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Winter is the time of year when rural-based landowners hold their breath on windy days in anticipation of impending wildfire reports on their two-way radios or WhatsApp. The consequences of these fires, the origin and spread of which cannot be prevented in time, come without warning and are often brutal. These devastating consequences are, without a doubt, the very reason why those with malicious intent are so attracted to arson.

While it is not always possible to prevent the origin and spread of forest and veld fires, there are circumstances in which the origin and spread of fires could have been prevented and where failure to act could result in landowners or tenants being held liable for damages.

Legislation relating to fires

The National Veld and Forest Fire Act, 1998 (Act 101 of 1998) is specifically aimed at reforming legislation relating to veld and forest fires and, by way of regulations, having in place a system to combat these fires. The Act is not only aimed at establishing a set of standards for the prevention of fires, but has also reformed the law with respect to liability for damages arising from the formation and spread of fires.

Fundamental to the objectives of the legislation is the establishment of approved firefighting associations in the different geographical and climate regions within the borders of South Africa. The purpose of registered firefighting associations is to prevent veld and forest fires from occurring or spreading by way of a list of prescribed responsibilities and rules, which can be enforced against members of the association.

Due to the diverse climate and ecological regions in our country, firefighting associations are highly depended upon to develop unique and specific firefighting strategies and policies in each region.

Claims for damages

A claim in terms of which someone will be held liable for damages is based on what is legally known as a delict. A delict consists of a certain number of elements or a list of legal requirements which must be stated in court documents and submitted to a court by way of adducing evidence. In general, the burden of proof or duty to prove a claim will rest with the person claiming the damages.

With regard to the origin and/or spread of fires, and in addition to the other elements of a delict, the plaintiff normally has to prove that the person liable for damages has failed to fulfil certain duties and preventive responsibilities. In addition to the requirements imposed by the Act itself, the standards that determine the content of these duties will largely be determined by the policies of the local firefighting association.

Hence, it makes sense for landowners or tenants to join a firefighting association, as well as to uphold the standards the association has set for the region. The alternative would be to ignore these standards and run the risk of being held legally liable for future damages, if it can be proven that failure to comply with any of the standards, led to the occurrence or spread of a fire to an adjacent farm. In this regard, someone may be held liable for fires on another property because, for example, no or insufficient firebreaks were made.

Importance of membership

However, legally there is also another risk associated with the fact that membership of a firefighting association is not taken up. As already stated, the plaintiff would have to prove the claim, but in terms of the Act a legal presumption is created in that a person who is not a member of the firefighting association has been negligent.

The suspicion can be refuted, but unlike other claims for a delict, the burden of proof, which rests on the plaintiff to prove the elements of a delict, shifts to the defendant (the person held liable). The defendant must then prove his/her innocence. Membership of a firefighting association prevents this suspicion from taking root.

Manage and reduce veld fires.

Various insurance products are available to cover the risk of being liable for fires, but membership of a firefighting association remains a prerequisite in the policy conditions of this type of insurance cover.

The aim of legislative compliance is to force communities to work together to fight veld and forest fires, and to counter their devastating effects on lives and property. Prevention is, in all respects, better than cure when it comes to fires. – HJ Moolman, Moolman & Pienaar Incorporated

For more information, contact HJ Moolman on 018 297 8799, 018 297 0397 or hj@mmlaw.co.za.