Negligence considered if fire spreads

2017-12-13 06:02
Sinokuhle Skondo

Sinokuhle Skondo

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Question:


I own a smallholding of a few hectares.

Recently, with the heavy winds in the region, a veld fire started on my property.

I am still not sure how it was caused, but despite my attempts to stop it, the fire quickly spread to my neighbour’s property and caused damage to some of his sheds before we could get it under control.

Needless to say, my neighbour is very upset about the damage.

I think he is contemplating holding me responsible.

Can he hold me liable for the damage?

Answer:

Your question is of concern to many landowners.

The primary piece of legislation relating to the responsibilities of land owners in respect of veldfires is the National Veld and Forest Fire Act 101 of 1998 (“the Act”).

Section 34 of the Act is particularly relevant when it comes to the liability of a landowner, since it establishes a presumption of negligence against the landowner.

It must be noted, however, that despite the presumption of negligence, the plaintiff must still prove that any act taken or omission by the defendant was wrongful.

In analysing the responsibility of a landowner, our courts found in the recent case of MTO Forestry (Pty) Ltd v Swart NO that a reasonable landowner was not obliged to ensure that in all circumstances a fire on his property would not spread beyond its boundaries.

A landowner simply has an obligation to ensure that he has taken reasonable steps to prevent the veldfire from occurring.

Negligence will not be imputed to the landowner, if notwithstanding reasonable steps, a fire still spreads to an opposite, adjacent or any other adjoining land or property.

In order to establish what reasonable steps would be, the Act provides guidance in respect of establishing firebreaks, having fire-fighting equipment on hand, having trained personnel who are capable of fighting fires and alerting landowners nearby of a veldfire occurring, for example.

If the landowner does not have such reasonable measures in place, and is seen to not have exercised urgency to minimise the crisis, then he or she may be held negligent through operation of the presumption contained in section 34 of the Act.

In your case, unless you are part of a fire protection association, there will be presumed negligence on your part in relation to the veldfire.

This can, however, be nega­ted by showing that you did take all reasonable measures as required by the Act.

It may be advisable to consult with your attorney and ensure that you record all the measures you take, should your neighbour decide to institute action against you for any of his damage.
Sinokuhle Skondo, candidate attorney, Phatshoane Henney Attorneys

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