Ivaura Estates (Pty) Ltd v MEC, Council, Department of Roads & Transport, Mpumalanga (240/10) [2011] ZASCA 9 (10 March 2011)
- Citation
- [2011] ZASCA 9
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Supreme Court of Appeal
- Panel
- Harms, Cloete, Malan
- Case number
- 240/10
More details
- Court
- Supreme Court of Appeal
- Panel
- Harms, Cloete, Malan
- Case number
- 240/10
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
Assuming in favour of the appellant that the road workers were negligent in starting and not controlling the fire, the evidence showed that the appellant's representatives, with significant experience in fire fighting, arrived at the scene, took over the extinguishing process, and were satisfied that the fire was out and that sufficient precautions had been taken. In these circumstances, a reasonable person in the position of the road workers would not have foreseen the fire flaring up again. The first requirement for negligence, as set out in Kruger v Coetzee, was not satisfied. Therefore, the respondent cannot be held liable for the subsequent damage to the appellant's property.
Court disposition
The appeal is dismissed, with costs.
Orders
- The appeal is dismissed, with costs.
02
Material facts
Parties
Ivaura Estates (Pty) Ltd
Appellant Counsel: E B ClavierThe Member of the Executive Council, Department of Roads & Transport, Mpumalanga
Respondent Counsel: T P Krüger03
Procedural history
Posture
Civil Appeal / Appeal From North Gauteng High Court
04
Questions and positions
Legal issues
- 01
Whether the road workers were negligent in causing or failing to control the fire.
- 02
Whether the appellant's representatives assumed responsibility for extinguishing the fire and preventing its recurrence.
- 03
Whether a reasonable person in the position of the road workers would have foreseen the fire flaring up again.
Party arguments
- Applicant
- The appellant contended that employees of the Department of Roads and Transport were negligent in starting and failing to control a fire on the road reserve adjacent to its property, which subsequently flared up and damaged mango orchards. The appellant argued that the road workers should have foreseen the risk and taken adequate precautions to prevent the fire from spreading.
- Respondent
- The respondent argued that, even if the road workers were negligent in starting the fire, the appellant's representatives, who had extensive experience in fighting fires, arrived on the scene, took control, and were satisfied that the fire had been extinguished and sufficient precautions had been taken. Therefore, the road workers could not reasonably have foreseen the fire flaring up again, and the requirements for negligence were not met.
05
Court’s reasoning
Legal principles
- 01
Kruger v Coetzee 1966 (2) SA 428 (A) at 430E-F
Negligence requires that a reasonable person in the position of the defendant would have foreseen the possibility of harm and taken steps to prevent it.
06
Ratio, limits and disposition
Ratio decidendi
Assuming in favour of the appellant that the road workers were negligent in starting and not controlling the fire, the evidence showed that the appellant's representatives, with significant experience in fire fighting, arrived at the scene, took over the extinguishing process, and were satisfied that the fire was out and that sufficient precautions had been taken. In these circumstances, a reasonable person in the position of the road workers would not have foreseen the fire flaring up again. The first requirement for negligence, as set out in Kruger v Coetzee, was not satisfied. Therefore, the respondent cannot be held liable for the subsequent damage to the appellant's property.
Obiter and limits
- The judgment is of no precedential significance and is confined to its facts.
- The appellant's representatives had considerable experience in fire fighting, which influenced the assessment of reasonable precautions.
Court disposition
The appeal is dismissed, with costs.
- The appeal is dismissed, with costs.
Source and reliance status
Supreme Court of Appeal
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Supreme Court of Appeal
Judgment
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Of no precedential significance
Case No: 240/10
In the matter between:
IVAURA ESTATES (PTY) LTD ....................................................................Appellant
and
THE MEMBER OF THE EXECUTIVE COUNCIL,
DEPARTMENT OF ROADS & TRANSPORT, MPUMALANGA .............Respondent
Neutral citation: Ivaura Estates (Pty) Ltd v The Member of the Executive Council, Department of Roads & Transport, Mpumalanga (240/10) [2011] ZASCA 9 (10 March 2011).
Coram: HARMS DP, CLOETE and MALAN JJA
Heard: 4 March 2011
Delivered: 10 March 2011
Summary: Delict: negligence: fire.
______________
ORDER
On appeal from: North Gauteng High Court (Pretoria) (Legodi J sitting as
court of first instance):
The appeal is dismissed, with costs.
CLOETE JA (HARMS DP and MALAN JA concurring):
[1] On 12 October 2005 a fire destroyed or damaged a considerable number of mango trees on the appellant company's property. The appellant sued The Member of the Executive Council, Department of Roads and Transport, Mpumalanga Province, alleging negligence on the part of employees of the department ('the road workers') who had been cutting the grass on the road reserve of the D533 adjacent to the plaintiff's farm. The court a quo (Legodi J) dismissed the claim but granted leave to appeal to this court.
[2] For the purposes of this judgment I shall assume in favour of the appellant that the road workers were negligent in starting and not controlling the fire. A passerby noticed the fire burning in the road reserve and alerted Mr Peter Spear, who telephoned his brother, Mr John Spear, the managing director of the plaintiff. Mr John Spear dispatched a tractor towing a 2 000 litre high pressure sprayer to fight the fire.
[3] When Mr John Spear arrived at the site of the fire, he found that it had been extinguished by his brother, a team of five or six labourers using the high pressure sprayer and the road workers. Nevertheless, to make assurance doubly sure, the burnt grass
was swept towards the middle of the burnt area and it was again sprayed with water. The appellant's employees then left the scene.
[4] It was the appellant's case that the fire flared up again and spread to the mango orchards owned by it. Assuming, again in favour of the appellant, that this is so, there was in my view no negligence on the part of the road workers. The appellant's representatives arrived on the scene and took over the fighting of the fire. They had the equipment and the knowledge how to do so. Mr John Spear said that he and his brother had acquired knowledge of fighting fires over some thirty years of farming and he said that he had been involved in fighting between 100 and 200 fires himself. When the appellant's employees left, Mr John Spear was satisfied not only that the fire had been extinguished, but also that sufficient precautions had been taken to prevent it flaring up again. In these circumstances, it cannot be found that a reasonable man in the position of the road workers would have foreseen that it would, and accordingly the first requirement set out in Kruger v Coetzee 1966 (2) SA 428 (A) at 430E-F, the locus classicus of the test for negligence, has not been satisfied.
[5] The appeal is dismissed, with costs.
___
T D CLOETE
JUDGE OF APPEAL
APPEARANCES:
APPELLANTS: E B Clavier
Instructed by Du Toit-Smuts & Mathews Phosa
c/o De Swardt Vögel & Myambo, Pretoria
Symington & De Kok, Bloemfontein
RESPONDENTS: T P Krüger
Instructed by The State Attorney, Pretoria
The State Attorney, Bloemfontein
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