Ivaura Estates (Pty) Ltd v Member of the Executive Council, Department of Roads and Transport, Mpumalanga Province (28337/08) [2010] ZAGPPHC 8 (15 February 2010)

Ivaura Estates (Pty) Ltd v Member of the Executive Council, Department of Roads and Transport, Mpumalanga Province (28337/08) [2010] ZAGPPHC 8 (15 February 2010)

The court found that the plaintiff failed to discharge the onus of proving, on a balance of probabilities, that the fire was caused by a positive act of the defendant's employees. The evidence was largely circumstantial and did not exclude other reasonable inferences, such as the fire being started by a passer-by or other means. Although the presumption of negligence under section 34 of the National Veld and Forest Fire Act was triggered by the admission that the fire started on the defendant's property and spread to the plaintiff's, the defendant rebutted the presumption by showing that all reasonable steps were taken to extinguish the initial fire and that the restart of the fire on the...

Citation
[2010] ZAGPPHC 8
Parties
Plaintiff: Ivaura Estates (Pty) Ltd; Defendant: Member of the Executive Council, Department of Roads and Transport, Mpumalanga Province
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
15 February 2010
Case Number
28337/08
Procedural Posture
Civil Trial / Merits Only; Quantum Separated
Outcome
Plaintiff's action dismissed with costs.
Judges
Legodi
Legal Topics
Negligence, National Veld and Forest Fire Act, Presumption of Negligence, Duty of Care, Firebreaks, Wrongfulness
Delict Land and Property Negligence National Veld and Forest Fire Act Presumption of Negligence Duty of Care Firebreaks Wrongfulness

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Parties

Ivaura Estates (Pty) Ltd

Plaintiff

Member of the Executive Council, Department of Roads and Transport, Mpumalanga Province

Defendant

Procedural Posture

Civil Trial / Merits Only; Quantum Separated

Legal Issues

  1. 1 Whether the fire between the edge of the road and the plaintiff's fence was caused by an act on the part of the defendant's employees.
  2. 2 Whether the defendant is entitled to raise the non-applicability of section 34 of the National Veld and Forest Fire Act as a defence.
  3. 3 Whether the fire onto the plaintiff's property was a continuation or restart of a fire that originated from the defendant's property.

Ratio Decidendi

The court found that the plaintiff failed to discharge the onus of proving, on a balance of probabilities, that the fire was caused by a positive act of the defendant's employees. The evidence was largely circumstantial and did not exclude other reasonable inferences, such as the fire being started by a passer-by or other means. Although the presumption of negligence under section 34 of the National Veld and Forest Fire Act was triggered by the admission that the fire started on the defendant's property and spread to the plaintiff's, the defendant rebutted the presumption by showing that all reasonable steps were taken to extinguish the initial fire and that the restart of the fire on the...

Court Disposition

Plaintiff's action dismissed with costs.

Orders

  • The plaintiff's claim is dismissed with costs.