McMurray v H L & H (Pty) Ltd

• Jurisdiction: South Africa
• Citation: 2000 (4) SA 887 (N)

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

2000 (4) SA p887

Citation	2000 (4) SA 887 (N)
Case No	1198/96
Court	Natal Provincial Division
Judge	Booysen J
Heard	March 6, 2000; March 8, 2000
Judgment	July 20, 2000
Counsel	P A Koen SC for the plaintiff.; J A Ploos van Amstel SC for the defendant.

Flynote : Sleutelwoorde

Negligence — Liability for — Unlawfulness — Damage to plaintiff's property caused by spread of fires deliberately started B on defendant's farm by dismissed employees — Whether defendant's instituting disciplinary proceedings and dismissing employees during high risk fire season unlawful vis-à-vis plaintiff — Disciplinary proceedings arising out of refusal by defendant's harvesting team in C forestry plantations to discuss or implement new targets and failure to work normal hours and to meet long-accepted targets — Employees starting several fires on defendant's farm prior to disciplinary proceedings being instituted — Defendant's officials ought to have foreseen that persisting with disciplinary proceedings and dismissals would result in D arson — Whether reasonable steps to safeguard against arson and its consequences taken by diligens paterfamilias in defendant's position would include refraining from instituting disciplinary proceedings to be judged against boni mores criterion represented by convictions and feelings of community — In instituting disciplinary proceedings and in dismissing employees defendant's conduct reasonable and bona fide — Given previous fires, not E reasonably certain or likely that failure to institute disciplinary proceedings or to dismiss employees would have averted loss due to arson — Previous fires lit by arsonists during fire season contained — Would not therefore be thought that risk of fire not being contained and spreading great — Employees knowing that during fire F season they would neither be disciplined nor dismissed having little incentive to maintain production — Forestry industry would suffer — Detrimental to forestry industry if defendant's conduct branded unreasonable — Defendant's conduct thus not unlawful.

Fire and firearms — Fire — Veld or forest fire — Damage to plaintiff's property caused by spread of fires deliberately started on defendant's farm by dismissed employees — Whether defendant's instituting disciplinary proceedings and dismissing employees during high risk fire season unlawful vis-à-vis plaintiff — Disciplinary proceedings arising out of refusal by defendant's harvesting team in forestry plantations to discuss or implement new targets and failure to work normal hours and to meet long-accepted targets — Employees starting several fires on defendant's farm prior to disciplinary proceedings being instituted — Defendant's officials ought to have foreseen that persisting with disciplinary proceedings and dismissals would result in arson — Whether reasonable steps to safeguard against arson and its consequences taken by diligens paterfamilias in defendant's position would include refraining from instituting disciplinary proceedings to be judged against boni mores criterion represented by convictions and feelings of community — In instituting disciplinary proceedings and in dismissing employees defendant's conduct reasonable and bona fide — Given previous fires, not reasonably certain or likely that failure to institute disciplinary proceedings or to dismiss employees would have averted loss due to arson — Previous fires lit by arsonists during fire season contained — Would not therefore be thought that risk of fire not being contained and spreading great — Employees knowing that during fire season they would neither be disciplined nor dismissed having little incentive to maintain production — Forestry industry would suffer — Detrimental to forestry industry if defendant's conduct branded unreasonable — Defendant's conduct thus not unlawful.

Headnote : Kopnota

The plaintiff claimed damages of R564 529 suffered as a result of fires, allegedly started deliberately by the defendant company's G employees on the defendant's farm on 12 October 1995, which then spread to the farm where the plaintiff farmed. The plaintiff alleged that the defendant had been negligent in that, knowing that conditions were conducive to the rapid spread of fires and that its employees would probably retaliate against disciplinary proceedings initiated against them by lighting fires on its farm, the defendant H nevertheless had proceeded with such disciplinary proceedings which culminated in dismissals. At the hearing the issues were narrowed down to (a) whether the defendant's dismissed employees had been responsible for lighting the fires; (b) whether the defendant's conduct in persisting with the disciplinary proceedings I and dismissing the employees had caused the fires and consequent damage; and (c) whether the defendant's persisting with disciplinary proceedings and dismissal of employees on the day of the fires had constituted unlawful conduct vis-à-vis the plaintiff.

The disciplinary proceedings and dismissals had arisen out the refusal in March 1995 by the harvesting team at the defendant's forestry plantations on the farm to work to newly laid down targets. These targets had been laid down and accepted at all the defendant's other farms in the area. Months of J

2000 (4) SA p888

negotiations and discussions between the trade union, employees and management followed, to no avail. By August A employees were refusing to work their normal hours and were not even harvesting to pre-existing, long-accepted targets. On 26 September, in the face of outright rejection by the employees of any solution proposed by either management or the union, the defendant issued an ultimatum requiring employees to meet the new harvesting B target and, in the case of those employees who failed to meet the target, to work the requisite total number of hours per day, failing which disciplinary action would be taken. The ultimatum was ignored and final warnings were issued. These too were ignored. Employees refused to attend disciplinary enquiries and were finally dismissed on the morning of 12 October 1995.

Evidence was led to the effect that the risk of runaway fires in the area was particularly high for the period August to October. A report C of fires occurring on the defendant's farm during that period in 1995 indicated that there had been 10 fires during August, 10 during September and 13 during October. Of those 30 had been caused by arson.

Held, that, although there was no direct evidence, it seemed more than probable that the fires on 11 and 12 October 1995 had indeed been started by the defendant's employees or at their D instigation. (At 901F.)

Held, further, that the evidence established that it was more than probable that the defendant's employees had started fires on the defendant's plantations prior to disciplinary proceedings being instituted. For the defendant's conduct in persisting with the disciplinary proceedings and dismissing the employees to have caused the fires which had damaged the plaintiff's property, the evidence E would have had to establish that, but for the disciplinary proceedings and dismissals, the fires would not have been started. Given that a large number of fires had deliberately been started during August and September 1995, before disciplinary proceedings had commenced, the plaintiff had not proved on a balance of probabilities that the F disciplinary proceedings and dismissals had caused the fires. (At 901H - 902A.)

Held, further, as to whether the defendant's persisting with the disciplinary proceedings and dismissal of its employees on the day of the fires had constituted unlawful conduct vis-à-vis the plaintiff, assuming without deciding that the disciplinary proceedings and dismissals had caused the employees to start the fires which had damaged the plaintiff's property, that, G while it might be that disciplinary proceedings and dismissals should in general be avoided during the fire season, it had not been proved that a convention existed in the forestry industry that such proceedings and dismissals should under no circumstances be resorted to during the fire season. The fact that the disciplinary proceedings and dismissals had taken place during the fire season was but one of the circumstances to be weighed in deciding whether or not the defendant H had acted unlawfully or negligently vis-à-vis the plaintiff. (At 902E/F - G.)

Held, further, that the defendant's officials ought to have foreseen and had foreseen that their conduct in persisting with the disciplinary proceedings might result in arson being committed by the employees, resulting in damage to the defendant's and its neighbours' I forests. A diligens paterfamilias in the defendant's position would thus have taken reasonable steps to safeguard against arson and its consequences. (At 903C/D - D/E.)

Held, further, as to whether such steps would have included refraining from taking disciplinary proceedings against and dismissing employees, that the boni mores criterion represented by the convictions and feelings of the community had to be applied because the wrongfulness of the defendant's J

2000 (4) SA p889

conduct did not appear from a violation of an existing delictual norm, nor did the lawfulness of its A conduct appear from the presence of a recognised ground of justification. (At 905H/I - I/J.)

Held, further, that in determining whether conduct was unlawful the interests of the parties concerned, the relationships of the parties and the social consequences of the imposition of liability in the particular type of situation had to be balanced and evaluated. B In reaching a conclusion regard had to be had to the probable or possible extent of the foreseeable or foreseen loss; the degree of risk that...