“I own a small holding of a few hectares. Recently, with the heavy winds in the region a veld fire started on my property. I’m still not sure what happened, but the fire spread quickly, despite my attempts to stop it, 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 and I think is contemplating holding me responsible. Can he hold me liable for the damage?”
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 & 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. It establishes a presumption of negligence against the landowner by providing that:
“34(1) If a person who brings civil proceedings proves that he or she suffered loss from a veldfire which –
(a) the defendant [ie. the landowner]* caused; or
(b) started on or spread 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 a member of a fire protection association in the area where the fire occurred”.
*our explanation added
It must be noted 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 its 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 and 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/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, alert landowners nearby of a veldfire occurring, etc. 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/she may be held negligent through operation of the presumption contained in section 34 of the Act.
The Act provides for the presumption of negligence not to be present where a landowner is part of a Fire Protection Assocation in the region of his land. Through membership of such an association, the Act intends for landowners to be more prepared and have measures in place to prevent and combat veldfires. As a result the presumption of negligence is not applied, although it does not obviate the fact that negligence can still be proven, but then without the benefit of presumed negligence.
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 taken by you should your neighbour decide to institute action against you for his damage.