31 May 2017 by Dispute Resolution Alert

Recent developments in liability arising from veld fires

We have seen an increase in veld fires and resultant litigation. This leads to increased exposure for insurers in the agricultural sphere.

The provisions of the National Veld & Forrest Fire Act, No 101 of 1998 (Act) and in particular s34 thereof are of interest. This section reads as follows:

Presumption of negligence

(1)      If a person who brings civil proceedings proves that he or she suffered loss from a veld fire which

(a)     the defendant caused; or

(b)     started on or spread on or spread from land owned by the defendant

the defendant is presumed to have been negligent in relation to the veld fire until the contrary is proved, unless the defendant is a member of a fire protection association in the area where the fire occurred.

(2)      The presumption in subsection (1) does not exempt the plaintiff from the onus of proving that any act or omission by the defendant was wrongful.

Damages claims arising from veld fires are delictual in nature. To succeed, a plaintiff has to prove all the elements of a delict.

In MTO Forestry (Pty) Ltd vs A H Swart N.O. (420/2016) [2017] ZASCA 57 (22 May 2017) the Supreme Court of Appeal (SCA) had to determine whether wrongfulness and negligence were established. Briefly, the facts were that the appellant was the beneficial owner of a forest and conducted a forestry business. A fire started on an adjacent farm owned by the respondent. Fuelled by strong winds this fire spread onto the appellant’s plantation and burnt for several days. It was not disputed that the fire was a veld fire and that respondent was not a member of a fire protection association. As such, the respondent was presumed to be negligent in accordance with s34 of the Act.

The court referred to the debate that started among academics around 2006 as to whether the elements of wrongfulness and negligence should remain as two separate elements of a delict. It referred to various articles by respected academics. The conclusion was reached that notwithstanding academic discourse wrongfulness and negligence are two separate elements of delictual liability which should not be confused. In delivering judgment, Leach JA reiterated that wrongfulness is a matter of legal and public policy. It has as a focus, the duty not to cause harm. It also functions as a limitation ensuring that liability does not attach where doing so would be undesirable or overly burdensome. In the past, foreseeability of harm, a requirement of negligence, was considered as a factor when determining wrongfulness. It is crucial to note that the SCA held that this practice added to the confusion between negligence and wrongfulness and that the time has come to abandon this approach. The role of foreseeability of harm should therefore be restricted to the assessment of negligence and causation.

It was recorded that s34 of the Act recognises the distinction between negligence and wrongfulness and that it relates to negligence and not to causation. Further, the presumption of negligence created in s34 is an evidentiary aid, and its role is truncated when the essential facts are known. Importantly, it was held that a reasonable landowner does not have an absolute duty to prevent a fire that started on its property from spreading beyond its boundaries. It only has the obligation to take reasonable steps to prevent this. If, notwithstanding reasonable steps, a fire still spreads to adjoining land, negligence will not attach to the landowner.

The court concluded that the respondent had adequate firefighting measures in place and that its failure to remove natural vegetation that increased the risk of fire spreading was not unreasonable. The fire occurred during a severe drought and strong winds played a significant role in it spreading. This created doubt that earlier action by the respondent to extinguish the fire would have prevented it from spreading onto the appellant’s land.

This judgment is welcomed in that it aids the interpretation of the provisions of s34 and the nature of the duties of an agricultural landowner.

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