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IN THE HIGH COURT OF SOUTH AFRICA

(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

Case No: 6166/2002

[REPORTABLE]

In the matter between:

GEO PARKS & SON (PTY) LTD Plaintiff

and

CORNELIS ARJEN METER N.O. First Defendant

RITA ELLA METER N.O. Second Defendant

ALIDA ELIZABETH BERMAN N.O. Third Defendant

(In their capacities as Trustees for the time being of

the AE BERMAN KINDERS TRUST)

ANDRIES DE JAGER Fourth Defendant

JUDGMENT DELIVERED ON THIS 13^th DAY OF JUNE 2005

ZONDI, AJ:

Introduction

[1] The Plaintiff instituted action against the First to Fourth Defendants, for damages it sustained when a fire which started on First to Third Defendants’ property spread over the common boundary on to the Plaintiff’s property causing damage to the plantation of trees on its property.

[2] The Plaintiff is the registered owner of several portions of the farm Hooggekraal No182 in the Registration Division of George. Some portions are planted with pine and eucalyptus trees.

[3] The First to Third Defendants are the trustees of the AE Berman Kinders Trust (hereinafter referred to as “The Trust”) which was the owner of portion 33 of the farm Hooggekraal, and which adjoined the Plaintiff’s property. The Trust did not carry out any agricultural activity on its property at the time of the fire. The Trust property had beehives which it sold to the Fourth Defendant.

[4] On 23 September 2000 at about 11h30 a veld fire was started on the Trust property by the Fourth Defendant while he was being assisted by one Heinrich Kemp to smoke out the bees. The fire crossed the boundary of the Trust property and spread across the boundaries of the adjoining properties including that of the Plaintiff and burned out, inter alia, the Plaintiff’s trees.

[5] The Plaintiff alleges that it suffered damages in the sum of R 359 214-25 as a result of the fire, which it also alleges to have been due to the negligence of the Defendants.

[6] It is common cause between the Plaintiff and First to Third Defendants that the Fourth Defendant was negligent in conducting the bee smoking activity on a day of high fire hazard. It was also agreed between the Plaintiff and First to Third Defendants at the commencement of the trial and in terms of Rule 33(4) of the Uniform Rules of Court that the Court would be requested to adjudicate only on the question whether the Defendants were liable to compensate the Plaintiff for damages sustained by it. The question as to the quantum of those damages would stand over for later determination. The Fourth Defendant did not defend the action.

Plaintiff’s case

[7] It was the Plaintiff’s case that the Trust, represented by First to Third Defendants, alternatively the Fourth Defendant, alternatively the Trust and the Fourth Defendant jointly and severally, were liable to compensate it for its damages.

[8] The grounds upon which the Defendants were alleged to have been negligent are set out in the Plaintiff’s amended particulars of claim and in the further particulars filed at the request of the First to Third Defendants. Briefly stated they are indicated as follows:

“9.3 they failed to take any and/or adequate steps to prevent the fire from burning in an uncontrolled fashion and/or from spreading to the Plaintiff’s farm;

9.4 the Trust failed to ensure that adequate firebreaks were constructed and maintained between its farm and, inter alia, the Plaintiff’s farm, as required by Section 12(1) of the National Veld and Forest Fire Act No 101 of 1998;

9.5 they failed to take such reasonable steps as would have ensured that the fire could be timeously extinguished, alternatively contained;

9.6 they foresaw, alternatively should have foreseen that in the event of the fire not being extinguished, it would spread to Plaintiff’s farm and cause damage, yet failed to take reasonable precautions to ensure that this did not occur;

9.7 they failed to have such equipment, protective clothing and trained personnel for extinguishing fires as were reasonably required in the circumstances;

9.bis During about March 2000 the Trust, represented by the First and Third Defendants, appointed the Fourth Defendant as the agent of the Trust to discharge, on behalf of the Trust the Trust’s obligations and duties as owner of the Trust’s farm. In return for his undertaking to discharge such obligations the Trust agreed to permit the Fourth Defendant to occupy the Trust’s farm free of rent. Part of the duties of the Trust was to refrain from negligent conduct on and in relation to the Trust’s property which might cause a fire to originate on the property and to burn in an uncontrollable fashion and/or to spread to the Plaintiff’s farm;

9.ter To the extent that the Fourth Defendant was negligent in relation to the origin, control and spread of the fire on 23 September 2000, the Trust is, in the premises set forth in paragraph 9.bis, vicariously liable for damages caused by the negligent conduct of the Fourth Defendant.”

[9] Mr Howard James Parkes, the Plaintiff’s managing director, testified that when he was notified of the fire he was in Plettenberg Bay which is about fourty-five (45) minutes’ drive away from Hooggekraal. On his arrival at the scene he found that his staff members and fire fighters were already there and were busy trying to extinguish the fire. The fire burned for days and approximately one thousand and eight hundred (1800) hectares of the Plaintiff’s property was burnt.

[10] Mr Parkes further testified that at the Hooggekraal forest estate storeroom the Plaintiff kept rubber fire beaters, knap sack pumps, picks, shovels, two water trailers equipped with high pressure pumps containing eight hundred (800) litres and six hundred (600) litres of water respectively with a tractor and telelogger to move them. Other fighting equipment such as a six thousand (6000) litre tank, two bakkie sakkies with pumps, picks and beaters were kept at Knysna.

[11] He further testified that the Plaintiff keeps a list of employees on standby to react in the case of fire. On the day in question the Plaintiff had four staff members on standby at Hooggekraal. The Plaintiff also maintains fire belts around its property and those fire belts are inspected regularly for overgrowing. The size of the fire belt is about ten (10) metres wide though it varies from place to place. He however admitted that the Plaintiff, due to its size, does not have a look out tower but it has arrangements with other plantation owners to help each other in case of fire. The Plaintiff’s staff at Hooggekraal are not trained in fire fighting. It had six (6) people on standby at Knysna who were available should the fire occur.

[12] Mr Paul Henry Beatty and Mr Thobile Nqala testified on the weather conditions prevailing at Hooggekraal on the day in question as well as on the spread of fire from the Defendants’ property to the adjoining property. They both testified that on the day in question it was hot and the berg wind was blowing.

[13] According to Mr Beatty, when he first noticed the fire it was still burning within the Trust property and had advanced approximately twenty (20) metres around the house. Thereafter the fire spread quickly. It jumped the road which separates the Trust property from the Plaintiff’s property. It eventually spread to Mr Beatty’s property which is located north of the Trust property. At that stage the fire had become uncontrollable.

[14] Mr Thobile Nqala was in the Plaintiff’s employ during September 2000. Before the incident he had not received training in fire fighting. He stayed on the Plaintiff’s property and his house was located next to the stores where the fire fighting equipment was kept. He testified that after noticing smoke in the air he and one Jan Claasen went in the direction where the smoke was coming from to establish its cause. As they were walking towards the direction of the smoke Mr Beatty arrived in his bakkie and took them to where the fire was. Mr Beatty dropped them off at the entrance of compartment H35 (Exhibit “D16”).

[15] Mr Nqala further testified that he walked down the road approximately twenty (20) metres away from the gate to establish the origin of the fire. At that stage the fire was burning towards compartment H35 and was on the pine trees. Immediately thereafter he went back to the stores to fetch the fire fighting equipment. He together with other employees of the Plaintiff went back to where the fire was. On their arrival the fire was already in compartment H35 on the Plaintiff’s property. It was burning on the pine trees and was difficult to control. He used water cans to extinguish it.

[16] Under cross examination Mr Nqala testified that it would take him approximately fifteen (15) minutes to walk from Hooggekraal to the gate separating the Defendants’ property from other properties. The wind was blowing from the Defendants’ property to the Plaintiff’s property. Mr Nqala further testified that the fire crossed the boundary between the Defendants’ property and that of the Plaintiff at two points and that occurred when the sparks fell on the Plaintiff’s property.

[17] The Plaintiff thereafter called Mr Angus Wilson, a veld fire expert, to give expert evidence on its behalf. Mr Angus Wilson has twenty-five (25) years’ experience, inter alia, in fighting plantation and veld fires as well as the investigation into the cause, rate of spread, severity and assessment of the fire fighting action.

[18] Mr Wilson testified that he had visited the area of the fire and had seen photographs taken of the area affected. He further confirmed that prior to compiling his report he had read various statements made by various witnesses, such as Exhibit “D5” being the Fourth Defendant’s statement, Exhibit “D10”, Mr Heinrich Kemp’s statement and Exhibit “D14”, the statement of CA Meter. He was in agreement with the Defendants’ veld fire expert, Dr C de Ronde on the weather data recorded at the automatic weather stations at George and Knysna on the day preceding the fire and on the day that the fire started. He testified that high maximum temperatures and low humidity prevailed in the area of the fire.

[19] Mr Wilson further testified that on 23 September 2000 the George weather station recorded humidity of 4% and the maximum temperature of 36,7º C, with a north north-west wind blowing at a speed of 10,1 metres per second. The Knysna station recorded a maximum temperature of 38,9º C, 8% humidity and a north north-west wind of 4,8 metres per second. The wind was dry and carried a lot of danger. In his opinion it was very careless for the Fourth Defendant to have used fire under those conditions.

[20] Referring to Exhibit “D1”, Mr Wilson stated that on the day of the fire the wind would have blown from properties marked 1 to 10, that is to say, from north to south. Mr Wilson also referred to Exhibit “E5” which is the photograph indicating the point of origin of fire on property number 1 on Exhibit “D1”. According to the affidavits deposed to by the Fourth Defendant and Mr Kemp the fire started in the area where beehives are kept next to the house on the Trust’s property. The fire then spread first in the direction of the house and subsequently in a north-easterly direction from its point of origin. The fire suddenly spread across the boundary between the Defendants’ property and the pine plantation belonging to the Plaintiff.

[21] Referring to Exhibit “E6” and “E7”, which are photographs taken after the fire, Mr Wilson testified that these photographs indicate that the area is covered with grass and pine needles which would have been very inflammable. However, he testified that in this case there is no indication about the wind strength which could have been an important factor in the spread of the fire. Mr Wilson stated that in his opinion there would have been no difficulty for the Fourth Defendant and Mr Kemp to extinguish the fire had they had very basic fire fighting equipment such as a knap sack and fire beaters. He expressed the view that the Trust should have provided the fire fighting equipment to the Fourth Defendant as it was aware that carrying out a bee smoking operation had fire hazards. He believed that the fire equipment which the Defendants had was insufficient.

[22] Mr Wilson, commenting on the Defendants’ failure to have a fire belt created on the common boundary between their property and that of the Plaintiff, stated that it was important that the Defendants should have kept a fire belt because there was a lot of inflammable material in that area. He emphasised that it was important to have a fire belt in order to prevent the crown fire which could lead to spotting which occurs when a burning ember from the fire is carried some distance into a fresh veld. He stated that creating a belt would do away with the material on the surface and which would in turn prevent the surface fire. He however stated that not all sparks will be able to start the fire. This would depend on the weather conditions and humidity available at the time.

[23] Mr Wilson was of the opinion that if there was a fire break at the common boundary the trees would have been removed and the chances of fire crossing to the south of the gate (Exhibit “E3”) would have been avoided. He stated that it would have been extremely dangerous for Mr Nqala and Mr Claasen, the Plaintiff’s employees, to have controlled the fire as it had crossed the boundary in two places. He disagreed with Dr C de Ronde’s conclusion that no fire belt could have stopped the fire from spreading on 23 September 2000. Mr Wilson stated that Dr de Ronde’s findings were based on weather conditions taken at Knysna and George and the assumption was made that Hooggekraal had similar weather conditions. Mr Wilson stated that that assumption was wrong because the wind direction might have been changed by the slope and in any event the fire creates its own wind.

[24] Mr Wilson further testified that sections 12 and 13 of the National Veld and Forest Fire Act No 101 of 1998 enjoin an owner of the property to prepare and maintain a fire break on his side of the common boundary with an adjoining land. He explained that the principal purpose of the fire break is to prevent fire from spreading from an owner’s property to the neighbour’s property. The fire break also allows access for any fire fighting equipment. The size of the break will however depend on the nature of vegetation sought to be protected. In his opinion a ten (10) metre wide break will be sufficient. He disagreed with the Defendants’ suggestion that the Plaintiff should have kept a twenty (20) metre wide break on the side of its property. Mr Wilson further stated that in his opinion and based on the size of the Plaintiff’s plantation, which is nine hundred (900) hectares, the fire fighting equipment it had was sufficient. He also stated that the fire action plan which the Plaintiff had in place was sufficient having regard to the size of its plantation.

[25] Under cross examination by Mr Grobbelaar, Mr Wilson testified that the Plaintiff had a ten (10) metre fire belt at the gate where its property adjoined that of the Defendants. He however conceded that the photograph (Exhibit “E10”) indicated that there is some vegetation inside the fire belt and to the extent that the Plaintiff failed to keep the fire break clean, it did not comply with the provisions of the National Veld and Forest Fire Act. He further testified that in his knowledge the Plaintiff kept some of its fire fighting equipment in Knysna where it has further plantations and that Knysna is about fourty-five (45) minutes’ drive from Hoggekraal. He conceded that reaction time was of utmost importance in the event of a fire.

[26] Mr Wilson disagreed with the findings and conclusion reached by Dr de Ronde concerning the behaviour of the fire as the input he used to achieve the output result had a number of uncertainties. In his opinion the fire would not have crossed over to the Plaintiff’s property had the Defendants created and maintained a five (5) metre belt on their property. The belt on the side of the Defendants’ property would have reduced the intensity of the fire and thereby preventing the likelihood of spotting.

First to Third Defendants’ case

[27] The Fourth Defendant did not defend the matter. Mrs Alida Elizabeth Berman testified on behalf of the Trust. She is the Third Defendant in this matter. She testified that the property on which the fire originated on 23 September 2000 belongs to the Trust and was acquired in June 1995. She and her elderly parents were the Trustees. Her father, the First Defendant in this matter, is now deceased. She further testified that no farming operations were carried out on the farm. Her deceased father kept beehives and none of the Trustees lived on the property. She would visit the farm once or twice a year.

[28] Concerning the fire fighting equipment on the farm, Mrs Berman testified that the farm had five (5) water tanks around the house, spades, 5 x 20litre buckets, two large saws, a hose pipe, streepsake and axes. Some of these tools were kept in the storeroom and others in the garage.

[29] She further testified that when her deceased father’s health deteriorated he decided to get rid of the beehive keeping business. The result was that on 17 March 2000 he sold the business to the Fourth Defendant. She referred to Exhibit “D2” in this regard. Thereafter the keys to the gate, house, garage and storeroom were handed over to the Fourth Defendant. In terms of paragraph 8 of Exhibit “D2”, the Fourth Defendant was not required to pay rent. It was Mrs Berman’s understanding that the Fourth Defendant was to take full occupation and control of the farm. The Fourth Defendant had taken over all responsibilities when the Trust handed over the farm to him and the latter was not acting on behalf of the Trustees in fulfilling those obligations.

[30] Under cross examination by Mr Mitchell, Mrs Berman testified that although the Fourth Defendant had taken over the responsibilities of the farm, he had to look after the Trust property and had to reimburse it for any damage thereto. She further stated that she never visited the property after the Fourth Defendant took occupation.

[31] The First to Third Defendants thereafter called Dr Cornelius de Ronde, the veld fire expert, to give expert evidence on its behalf. Dr Cornelius de Ronde has a PhD in Forestry and did post graduate studies in fire related fields. He has approximately ten (10) years’ experience in forest management and is a specialist in wild fire investigations. He testified that on 18 August 2004 and at the request of the First to Third Defendants he did an investigation following the fire which started on the Defendants’ property on 23 September 2000. He thereafter compiled his report from the evidence he found on site as well as from photographs of the area affected. He also relied upon statements from the witnesses.

[32] Dr de Ronde further testified that the purpose of his report was to comment on various aspects related to the spread of the fire on 23 September 2000 at Hooggekraal. These aspects are fuel management, fire breaks, fire containment and fire fighting equipment. He did some fire simulation on the computer using a programme known as “Behave” in order to test and verify the results which he found in the field. To establish weather conditions prevailing at Hooggekraal at the time of the fire he considered two weather stations. One of the stations is based in George, which is located west of Hooggekraal and the other at Knysna, south east of Hooggekraal. He looked at all the aspects with regard to the weather data available which included the hourly weather data, such as relative humidity, air temperature, wind speed and wind direction as recorded hourly. He also looked at the more detailed five minutes of the weather data as recorded at these two weather stations. He used the weather data recorded at these two automatic weather stations as there is no weather station at Hooggekraal.

[33] It was Dr de Ronde’s opinion that the fire became uncontrollable within a few minutes of its origin because of the fact that the fuel was extremely dry, the berg wind was blowing at a fairly significant wind speed, humidity was extremely high and was above 35º C. Based on his findings, he concluded that when the fire reached the common boundary between the Plaintiff’s property and that of the Trust, it was reaching very high intensity and a fair rate of spread. At that stage the maximum spotting distance would have been between four hundred (400) and seven hundred (700) metres and even a fire break of up to three hundred (300) metres would have been breached by the fire.

[34] Commenting on the Defendants’ failure to keep a fire belt around their property, Dr de Ronde testified that it would not be expected of the Defendants to have had a ten (10) metre fire belt bearing in mind the size of their property which is ten (10) hectares, and this would seriously reduce the actual size of their property.

[35] During cross examination Dr de Ronde admitted that the fire breaks do serve an important purpose. They prevent fire from spreading by depriving it of the fuel on the ground level and also assist in providing access to the plantation to fight the fire. He also agreed with Mr Wilson’s testimony that maintenance and keeping of the fire break on the Defendants’ property would have prevented the spread of the fire but he denied that the fire break would have prevented spotting. It was Dr de Ronde’s view that the Plaintiff was also negligent in not taking adequate steps to prevent the spread of fire.

Discussion

[36] The issue to be determined in this matter is whether the Trust and the Fourth Defendant, by the exercise of reasonable care, could have prevented the fire from jumping the boundaries of the Trust property and spreading onto the Plaintiff’s property.

[37] The Plaintiff’s claim against the Defendants is a delictual one and for the Plaintiff to succeed in its claim it must show that the Defendants’ wrongful and culpable conduct caused it damages. In other words, the Plaintiff must establish a conduct (either in the form of an act or omission), fault (either negligent or intentional) on the part of the Defendants; that it has suffered harm or loss and that there is a causal connection between the Defendants’ conduct and the harm or loss suffered (See Boberg, The Law of Delict, Vol 2, p24-25 and H L & H Timber Products (Pty) Ltd v SAPPI Manufacturing (Pty) Ltd 2001 (4) SA 814 (SCA) at 820E-G.)

[38] It was argued on behalf of the Plaintiff that the Fourth Defendant was negligent in undertaking activities (making use of fire to smoke out bees) in weather conditions that were conducive to the ignition and spread of fire and by failing to extinguish the fire promptly.

[39] The Fourth Defendant did not defend the action and there is no evidence from it, apart from the statement made to the police (Exhibit “D5”), as to how the spread of the fire from the Trust property to the Plaintiff’s property occurred. It is, however, clear from the evidence of Mr Beatty, the eyewitness, that the Fourth Defendant was negligent in conducting the bee smoking operation on the day in question and that this negligence caused harm to the Plaintiff’s plantations. The parties’ expert witnesses, Mr Angus Wilson and Dr De Ronde were also in agreement that Fourth Defendant was negligent in smoking out the bees on a day when the weather conditions were severe and conducive to fires.

[40] There is no doubt in my mind that the Fourth Defendant was negligent in conducting the bee smoking operation on the day in question. He should have foreseen the danger of the fire spreading and should have guarded against it. He failed to do so and this negligent conduct caused harm to the Plaintiff’s plantations (See Cape Town Municipality v Paine 1923 AD 207 at 216-217).

[41] In so far as the issue of liability on the part of the Trust is concerned, the Plaintiff relies on three grounds upon which it seeks to hold the Trust liable. First, the Plaintiff contends that the Trust is vicariously liable for the conduct of the Fourth Defendant by virtue of the contractual arrangements between the Trust and the Fourth Defendant.

[42] This argument is untenable. Vicarious liability occurs when one person is held liable for the delict of another person, even if the former is not at fault and this happens where there is a particular relationship between the two persons. (See Neethling, Potgieter, Visser: The Law of Delict, 4^th ed, at p373.) The relationship can be one between an employer and employee, principal and agent or motor car owner and motor car driver.

[43] It is correct that in other situations even if there is no actual employer-employee relationship the law will allow the claimant to recover damages from one person for a delict committed by another,

“where the relationship between them and the impression of the one in the conduct of the other is such as to render the situation analogous to that of an employee acting within the course and scope of his or her employment” (See Messina Associated Carriers v Kleinhaus 2001 (3) SA 868 (SCA) at 873G-I) However, in those situations the right to control has been regarded as an important factor in determining whether such a relationship exists. In the present case there was no employer-employee relationship between the Trust and the Fourth Defendant. It was the Third Defendant’s evidence that the First Defendant had sold the beehives on the Trust property to the Fourth Defendant, for the sum of R18, 000 (Exhibit “D2-3”). The Fourth Defendant then became the owner of the beehives and as such the First Defendant or Trust could not control the Fourth Defendant regarding the way he ran his beehive activities. It is correct that the beehives were on the Trust property but that in itself did not entitle the Trust to have control over the Fourth Defendant in respect of his bee-keeping activities.

[44] The other grounds upon which the Plaintiff seeks to hold the Trust liable for the loss it suffered are based on the Trust’s failure to construct and maintain fire breaks on its side of the common boundaries between its property and those of neighbouring property owners, as well as its failure to provide basic fire fighting equipment on the property in the form of one or more knap sack pumps and properly designed fire beaters.

[45] It was common cause between the parties that the fire in this case was a veld or forest fire and that the Defendants were not members of a fire protection association. In the circumstances the provisions of the National Veld and Forest Fire Act No 101 of 1998, (“the Act”), are applicable. The relevant provisions are contained in sections 2,12,13,17 and 34 of the Act. Section 12(1) of the Act provides:

“Every owner on whose land a veld fire may start or burn or from whose land it may spread must prepare and maintain a firebreak on his or her side of the boundary between his or her land and any adjoining land.”

[46] In terms of s13 of the Act the fire break must be wide and long enough to have a reasonable chance of preventing a veld fire from spreading to or from neighbouring land. The size of the fire breaks required to be prepared and maintained is, however, not defined. Section 17 of the Act requires the owner on whose land a veld fire may start or burn from to have prescribed or reasonable equipment, protective clothing and trained personnel for extinguishing fires.

[47] In terms of s2 of the Act the word “owner” has its common law meaning and includes “a lessee or other person who controls the land in question in terms of a contract, testamentary document, law or order of the High Court.” The owner on whose land a veld fire starts or burns from and who has not prepared and maintained a fire break on his or her side of the boundary and who is not a member of a fire protection association, is in terms of s34 of the Act presumed to be negligent in relation to the veld fire. Section 34 provides as follows:

(1) if a person who brings civil proceedings proves that he or she suffered loss from a veld fire 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 veld fire 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 of the defendant was wrongful.

[48] It is common cause in this matter that the Trust or Fourth Defendant was not a member of a fire protection association and that being so the presumption of negligence contained in s34 will apply in favour of the Plaintiff.

[49] It was submitted by Mr Grobbelaar, appearing for the First to Third Defendants, that the Trust and Trustees did not act wrongfully as they were not in control of the property when the fire started and that in the circumstances they could not be held liable for the damages caused to the Plaintiff.

[50] Relying on the decision of the Supreme Court of Appeal in Administrateur, Transvaal v Van der Merwe [1994] ZASCA 83; 1994 (4) SA 347 (A), Mr Grobbelaar contended that the fact that the First to Third Defendants were not in control of the property when the fire started was in itself sufficient to show that their conduct was not unlawful. He argued that the Fourth Defendant was in exclusive control of the property when the fire started and that he (the Fourth Defendant) was not the Trust’s agent. Mr Grobbelaar, emphasising that the element of control of the property is the foundation of unlawfulness and liability, referred in particular to the following passage in Administrateur, Transvaal v Van der Merwe, (supra) at 359J-360C:

“Dat die element van beheer ’n belangrike faktor is by beoordeling van die onregmatigheidsvraag, kan nie betwis word nie. Die beheer-element is implisiet in die reëls van ons burereg; trouens dit is as grondslag van aanspreeklikheid geïdentifiseer in Regal v African Superslate (Pty) Ltd (supra), ’n saak wat gehandel het met die vraag of ’n huidige eienaar onregmatig handel ook as hy ’n benadelende oorlas, wat deur ’n vorige eienaar van die grondstuk agtergelaat is, nie verwyder of beëindig nie. Steyn HR verklaar op 109D:

“Ek kan geen rede vind om in ’n geval soos die huidige, aanspreeklikheid tot die vorige eienaar te beperk nie. Dit wil my voorkrom dat aanspreeklikheid ook hier eerder ’n uitvloeisel is van die beheer wat eiendomsreg meebring. As algemene reël en behoudens erkende uitsonderings, is dit,afgesien van ander verpligtings wat anders gefundeer mag wees, die eienaar se plig om, indien hy daartoe in staat is, direkte skadelike uitwerking van wat deur ’n voorganger op sy grond tot stand gebring is, buite sy grense, op sy buurman se grond, te verhinder.””

[51] It was also held in Administrateur, Transvaal v Van der Merwe, (supra) at 361F-H that:

“In die afwesigheid van ’n gevaarskeppende positiewe handeling, is blote beheer van eindom en versuim om dit uit te oefen met gevolglike benadeling van ’n ander , dus nie per se onregmatig nie. Die kernvraag is steeds of die voorsorgmaatreëls wat die beheerder volgens die benadeelde moes beneem het om die nadeel te voorkom, onder die omstandighede rederlikerwys en uit ’n praktiese oogpunt, van hom geverg kan word. Die onderliggende filosofie is dat ’n gevolg slegs onregmatig is indien in die lig van al die omstandighede rederlikerwys van die verweerder verwag kan word om positief op te tree en die voorgestelde voorsorgmaatreëls, vir die versuim waarvan hy deur die eiser verwyt word, te tref.”

Mr Grobbelaar submitted further that the evidence showed that the Fourth Defendant took over occupation and control of the farm and that the Trust relinquished such occupation to him and that when the fire started the Trust was no longer in control of the farm.

[52] In my opinion the submissions by Mr Grobbelaar cannot be accepted. The fact that the Trust had sold beehives to the Fourth Defendant and had given him access to the farm and the house is no indication that the Trust had divested itself of the control of the farm. The Trust remained primarily responsible for the maintenance of the farm. It has been repeatedly decided by our courts that a landowner in our law is under a duty to control or extinguish a fire burning on his or her land. See in this regard Minister of Forestry v Quathlamba (Pty) Ltd 1973 (3) SA 69 (A), where Ogilvie Thompson CJ said the following at 81G-82A:

“Once such an owner or occupier (hereinafter for convenience referred to as a landowner) as is mentioned in the preceding paragraph becomes aware that the fire has broken out or spread on to his property, and he foresees or ought reasonably to have foreseen, the likelihood that, if not controlled or extinguished, it might spread to and cause damage to or on another’s property, I am, for reasons which follow, firmly of the opinion that our law requires him, with such means as are at his disposal, to take reasonable steps to control or extinguish the fire. For, under such circumstances, “the duty to take care” mentioned in Paine’s case, supra, is, in my view, established. Purely as a matter of language, it is no doubt correct to say that where the landowner bears no responsibility for the origin of a fire which is burning on his property, his failure to take steps to endeavour to control or extinguish it is an “omission” which is not “connected with prior conduct”. To relieve such a landowner of all legal liability, solely on that ground would, however, in my opinion, be to ignore both practical realities and what I conceive to be our law. For, in the circumstances postulated above, the law, in my opinion, imposes a duty upon the landowner to take, within the range of his capacities, reasonable steps to control or extinguish a fire liable to cause damage to another.”

Similar views were also expressed by Nienaber JA in the case of H L & H Timber Products (Pty) Ltd v SAPPI Manufacturing (Pty) Ltd (supra). After explaining the objectives of the Forest Act No 122 of 1984, Nienaber JA, stated at 823C:

“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.”

[53] In my view, the Trust was under the legal duty, by virtue of its ownership of the property on which the fire occurred, to prevent it from escaping onto a neighbouring property. Its failure to create and maintain the fire breaks on its side of the common boundary was wrongful. The legal convictions of the community would have required it to have created and maintained the fire breaks on its side of the common boundary.

[54] I now turn to consider whether there was any negligence proved on the part of the First to Third Defendants. Mr Grobbelaar submitted that the First to Third Defendants did not act negligently, in that they took all reasonable practical steps relating to fires. In the alternative, he submitted that in the event of this Court finding the First to Third Defendants negligent, Plaintiff was also negligent and that its negligence contributed to the damages it suffered. In the further alternative, Mr Grobbelaar submitted that, in the event of this court finding that the First to Third Defendants were negligent, the Fourth Defendant was also negligent and the Court should apportion the damages between First to Third Defendants and Fourth Defendant and give judgment separately against First to Third Defendants and Fourth Defendant for the amounts so apportioned.

First to Third Defendants’ negligence

[55] Mr Grobbelaar submitted that despite the fact that the National Veld and Forest Fire Act No 101 of 1998 places certain duties on the owner of the land, his failure to comply with such duties does not render him negligent. It must still be shown that objectively his actions were negligent or in bad faith. In support of his contention he referred to the passages in the Minister of Forestry v Quathlamba (Pty) Ltd (supra) at 82D-E and H L & H Timber Products (supra) at 822I. In the passage referred to in Minister of Forestry v Quathlamba, Ogilvie Thompson CJ stated:

“Despite his innocence regarding the origin of the fire on his property, the landowner’s failure, in the circumstances presently under discussion, to take any steps to attempt to regulate or extinguish the fire, falls, in my opinion, outside the category of “mere omission” because the landowner is in control of the property which - albeit without fault on his part - has, by reason of the fire burning upon it, become a potential hazard to others. In such a situation there exists, in my opinion, a duty upon the landowner to act reasonably in an endeavour to avoid foreseeable harm to others.”

[56] I find this contention by Mr Grobbelaar untenable. It is not a correct reflection of the law regarding liability of the landowner created by the National Veld and Forest Fire Act No 101 of 1998. The correct legal position is the one set out by Ogilvie Thompson CJ in Minister of Forestry v Quathlamba (supra) at 84H:

“The effect of this was that the onus thereafter rested upon defendant to show that in the particular circumstances harm to the plaintiff was not, and could not reasonable 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.”

The First to Third Defendants were in control of the property and their failure to create a fire belt on their side of the common boundary created a potential hazard to other landowners.

[57] Although the court in Minister of Forestry v Quathlamba was considering the effect of s23 of the Forest Act No 72 of 1968, the views expressed in that case apply with equal force to the present matter, in so far as the effect of s34 of the National Veld and Forest Fire Act No 101 of 1998 is concerned.

[58] It is common cause that the Trust did not prepare and maintain fire breaks on its side of the boundary between its land and adjoining land, as required by s12(1) of the Act. It is also common cause that the Trust was not a member of a fire protection association in the area where the fire occurred. It is further an agreed fact that the fire in question originated on and emanated from landed property owned by the Trust.

[59] These are the objective facts which must be established first to trigger the operation of the provision of s34 of the Act. The effect of the provision of s34 is to create a presumption of negligence on the part of the Defendant in favour of the Plaintiff. Once those objective facts are established the statutory presumption of negligence will be activated. Thereafter the onus rests upon the defendant 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.” (See H L & H Timber Products (Pty) Ltd v SAPPI Manufacturing (Pty) Ltd (supra) at 821F). This is so because the Act does not create an absolute liability. (See Minister of Forestry v Quathlamba (supra) at 83G).

[60] In an attempt to disprove the presumption of negligence created by s34 the Trust relied upon the expert evidence of Dr De Ronde. The purpose of Dr De Ronde’s evidence was to show that the failure by the Trust to prepare and maintain fire-breaks or to provide fire fighting equipment would have made no difference in preventing the spread of the fire and avoiding harm caused to the Plaintiff by the fire.

[61] It was Dr De Ronde’s evidence, based on his findings, that the fire became uncontrollable within minutes of it starting and that even if the Trust had adequate fire fighting equipment in the form of knapsack pumps or rubber fire beaters in the storeroom, the Fourth Defendant would not have had enough time to fetch it and control the fire. It was his opinion that by the time that the fire had reached the common boundary between the Trust property and the Plaintiff’s property a five (5) metre fire break on the side of the Trust’s property would not have been able to contain the fire. He further suggested that even a two hundred (200) or three hundred (300) metre fire break would not have prevented the fire from spotting.

[62] Dr De Ronde used a “Behave” computer programme to reconstruct the behaviour of the fire, which he created to verify the results that he had found in the field during the inspection he had conducted. The purpose of this investigation was to determine the extent to which the fire could be controlled while it was still burning on the Trust property and also linked to that, the immediate spread of the fire beyond common boundary between the Trust property and the Plaintiff’s property.

[63] It was Dr De Ronde’s findings, based on the “Behave” computer programme that because of fuel load the intensity of the fire would have been about three thousand five hundred (3500) to five thousand nine hundred (5900) kilowatts per metre within minutes of it starting, thereby making it extremely difficult to control. Regarding the spread of the fire, Dr De Ronde observed that from the moment of ignition and the fire burning on that site, the berg wind chased the head of the fire in a southerly direction. When the fire reached the valley its rate of spread was significantly reduced as it was burning down-slope.

[64] According to Dr De Ronde although the fire spread was significantly reduced the fire was still of a fairly high intensity but going at a slower rate because of the slope. It is at that point that the wind direction changed by about 140ºC to a south-westerly direction thereby causing the fire to burn in an easterly to north-easterly direction. In other words at that stage the fire was burning in the direction of the Plaintiff’s property. Based on his findings Dr De Ronde reached the conclusion that the fire could easily have spotted, either from the surface fire or the crown fire or both, reasonably far into the Plaintiff’s property. The spotting potential was about six hundred (600) to eight hundred (800) metres at that stage. His observation regarding spotting potential was based on a combination of type of fuel, the high intensity of the fire, the slope and the strong wind blowing behind it. The fuel load consisted of suppressed grassland, needles from pine trees and eucalyptus, which has some oily substances that make it far more readily burnable at a higher intensity than other fuel particles.

[65] I am, however, not convinced that the failure of the Trust to keep and maintain fire breaks and to provide adequate fire fighting equipment would have had no effect on the spread of the fire, as Dr De Ronde would have the Court believe. The presence of fire breaks would have served an important function. The parties were in agreement on the purpose served by fire breaks. It was conceded by Dr De Ronde in particular that fire breaks can stop the spread of fire from one piece of property to another, by depriving it of the fuel at ground level that would enable it to cross the area. For spotting to have occurred the wind speed must have been high. However, according to Mr Nqala when he later arrived at the scene the wind was moderate. It was also Mr Beatty’s evidence that upon his arrival at the Trust property a light berg wind was blowing. Moreover, it was Mr Wilson’s evidence that a fire break on the Trust’s side of the common boundary would have contributed substantially in reducing the possibility of the spread of the fire.

[66] I had the impression that Mr Nqala, Mr Beatty and Mr Wilson were honest and reliable witnesses and their evidence may be safely relied upon. In my view, the lack of a fire break on the Trust’s side of the common boundary was a major factor in the spread of the fire across the boundary into the Plaintiff’s property. The fire break would have assisted in retarding the spread of the fire, thereby making it easier to contain it. Mr Nqala and Mr Beatty were in a better position to observe the cause and extent of the fire than Dr De Ronde.

[67] I have no doubt that Dr De Ronde is an expert in the field of veld fires and that by reason of his special knowledge and skill in this field he is sufficiently informed to enable the court to undertake the task of drawing properly reasoned inferences from the factors established by his evidence. I, however, have a problem with its probative value as the conclusions he arrived at were drawn from assumptions based on unsubstantiated factual statements. It cannot safely be relied upon and be used in understanding the spread of fire from the Trust property.

[68] In the circumstances I find that the Trust has failed to prove upon a balance of probabilities that the fire would have spread to the Plaintiff’s property even if a fire break had been created on its side of the common boundary.

Contributory Negligence of the Plaintiff

[69] I turn to consider whether the Plaintiff was contributarily negligent in relation to its damages. The onus is on the First to Third Defendants to prove upon a balance of probabilities that the Plaintiff was negligent and that its negligence contributed to the damages it suffered.

[70] According to the evidence of Dr de Ronde, the Defendants’ expert witness, the Plaintiff was negligent in failing to keep and maintain wider fire breaks, in not keeping the fire fighting equipment at Hooggekraal. It was however the Plaintiff’s evidence that it also owns bigger plantations at Knysna and it was for this reason that it kept some of its fire fighting equipment there.

[71] It was also contended by the Defendants that the Plaintiff was negligent in that the fire fighting personnel on duty at Hooggekraal had no training in fighting fires, and further that the Hooggekraal foreman was not at Hooggekraal but at Knysna on the red fire danger index day. It is correct that reaction time was of essence in this matter but the Plaintiff cannot be asked to take responsibility of the Defendants. Whether or not the Plaintiff’s conduct was negligent in relation to its reaction to the fire will depend upon various steps taken by it to respond to the fire. Such steps must be viewed objectively and in their totality bearing in mind that the outbreak of the fire could not have been anticipated at that particular time and place. As Holmes, JA said in Kruger v Coetzee 1966 (2) SA 428 (AD) at 430E:

“For the purposes of liability culpa arises if—

1. a diligens paterfamilias in the position of the defendant—

   1. would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and

   2. would take reasonable steps to guard against such occurrence…

(b) the defendant failed to take such steps.”

In my view the steps taken by the Plaintiff were reasonable in the circumstances and were within the range of its capacities.

[72] It was Dr de Ronde’s evidence that, based on his findings, the fire became uncontrollable within minutes of it starting and that it would have been extremely dangerous for anyone to try to confront it with whatever means. In other words, even if Mr Nqala had gone to the scene of the fire with all available fire fighting equipment he would have been unable to control it.

[73] According to Nienaber, JA in HL & H Timber Producders (Pty) Ltd v SAPPI Manufacturing (Pty) Ltd (supra at 823H-I)

“…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 a 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.”

In the circumstances I find that the First to Third Defendants have not succeeded in establishing the defence of contributory negligence.

Contributory Negligence of Fourth Defendant

[74] It was contended by the First to Third Defendants that the Fourth Defendant’s negligence in relation to the fire and the damage to the Plaintiff far exceeds that of the First to Third Defendants and that the Court should give judgment separately against the Fourth Defendant for the amount proportionate to his degree of fault. Section 2(8)(a)(i) and (ii) of the Apportionment of Damages Act No 34 of 1956 provides as follows:

“If judgment is in any action given in favour of the plaintiff against two or more joint wrongdoers, the court may—

1. order that such joint wrongdoers pay the amount of the damages awarded jointly and severally, the one paying the other to be absolved;

2. if it is satisfied that all the joint wrongdoers have been joined in the action, apportion the damages awarded against the said joint wrongdoers in such proportions as the court may deem just and equitable having regard to the degree in which each joint wrongdoer was at fault in relation to the damage suffered by the plaintiff, and give judgment separately against each joint wrongdoer for the amount so apportioned: Provided that any amount which the plaintiff is unable to recover from any joint wrongdoer under a judgment so given (including any costs incurred by the plaintiff in an attempt to recover the said amount and not recovered from the said joint wrongdoer) whether by reason of the said joint wrongdoer’s insolvency or otherwise, may be recovered by the plaintiff from the joint wrongdoer or, if there are two or more other joint wrongdoers, from those joint wrongdoers in such proportions as the court may deem just and equitable having regard to the degree in which each of those other joint wrongdoers was at fault in relation to the damage suffered by the plaintiff”

[75] It is correct that the Court may, if it is satisfied that all the joint wrongdoers have been joined in the action, apportion the damages on the basis of the wrongdoers’ respective degrees of fault in relation to the harm suffered by the plaintiff and give separate judgments against each wrongdoer. It is also correct that if it appears that the plaintiff would be prejudiced by separate judgments against each wrongdoer, the Court will prefer to give judgment against the joint wrongdoers jointly and severally, and make an apportionment for the purposes of contributions inter se. [See Grobbelaar v Federated Employers Insurance Co. Ltd. 1974 (2) SA 225 (A)]

[76] Turning to the facts of the present matter, it is clear from Exhibit “D11” that the Fourth Defendant was more at fault than the First to Third Defendants in relation to the damage suffered by the Plaintiff. He had been trained on how to use the bee smoker. He was negligent in using it on a day of high fire hazard. I would assess his degree of fault in relation to the damage suffered by the Plaintiff at 70% and that of the Trust to be at 30%. The First to Third Defendants were not at the scene when the fire started.

[77] In the circumstances I shall give judgment against the Defendants jointly and severally, the one paying the other to be absolved, as claimed by the Plaintiff and at the request of the First to Third Defendants apportion the damages payable by the Defendants inter se amongst them. I would assess the degree of negligence of the Fourth Defendant at 70% and that of the First to Third Defendants at 30%. I am of the view that it will not be just and equitable to give judgment separately against each Defendant in accordance with their respective degrees of fault as the Plaintiff’s attempt to recover the apportioned amount from the Fourth Defendant may be frustrated should it subsequently transpire that he is a man of straw and this will have an effect that the Plaintiff may have to look to the First to Third Defendants for the balance. Such a process will be undesirable and will definitely inconvenience the Plaintiff both in terms of time and costs.

Order

[78] In the result I shall make the order in the following terms:-

1. Declaring First to Third Defendants, in their capacity as Trustees of the AE Berman Kinders Trust to be jointly and severally liable with the Fourth Defendant, the one paying the other to be absolved, for damages as the Plaintiff may prove.

2. Directing that in terms of section 2(8)(a)(iii) of the Apportionment of Damages Act No 34 of 1956, the damages payable by the Defendants between themselves inter se are apportioned at the rate of 70% for the Fourth Defendant and 30% for the First to Third Defendants.

3. The costs of action to date to be paid by the First to Third Defendants, in their aforementioned capacities, save that in respect of the costs of the proceedings on an unopposed basis, the First to Third Defendants are jointly and severally liable with the Fourth Defendant, the one paying the other to be absolved.

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ZONDI, AJ

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