Steenberg v De Kaap Timber (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Botha JA, Nestadt JA and Van den Heever AJA
• Judgment Date: 08 November 1991
• Citation: 1992 (2) SA 169 (A)
• Hearing Date: 19 August 1991
• Court: Appellate Division

Nestadt JA:

The parties to this appeal are owners of adjoining farms in H the Barberton district of the Eastern Transvaal. Appellant's farm (Snymansbult) lies roughly to the west of respondent's property (De Kaap). On the afternoon of Thursday, 12 September 1985 a fire, which emanated from Snymansbult, spread eastwards to De Kaap. It caused certain of respondent's timber plantations to be set alight and destroyed. Claiming that the fire had been negligently started by I appellant or his servants (acting as such) and that they negligently failed to control it, respondent sued appellant for payment of the sum of R1,6m. This represented the damages allegedly suffered by respondent as a result of the fire. The action was tried by De Villiers AJ in the Transvaal Provincial Division. The learned Judge granted judgment against appellant in the sum of R540 000 together with mora interest and J costs. Against that order

Nestadt JA

A appellant now appeals, leave to do so having been granted by the trial Judge. In what follows I refer to appellant as the defendant and to respondent as the plaintiff.

On the pleadings, two broad issues arose for determination, viz (i) whether defendant acted negligently and (ii) whether plaintiff proved its damages. I propose to deal with the latter issue first. This can be B briefly done. During the course of the trial, plaintiff reduced its claim to R540 000 (the sum eventually awarded). At the same time defendant made two admissions. One was that on the day in question a fire spread from his property to that of plaintiff. The other was that plaintiff suffered damages in the amount of R540 000 as a result of certain of its forests having at the time been set on fire. Implicit in C these admissions is an acknowledgment that part of plaintiff's damages resulted from the fire which originated on Snymansbult. There was, however, no admission that such fire was the only cause of plaintiff's plantations having been set alight and destroyed. It was left open to defendant to contend that another fire (for which he was not D responsible) contributed to plaintiff's damages. And this was indeed the case that defendant sought to make out. In support thereof, he testified that at about 14:45 on the Thursday (at a time when the fire which admittedly started on Snymansbult was raging) he actually saw certain workers of a Mr Pelser, the plantation manager of a farm (called Twello) to the north-west of De Kaap, burning a fire-break near the E south-eastern boundary of such farm; that this fire then spread to De Kaap; and that it also caused trees of plaintiff to be burnt. The argument was that plaintiff had, in these circumstances, failed to establish what separate damages had been caused by each of the two fires; in particular it was not clear what (lesser) amount of damages F was attributable to the fire which came from Snymansbult; and that plaintiff should therefore, on this ground alone, have been non-suited. There is no merit in the argument. Pelser, who gave evidence for plaintiff, denied that his workers started a fire. The resulting dispute gave rise to a credibility issue. De Villiers AJ resolved it in favour of plaintiff's version. The learned Judge found that there was no second G fire of the kind alleged. It is unnecessary to canvass his full reasons for so doing. Suffice it to say that they are cogent and, in my view, unassailable.

It follows that it was the fire which originated on Snymansbult that caused the timber plantations on De Kaap to be destroyed. This being so, plaintiff was entitled to judgment in the sum of R540 000 - if defendant (or his servants) were legally responsible for it. This brings me to what was the main issue in the trial, viz that of negligence. It H will be apparent from what has already been said that this is not one of those cases (such as Van Wyk v Hermanus Municipality1963 (4) SA 285 (C) and Minister of Forestry v Quathlamba (Pty) Ltd1973 (3) SA 69 (A)) where liability rests on the failure of a land-owner to take reasonable I precautions to prevent the spread from his property of a fire started on it or elsewhere by a third party. As I have said, plaintiff's case was that defendant's servants started the fire. This defendant denied (though, as indicated, he admitted that the fire originated on Snymansbult).

In seeking to prove that it was defendant's servants who started the fire and that they had acted negligently, plaintiff relied on the J statutory

Nestadt JA

A presumption of negligence which applies inter alia to forest fires. It is contained in s 84 of the Forest Act 122 of 1984 ('the Act'). The section reads:

'When in any action by virtue of the provisions of this Act or the common law the question of negligence in respect of a veld, forest or B mountain fire which occurred on land situated outside a fire control area arises, negligence is presumed, until the contrary is proved.'

The date of commencement of the Act was 27 March 1986, ie after the fire, but before the issue of summons. There was a dispute whether in these circumstances the predecessor to the Act, namely the Forest Act 72 of 1968, did not apply. It too (in s 23) provided for a presumption of C negligence. However s 23, though in similar terms to s 84, did not require the land in question to be situated outside a fire control area. Initially Mr Zeiss, on behalf of defendant, contended that it had not been shown that Snymansbult was outside a fire control area (as defined by s 1, read with s 18(1) of the Act). If this was so and the Act D applied, then the presumption would not, for this reason alone, operate. Counsel later, however, abandoned the point. It was conceded that the matter had to be decided on the basis that the fire occurred on land outside a fire control area. In the result, I (like the Court a quo) find it unnecessary to decide which of the two Acts apply. I shall assume that it is s 84 of the Act that must be looked to.

E The term 'forest . . . fire' in s 84 is not defined by the Act, but it was common cause that the fire in question was such a fire. This notwithstanding, defendant disputed that the presumption operated. Reliance was placed in this regard on what Fannin J said in Quathlamba (Pty) Ltd v Minister of Forestry1972 (2) SA 783 (N) at 788H. The F learned Judge, in dealing with s 23, held that a 'question of negligence' can only be said to 'arise' where (i) negligence is alleged against the defendant and (ii) the plaintiff establishes a nexus or connection between the fire and the party against whom the allegation is made, which is consistent with such negligence. The submission on behalf of defendant was that such nexus had not been proved; plaintiff had in G its summons and further particulars alleged that the fire had been started at a particular place on Snymansbult, namely the maize lands; the allegations of negligence were limited to the burning of dried mealie stalks there; being bound by such allegations, the presumption could only be invoked if there was proof that the fire on 12 September originated in the maize lands; such proof was lacking; and the trial H Court was therefore incorrect in holding, as it did, that the presumption applied.

The Quathlamba case went on appeal to this Court (see Minister of Forestry v Quathlamba (Pty) Ltd (supra)). Though overruling Fannin J's finding that the presumption had not been rebutted by the defendant, Ogilvie Thompson CJ affirmed the principle that the presumption cannot I be invoked merely by averring negligence. The learned Chief Justice did not, however, adopt the approach of Fannin J. It was simply held that the additional element required could be satisfied by proof that the fire originated upon land owned and controlled by the defendant. On this basis the presumption would apply in casu. Snymansbult was not...