7 February 2018 by and Dispute Resolution Alert

Don’t let your money go up in flames: How to ensure you are protected in the event that a fire originates or spreads from your property

In January in Cape Town, the gale force December winds finally cease to blow leaving the city sweltering in 30-degree temperatures without reprieve. Add to the hot, dry January days, a drought of not insignificant proportion and we have on our hands a recipe for severe fire disaster in this, Cape Town’s fire season.

If you own property in an area prone to veld or forest fires, it is essential that you are familiar with the onerous consequences and obligations of the law on this particular topic. Failure to take heed of the law could result in liability for all of the damages incurred by fire on neighbouring properties.

The National Veld and Forest Fire Act, No 101 of 1998 (Act) contains a provision, at s34, which places a rebuttable presumption of negligence onto the owner of property from which a fire spreads to neighbouring properties. This means that if a fire originates on, or spreads to, your property, and you cannot prove that you have taken reasonable steps to prevent the spread of that fire to neighbouring properties, you can be held liable for all of the neighbours’ damages.

It is important at the outset to clarify the meaning of “owner” in terms of the Act. The Act states that the word “owner” in this context includes lessees or any other person who controls the property. The question arises as to what happens if the owner rents out the land to a lessee who is then in control of the property. This was answered by the Supreme Court of Appeal in MTO Forestry v Swart [2017] ZASCA 57, in which the SCA made it clear that the liable party would be that person or persons in active control of the property. It would be improper to hold an owner liable when he or she is not in a position to access the property to ensure compliance with the Act.

The Act provides a simple mechanism for avoiding liability, namely, being a member of a Fire Prevention Association (FPA). FPAs are groups of land owners that prevent and manage wildland fires in a specifically defined area. Being a member of such an association immediately rebuts the presumption of negligence in the instance of the spread of veld or forest fires. All FPAs must be registered with a central body and can be found online at www.fpasa.co.za.

The Act, at s17, places a further burden onto property owners to acquire equipment and have available personnel to fight fires on land in which a veldfire may start or burn or from whose land it may spread. These obligations are not onerous and are legislated for good reason. The Act does however provide that these obligations can be outsourced to an agent appointed by the landowner.

In the event that a landowner does not belong to an FPA, the presumption of negligence can still be rebutted by showing reasonable measures which have been taken to combat the origin or spread of veldfires. This could include, for example, the establishment and maintenance of fire breaks, the permanent presence of suitably qualified fire prevention personnel, and manned watch towers.

In fact, while the legislation may seem onerous, it is interpreted reasonably by the courts. In the judgment in MTO Forestry v Swart, the court found the Respondent was not liable to the Appellant, his neighbour, on the basis that the Warbos, a particularly flammable, ground-covering plant which is more flammable than the indigenous vegetation in the area, was a naturally occurring resource in the area (despite being an invader species). The court states that it would be concerned if the Warbos was a man-made fire hazard, as opposed to the reality that it is merely a piece of vegetation which occurs naturally and just happens to burn readily.

The onus on a Defendant in a case of the spread of a veldfire is to establish the reasonable steps taken to combat the spread of veldfires. This begs the question as to what the courts consider to be reasonable in such an instance. Appellate Judge Leach stated in the aforementioned case that “when considering the steps which a reasonable person would have taken and the standard of care expected, the bar, whilst high, must not be so high as to be out of reasonable reach.”

He continues:

“a reasonable […] landowner is not obliged to ensure that in all circumstances a fire on its property would not spread beyond its boundaries. They would only be obliged to take reasonable steps in the circumstances to guard against such an event occurring. If a landowner took such steps and a fire spread nevertheless, it cannot be held liable for negligence just because further steps could have been taken.

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