The real heat of veldfires

South Africa has a rainfall climate of great variability. The SA Weather Service reports that between July 1960 and June 2004 there have been eight summer rainfall seasons where the total rainfall was 80% of the norm. A deficit of 25% is regarded as a severe meteorological drought. The average rainfall for 2015 was 400mm against an average of 600mm. The country is in the grip of a disastrous drought. The executive director of AgriSA predicted that the impact of this would only have run its course by 2019.

5 Oct 2016 3 min read Dispute Resolution Alert Article

Veld fires are one of the hazards that accompany drought. The SA Weather Service reported that devastating veld fires occurred in South Africa during 1992, 1994 and 2002. Thousands of hectares of grassland were destroyed and 19 people died in those fires. In 2015 Santam reportedly paid out around R82 million to policy holders for losses caused by veld fires. The National Veld and Forest Fire Act, No 101 of 1998 (Act) contains provisions that materially impact liability arising from veld fires. These provisions and the application thereof, are important to short-term insurers who offer agricultural insurance cover. This will impact on liability where an insured farmer is being sued for damages and will also impact on the merits of a subrogated claim for damages against the owner of a farm from which a veld fire spread onto the land of the insured.

The Act defines a veld fire as a “veld, forest or mountain fire”. While this definition is rather vague, case law offers a clear definition. The definition was considered in West Rand Estates v New Zealand Insurance Co Ltd [1925] AD 245 and again more recently in Gouda Boerdery BK v Transnet [2004] 4 All SA 500 (SCA). The meaning of “veld” can be summarised as “uncultivated and undeveloped land with relatively open natural vegetation” and “the uncultivated and unoccupied portion of land, as distinct from the portion which is cultivated, occupied or built upon”. The ground immediately around a farm house is therefore not “veld” even though veld grass may be growing upon it, meaning that if a fire started there, it would not be regarded as a veld fire, even if it subsequently spread to areas that are regarded as veld. For example, our courts have on occasion held that a fire that started on a golf course was not a veld fire.

Section 12(1) of the Act provides that “every owner on whose land a veldfire may start or burn or from whose land it may spread must prepare and maintain a firebreak on his or her side of the boundary between his or her land and any adjoining land”. The Act does not provide specifications for firebreaks but s13 creates an obligation to ensure that given the specific weather, climate, terrain and vegetation of the area, the width and length of the firebreak will have a reasonable chance of preventing a fire from spreading to or from adjoining land.

Chapter 2 of the Act makes provision for the formation of fire protection associations (FPAs). In this regard s3(1) reads “owners may form an association for the purpose of predicting, preventing, managing and extinguishing veldfires”. The use of the word “may” as opposed to “must” means that membership of an FPA is voluntary. While this is so, it is important to have regard to the provisions of s34. 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 veldfire which:

(a)  the defendant caused; or

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

the defendant is presumed to have been negligent in relation to the veldfire 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.

It is practice for a plaintiff in a damages claim that arose from a veldfire to sue in delict and to invoke the provisions of the Act, and particularly rely on the presumption of negligence where the defendant was not a member of an FPA. The insurer of an insured who is not a member of an FPA runs a much higher risk of facing claims arising from veldfires, hence the need (and practice) of insurers to impose warranties around this in the policy contract and exclusions of liability where the insured is not a member of an FPA. In a paradoxical way, the expression “it never rains but it pours” may hold true for the prevalence of claims arising from veldfires for as long as the drought reigns.

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