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In June 2017 Knysna experienced one of its worst disasters yet when 500 houses were destroyed and approximately 7000 people had to be evacuated due to veldfires. In addition to the recent Knysna fire, veldfires have become an unfortunate regular heading, specifically in the Southern Cape. Veldfires causes extensive damage to properties, sometimes coupled with the tragic loss of life. Despite the tragic loss of vegetation, animals and sometimes human lives, an owner of a property can be held liable for damages suffered by other owners under certain circumstances. It is therefore imperative that owners (which includes tenants) take due cognisance of the legal ramifications when it comes to veldfires.

It is impossible to deal with the maze of legal liability when it comes to veldfires. It is important for everyone to at least take note of the basic applicable legal principals.

LEGISLATIVE FRAMEWORK:

The National Veld and Forest Fire Act, No: 101 of 1998 (“the Act”) contains provisions which mainly deals with liability arising from veldfires. The Act has 38 sections. It deals with the establishment of Fire Protection Associations, veldfire prevention through fire- breaks and firefighting measures. One of the most important sections in the Act is section 34, which reads as follows:

“Presumption of Negligence:

34. 1) If a person who brings civil proceedings proves that he or she suffered loss from a veldfire which –

(a) the defendant caused; or

(b) started on or spread from land owned by the defendant, the defendant is presumed to have been negligent in relation to the veldfire until the contrary is proved, unless the defendant is member of a fire protection association in the area where the fire occurred.

2) The presumption in subsection (1) does not exempt the plaintiff from the onus of proving that any act or omission by the defendant was wrongful.

In order to be kept liable for damages by an owner who has suffered damages as a result of a veldfire, which started or spread from a defendant, a plaintiff must allege and prove:

(a) negligence on the part of the defendant, or a person in his or her employment acting within the scope and ambit of the employment; and

(b) a causal connection between the loss suffered and the defendant’s act as provided for in section 34(1) – the starting of the fire or the spreading thereof onto his or her land; and

(c) that the defendant is not a member of a fire protection association as provided for in section 34 read with section 3 of the Act.

Once this has been accomplished, there is an onus on the defendant to prove that the harm complained of was not reasonably foreseeable, or that the damage could not be prevented, despite his/her reasonable diligence and efforts.

There have been numerous reported court cases which deal with the liability of an owner when it comes to veldfires. Section 34 of the Act, albeit not the “be-all-and-end- all” of liability, is one of the most important sections of the Act. Despite the evidentiary burden it places on an owner who is not part of a fire protection association, to belong to a fire association provides owners with valuable information, advice and assistance in the unfortunate event of a veldfire.

Despite circumventing the evidentiary burden of section 34, owners will have some of the following direct benefits of belonging to a fire-fighting association:

1. increased co-ordination in the event of a fire;

2. training for new members in basic veldfire fighting;

3. assistance in the event of extreme fire conditions through the provision of trained firefighting teams and management;

4. continuous advice and risk assessments;

5. compliance with certain insurance policies;

6. increased awareness and the creation of platforms where risks can be identified.

The Southern Cape Fire Protection Association provides these benefits to its members. Belonging to an organisation however does not indemnify an owner against any claims. Strict legal principles apply when it comes to damages caused by veldfires and owners are reprimanded to do their homework well in advance in order to ensure that they comply with applicable legislation. Claims caused by veldfires normally exceeds millions of rand and it is therefore advisable that owners obtain legal advice, well in advance, in order to structure their fire risk programmes. Section 34 is therefore a wake-up call for owners to immediately start planning for an unfortunate veldfire.

Should you require more information kindly contact Pieter van der Merwe at 044 601 9900, office@rgprok.co.za or www.rgprok.co.za .