Steenberg v De Kaap Timber (Pty) Ltd

• Jurisdiction: South Africa
• Citation: 1992 (2) SA 169 (A)

Steenberg v De Kaap Timber (Pty) Ltd
1992 (2) SA 169 (A)

1992 (2) SA p169

Citation	1992 (2) SA 169 (A)
Court	Appellate Division
Judge	Botha JA, Nestadt JA and Van den Heever AJA
Heard	August 19, 1991
Judgment	November 8, 1991

Flynote : Sleutelwoorde F

Fire and firearms — Fire — Veld or forest fire — Negligence alleged — Presumption in s 84 of Forest Act 122 of 1984 — Operation of — Semble: Nexus between defendant and fire allegedly making him responsible for damage caused by it and defendant's negligence leading to such damage, distinct and separate issues — Presumption in s 84 G assisting plaintiff only on issue of negligence — Although issues of nexus and negligence may overlap where nexus relied on is that defendant caused fire in question, any suggestion that they may do so as matter of principle to be avoided.

H Fire and firearms — Fire — Veld or forest fire — Negligence alleged — Plaintiff alleging that fire which damaged his plantations negligently started by defendant's servants in maize lands on adjacent farm and that defendant negligently failed to control it — Plaintiff relying on presumption of negligence contained in s 84 of Forest Act 122 I of 1984 — Court assuming (without so deciding) that presumption in s 84 only arising where plaintiff proves nexus between the fire and defendant against whom allegation of negligence made and that such nexus has not only to be consistent with defendant's negligence but also has to be of nature pleaded and have arisen at place pleaded — Proceeding on this premise, first question is whether, on a proper construction of J pleadings,

1992 (2) SA p170

A plaintiff confined to case that defendant negligent in that he had started fire specifically in maize lands — Court holding that it was foundational to all plaintiff's allegations of negligence that fire started in maize lands — Next question is whether plaintiff sufficiently showed that fire had indeed originated in defendant's maize B lands — Presumption in s 84 would operate only if answer to second question affirmative — Court assuming (without so deciding) that plaintiff had to prove nexus on balance of probabilities — Court finding that, on a conspectus of all the evidence, probabilities favouring finding that fire caused by burning of stalks in maize lands C by workers of defendant, that nexus pleaded was therefore established and that plaintiff had accordingly proved that presumption of negligence created in s 84 applied — Court further holding that, in order to rebut presumption, defendant having to provide acceptable explanation, inconsistent with his negligence, of what precautions he took to prevent D spread of fire — Defendant having wholly failed to lay any factual foundation which could serve to discharge said onus — Defendant accordingly held liable to plaintiff.

Headnote : Kopnota

A fire emanating from appellant's (defendant's) farm had spread to E respondent's (plaintiff's) adjacent farm, causing certain timber plantations there to be set alight and destroyed. Plaintiff claimed that the fire had been negligently started by defendant or his servants (acting as such) and that they had negligently failed to control it, and sued defendant for damages. Judgment against the defendant was granted in a Provincial Division. Plaintiff relied on the statutory presumption of negligence contained in s 84 of the Forest Act 122 of 1984, which applies inter alia to forest fires. According to defendant the F presumption did not apply in the instant case. It was held in the Court a quo that the question of negligence could only arise where (a) negligence was alleged against the defendant and (b) the plaintiff established a nexus between the fire and the party against whom the allegation was made, which was consistent with such negligence. Defendant alleged that no such nexus had been proved; that plaintiff had in its summons and further particulars alleged that the fire had been started at a particular place on defendant's farm, namely the maize G lands; that the allegations of negligence were limited to the burning of dried maize stalks there; that, being bound by such allegations, the said presumption could only be invoked where there was proof that the fire had originated in the maize lands; that such proof was lacking; and that the Court a quo was therefore incorrect in holding as it did that the presumption applied. On appeal,

Held (per Nestadt JA, Botha JA concurring) that the Court would assume H in defendant's favour (without so deciding), that for the presumption in s 84 to operate, the plaintiff had to prove a nexus between the fire and defendant, and that such nexus had not only to be consistent with defendant's negligence but must also have been of the nature and have arisen at the place so pleaded.

Held, further, that, proceeding on this premise, the first question that arose was whether, on a proper construction of the pleadings, plaintiff was confined to the case that defendant was negligent in that he had I started the fire specifically in the maize lands.

Held, further, that it was foundational to all the allegations of negligence that the fire had started in the maize lands, and that plaintiff was accordingly confined as aforementioned.

Held, further, that the next question was whether plaintiff had sufficiently showed that the fire which had spread to plaintiff's farm had indeed originated in defendant's maize lands: the presumption would J operate only if the answer was in the affirmative.

1992 (2) SA p171

A Held, further, that the Court would assume (without so deciding) that the plaintiff had to prove the nexus on a balance of probabilities (although it could be said that this cast too heavy an onus on plaintiff, and that if a nexus of the kind under consideration were required, it would suffice for it to be prima facie established).

Held, further, on a conspectus of all the evidence, that the probabilities favoured a finding that the fire had been caused by the burning of stalks in the maize lands by defendant's workers and that the nexus pleaded was therefore established.

B Held, further, that the Court a quo had accordingly correctly held that plaintiff had proved that the presumption of negligence created in s 84 applied in the instant case.

Held, further, that in order to rebut the presumption defendant had to provide an explanation, inconsistent with his negligence, of the precautions he had taken to prevent the spread of the fire.

Held, further, that the defendant had wholly failed to lay any factual foundation which could serve to discharge the onus resting on him, and C that he had therefore been correctly held liable to plaintiff.

Held (per Van den Heever AJA), that the nexus between a defendant and a fire alleged to have made him responsible in law for damage caused by it, and his negligence leading to that damage, were separate and distinct issues, and that it was only on the second of these that the presumption in s 84 assisted a plaintiff.

Held, further, that the issues could overlap in cases like the present, where the nexus relied on was that the defendant caused the fire in D question.

Held, further, that although the separate issues of nexus and negligence overlapped in the instant case because of the particular facts thereof, any suggestion that they may do so as a matter of principle had to be avoided.

Held, further, that the fact that there may be a lesser quantum, not of proof, but of evidence required in a case such as the present, should not be sought in terms of the statute, but in the facts: an adverse E conclusion could be more readily drawn against someone, like the defendant, who should have been able to answer a prima facie case with ease but had failed to do so by remaining silent or by telling palpable untruths.

Held, further, that the plaintiff had succeeded in discharging the onus which burdened it by reason of its pleadings by establishing that it was more probable than not that the fire that had swept from defendant's to plaintiff's farm had resulted from defendant's activities in burning his maize fields during the relevant time. Appeal dismissed. F

The decision in the Transvaal Provincial Division in De Kaap Timber (Pty) Ltd v Steenberg confirmed.

Case Information

Appeal from a decision in the Transvaal Provincial Division (De Villiers AJ). The facts appear from the judgment of Nestadt JA.

G R K R Zeiss SC for the appellant referred to the following authorities: Quathlamba (Pty) Ltd v Minister of Forestry 1972 (2) SA 783 (N) at 785C-E, 786A-H, 788H-789A, 798B-F; Ministry of Forestry v Quathlamba (Pty) Ltd 1973 (3) SA 69 (A) at 78B-79H, 79 in fin-84A, 84A-H, 85D-F, 89A; Titlestad v Minister of Water Affairs 1974 (3) SA 810 (N) at 813 in fin-814C, 814F-G; Peattie and Others NNO v Clan H Syndicate (Pty) Ltd 1984 (4) SA 829 (N) at 832I, 831F-832B, 839E-840E; Clan Syndicate (Pty) Ltd v Peattie and Others NNO 1986 (2) SA 791 (A) at 796F, 799J-801B, 801C-E; Beck Theory and Principles of Pleading in Civil Actions 5th ed para 56 at 110; General Commercial & Industrial Finance Corp Ltd v Pretoria Portland Cement Co Ltd 1944 AD 444 at 453; Rawoot v Marine & Trade Insurance Co Ltd 1980 (1) SA 260 (C) at 263G-H, I 264B-D; Mojapelo and Another NO v Rondalia Assurance Corp of SA Ltd 1979 (3) SA 1133 (W); De Wet v President Versekeringsmaatskappy Bpk 1978 (3) SA 495 (C) at 500F; R v Weinberg 1939 AD 71 at 80; Goodrich v Goodrich 1946 AD 390 at 396; Smit v Arthur 1976 (3) SA 378 (A) at 389 in fin; S v Naik 1969 (2) SA 231 (N) at 234C-D; S v Cooper 1976 (2) SA 875 (T) J at 888 in fin-889C; R v Du Plessis 1944 AD 314 at 323; R v Mlambo

1992 (2) SA p172

1957 (4) SA 727 (A) at 738; S v Henning 1972 (2) SA 546 (N) at 549A-D; S v Steynberg 1983 (3) SA 140 A (A) at 146; S v Mtsweni 1985 (1) SA 590 (A); Maharaj...