Nieuco Properties 1005 and Another v Trustees for the time being of the Inkululeko Community Trust and Others (872/2017) [2018] ZASCA 123 (21 September 2018)

Parties

Procedural Posture

Civil Appeal / Appeal From Gauteng Division of the High Court, Pretoria; Determination of a Separated Question of Law

Legal Issues

1. 1 Does the definition of 'owner' in the National Veld and Forest Fire Act 101 of 1998 impose statutory duties on both the registered owner and the lessee in respect of State land under a lease agreement?
2. 2 Can more than one person simultaneously be regarded as 'owner' for purposes of the Act, thereby sharing statutory obligations?
3. 3 Does the presumption of negligence in section 34 of the Act apply to a registered owner who has relinquished control to a lessee?

Ratio Decidendi

The Supreme Court of Appeal held that the definition of 'owner' in the National Veld and Forest Fire Act 101 of 1998 is not limited to persons in control of land but includes both the registered owner and the lessee or other persons controlling the land. The Act's language, context, and purpose support a conjunctive interpretation, meaning multiple parties may simultaneously bear statutory obligations. Section 2(5) of the Act confirms this by providing that proper performance by one owner exempts others. The presumption of negligence in section 34 applies to all owners unless rebutted. The court rejected the reasoning in Mondi v Martens, finding that temporary transfer of control does not...

Court Disposition

Appeal upheld; question of law answered in the affirmative; costs awarded to appellants including costs of two counsel.

Orders

• The appeal is upheld with costs, including the costs of two counsel.
• The order of the court a quo is set aside and replaced with: 'a. The question of law is answered in the affirmative. b. The second defendant is directed to pay the costs of the hearing of the separated issue, including the costs of two counsel.'