EX PARTE: THE DEPARTMENT OF WATER AFFAIRS AND FORESTRY
IN RE: THE DELICTUAL LIABILITY OF MEMBERS OF FIRE PROTECTION
ASSOCIATIONS
OPINION
Introduction
1.
This opinion concerns the potential delictual liability of Fire Protection Associations
(‘FPAs’), established in terms of the National Veld and Forest Fire Act 101 of 1998
(‘the Act’), and their members in respect of losses occasioned by veld fires falling
within the area of control of the FPA.
1.1
In particular, it deals with the proposition that when loss is occasioned by a
veld fire within the area of a Fire Control Committee, the party who suffered
such loss “sues a member of the Fire Control Committee to recover the loss it
sustained… on the basis that the Fire Control Committee had a duty to prevent
the fire in the first place.”
2.
In a search of reported South African judgments, no case was located in which a Fire
Control Committee (or similar body) had been sued, nor were its members sued in
their capacity as members of an FCC.
3.
It will be necessary to work from basic legal principles in order to establish under
what circumstances, if any, FPAs and their members might be legally liable.
Principles of Delictual Liability & Starting Fires
4.
It is trite law that for a party to be liable in delict, the following elements must be
established: conduct (including omission), wrongfulness, negligence, causation,
damage.
5.
Accordingly, for an FPA or a member of an FPA to be liable, the above elements must
be established. These elements may overlap, and although there are general
principles, each case must be decided on its facts.
6.
Where the FPA actually causes the fire, it is more likely to attract liability. An
example of this might be where the FPA is engaged in the burning of fire breaks. In
such cases, the party controlling the operation must exercise the necessary care, and
take reasonable precautions to ensure that the fire does not burn out of control.
Dews and Another v Simon’s Town Municipality 1991 (4) SA 479 (C) at 485A—J, per
Foxcroft J
6.1
Whoever starts the fire may be responsible for resulting damage, even if that
party is not the landowner, or occupier, or their servant.
Titlestad v Minister of Water Affairs 1974 (3) SA 810 (N), per Leon J
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7.
The more difficult question is whether an FPA has a duty to prevent the occurrence
and spread of veld fires. This, then, is the focus of our inquiry. Firstly, we will
examine the duty which may rest on an FPA to prevent fires; secondly, we turn to the
juristic nature of FPAs.
Duty to Prevent Fire Spreading
8.
Although our law does not impose a general duty to act, it has been held that, when
‘public policy’ so demands, an omission may be wrongful and negligent. In the case
of landowners and fires, our courts have recognised that,
‘Once such an owner or occupier (hereinafter for convenience referred to as a
landowner)… becomes aware that fire has broken out on or spread to his
property, and he foresees or ought reasonably to have foreseen, the likelihood
that, if not controlled or extinguished, it might spread to and cause damage to
or on another’s property, I am, for the reasons which follow, firmly of the
opinion that our law requires him, with such means as are at his disposal, to
take reasonable steps to control or extinguish the fire. For, under such
circumstances, ‘the duty to take care’ … is, in my view, established. Purely as
a matter of language, it is no doubt correct to say that where the landowner
bears no responsibility for the origin of a fire which is burning on his property,
his failure to take steps to endeavour to control or extinguish it is an ‘omission’
which is not ‘connected with prior conduct’. To relieve such a landowner of all
legal liability solely upon that ground would, however, in my opinion, be to
ignore both practical realities and what I conceive to be our law. For, in the
circumstances postulated above, the law, in my opinion, imposes a duty upon
the landowner to take, within the range of his capacities, reasonable steps to
control or extinguish a fire liable to cause damage to another.’
Minister of Forestry v Quathlamba (Pty) Ltd 1973 (3) SA 69 (A) at 81—82,
per Ogilvie Thompson CJ
9.
The duty appears to be restricted to landowners and occupiers – where the fire was on
the land of a third party, a municipality was held (obiter) to be under no obligation to
extinguish the fire.
Van Wyk v Hermanus Municipality 1963 (4) SA 285 (C), per Watermeyer J
10.
Where a fire begins on, or spreads from, land under the control of a particular party,
that party may be liable for resultant damage.
Duty of Care on an FPA
11.
In the light of the above, it may be argued that the FPA ‘controls’ the land within its
area, and thus has a duty to prevent the outbreak and spread of veld fires.
12.
In order to succeed, this argument would have to establish that the FPA was under
such a duty, and that it had breached its duty by acting negligently. As Kannemeyer
JP puts it,
‘There can be no negligence if there is no duty of care.’
Louw and Others v Long 1990 (3) SA 45 (E) at 56D
13.
As our law recognises, in the case of omission, a duty only on those controlling land,
it would be a novel departure to hold the FPA (or the State) liable in such
circumstances.
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14.
It is, however, possible that such a duty could be found to exist, given that its
existence is determined by the ever-changing yardstick of public policy, and the
importance of FPAs under the Act.
Negligence and FPAs
15.
If one were to find that such a duty existed (a real possibility), the next inquiry would
be whether the FPA had breached its duty of care, that is, whether it was negligent in
its conduct or lack of conduct.
16.
16.1
In assessing whether negligence was involved, the inquiry is whether a reasonable
person would have foreseen the danger and taken steps to prevent it – that is, the
plaintiff would have to prove that a reasonable person in the position of the defendant
should have foreseen the danger and taken precautionary steps, which the defendant
failed to do.
On foreseeability in the context of veld fires, see:
Peattie v Clan Syndicate (Pty) Ltd 1984 (4) SA 829 (N) at 842—43, per Law J
17.
Negligence might be established with reference to such factors as the duties of an FPA
in terms of the Act.
18.
The (rebuttable) presumption of negligence in s 34 of the Act is relevant only where
the defendant caused the veldfire, or the fire “started on or spread from land owned by
the defendant.”
18.1
For present purposes, the presumption is only relevant as an incentive to
parties to join FPAs.
19.
Should a plaintiff establish the necessary elements, an FPA would be liable for the
loss suffered. (Note that the limitation of liability contained in s 33 of the Act is not
discussed herein.)
Juristic Personality
20.
Should the FPA, or its predecessor the Fire Protection Committee be legally liable for
damage caused as a result of a fire, is it liable as a legal entity, or are its members
liable?
21.
21.1
21.2
22.
In terms of South African law, associations may be divided into statutory associations,
incorporated bodies under the common law (known as ‘universitates’), and
unincorporated associations.
The latter are not legal persons (save for certain purposes) and their members
are personally liable for any losses incurred by the association.
Statutory bodies are usually legal persons, i.e. they exist as entities with rights
and duties independent from that of their members.
A Fire Protection Association is a statutory association, established in terms of chapter
2 of the National Veld and Forest Fire Act 101 of 1998.
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23.
It may be presumed that an FPA enjoys legal personality, although the deciding test is
always the intention of the legislature, i.e. did parliament intend the FPA to be a legal
person.
24.
There are indications in the Act that the FPA is cloaked with legal personality:
It has defined statutory duties;
It must be recognised and registered by the Minister;
It has a constitution and rules which bind its members;
It may receive financial assistance from the state;
It has perpetual succession in that its existence is not dependent on the
membership of particular parties, but on recognition by the Minister who may
deregister the FPA, upon which the FPA must repay any loan and return any
assets to the Department.
25.
Accordingly, it appears that an FPA is a statutory association which enjoys limited
liability.
26.
The members of an FPA may be liable for negligence in their individual capacities
(i.e. for their conduct, and not by virtue of belonging to the FPA), and the state may,
arguably, be liable for the debts of an FPA (this is not considered here).
27.
It has been suggested that in order to avoid any uncertainty, the FPA may wish to
convert itself into a section 21 company (in terms of the Companies Act).
27.1
This strategy is not considered here, save to observe that is seems unnecessary
and, moreover, should the FPA convert to a section 21 company this may
impact upon its recognition as an FPA in terms of the Act.
Conclusion
28.
This opinion has considered the question of the legal liability of FPAs and their
members for loss caused by veld fires, and concluded:
28.1
28.2
28.3
28.4
the general principles of delictual liability must apply to members of the FPA
in their individual capacity, as well as to the association itself;
liability is easier to establish in respect of fires caused (or in the case of
landowners), than in respect of those which are not prevented;
an FPA is an association created by statute and, according to the principles of
statutory interpretation, appears to have juristic personality and limited
liability;
accordingly, it is unlikely that the members of an FPA will be liable in their
personal capacities for the debts of an FPA.
Anthony Costa
Johannesburg
January 2001