Gouda Boerdery BK v Transnet

• Jurisdiction: South Africa
• Judge: Scott JA, Navsa JA, Conradie JA, Cloete JA and Erasmus AJA
• Judgment Date: 27 September 2004
• Citation: 2005 (5) SA 490 (SCA)
• Docket Number: 314/03
• Hearing Date: 31 August 2004
• Counsel: J C Swanepoel for the appellant. M Wragge for the respondent.
• Court: Supreme Court of Appeal

Gouda Boerdery BK v Transnet
2005 (5) SA 490 (SCA)

2005 (5) SA p490

Citation	2005 (5) SA 490 (SCA)
Case No	314/03
Court	Supreme Court of Appeal
Judge	Scott JA, Navsa JA, Conradie JA, Cloete JA and Erasmus AJA
Heard	August 31, 2004
Judgment	September 27, 2004
Counsel	J C Swanepoel for the appellant.; M Wragge for the respondent.

Flynote : Sleutelwoorde E

Delict — Wrongfulness — Omissions — Legal duty — In case of alleged omission, enquiry into F wrongfulness entailing determination of existence or otherwise of legal duty owed by defendant to plaintiff to act without negligence, ie, to avoid negligently causing plaintiff harm — This being matter for judicial judgment, involving criteria of reasonableness, policy and, where appropriate, constitutional norms.

Delict — Wrongfulness — Determination of — Distinction between wrongfulness and G negligence — Enquiry as to wrongfulness being conceptually anterior to enquiry as to negligence — However, where dual enquiry into wrongfulness and negligence called for, it sometimes being convenient to assume existence of legal duty and to consider issue of negligence first — Sometimes also convenient, when issue of wrongfulness considered first, to assume existence of negligence for H that purpose, whereupon, if existence of legal duty established and enquiry proceeds to issue of negligence, question of foreseeability already determined.

Fire — Veld and forest fire — Action for damages arising from — Presumption of negligence — National Veld and Forest Fire Act 101 of 1998, s 34(1) — Presumption triggered by 'veldfire' I starting on or spreading from defendant's land — Presumption not triggered by fire which is not 'veldfire' when it starts on or spreads from defendant's land, but only becomes 'veldfire' at later stage.

Fire — Veld and forest fire — Meaning of 'veldfire' — National Veld and Forest Fire Act 101 of 1998 — 'Veldfire' being fire burning on 'veld' — Meaning J

2005 (5) SA p491

of 'veld' — Uncultivated and unoccupied portion of land, as distinct from portion which is A cultivated, occupied and built upon — Land within railway reserve (20 m wide, fenced strip on either side of railway line) not being 'veld' — Fire starting on or spreading from railway reserve therefore not being 'veldfire' — Presumption of negligence in s 34(1) of Act not triggered by such fire. B

Headnote : Kopnota

It is now well established that wrongfulness is a requirement for liability under the modern Aquilian action. Negligent conduct giving rise to loss, unless also wrongful, is therefore not actionable. But the issue of wrongfulness is more often than not uncontentious as the plaintiff's action will be founded upon conduct which, if held to be culpable, would be prima facie wrongful. Typically this is C so where the negligent conduct takes the form of a positive act which causes physical harm. Where the element of wrongfulness gains importance is in relation to liability for omissions and pure economic loss. The inquiry into wrongfulness will then involve a determination of the existence or otherwise of a legal duty owed by the defendant to the plaintiff to act without negligence: in other words, to avoid negligently causing the plaintiff harm. This will be a matter for D judicial judgment involving criteria of reasonableness, policy and, where appropriate, constitutional norms. If the legal duty is found to have existed, the next enquiry will be whether the defendant was negligent. (Paragraph [12] at 498G - 499B.)

While conceptually the enquiry as to wrongfulness might be anterior to the enquiry as to negligence, it is equally so that without negligence the issue of wrongfulness does not arise, for conduct will not be E wrongful if there is no negligence. Depending on the circumstances, therefore, it may be convenient to assume the existence of a legal duty and consider first the issue of negligence. It may also be convenient for that matter, when the issue of wrongfulness is considered first, to assume for that purpose the existence of negligence. The courts have in the past sometimes determined the issue of foreseeability as part of F the inquiry into wrongfulness and, after finding that there was a legal duty to act reasonably, proceeded to determine the second leg of the negligence inquiry, the first (being foreseeability) having already been decided. If this approach is adopted, it is important not to overlook the distinction between negligence and wrongfulness. (Paragraph [12] at 499B/C - E.) G

Section 34(1) of the National Veld and Forest Fire Act 101 of 1998 (the Act) provides that '(i)f 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 H in the area where the fire occurred'. As far as the situation contemplated in (b) is concerned, an ordinary reading of the section indicates that what is required is that the fire that starts on or spreads from the defendant's property must at that stage be a 'veldfire' and not some other kind of fire. In other words, the presumption does not operate if the fire that starts on, or spreads from, a defendant's property is not a veldfire on the defendant's property, but becomes one at a later stage. (Paragraph [5] at 495E - G.) I

For the purposes of the Act, the ordinary grammatical meaning of 'veldfire' must be determined with reference to the word 'veld'. That term conveys the idea of an area covered with grass or veld grass of considerable extent, and in its original, rough state. It is the uncultivated and unoccupied portion of land, as distinct from the portion which is cultivated, occupied and built upon. J

2005 (5) SA p492

The land within a railway reserve, being a relatively narrow (20 m wide) fenced strip A along a railway line, does not constitute 'veld'. One of its purposes is to accommodate equipment that may be offloaded when necessary to effect repairs, whether to the rails themselves or other structures, including the bed on which the rails are laid, and to afford workers some space within which to operate. Although, therefore, the vegetation growing in the reserve may be similar to that found in veld, the B reserve differs from the ordinary meaning of veld both in relation to shape and use. It is in reality a strip of land with an industrial use. In the result, a fire which starts within a railway reserve is not a 'veldfire', and the presumption contained in s 34(1) of the Act is not triggered when such a fire spreads to adjacent land. (Paragraphs [7], [8], [9] and [11] at 496C - 497F and 498A - G, paraphrased.) C

Cases Considered

Annotations

Reported cases

Administrateur, Natal v Trust Bank van Afrika Bpk 1979 (3) SA 824 (A): applied D

Cape Metropolitan Council v Graham 2001 (1) SA 1197 (SCA) ([2001] 1 All SA 215): applied

Cape Town Municipality v Bakkerud 2000 (3) SA 1049 (SCA) ([2000] 3 All SA 171): applied

Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 (1) SA 783 (A): applied

Kruger v Coetzee 1966 (2) SA 428 (A): applied E

Minister of Law and Order v Kadir 1995 (1) SA 303 (A): applied

Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) ([2002] 3 All SA 741): applied

Minister van Polisie v Ewels 1975 (3) SA 590 (A): applied

Mkhatswa v Minister of Defence 2000 (1) SA 1104 (SCA) ([2000] 1 All SA 188): dictum in para [18] applied F

Mostert v Cape Town City Council 2001 (1) SA 105 (SCA) ([2000] 4 All SA 379): dictum in para [43] applied

Ngubane v South African Transport Services 1991 (1) SA 756 (A): applied

Quathlamba (Pty) Ltd v Minister of Forestry 1972 (2) SA 783 (N): referred to

Sea Harvest Corporation (Pty) Ltd and Another v Duncan Dock Cold Storage (Pty) Ltd and Another 2000 (1) SA 827 G (SCA) ([2000] 1 All SA 128): dicta in paras [19] & [20] applied

S M Goldstein & Co (Pty) Ltd v Cathkin Park Hotel (Pty) Ltd and Another 2000 (4) SA 1019 (SCA) ([2000] 4 All SA 407): dictum in para [7] applied

Steenberg v De Kaap Timber (Pty) Ltd 1992 (2) SA 169 (A): referred to H

Van Wyk v Hermanus Municipality 1963 (4) SA 285 (C): applied

West Rand Estates Ltd v New Zealand Insurance Co Ltd 1925 AD 245: applied.

Statutes Considered

Statutes

The National Veld and Forest Fire Act 101 of 1998, ss 1, 12(1), 34: see Juta's Statutes of South Africa I 2004/5 vol 6 at 1-320, 1-324, 1-328.

Case Information

Appeal from a decision in the Cape Provincial Division (Jamie AJ). The facts appear from the judgment of Scott JA.

J C Swanepoel for the appellant.

M Wragge for the respondent. J

2005 (5) SA p493

In addition to the authorities cited in the judgment of the Court, counsel for the parties referred to the following: A

Administrateur, Transvaal v Van der Merwe 1994 (4) SA 347 (A) at 361G - H, 361H - 362B

De Jongh v Industrial Merchandising Co (Pty) Ltd 1972 (4) SA 44 (R)

Ex parte Minister of Justice: In re R v Bolon 1941 AD 345 at 360 B

Fundstrust (Pty) Ltd (in Liquidation) v Van Deventer 1997 (1) SA 710 (A) at 732B - D

Herschelle v Mrupe 1954 (3) SA 464 (A)

King v Dykes 1971 (3) SA 540 (RA) at 542C - G, 545D - E and 546E - 547B

McMurray v H L & H (Pty) Ltd 2000 (4) SA 887 (N) C

Minister of Forestry v Quathlamba (Pty) Ltd 1973 (3) SA 69 (A) at 82A - 84A

Prinsloo v Van der Linde 1997 (3) SA 1012 (CC) at 1029B - F, para [40]

Swanepoel v Transnet Bpk 2000 (2) SA 191 (T)

Titlestad v Minister of Water Affairs 1974 (3) SA 810 (N) at 813 ff D

Labuschagne & Eksteen Verklarende Afrikaanse Woordeboek 8th ed (revised) sv 'veld'.

Cur adv vult. E

Postea (September 27).

Judgment

Scott JA:

[1] The...