Minister of Water Affairs and Forestry and Others v Durr and Others

• Jurisdiction: South Africa
• Citation: 2006 (6) SA 587 (SCA)

Minister of Water Affairs and Forestry and Others v Durr and Others
2006 (6) SA 587 (SCA)

2006 (6) SA p587

Citation	2006 (6) SA 587 (SCA)
Case No	278/05
Court	Supreme Court of Appeal
Judge	Zulman JA, Ponnan JA and Combrinck AJA
Heard	August 17, 2006
Judgment	September 14, 2006
Counsel	A C Oosthuizen SC (with G Oliver) for the first and second appellants.; J F Mullins SC (with E B Clavier) for the third appellant.; H M Carstens SC (with J W Jonker) for the first and second respondents.; W H G van der Linde SC (with A P Bruwer) for the third respondent.

Flynote : Sleutelwoorde G

Fire — Veld or forest fire — Duty of landowner — Failure by H landowner to prevent spread of fire to neighbouring farms — Whether omission unlawful — Whether presumption of negligence rebutted — Forest Act 122 of 1984, s 84.

Headnote : Kopnota

A fire had broken out on an island belonging to C and then spread to the neighbouring property, belonging to S, and from there to the I properties of N, D and T. The fire was caused by employees of N who had been working on the island. It was thus common cause that N would be liable for any delict committed by its employees during their activities on the island. In consolidated actions by D, T and S for damages for their respective losses the Court found on the evidence: (1) that S had not been negligent in failing J

2006 (6) SA p588

to prevent the spread of the fire from its property to the properties of D or T since it A appeared that once the fire had spread onto S's land, it would not have been possible to prevent the fire from spreading and occasioning harm to D and T, notwithstanding the exercise of reasonable care; (2) that N had been negligent in failing to prevent the spread of the fire from its property to the properties of D and T; and (3) that N and C had, by failing to prevent the spread of the fire from their respective B properties to S's property, been contributorily negligent in a 75:25 ratio. N and C appealed to the Supreme Court of Appeal, contending that because S was the bona fide possessor of the island, it and not C had owed adjoining landowners a duty of care.

Section 84 of the Forest Fire Act 122 of 1984 provides that negligence C is presumed in cases where a veld fire occurs on land situated outside a fire control area.

Held, as to C's appeal, that the evidence showed that S was neither in possession nor control of the island. (Paragraph [18] at 594H/I.)

Held, further, that it was trite that a landowner had a duty to control or extinguish a fire burning on its land. Therefore C T, and not S, had owed a legal duty to D and T and the other adjoining landowners to prevent the ignition and spread of the fire from the D island. (Paragraph [19] at 594I - 595A.)

Held, further, that because the fire had broken out on property falling outside a fire control area, the case fell within the ambit of s 84 of the Forest Act, thus shifting the onus on the question of negligence from the plaintiff to the defendant. (Paragraphs [11] and [20] at 592D - E and 595A/B.)

Held, further, on the evidence, that C had failed to rebut the presumption that it had been negligent in failing to prevent the spread of the fire to neighbouring properties. C's appeal was E therefore devoid of any merit and had to fail. (Paragraph [21] at 595G - H.)

Held, further, as to N's appeal, that N and its employees had owed the surrounding landowners, including S, D and T, a legal duty to avoid negligently causing them harm during their activities on the island. (Paragraph [22] at 596B - C.) F

Held, further, that N's employees had wrongfully and negligently caused the fire, and that N had failed to take the steps which a reasonable person in its position would have taken to prevent the fire from spreading to neighbouring properties. It followed that the appeal by N was also without merit. (Paragraphs [25] - [26] at 596G - 597E.) Appeal dismissed. G

Cases Considered

Annotations

Reported cases

Administrateur, Transvaal v Van der Merwe1994 (4) SA 347 (A): referred to

Anderson Shipping (Pty) Ltd v Guardian National Shipping Insurance Co Ltd1987 (3) SA 506 (A): referred to H

Gouda Boerdery BK v Transnet2005 (5) SA 490 (SCA) ([2004] 4 All SA 500): referred to

H L & H Timber Products (Pty) Ltd v Sappi Manufacturing (Pty) Ltd2001 (4) SA 814 (SCA) ([2004] 4 All SA 545): applied

Local Transitional Council of Delmas and Another v Boshoff2005 (5) SA 514 (SCA): dictum in paras [23] and [26] applied I

Minister of Safety and Security v Van Duivenboden2002 (6) SA 431 (SCA) ([2002] 3 All SA 74): dictum in para [12] applied

Minister van Landbou v Sonnendecker1979 (2) SA 944 (A): dictum at 947A - E applied

Minister van Polisie v Ewels1975 (3) SA 590 (A): referred to

North & Son (Pty) Ltd v Albertyn1962 (2) SA 212 (A): referred to J

2006 (6) SA p589

Quathlamba (Pty) Ltd v Minister of A Forestry1972 (2) SA 783 (N): referred to

R v Kritzinger1971 (2) SA 57 (A) (1953 (2) PH H109): referred to

Reck v Mills en 'n Ander1990 (1) SA 751 (A): dictum at 757B - I applied

Steenkamp NO v Provincial Tender Board, Eastern Cape2006 (3) SA 151 (SCA) ([2000] 1 All SA 478): referred to

Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA2006 (1) SA 461 (SCA) B ([2006] 4 All SA 6): referred to

Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd2006 (3) SA 138 (SCA): referred to

Van Wyk v Hermanus Municipality1963 (4) SA 285 (C): dictum at 297A applied.

Unreported case C

Lubbe v Louw (SCA case No 531/03): dictum in para [13] applied.

Statutes Considered

Statutes

The Forest Act 122 of 1984, s 84: see Juta's Statutes of South Africa 1998 vol 6 at 1-355. D

Case Information

Appeal from a decision in the Cape Provincial Division (Fourie J). The facts appear from the judgment of Ponnan JA (Zulman JA concurring). Combrinck AJA hands down a separate and partially dissenting judgment.

A C Oosthuizen SC (with G Oliver) for the first and second appellants. E

J F Mullins SC (with E B Clavier) for the third appellant.

H M Carstens SC (with J W Jonker) for the first and second respondents.

W H G van der Linde SC (with A P Bruwer) for the third respondent.

Cur adv vult. F

Postea (September 14).

Judgment

Ponnan JA:

[1] The South African Forestry Company ('Safcol') and the City of Cape Town ('Cape Town') own adjoining plantations in the G Wemmershoek River Valley of the Western Cape. The Wemmershoek River flows between their respective plantations. The course of the river altered during 1959 as a result of the construction by Cape Town of the Wemmershoek Dam. Separating the old and new river courses is an elevated piece of land described in the evidence as 'the island'. To the north, Safcol's land borders on a mountainous area in respect of H which the risk of loss was borne by the Western Cape Nature Conservation Board ('Nature Conservation'). The farms of Hendrik Jacobus Storm Durr ('Durr') and the Trustees for the time being of the Penny Taylor Children's Trust ('Taylor') are situated several kilometres to the north-west of the Wemmershoek River Valley. I

[2] On 13 February 1999 a fire, the exact cause of which was never established, broke out in the Wemmershoek River Valley immediately below the dam wall. The learned trial Judge found that it had been conclusively proved that the fire originated on the island. From the J

2006 (6) SA p590

Ponnan JA

island, the fire spread onto Safcol's property and, from there, in turn, to the properties of Nature Conservation, Durr and A Taylor. The fire raged uncontrollably for several days before finally running its course.

[3] Arising out of this fire, three separate actions were instituted in the Cape High Court. In each, Durr, Taylor and Safcol sought, as plaintiffs, respectively, to recover the loss suffered by B them in consequence of the fire. The first two were actions by Durr and Taylor against Safcol, the Minister of Water Affairs and Forestry ('the Minister') and Nature Conservation. In each of those matters, Cape Town, the Minister and Nature Conservation were joined pursuant to the provisions of Rule 13 by Safcol as a third party to the proceedings. The third was an action by Safcol against the Minister, C Nature Conservation and Cape Town.

[4] The trial, a consolidated hearing of all three actions, proceeded before Fourie J. The trial Court agreed to separate the issues of liability and quantum and to deal, at the outset, only with the former. D

[5] In each of the Durr and Taylor matters, the claim against Safcol was dismissed and the Minister and Nature Conservation were held jointly and severally liable for such damages as may in due course be proved. In the Safcol matter, the Minister and Nature Conservation were held jointly and severally liable for 75% and Cape Town for 25% of such damages as may be proved. The costs orders made in E all three matters were to the effect that the Minister and Nature Conservation were to pay jointly and severally 75%, and Cape Town the remaining 25%, of the costs of Durr, Taylor and Safcol.

[6] It is against those orders that the present appeal lies, leave to do so having been granted by the learned trial Judge. F

[7] Since approximately September 1997, employees of the Working for Water Project ('WFW') had been endeavouring to rid the banks of the Wemmershoek River of alien invasive flora. To that end, they had felled vegetation, including wattle trees, which were stacked and left on the island and dry riverbed. Although the WFW workers were in the G employ of the Minister, they took their instructions from Nature Conservation who acted as the implementing agent of the WFW. It was thus common cause between the parties that the Minister (as employer) and Nature Conservation (as...