Legally obliged

2009-06-18 00:00

HAVING been an eyewitness from the third floor of the Fedsure House to the fire which damaged the old Colonial Building in Church Street, I was reminded of an opinion I obtained recently from senior counsel in which he concluded that district municipalities are obliged to provide firefighting services.

With the consent of my client, I wish to summarise the aforesaid opinion.

The Constitution of the Republic of South Africa, 1996 (the Constitution) establishes category B municipalities, being local municipalities, and category C municipalities, being district municipalities, and empowers municipalities with executive authority and the right to administer matters pertaining to local government, including firefighting services.

The Constitution further provides that the national government, subject to Section 44, and the provincial government have the legislative and executive authority to see to the effective performance by municipalities of their functions in respect of, inter alia, firefighting services, by regulating the exercise by municipalities of their executive authority.

Section 84 of the Local Government: Municipal Structures Act, No 117 of 1998 (the Structures Act) provides for the division of functions and powers between district and local municipalities.

Section 84(1)(j) provides that a district municipality has the function and power to provide for firefighting services serving the area of the district municipality as a whole, which includes the planning, co-ordination and regulation of fire services and the training of fire officers.

The Constitution therefore gives both district and local municipalities the “right” to administer firefighting services. There is, however, no obligation on them to do so.

The Structures Act gives district municipalities the functions and powers to conduct firefighting services.

The word “function” is defined as an activity proper to a person or institution, a mode or action or activity by which a thing fulfils its purpose, an official or professional duty.

This clearly goes beyond a “right” or “power” and the Structures Act therefore places on district municipalities an obligation to provide these services.

It is noted that the minister is not entitled to authorise a local municipality to perform this function in terms of Section 84(3)(a) of the Structures Act.

Accordingly, the only basis upon which a district municipality can escape responsibility for performing this function is if the MEC has acted in terms of Section 85 of the Structures Act by allocating that function to a local municipality having followed the relevant procedures.

Should there be a dispute between district and local municipalities as to who is obligated to provide such function, a plaintiff may approach the MEC in terms of Section 86 of the Structures Act for a resolution of this dispute by defining the respective roles in respect of the provisions of firefighting services. The MEC would then have to follow the procedure set out in Section 86.

In summary, the position is that:

• both local and district municipalities are entitled to conduct firefighting services;

• in the absence of an adjustment in terms of Section 85 of the Structures Act by the MEC, the district municipality is obliged to provide the firefighting services.

The potential liability of a municipality for failing to provide the service when legislation dictates that it should do so, which failure causes damages to a person arising from a fire is set out below.

The first issue is whether or not a legal duty rests on a municipality towards a potential plaintiff. This constitutes the question of wrongfulness.

Ordinarily, a legal duty arises only when a positive act has taken place. However, the law, in certain circumstances, recognises liability for an omission on the part of a particular party.

This is a matter for judicial judgment involving criteria of reasonableness, policy and where appropriate, constitutional norms. If a legal duty is found to have existed, the next inquiry will be whether the defendant in question was negligent.

In the light of the existing legislation, the courts will find that a legal duty exists, depending on the means of the specific municipality which is obligated by law to provide such a fire service.

If a person is able to show that such legal duty existed, the next question is whether negligence took place. This will be a negligent omission, either to provide a service at all or, when such service was in place, to deploy the firefighting service to fight the particular fire. This is a factual issue and the inquiry is whether or not the municipality in question departed from the standards of a reasonable municipality in its position. This is a general test relating to all negligence.

Should the existence of a legal duty be found and negligence proved, a plaintiff will still have to prove that the negligence gave rise to damages. In other words, that had the municipality either had a firefighting service or properly deployed the firefighting service which it had, the plaintiff in question would not have suffered the damages from the fire which it did suffer.

Each case will turn on its own peculiar facts.

• Petrus Coetzee is an attorney and director at Mason Incorporated.

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