Unnatural veld fires are not only common in the southern parts of Africa but entail severe long term repercussions. The question however arises as to whether a person, who causes the fire, can be presumed negligent pertaining to his or her actions. When considering the said question it is best to look through the lens of primary legislation covering veld fires both natural and unnatural within South Africa.
In causa Section 34 of the National Veld and Forrest Fire Act No 101 of 1998 deals directly with the presumption of negligence by bestowing a threefold burden of proof upon a litigant whom wishes to enforce civil proceedings based on this cause of action.
In a nutshell the thrust burdens entail the following:
1. Proof by the enforcing litigant that he or she suffered a loss as a result of the damages caused by the veld fire in question; and/or
2. Proof that the veld fire was caused by the defending litigant; and/or
3. Proof that the veld fire started on and/or spread from land owned by the defending litigant.
It should however be bore in mind that the presumption of negligence as contemplated by Section 34(1) does not exempt the enforcing litigant from the onus of proving that any act or omission by the defending litigant was wrongful.
In determining as to whether the defending litigant wrongfully caused the veld fire one needs to consult the trait principals as set out within Kruger vs Coetzee 1966 (2) SA 428 (A). As per Holmes JA the following needs to be established pertaining to the defending litigant as to ascertain the presence of negligence:
a. whether a diligens paterfamilias in the position of the defending litigant:
1. would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and
2. would take reasonable steps against such occurrences; and
3. the defending litigant failed to take such steps.
Pertaining to what reasonable steps needs to be taken as to comply with Kruger vs Coetzee the National Veld and Forrest Fire Act provides guidelines as to determine whether such steps were taken and/or determining what these steps entail. Steps as contemplated by the said act includes the making and maintaining of firebreaks, firefighting equipment including protective clothing and trained personnel for extinguishing fires as well as belonging to a Fire Protection Association.
Whether you are the instituting or defending litigant ensure that you are acquainted with the legal principals accompanied with this cause of action.
Written by : Christian Schietekat (B.Com Law, LL.B)