THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 872/2017

In the matter between:

NIEUCO PROPERTIES 1005 (PTY) LTD                                            FIRST
APPELLANT

JACOBUS JOHANNES BOSHOFF                                               SECOND
APPELLANT

and

TRUSTEES FOR THE TIME BEING OF THE
INKULULEKO COMMUNITY TRUST                                       FIRST RESPONDENT

MINISTER OF THE DEPARTMENT OF RURAL
DEVELOPMENT AND LAND REFORM,
REPUBLIC OF SOUTH AFRICA                                                  SECOND
RESPONDENT

SIPHO LEVY MASEKO                                                                             THIRD
PARTY

Neutral citation:
Nieuco Properties 1005 & another v Trustees for the Inkululeko
Community Trust & others (872/2017) [2018] ZASCA 123 (21 September 2018)

Coram:
Cachalia, Saldulker, Dambuza, Van der Merwe and Schippers JJA

Heard:
31 August 2018
Delivered:
21 September 2018
Summary:   Fire – National Veld and Forest Fire Act 101 of 1998 – interpretation of
definition of ‘owner’.
____________________________________________________________________

ORDER

On appeal from: Gauteng Division of the High Court, Pretoria (Peterson AJ sitting
as court of first instance):
1  The appeal is upheld with costs, including the costs of two counsel.
2  The order of the court a quo is set aside and replaced with the following:
‘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.’

JUDGMENT

Van der Merwe JA (Cachalia, Saldulker, Dambuza and Schippers JJA
concurring)

[1] This appeal concerns the meaning of the definition of ‘owner’ in s 2(1) of the
National Veld and Forest Fire Act 101 of 1998 (the Act). The need to determine this
issue arose from the facts and circumstances set out below.

[2] The first appellant, Nieuco Properties 1005 (Pty) Ltd, is the owner of the
remaining extent of portion 1 as well as the adjoining portion 10 of the farm
Glengarry 652 situated in the province of Mpumalanga. I refer to these two portions
of land collectively as Glengarry. The first appellant and the second appellant, Mr

Jacobus Johannes Boshoff, jointly farm on Glengarry and, inter alia, produce
macadamia nuts.

[3] The first respondent, the trustees for the time being of the Inkululeko
Community Trust IT490/63, is the owner of the farm Rietvley 651 (Rietvley).
The Government of the Republic of South Africa is the registered owner of portion 1
and of the remaining extent of the farm Hanging Stone 636 (collectively referred to
as Hanging Stone). Hanging Stone is thus ‘State land’ as defined in the Act. The
second respondent, the Minister of Rural Development and Land Reform, is
responsible for its administration. The parties therefore agreed that the second
respondent should be regarded as the registered owner of Hanging Stone. Rietvley
adjoins Hanging Stone and both adjoin Glengarry.

[4] On 20 April 2011 the second respondent (duly represented) entered into a
written agreement of lease with a third party, Mr Sipho Levy Maseko, in terms of
which Hanging Stone was let to him for a period of five years commencing on 1 April
2011. In terms of the lease agreement the second respondent relinquished
possession, use and enjoyment of Hanging Stone to Mr Maseko for the duration
thereof.                         The  agreement obliged him to make firebreaks on the
boundaries of Hanging Stone as well as within its boundaries where necessary, to
protect the farm against internal fires and to comply with any statutory fire protection
requirements or conditions imposed by any competent fire protection authority
(clause 11.16). In terms of clause 11.6, Mr Maseko was obliged to keep all the
firebreaks open and free from any combustible material.

[5] On 7 June 2012 a veldfire started on Rietvley. From there it spread to
Hanging Stone and then to Glengarry. The veldfire was extinguished, but flared up
again on     8 June 2012 and spread to the appellants’ macadamia orchards on
Glengarry.

[6] The appellants instituted action against the first and second respondents in
the North Gauteng Division of the High Court, Pretoria. They alleged that the
wrongful and negligent conduct of both respondents had caused the destruction of
thousands of macadamia trees on Glengarry. In the result they claimed damages

from the respondents, jointly and severally, in the amount of R16 775 257.95,
consisting of the costs of replacement of the macadamia trees and loss of income for
the period until the replacement trees come into full production.

[7] In their particulars of claim the appellants relied principally on the alleged
failure by the respondents to comply with the obligations placed on an ‘owner’ of land
in terms of the Act. There was some debate before us on the question whether the
particulars of claim also placed reliance on the common law duties of landowners to
prevent veldfires and the spreading thereof. In view of the conclusion I have
reached, it is unnecessary to determine this issue.

[8] Chapters 4 and 5 of the Act provide for various duties of owners in respect of
the prevention of veldfires and fire fighting. Non-compliance with these duties is a
criminal offence under s 25 of the Act. Chapter 4 places a duty on owners to prepare
and maintain firebreaks. Section 12(1) provides that every owner on whose land a
veldfire may start or burn from, must prepare and maintain a firebreak on his or her
side of the boundary between his or her land and any adjoining land. Section 13
deals with the requirements for firebreaks. In essence, it provides that an owner is
obliged to prepare and maintain firebreaks that are wide and long enough to have a
reasonable chance of preventing a veldfire from spreading to or from neighbouring
land.

[9] Chapter 5 places a duty on all owners to acquire the necessary equipment
and to have personnel available to fight fires. Section 17(1)(a) provides that every
owner on whose land a veldfire may start or burn or from whose land it may spread,
must have the fire fighting equipment, protected clothing and trained personnel
prescribed by regulation or reasonably required in the circumstances. Section
17(1)(b) obliges an owner to ensure that in his or her absence responsible persons
are available to act in the event of fire. In terms of s 17(2) an owner may appoint an
agent to do all that he or she is required to do in terms of s 17. Section 18 provides
that any owner who has reason to believe that a fire on his or her land or the land of
an adjoining owner may endanger life, property or the environment, must
immediately take all reasonable steps to notify the relevant fire protection officer or

authority and all owners of adjoining land and must also do everything in his or her
power to stop the spread of the fire.

[10] The particulars of claim also foreshadowed that the appellants would rely on
s 34 of the Act. It provides:
‘(1)
If a person who brings civil proceedings proves that he or she suffered loss from a
veldfire which –
(a)
the defendant caused; or
(b)
started on or spread from land owned by the defendant, the defendant is presumed
to have been negligent in relation to the veldfire until the contrary is proved, unless the
defendant is a member of a fire protection association in the area where the fire occurred.
(2)
The presumption in subsection (1) does not exempt the plaintiff from the onus of
proving that any act or omission by the defendant was wrongful.’
It is common cause that the second respondent was not a member of a fire
protection association in the area where the fire in question occurred.

[11] The plea of the second respondent focused on the control of Hanging Stone.
The second respondent pleaded that in terms of the lease agreement, Hanging
Stone was at the relevant time under the control of the third party. The plea
postulated that only persons in control of land are owners thereof in terms of the Act
and, therefore, that the second respondent was relieved from performing any of the
obligations in respect of Hanging Stone in terms of the Act.

[12] In response to the second respondent’s plea, the appellants added the third
party as a party to the action. They claimed that he was liable for their damages,
jointly and severally, with the first and second respondents.

[13] As between the appellants and the second respondent, however, the central
issue was whether, as a matter of law, the lease agreement absolved the second
respondent from compliance with the obligations in terms of the Act. They agreed to
place this issue before the court for determination as a separated question of law on
agreed facts. The first respondent and the third party played no part in these
proceedings. The question of law was formulated in these terms:

‘Do the provisions of the Act and more particularly the duties imposed on an owner referred
to in the various sections apply in relation to State land where the Minister of the
Government Department (the Second Defendant) concluded a lease agreement with a third
party whereby possession and control of such land are given and made over to the lessee in
terms of the provisions of the lease agreement including clauses 11.6 and 11.16 of the lease
agreement, Annexure “B”?’

[14] The answer to this question depends on the proper interpretation of the
definition of ‘owner’ in the Act, namely:
‘“owner” has its common law meaning and includes –
(a)
a lessee or other person who controls the land in question in terms of a contract,
testamentary document, law or order of a High Court;
(b)
in relation to land controlled by a community, the executive body of the community in
terms of its constitution or any law or custom;
(c)
in relation to State land not controlled by a person contemplated in paragraph (a) or a
community –
(i)
the Minister of the Government department or the member of the executive
council of the provincial administration exercising control over the State land;
or
(ii)
a person authorised by him or her; and
(d)
in relation to a local authority, the chief executive officer of the local authority or a
person authorised by him or her.’

[15] In the court a quo the appellants contended, in essence, that the definition
determined that more than one person may be the ‘owner’ of a particular piece of
land at the same time. Therefore, so it was argued, both the second respondent and
the third party were saddled with the obligations in terms of the Act at the relevant
time. The second respondent, on the other hand, contended that on a proper
construction of the definition only a person who has the right of control over the land
in question, is regarded as the owner and because possession and control of
Hanging Stone was handed to the third party in terms of the lease, only the latter
was obliged to comply with the Act. Thus, the appellants contended, the question of
law should be answered in the affirmative, whereas the second respondent
contended that the answer should be ‘no’.

[16] The court a quo (Petersen AJ) answered the question of law in favour of the
second respondent. It held that ‘the word “control” traverses the definition of “owner”
like a golden thread’. As the second respondent had relinquished control over
Hanging Stone to the third party, so it reasoned, the obligations in terms of the Act
and the presumption of negligence in terms of s 34 thereof did not apply to it.

[17] The court a quo dismissed the appellants’ claim. Presumably this only
entailed dismissal of the claim against the second respondent. In any event the court
a quo erred in this regard. It was not called upon to determine liability. It had to
decide only the question of law. The court a quo, however, granted leave to the
appellants to appeal to this court.

[18] In reaching its conclusion, the court a quo relied heavily on the judgment in
Mondi South Africa Ltd v Martens & another 2012 (2) SA 469 (KZP). There the first
defendant was the owner of two farms. In terms of a written agreement and power of
attorney, the first defendant handed complete control of the farms, including the right
to alienate the farms, to his father, the second defendant. The court concluded that
as the right of control over the farms was divested in favour of the second defendant,
the first defendant ceased to be an ‘owner’ of the farms.

[19] The court in Mondi regarded the common law right of control over the property
as the decisive incident of ownership for the purposes of determining whether the
first defendant fell within the common law meaning of owner (para 20). Although
recognising that this did not apply to para (d) of the definition, the court pointed out
that the control of the land was required by paras (a) to (c) thereof (para 22). The
court proceeded to say that it would be anomalous to require control over the land in
question to qualify the other named entities as an ‘owner’, but not in the case of the
‘common law meaning’ of owner (para 23). The court also referred to decisions of
this court that dealt with the delictual liability  of a landowner for damages resulting
from a fire that spread from the property controlled by the landowner, including
Minister of Forestry v Quathlamba (Pty) Ltd 1973 (3) SA 69 (A) (Quathlamba) (paras
29-32).           It held that ‘the historical judicial requirement of control over the
property as a determinant of liability’ indicated that the common law meaning of
owner in terms of the Act must include the element of control over the property in

question. The court also found it unpalatable that the presumption of negligence in s
34 would operate against an ‘owner’ who had no right of control over the land in
question (para 34).

[20] It is trite that the interpretation of the definition entails giving meaning to the
words used within the context in which they were used, including the purpose of the
Act. As always, one has to start with the language.

[21] In this regard, the definition commences with a primary meaning of ‘owner’,
namely its ‘common law meaning’. In terms of the common law ownership is the
most extensive right that a person may have with regard to a corporeal thing. The
content of ownership is not capable of exhaustive tabulation. Nevertheless,
ownership is not absolute. Its full extent may be limited by public law or by the owner
having granted private law rights over the property to a third party. By doing so the
owner only suspends his or her powers over the property to the extent of the rights
granted. When such rights of a third party come to an end, the full content of
ownership is automatically restored. This is referred to as the elasticity of ownership.
Thus, at common law, it is quite clear that an owner who temporarily transfers the
right of control over the property to a third party, remains the owner of the property.
See CG van der Merwe Sakereg 2 ed at 171-175.

[22] It follows that the definition of ‘owner’ in the Act includes an owner, who
temporarily relinquishes possession and control of the property in terms of a lease
agreement. Taking into account that para (d) of the definition also does not require
control of the land, it is clear that the definition of ‘owner’ is not limited to persons in
control of land.

[23] As a general rule, the word ‘includes’ is used as a term of extension.
Depending on the context, it generally serves to extend a primary meaning by adding
matters not ordinarily included in the primary meaning. See R v Debele 1956 (4) SA
570 (A) at 575-576 and De Reuck v Director of Public Prosecutions, Witwatersrand
Local Division & others 2004 (1) SA 406 (CC) para 17-18. The court a quo correctly
recognised that this is the meaning of the word ‘includes’ in the definition. The

common law meaning of owner is well known and the persons mentioned in paras
(a) to (d) of the definition do not ordinarily fall within that meaning.

[24] When regard is had to the word ‘and’ (not ‘or’) between paras (c) and (d), it
becomes apparent that the meaning of the language of the definition is that all the
persons referred to therein are conjunctively regarded as owners. This is put beyond
doubt by the Afrikaans text of the Act. It provides that ‘owner’ means ‘. . . dieselfde
as in die gemenereg en ook’ (my emphasis) the persons tabulated in paras (a), (b),
(c) and (d). (In respect of the permissibility of having regard to the unsigned text in
these circumstances, see Bonitas Medical Fund v The Council for Medical Schemes
& another [2016] ZASCA 154; [2016] 4 All SA 864 (SCA) para 16).
[25] It follows that more than one person may simultaneously be the ‘owner’ of a
particular piece of land for purposes of the Act. The obvious example is that of
landowner and lessee. The same applies, for instance, to land owned by a local
authority that is under the control of a person referred to in paras (a) or (b) of the
definition. Therefore, all persons falling within the wide definition of ‘owner’ in respect
of a piece of land, are liable to comply with the obligations in terms of the Act,
subject to the provisions of s 2(5).

[26] Section 2(5) of the Act provides strong contextual support for this conclusion.
It provides:
‘(5)
Where there is more than one owner in respect of the same land, the proper
performance by one owner of a duty imposed in terms of this Act exempts the other owners
from performing that duty.’
As counsel for the second respondent fairly conceded, this section would be wholly
superfluous if only persons in control of land were regarded as the ‘owners’ of that
land.

[27] Thus, the definition of ‘owner’ does two things. First, it extends the categories
of persons liable for the obligations in terms of the Act. Second, it enhances
effectiveness by nominating the responsible body or persons in paras (b), (c) and
(d).

[28] This accords with my understanding of the purpose of the Act. The judgment
of the Constitutional Court in Prinsloo v Van der Linde & another 1997 (3) SA 1012
(CC) (which declared the predecessor of s 34 of the Act not to be unconstitutional)
commences with the following:
‘Much of South Africa is tinder dry. Veld, forest and mountain fires sweep across the land,
causing immense damage to property and destroying valuable forest, flora and fauna.’
The purpose of the Act is set out in s 1 thereof. It provides:
‘(1)
The purpose of this Act is to prevent and combat veld, forest and mountain fires
throughout the Republic.
(2)
The Act provides for a variety of institutions, methods and practices for achieving the
purpose.’
In my judgment, the Act seeks to fulfil its purpose of preventing enormous
environmental and economical damage by veldfires by assigning the obligations in
terms of Chapters 4 and 5 of the Act as widely and effectively as possible.

[29] In MTO Forestry (Pty) Ltd v Swart NO [2017] ZASCA 57; 2017 (5) SA 76
(SCA), Leach JA found the following argument to be compelling but unnecessary to
decide:
‘[24]
In regard to the first of these issues, the appellant argued that the court in Mondi v
Martens had conflated the liability for certain duties under the Act and the presumption of
negligence contained in s 34(1) with delictual liability. This was particularly so in regard to its
reasoning that it was necessary to adopt a narrow meaning to the concept of ownership so
as to avoid an owner, who had no right to control over land, being held liable. The correct
approach, so the argument went, would have been for the court to have held the registered
owner to have been an owner in terms of the Act – and therefore liable to perform the
prescribed duties imposed by the Act – but not having been liable in delict as, due to him not
having been in control of the property in question, he had not acted wrongfully.’

[30] Subject to one qualification this argument is sound. The provisions of the Act
are of course not entirely insulated from the law of delict. Non-compliance with a
statutory duty in terms of the Act may underpin a finding that a person negligently
and wrongfully caused damages resulting from a veldfire and a plaintiff may rely on
the presumption of negligence contained in s 34 in a delictual action. But the Act
does not determine delictual liabilitiy. That is done only by the law of delict. It follows

that whether or not delictual liability would lie, is not relevant to the interpretation of
the definition of ‘owner’ in the Act.

[31] The qualification is this. It is well established that wrongfulness is determined
by a judicial evaluation of whether considerations of public and legal policy require
that a particular act or omission be visited with delictual liability. As Nugent JA said in
Minister of Safety and Security v Van Duivenboden 2002 (6) SA 423 (SCA) para 12,
this exercise is often assisted by postulating negligence. Thus, in matters such as
the present, the question would be whether public and legal policy considerations
indicate that a landowner be held liable for damages caused by his or her negligent
omission to prevent a fire spreading to neighbouring land, irrespective of whether
that landowner has the right of control of the land or not. The answer must no doubt
generally be in the affirmative. It follows that in most cases a landowner without
control of the land would, in these circumstances, escape delictual liability because
of the absence of causal negligence on his or her part. That is the import of what
Ogilve Thompson CJ said in Quathlamba at 82D-83H.

[32] Seen thus, the application of s 34 to a landowner who temporarily transfers
possession and control of his or her land, presents no real difficulty. First, s 34 does
not apply if the landowner is a member of a fire protection association for the area in
question. Second, the facts in respect of when, how, to whom and for what period
such transfer of rights took place, would generally not be public knowledge but would
lie within the peculiar knowledge of the landowner. Third, a landowner who transfers
possession and control of the land to a responsible person who could reasonably be
expected to take reasonable steps to prevent and control veldfires on the land would
seldom be sued and if so, would have no difficulty rebutting the presumption of
negligence. If not, a finding of negligence against him or her would not be unfair.

[33] For these reasons the decision in Mondi v Martens should no longer be
followed. The court a quo should have answered the question of law in the
affirmative and the appeal must be upheld.

[34] The following order is issued:
1  The appeal is upheld with costs, including the costs of two counsel.

2  The order of the court a quo is set aside and replaced with the following:
‘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.’

_________________________
C H G van der Merwe
Judge of Appeal

APPEARANCES
For Appellant:

F J Becker SC (with him T van der Walt)

Instructed by:

Tim du Toit Attorneys, Johannesburg

Phatshoane Henney Attorneys, Bloemfontein

For Second Respondent: A C Ferreira SC (with him H O R Modisa)

Instructed by:

The State Attorney, Pretoria

The State Attorney, Bloemfontein