Minister of Forestry v Quathlamba (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Ogilvie Thompson CJ, Rumpff JA, Wessels JA, Trollip JA and Muller JA
• Judgment Date: 04 April 1973
• Citation: 1973 (3) SA 69 (A)
• Court: Appellate Division

Minister of Forestry v Quathlamba (Pty) Ltd
1973 (3) SA 69 (A)

1973 (3) SA p69

Citation	1973 (3) SA 69 (A)
Court	Appellate Division
Judge	Ogilvie Thompson CJ, Rumpff JA, Wessels JA, Trollip JA and Muller JA
Heard	March 7, 1973; March 8, 1973
Judgment	April 4, 1973

Flynote : Sleutelwoorde A

Fire and firearms — Fire — Veld or forest fire — Negligence alleged — Onus on defendant under sec. 23 of Act 72 of 1968 — How discharged — Fire starting in forest and spreading to farms — Farmer claiming damages — Department succeeding in rebutting B presumption of negligence imposed by sec. 23 — Department keeping look-out post continuously manned — No duty in circumstances to have inspected area of fires on previous day and night on following morning.

Headnote : Kopnota

C Once an owner or occupier of landed property in a rural area and which is, either personally or through his servants, under his control, becomes aware that fire has broken out on or has spread 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, our law requires him, with such means as are at his disposal, to take reasonable steps to control or extinguish the fire. In such a situation there exists a duty upon the D landowner to act reasonably in an endeavour to avoid foreseeable harm to others.

Van Reenen v Glenlily, Fairfield & Parow Village Management Board, 1936 CPD 315, overruled.

The scope of the duty, and whether it has been breached, must inevitably depend upon the circumstances of the particular case. When adjudicating upon an allegation of negligence against a landowner regarding his failure to control a fire on his property, a variety of considerations E must - at any rate in a civil action - necessarily be taken into account in assessing what fire-fighting action could reasonably be expected of him.

The circumstance that a fire is not shown to have been started by any servant of the defendant, or indeed by any human agency, does not by itself relieve the defendant of responsibility for the damage sustained by the plaintiff.

The respondent's farm had sustained considerable damage in a veld fire which had emanated from landed property owned by the State and controlled by the appellant through the Department of Forestry. F Respondent, alleging negligence on the part of the State's servants, had successfully sued the appellant in a Provincial Division for damages. In an appeal, it appeared that a fire, for which appellant was not responsible, had broken out on appellant's property on the preceding day, which had been put out well within the defendant's own property on the preceding day. The labour force which had put this fire out was kept available and a lookout post was manned. During the night a fresh G outbreak occurred which was observed from the lookout post and also successfully extinguished. Next morning a further fire, probably caused by wind-driven incendiary matter deriving from the area burnt the previous day, broke out and it was this fire which had got out of hand and caused the damage. The Court a quo had held that, as the appellant had failed to make an inspection of the burnt area and surroundings on the morning of that fire, that he had failed to rebut the presumption of negligence imporsed on him by section 23 of Act 72 of 1968.

Held, as the lookout post had been kept continuously manned, that the H contingency of a further fire, caused by wind-driven incendiary matter deriving from the area burnt the previous day, had not been ignored.

Held, further, that to hold that the appellant should, as a further precautionary measure against such contingency, also have made an inspection of the area on the morning of the last fire, would be to require of the appellant an exacting degree of diligence not warranted by the facts.

Held, further, that the evidence was such as to rebut the presumption, arising from section 23 of Act 72 of 1968, that the appellant was negligent either in failing to cause the burnt area to be inspected in the morning or in any other material respect.

1973 (3) SA p70

The decision in the Natal Provincial Division in Quathlamba (Pty.) Ltd. v Minister of Forestry, 1972 (2) SA 783, reversed.

Case Information

Appeal from a decision in the Natal Provincial Division (FANNIN, J.). The facts appear from the judgment of OGILVIE THOMPSON, C.J.

J. M. Didcott, S.C., (with him D. B. Friedman, S.C.), for the appellant: The first question is whether the Department of Forestry owed any legal duty to the plaintiff in relation to the conduct of its servants which the Court a quo regarded as negligent. Such conduct consisted entirely B of omissions and, in particular, was confined to the failure of the Department's servants, who had succeeded or apparently succeeded in extinguishing the fire during the evening of 7th August, 1968, and again after its outbreak during the ensuing night, to have done everything which the Court a quo considered that they should have done in order to C prevent it from re-igniting or reviving, as it did at about midday on 8th August, 1968. It was not the plaintiff's case that the Department was liable qua the authority which, in terms of Act 72 of 1968, was responsible for the prevention, extinction, containment and control of fires throughout the area. Such a case would have been met with and defeated by the answer that the Act had merely armed the Department with D permissive powers and had not imposed positive obligations upon it; that its servants' activities had not introduced into the area any new source of danger; and that it was accordingly not liable for what they had failed to achieve or to attempt in the voluntary exercise of its powers. See Moulang v Port Elizabeth Municipality, 1958 (2) SA at pp. E 521E - 522G; Administrator, Cape v Preston, 1961 (3) SA at pp. 568H - 569C; East Suffolk Rivers Catchment Board v Kent and Another, 1941 A.C. 74 (H.L.) at pp. 84 - 5, 97 - 9, 102. The plaintiff's case, and that which the Court a quo upheld, was that the Department was liable because its servants' omissions had infringed the duty of care which, qua the owner or occupier of the land where the fire re-ignited or F revived, it owed to the plaintiff. Cf. van Wyk v Hermanus Municipality, 1963 (4) SA at p. 291F. For persent purposes, it is therefore coincidental and irrelevant that the owner and occupier of the land from which the fire escaped happened to be the Department. If the Department was burdened with the legal duty towards the plaintiff (for G which the latter has contended) to act in order to contain the fire within its land, it must follow in general, and subject only to exceptions justified by peculiar circumstances, that every owner or occupier of land throughout the country is under an identical duty to his neighbours. It is proposed to distinguish between the positions of: (a) the owner or occupier of land who, to greater or lesser extent, may H appropriately be regarded as responsible for a fire there, because conduct is attributable to him which caused it and the consequent danger to others, or which positively increased the danger in any event presented by it to others; (b) the owner or occupier of land who cannot appropriately be regarded as responsible for a fire there, because no conduct is attributable to him which caused it and the consequent danger to others, or which positively increased the danger in any event presented by it to others. Examples within the first category are the conduct of the owner or occupier of land or of his servants acting in the course A

1973 (3) SA p71

of their employment in: (a) starting the fire on his land or, for that matter, elsewhere; (b) bringing onto or keeping on his land dangerously inflammable substances, the presence of which there was an extraordinary and not a natural use of the land, and the subsequent combustion of A which caused the fire or contributed towards its cause or intensified it; (c) intensifying or aggravating the fire while actively endeavouring to extinguish or to control it on his land, and thereby causing or contributing towards the cause of its spread elsewhere. Examples within the second category, on the other hand, are those of a fire which, without any contribution to its burning on land by the owner or occupier B thereof or by his servants acting in the course of their employment: (a) began elsewhere and spread to his land; (b) was started on his land by a trespasser or by someone for whose acts he was not responsible; (c) resulted from the ignition by a bolt of lightning of substances on his land which were naturally there. It is unlikely that C the fire detected on 7th August, 1968, was started by any of the Department's servants, and it is certain that none of them re-ignited it on 8th August, 1968. It is likewise certain that nothing done or omitted by the Department's servants added at any stage to the danger which the fire would have presented to the plaintiff if they had remained entirely inactive. There is moreover no question of the Department's land having D harboured dangerously inflammable substances which one would not have expected to encounter there, or the presence there of which indicated an extraordinary or not a natural use of it. Cf. van Wyk v Hermanus Municipality, supra at pp. 301H - 302B. The Department therefore fits, E not into the first category, but into the second category. Someone within the second category who discovers and who unsuccessfully endeavours to extinguish or control a fire thereafter spreading to his neighbour's land and who does not aggravate the danger already inherent in it and thereby wander into the first category, cannot be more culpable than, and cannot incur a legal duty not borne by...