney Attorneys, Bloemfontein
For
Second Respondent: A C Ferreira SC (with him H O R Modisa)
Instructed
by:
The
State Attorney, Pretoria
The
State Attorney, Bloemfontein