By Sanette Viljoen
In the recent case MTO Forestry v Swart (420/2016)  ZASCA 57 the landowner, whose plantation burned down after a fire spread from his neighbour’s land and destroyed his entire plantation, lodged a claim. The fire started on a section of the neighbour’s land that was covered with dense exotic shrubs that were highly flammable. The fire also spread rapidly due to a strong wind that was blowing. As a result of the immense damage suffered by the owner, he lodged a claim of R23 million against his neighbour. The court rejected his claim and the landowner appealed.
The Appeal Court investigated the following elements separately:
– The first element the court looked at was the neighbour’s conduct or action. The landowner requested the court to not hold the neighbour responsible for the start of the fire, but for the fact that he should have been able to foresee the damage and did not react on it in time.
The court looked at the neighbour’s action and determined that the neighbour had several preventative measures in place on his farm; he reacted to the fire immediately; he also immediately contacted his contracted firemen to come and help and also did not neglect in his duty to react as quickly as possible.
– The second element which the court addressed was the element of unlawfulness. When considering this element, all circumstances are taken into account to determine whether the neighbour acted wrongly and if he acted differently from the way the reasonable farmer would have acted in those circumstances.
The court emphasised that the neighbour reacted to the fire immediately and also tried to stem the fire. The fact that the veld was dry and a strong wind was blowing were circumstances which aggravated the spreading of the fire. That the neighbour should have foreseen that he had flammable plants that could worsen the spreading of the fire, could according to the court not be taken into consideration here for unlawfulness. The court emphasised that predictability of damage that could be caused, was not an element to prove unlawfulness.
– The following element was that of guilt, intention or negligence regarding the damage suffered by the landowner. According to the court this damage was clear and did not have to be proved. The landowner had already proved this due to his plantation having burned down and the great loss that he had suffered. The R23 million therefore was the correct claim for the value of the plantation.
Regarding the guilt element, the court said it had to be looked at as to whether the neighbour had started this fire on purpose. This definitely was not the case. The neighbour had reacted immediately. Circumstances beyond his control had spread the fire in spite of the fire-fighting teams who tried to help.
– The element of negligence: If the neighbour had indeed removed his flammable exotic plants it could have prevented future spreading. Was he negligent in not removing his flammable exotic plants, as there was a possibility that they could burn more rapidly? The court said no. It would most probably not have made the spreading so rapid, but his failure to remove them did not indicate negligence. What would have been negligent, was if he had not put sufficient reasonable preventative measures in place that the reasonable farmer would also have done in the same circumstances to try and prevent fires and extinguish them as quickly as possible. The court said that he had done so thoroughly.
What is important for all farmers is that the court put forward that your neighbour is not obliged to guarantee that a fire will not spread to your land; there is only an obligation on him to take reasonable preventative measures to try and prevent such possible fire.
– The last element to be considered was the element of causality. This refers to the link between the conduct of the neighbour and the eventual damage suffered. Was there a causal line that could be drawn? The neighbour reacted immediately and tried to stem the fire. It was not his reaction that caused the fire to spread, therefore there was no causal link.
After consideration of all the circumstances and all the requirements the appeal court rejected the claim and said that although the neighbour had flammable exotic plants on his land, his action was of such a nature that he could not be criticised and that he had done everything he could have done to try and contain the fire.
This case highlights the importance of the necessary preventative measures that need to be taken against fires. If this farmer had not put the necessary preventative measures in place, the claim could have cost him his entire farm. It is also important to train your employees in this regard, as most fires are caused by an innocent little fire to boil a pot of porridge.