Veldfires (or wildfires) are not a new occurrence, and as evident in other parts of the world too, they are becoming more frequent, intense and devastating. In addition, climate change is certainly exacerbating instances of veldfires caused by natural phenomena.
Runaway veldfires are often responsible for damaging human settlements, farms and plantations, leading to significant financial losses. They may be caused by various factors such as lightning strikes and negligent human activities such as unattended fires, but sometimes they may be started intentionally by criminals. Having regard to the above, one would wonder if there is any legal recourse for a party affected by a veldfire.
As a point of departure, it is important to note that the issue of veldfires, in South Africa, is regulated by the National Veld and Forest Fire Act of 1998. Its purpose is to prevent and combat veld, forest and mountain fires throughout South Africa. Importantly, the Act places a legal obligation on landowners on whose land a veldfire burns (whether it started there or not) or from whose land a veldfire may spread, to do certain things such as preparing and maintaining firebreaks between their land and any adjoining land. It further requires landowners to have the necessary equipment, protective clothing and trained personnel readily available for extinguishing fires. A landowner, for purposes of the Act, is not only the actual registered owner of the relevant property but also includes, among others, a lessee or a person who controls the land in terms of a contract or, in relation to land controlled by a community, the executive body of such community. That means that each of these persons could have the same legal liability for a veldfire as the actual owner.
Where a veldfire causes harm to someone, that person would be able to recover any loss or damage suffered from the landowner if they can prove all five elements of a delict. These would be (i) the conduct (or in this case probably the inaction) of the landowner; (ii) the wrongfulness of that conduct or inaction in not adhering to the requirements of the Act; (iii) fault in the form of negligence; (iv) the actual amount of damages/harm suffered and (v) a connection between the damages/harm suffered and the landowner’s conduct or inaction.
In the case of HL & H Timber Products (Pty) Ltd (1),the Supreme Court of Appeal looked at the conduct element and confirmed that inaction would also satisfy this requirement. Therefore, in terms of having any legal recourse, the claimant will have to prove that the landowner either started the fire or failed to prevent the fire from escaping to their property. Furthermore, the claimant must prove that the conduct of the landowner was unlawful or wrongful in that the fire that the landowner failed to prevent from escaping to the claimant’s land caused damage to the claimant’s land which is a legally protected interest.
In addition, fault can take two forms – intention or negligence – on the part of the landowner and it only exists when a person has acted wrongfully. When a fire starts from a landowner’s land, he is strictly liable for the damage caused on the claimant’s land. However, the landowner is spared from being automatically liable if he is part of a fire protection group or if he is exempted from constructing fire breaks. When none of the aforementioned exists, then one is presumed to be automatically guilty.
The claimant will have to further prove that there is a connection between conduct of the landowner and the damage suffered by him. The landowner cannot be held liable if his conduct does not cause any damage. The question as to whether there is a link between the wrongful conduct and the harm would have to be answered in light of the available evidence.
Lastly, the claimant would have to prove that they suffered damages or loss as a result of the landowner failing to prevent the fire from escaping his land. Damages can also take the nature of prospective or future loss. Therefore, should the claimant suffer for example a loss of crops on his farm or livestock which he would have sold in the future, he can claim for this loss. The claim for a prospective loss of profit was confirmed by the SCA in Transnet Ltd v Sechaba Photoscan (Pty) Ltd (2), wherein the court stated that damages for prospective loss of profit suffered as a result of the fraudulent non-awarding of a tender may indeed be claimed in delict.
In conclusion, the fact that a landowner did not physically start a fire, does not exempt such landowner from being held liable for damages suffered by an affected party should all five elements of a delict be proved. Summarily, a landowner has a positive duty and responsibility to prevent a fire on his property from escaping to another and causing damage there.
Furthermore, in as much as the Act places an obligation on landowners, it also creates exceptions in certain instances. It provides for the formation of fire protection groups for the purpose of predicting, preventing, managing and extinguishing veldfires, and these can be formed by landowners in a specific area. Being a member of a fire protection group does exempt a landowner from being automatically presumed to have been negligent, however, it does not alleviate a landowner from escaping liability if they are found to have been negligent in addition to the other elements of a delict.
This article was authored by our associate attorney, Dudu Kelokilwe.
(1) H L & H Timber Products (Pty) Ltd 2000 4 All SA 545 (A)
(2) Transnet Limited v Sechaba Photoscan (Pty) Ltd 2005 1 SA 299 SCA