IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case number :  281/98
In the matter between :
H L & H TIMBER PRODUCTS (PTY) LTD
Appellant
and
SAPPI MANUFACTURING (PTY) LTD
Respondent
CORAM :
NIENABER, HOWIE, SCHUTZ  JJA, FARLAM, MTHIYANE
AJJA
HEARD :
18 SEPTEMBER 2000
DELIVERED :
29 SEPTEMBER 2000
Forest fire - s 84 of the Forest Act 122 of 1984 - onus
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JUDGMENT
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NIENABER  JA/
NIENABER JA :
[1] On 22 August 1992 a runaway fire broke out on Langfontein, a timber
farm belonging to the appellant and situated alongside the Melmoth-Babanango road
in northern KwaZulu Natal.  The exact cause of the fire was never established.  It
started in a narrow valley, also referred to as a ravine, some 50 to 70 m wide, which
was covered in scrub and grass.  The valley runs approximately north-east to south-
west and is bordered on both sides by farm roads.  The fire, fanned by a strong
north-westerly wind, escaped on both sides of the valley.  On the western side it
destroyed some of the appellant's own timber plantations.  On the eastern side it
devastated timber plantations belonging to MTE Limited (referred to throughout the
trial as "Mondi ") and eventually spread to the respondent's plantations, which
adjoined the Mondi plantations further towards the east, some 2 to 3 km distant
from where it started, where it caused the extensive damage to the respondent’s
wattle and gum plantations which form the subject matter of these proceedings.

[2] The respondent, as plaintiff, sought to recover the losses it suffered as a
result of the fire from both the appellant as the first and Mondi as the second
defendant.   Shortly before the commencement of the trial a settlement was reached
with Mondi and the matter accordingly proceeded against the appellant as the only
defendant.  The trial court (Combrinck J sitting in the Natal Provincial Division)
agreed to separate the issues of liability and quantum and to deal, at the outset, only
with the former.  I shall refer to the parties remaining as the plaintiff and the
defendant respectively.
[3] The plaintiff blamed the defendant for negligently failing to control and
contain the fire which started on its property.  The trial court agreed with the
plaintiff and granted an order “that the first defendant is liable to compensate the
plaintiff for any damage which it may prove it suffered as a consequence of the fire
which originated on the first defendant's property, Langfontein, on 22 August
1992”.  This is an appeal, with leave granted by the court a quo, against that order.

[4] Saturday 22 August 1992 was a so-called code red day.  It was hot and dry.
A strong north-westerly wind was blowing and the fire danger index had moved
from orange to red indicating that conditions were especially dangerous and
conducive to the outbreak of fires.  By 12 noon the wind speed was 70 km an hour
and the fire danger index had reached 88.  Just after midday smoke was detected
on Langfontein from three separate lookout towers, the plaintiff’s, Mondi’s and the
defendant’s.
[5] The plaintiff's Nineve lookout tower reported to Van der Merwe, the
plaintiff's forest manager at Mooiplaas, one of the plaintiff's properties, that a fire
had been spotted on the defendant’s property.  Van der Merwe immediately notified
the Kataza air strip.  All the parties concerned belong to an association, the Zululand
Inland Fire Protection Association (“the Association”),  which provided  air support
in case of fire.  The aircraft used were owned by a company which was contracted
to the Association.  The Kataza air strip was 2 to 3  minutes flying time from

Langfontein.  Because of the day’s red alert status planes were at the  strip ready
for take off at the first sign of crisis.
[6] The alarm having been raised, a spotter plane and a water bomber took off
at 12:14.  Jaco de Vries was the pilot of the spotter plane, Martin Buchler his
spotter/observer and Willem Oosthuizen was flying the water bomber.  All of them
gave evidence for the plaintiff.  The function of the spotter plane was to
communicate by radio with the fire-fighters on the ground and to advise the bomber
where to drop his load.  Each load consisted of approximately 1 500 l of water and
when dropped could cover an area of some 60 - 70 m by 20 - 30  m. They
estimated the fire at that stage to be about 50 m in width and 100 m in length but
spreading in all directions.  The wind was fanning the fire towards the east but it was
also burning against the wind and up the slope on the western side.
[7] Meanwhile the Mondi Ferncliff lookout tower, also having spotted the fire at
Langfontein at more or less the same time, sent out a radio  message to that effect

which was overheard by Peter Walker.  Walker was an independent forestry
contractor, contracted to Mondi, who resided on a property not far from where the
fire broke out.  He testified for the defendant.  On hearing the message at his home
he went outside where he could see the fire.  He immediately gathered his standby
crew and drove towards the fire.  Along the way he encountered Gilbert Plant, the
defendant’s forestry area manager, who was in his bakkie and told him that he was
busy trying to establish radio contact.  Walker informed Plant  that he would in the
meantime proceed to the fire.  When he arrived there he took up a position at the
south eastern end.  He could hear but not see (because of the pall of smoke hanging
over the valley) planes operating and dropping water bombs.  By means of back-
burning he was able to contain the fire at the southern end.
[8] Unbeknown to Walker Mondi had sent in its own tender and crew to the site
of the fire where they took  up a position along the Mondi boundary on the east,
some 200 - 300 m from the fire.  For reasons which were never properly explained

they did not participate actively in the efforts of the others to battle the rapidly
increasing blaze.
[9] The fire was also observed by the defendant’s lookout tower which alerted
Plant, also a witness for the defendant.  He was, at that moment, on the road, not
far from the site of the fire, on his way to the farm Wonderdraai some 10 km distant
to inspect the fire-fighting crew there. He immediately radioed Wonderdraai and
summoned the crew to the fire.  They were already on their way.  He then drove to
the top of the hill to pinpoint the exact location of the fire.  He tried, but did not
succeed, in contacting the plaintiff’s operations (or “ops”) room as well as Mondi
(Melmoth).  He did succeed in raising Mondi (Babanango).  The defendant’s
properties in the area consisted of four farms, two of which, Langfontein and
Wonderdraai, together some 3 100 ha in extent, were managed as a single unit.
Plant resided at Langfontein which was  2 - 3 km away from the site of the fire.  One
fire-fighting crew with full equipment was stationed at Wonderdraai and another at

the farm Ntonjeneni some 25 km from Langfontein.  The equipment at each station
consisted of a 2 500 l tender, drawn by a tractor, with a crew of 12.  After alerting
both crews Plant returned to his homestead and workshop at Langfontein to load
his bakkie-sakkie (a bakkie fitted with a water tank).  He then drove to the fire where
he stationed himself and operated his bakkie-sakkie on the western side of the
valley.  He could see Walker but he could not communicate with him.  Some time
later he was joined by the crew with equipment from Wonderdraai and eventually
by a Mondi crew from Babanango.  Plant agreed under cross-examination that
Oosthuizen had a better overview of the situation than he had and that it was a real
problem that he was not in two-way communication with the spotter plane, the
plaintiff’s ops room and the Mondi crew on the Mondi boundary.
[10] The combined forces (but excluding the Mondi reserves) fought the fire as
best they could.  By 13:31 Oosthuizen had dropped eight loads.  It was his
impression that by 13:00 the fire had started spotting into the plantations on the east

and had effectively escaped the valley.  It was common cause that once that
happened the fire had for the time being become unstoppable.  As stated earlier, the
plaintiff, Mondi and the defendant itself lost large tracts of afforestation in the
ensuing conflagration.
[11] The plaintiff’s main complaint on the pleadings is that the defendant through
its employees was negligent in failing to detect, control and extinguish the fire which
originated on its property and eventually spread onto the plaintiff’s property.  Harm
to the plaintiff in those circumstances was manifest.  The central issue is therefore
whether the defendant by the exercise of reasonable care could have prevented the
fire from jumping its own boundaries and spreading onto the plaintiff’s land.
[12] It is in this connection that s 84 of the Forest Act 122 of 1984 (“the Act”)
plays a pivotal role.  This section reads:
“When in any action by virtue of the provisions of this Act or the
common law the question of negligence in respect of a veld, forest or
mountain fire which occurred on land situated outside a fire control
area arises, negligence is presumed, until the contrary is proved.”

It was common cause between the parties that the fire in this case was a veld or
forest fire and that it occurred on land situated outside a fire control area.
[13] The overall effect of the section (which in a recent decision by the
Constitutional Court was held not to be unconstitutional : Prinsloo v Van der Linde
and Another 1997 (3) SA 1012 (CC)) is to shift the onus in respect of the “question
of negligence” from a plaintiff to a defendant.   The plaintiff’s claim in this case is
founded on delict.  As with delictual claims in general the essential elements are:
a)  conduct, initiating wrongfulness, by the defendant; b)  fault, in this instance
negligence, by the defendant; c) harm suffered by the plaintiff; d)  a causal
connection between (a) and (c).  The section is only concerned with element (b),
where negligence is the fault complained of.  While the onus remains on the plaintiff
to establish elements (a), (c) and (d) the section relieves him of, and instead
encumbers the defendant with, the burden of proving or disproving element (b).
[14] Conduct (element (a) above) can take the form of a commissio, eg where the

fire causing the loss was started by the defendant (cf Steenberg v De Kaap Timber
(Pty) Ltd 1992 (2) SA 169 (A)) or an omissio, eg the failure to exercise proper
control over a fire of which he was legally in charge (cf Simon’s Town Municipality
v Dews and Another 1993 (1) SA 191 (A) 194C-E) or the failure to contain a fire
when, in the absence of countervailing considerations adduced by him, he was
under the legal duty, by virtue of his ownership or control of the property,  to
prevent it from escaping onto a neighbouring property thereby causing loss to
others ( Minister of Forestry v Quathlamba (Pty) Ltd 1973 (3) SA 69 (A); and
compare Administrateur, Transvaal v Van der Merwe 1994 (4) SA 347 (A)).  This
is such a case.
[15] Ever since Van Wyk v Hermanus Municipality 1963 (4) SA 285 (C) 295A
it has been received dogma that a mere allegation of negligence by a plaintiff will not
be enough to activate the statutory presumption against his defendant.  The reason
is the use of the word “arise” in the section instead of “allege”.  (The word used in

the Afrikaans text is “ontstaan”.)  Thus it was said by Fannin J in Quathlamba
(Pty) Ltd v Minister of Forestry 1972 (2) SA 783 (N) 788H (with reference to the
similarly worded precursor to s 84 of the Act):
“ I would prefer, therefore, to suggest that ‘the question of negligence’
in respect of veld or forest fires can be said properly ‘to arise’ in any
proceedings only where -
a)
negligence is alleged against a party to such proceedings; and
b)
the party making such allegation has established a nexus or
connection, between the fire and the party against whom the allegation
is made, which is consistent with such negligence.”
On appeal (Ministry of Forestry v Quathlamba (Pty) Ltd, supra) this court, while
confirming that “the section cannot be invoked merely by averring negligence,
without anything more” (84C), did not find it necessary to redefine the additional
requirement.  It was said (at 84H):
“The effect of this was that the onus thereafter rested upon defendant
to show either that in the particular circumstances harm to the plaintiff
was not, and could not reasonably have been, foreseen or,
alternatively, that, notwithstanding the exercise by him of such care as
the circumstances reasonably required, defendant could not prevent
the fire from extending beyond the boundaries of its property and

occasioning harm to plaintiff.”
(I do not read the concluding words “and occasioning harm to the plaintiff” as
meaning that a defendant also bears the onus of disproving causation - element (d)
referred to in par 13 above - eg that another fire caused the harm or that the ultimate
harm was too remote in time, distance or circumstance.)  Since there was proof,
which satisfied the court,  that the fire in question originated on and emanated from
landed property owned and controlled by the defendant it was held that the onus
thereafter rested upon it to show that the fire could not by reasonable means and
measures have been prevented from extending beyond the boundaries of its
property, thereby occasioning harm to the plaintiff (84H).  In  Steenberg v De Kaap
Timber (Pty) Ltd supra (where the fire was started by an employee of the
defendant) this court once again reverted, albeit by dint of an assumption (175A-B),
to the requirement formulated by Fannin J of a nexus between the fire and the
defendant which “must be consistent  with negligence.”  Whether such a nexus had

to be proved prima facie or on a balance of probabilities was a point of contention
deliberately left open in Steenberg’s case supra (at 178C-E).
[16] The stated requirement is a nexus between the fire and the defendant.  That
requirement will, in my opinion, be satisfied by proof by the plaintiff of conduct by
the defendant, in the form of a commissio or an omissio, which would render the
defendant answerable in law for the fire or its course. (Compare the manner in which
the section has been applied in matters such as  Titlestad v Minister of Water
Affairs 1974 (3) SA 810 (N) and Louw and Others v Lang 1990 (3) SA 45 (E)
55C-D, 56E.)  Such proof may well avoid an order of absolution at the end of the
plaintiff’s case.  Otherwise the question of the quantum of proof required to
establish such a nexus can be left open, as it was in  Steenberg’s case supra.
[17] The justification for the further requirement that the nexus must be “consistent
with negligence” is to be found in another dictum of Fannin J in Quathlamba (Pty)
Ltd v Minister of Forestry  supra at 788G:

“But it may be argued with some force, I think, that to require only
some nexus is not enough, for unless the nexus between the fire and
the person alleged to have been negligent is such as to be at the least
consistent with negligence, the plaintiff will have taken the matter no
further than if he had merely alleged negligence and done no more.”
Such proof (by the plaintiff) if truly required will of course have to be on a prima
facie basis for otherwise it would be in direct conflict with the statutory presumption
which requires proof (by the defendant) on a balance of probabilities.  In my
respectful view this additional requirement (that the proof of conduct constituting
the nexus between the fire and the defendant must in addition be consistent with
negligence) is perhaps an unnecessary refinement - but again it is not necessary to
express a conviction on the point.
[18] In the instant case the necessary conduct constituting the nexus between the
fire and the defendant (the failure to prevent the spread of the fire beyond the
defendant’s boundaries) was never in dispute.  The statutory presumption
accordingly applied.  That meant that the defendant

“at the trial bore the onus of proving on a balance of probabilities that
its employees were not negligent either in causing the fire to start or in
failing to prevent its spreading onto Broughton [a neighbouring
property].”
per Botha JA in Clan Syndicate (Pty) Ltd v Peattie and Others NNO 1986 (2) SA
791 (A) 796G).
[19] The defendant, accepting that the onus rested on it, offered a two-fold
defence:
a)
that the court a quo erred in finding that the defendant’s employees, Plant in
particular, were and was negligent;
b)
alternatively, that any negligence that may be found on Plant’s part was
essentially irrelevant since the fire would in any event have escaped the
boundary of the defendant’s property regardless of anything the defendant
could reasonably have attempted to do to prevent it from happening.
According to counsel for the defendant the onus in respect of the first leg of its
defence rested on it and in respect of the second leg on the plaintiff.  I agree with

the first proposition but, for the reasons that follow, not with the second.
[20] There is essentially but one question posed: whether the defendant acted
reasonably in relation to the spread of the fire beyond its boundary.  Had it not been
for the section in the Act the onus in respect of the “question of negligence” (which
arose in the action by the plaintiff against the defendant) would have been on the
plaintiff to prove the two aspects of that question, namely a) that the defendant was
negligent ie that harm which was reasonably foreseeable could reasonably have been
averted  and b) that such negligence was relevant to such harm ie to the spread of
the fire from the defendant’s property to that of the plaintiff.  But because of the
interposition of the section the situation is reversed and it is now for the defendant
to prove on a balance of probabilities a) that it was not negligent in any of the
respects alleged by the plaintiff; or b) if its conduct did fall short of the standards
required of it, that such failings would have had no effect on and hence  would not
have been relevant in relation to the escape of the fire ie to the ultimate harm suffered

by the plaintiff.
[21] One of the principal objectives of the Act is the prevention and control of
veld, forest and mountain fires (cf Prinsloo v Van der Linde and Another supra
1016E-H).  Landowners in areas outside fire control areas are saddled with the
primary responsibility, falling short of an absolute duty, of ensuring that such fires
occurring on their land do not escape their boundaries.  This philosophy is also
reflected in s 84.  Its purpose was described in these terms by Fannin J in
Quathlamba (Pty) Ltd v Minister of Forestry supra at 788B-D:
“It was argued on behalf of the plaintiff that the presumption was
created in recognition of the peculiar difficulties faced by a person
who suffers damage as a result of a fire whose origin he may be wholly
unable to establish, and of the fact that, in most cases, if not all, a
person from whose land a fire spreads will be in a much better
position to show how and where the fire originated, whether it was lit
by himself or by anyone for whose acts he is in law responsible and
the manner in which the fire was dealt with, if at all, by him or by his
servants or agents.  This, I think, is undoubtedly correct.
Furthermore, a person who has suffered as a result of a fire which has
come from another’s land will often not be in a position to embark
upon any investigation as to the origin or cause of the fire, and will

certainly have no right to enter upon that land to conduct any such
investigation.”
Similar considerations in my opinion apply when there is uncertainty as to whether
the actions or inaction of a defendant had or would have had a bearing on the state
and course of the fire.  These are issues arising within the context of the “question
of negligence”.  The section as I read it fixes a defendant with the onus not only to
justify the reasonableness of his actions or inaction but also to demonstrate the
irrelevance of his unreasonableness, if that is indeed his case, to the harm
complained of by the plaintiff.  In short the legislature for reasons of policy
encumbered a defendant with the onus to exonerate his conduct in circumstances
where the presumption operates.  It follows that if there is uncertainty (which cannot
be determined as a matter of credibility or  probability) as to whether the
defendant’s conduct fell short of the required standard and, if so, whether it had any
bearing on the fact that the fire escaped his property, those issues must be resolved,
by virtue of the operation of the presumption, against the defendant.

[22] Against that background I propose to examine the two aspects of the
“question of negligence” raised by the defendant as a defence and referred to in
paragraph 19 above.
[23] The first issue is whether Plant had been negligent.  The presumption is that
he was.  The court a quo held that the defendant failed to rebut it.  It is the
correctness of that finding, based on the court a quo’s impression of the witnesses,
its assessment of the facts and its reasoning in regard thereto, that is in dispute.  The
court a quo preferred the evidence of the eye-witnesses to that of the experts.  As
between the experts it preferred the opinions of the plaintiff’s expert, Le Roux, to
those of the defendant’s expert, Venter.  As between the eye-witnesses it ranked
Oosthuizen above the others.  He was described as an impressive witness.  The
court a quo made no credibility findings against Walker and Plant but it regarded
the evidence of Oosthuizen, Buchler and De Vries more highly because they were
in a better position to observe the course and extent of the fire than Walker and

Plant who were on the ground, enveloped in smoke and battling the fire.  No
compelling reasons were advanced in argument why this court should depart from
the court a quo’s assessment of the various witnesses.   It must accordingly follow
suit.
[24] The court a quo accepted Oosthuizen’s evidence that the fire was localised
in the valley and that after he dropped his first two loads his clear impression was
that the fire was “actually acting reasonably peacefully under the severe conditions
that we had” and that it could have been contained in the valley if, in the initial
critical stages, there had been adequate ground crew support.  It was not then in De
Vries’s words, “a raging inferno”.  Even without proper ground support, according
to Oosthuizen, “we were holding it, but we weren’t beating it.”  That too was
Buchler and De Vries’s impression.  It is an impression supported by the fact that
it took almost an hour for the fire to escape from the valley.  The witnesses were all
agreed that the bomber was the most potent weapon available but that it tended to

be ineffectual without adequate ground support.
[25] The problem, then, was the lack of adequate ground crew support in the
initial stages for the bombing operations along the eastern side of the valley.  Was
Plant partly to be blamed for this state of affairs?  He was certainly criticised both
by the court a quo and by counsel for the plaintiff in this court.  These categories
of criticism may conveniently be summarised as follows:
a)
He was inadequately prepared to meet the crisis.
That a crisis was foreseeable (if not perhaps looming) is clear.  It was a code
red day and the north-westerly was picking up.  Everybody concerned was on
standby.  There was no suggestion that the outbreak of the fire could not have been
anticipated at the particular time and place where it eventually occurred or that its
initial intensity was wholly unprecedented.   By the time the bomber had arrived on
the scene at 12:18 the Mondi crew was already in place alongside the Mondi
boundary on the east, some 200 - 300 m from the site of the fire, and Walker had

already commenced fighting the fire in the south.  Only the defendant’s fire-fighting
team was conspicuous by its absence.  Plant estimated that he received the message
at 12:10 and that it would have taken him another 18 - 20 minutes to arrive at the
scene - an estimate that was queried by counsel for the plaintiff but which may be
accepted for present purposes.  By that time the fire had already expanded
alarmingly.  The reason for the delay was, as stated earlier, that Plant, having been
alerted by radio about the outbreak of a fire some 3 km from his homestead, had
to return there in order to load his bakkie-sakkie.  He was unaccompanied by any
crew even though fire-fighting equipment for a crew of four as well as spares had
been stored at his homestead.  Not to have been accompanied by a crew during his
tour of inspection that morning, having regard to the very real danger that a fire
could break out anywhere at any time was, in my opinion, a lapse that was rightly
criticised.  The consequence was that Plant, arriving at the scene of the fire without
beaters, was ill-equipped to contribute  to the efforts to combat the blaze.

b)
Lack of communication.
Another aspect on which Plant was justifiably criticised was his failure to
check his lines of communication during the course of that morning, particularly
with the plaintiff’s ops room which was the nerve centre of  fire-fighting activities
in that area.  For the reasons discussed earlier he was not in two-way radio
communication with the spotter plane or the ops room.  That effectively disqualified
him from assuming the position of “fire-boss” and from directing operations on the
ground which, as the representative of the owner of the land on which the fire
occurred, should primarily have been his  responsibility.  In turn that precluded the
spotter plane from communicating with him in order to direct him to the eastern side
where ground crew support was most needed.   The court a quo said of this:
“I consider that it has failed to produce evidence to prove that it was
not at fault in regard to the breakdown of communication and that it
had taken all reasonable steps to get its ground crew to the fire
timeously.  Given the extremely dangerous conditions prevailing on the
day in question I would have expected Plant to have been in a greater
state of readiness than he was.  I would have firstly expected of him

to have tested his radio either early in the morning or during the course
of the morning when conditions got progressively worse to ensure that
he was in contact with the Sappi Ops room and the Kataza air strip.
Had he done so, he would have been aware that his radio was
malfunctioning and he would have also had time to arrange a frequency
upon which he could be contacted by Sappi.”
c)
The late arrival of the Wonderdraai crew.
As stated earlier the Wonderdraai crew arrived only some 30 - 40 minutes
after the alarm was first sounded.  It was argued that the defendant could not fairly
be criticised for not having had a full crew stationed at Langfontein, since a fire
could break out anywhere on the property which was an extensive one.  That may
be so, but to the extent that the Act, as stated earlier, places the initial responsibility
on a landowner to confine a fire, if it occurs, to his own property, he runs the risk
of an imputation of lack of foresight if his fire-fighting crew is unable to reach the
location of a sudden flare-up within a reasonable time.  What a reasonable time will
be will of course depend on a number of factors, such as the distances involved,
the nature of the terrain and the accessibility of the site of the fire.  No evidence was

led on these matters in this case.   That the Mondi crew was able to reach the site
of the fire without delay is some indication that the defendant should have done
better.  The court discussed the issue in these terms:
“One would have expected that the bulk of your ground
crew would be in the proximity of the large estate of
3,000 hectares or at least stationed in such a place that
they could quickly and sufficiently be deployed should a
fire break out on Langfontein or Wonderdraai.   ...  it
must again be stressed that it is for SilvaCell [the
defendant] to prove that it was reasonable to have the
crews where they were and not for Sappi [the plaintiff] to
prove that it was unreasonable to have the crews situated
at  Ntjonjeneni and Wonderdraai.  The fact of the matter
is that the one crew [the Wonderdraai crew] arrived 40 to
50 minutes after the fire was observed and the other [the
Ntjonjeneni crew] at the stage when the fire had already
escaped from the valley and nothing could be done to
stop it. ... The reason for the fire not being contained was
primarily the fact that there was no communication
between Plant and the spotter aircraft but also because
the ground crew were late in arriving at the fire...”
d)
Plant stationed himself on the western side of the valley whereas his priority
should have been to fight the fire on its eastern side.

Plant’s decision to move to the western side was not per se negligent.  It was
based on his assessment of the situation on the ground.  But that assessment was
in turn informed by his inability to communicate with the spotter plane.  Had he been
in touch with the spotter plane and if he had a crew with him on the day and had
arrived on the scene a little earlier, it is likely that he would have deployed his crew
on the eastern side.   One knows that Walker was able to contain the fire on the
southern side.  It is not unlikely that Plant would have been able to do likewise on
the eastern side if he had been directed to position himself there, if he had arrived
earlier and if he had some crew support.  Admittedly that would then have left the
western flank of the valley exposed.  But the wind was driving the fire eastwards and
his priority was, in order to protect the defendant against a claim for damages from
his neighbours, to prevent the fire from escaping eastwards into the Mondi and
thence into the plaintiff’s property.  Because he was on his own and largely
incommunicado he was unable to render the ground support to the bombing

operations which the situation demanded.
[26] There is a further consideration, not mentioned by the court a quo, to be
taken into account.  It is this.  Because of Plant’s earlier failure to properly check
his lines of communication and the time he had to waste to return to his homestead
to load his bakkie-sakkie he arrived at the fire at the wrong time and stationed
himself at the wrong place.  He thereby effectively disqualified himself from being
able to testify at first hand about actual conditions on the eastern side.  Such
evidence might conceivably have supported a defence that it  would have been
unreasonable to have required him to fight the fire on that side.  As it happened,
there was no evidence from anyone as to the conditions on the ground on the
eastern side where the action should have taken place.  It was for the defendant as
the landowner on whose property the fire occurred to adduce all the evidence which
it needed to rebut the presumption of negligence against it.  Its failure to do so, due
to Plant’s prior neglect, left a vital gap in the evidence and precluded the defendant

from presenting a fuller picture which might have assisted it in its defence.
[27] The court a quo found that Plant acted unreasonably in the several respects
mentioned by it.  I agree with that conclusion.  The call may be a marginal one.
Even so, I believe that the defendant failed to show that Plant’s management of the
crisis that morning measured up to the standards required of a forester in his
position.  That finding does not, of course, conclude the enquiry.  The defendant’s
alternative response, as stated earlier, was that the court a quo’s  findings of
negligence were irrelevant since the plaintiff failed to prove that the fire would not
in any event have escaped onto the Mondi property and thence onto the plaintiff’s
property.  There are, in my opinion, two complete answers to this response.  The
first is based on the overall probabilities; the second on an aspect discussed earlier
in this judgment, the onus in respect of non-causative negligence.  I deal with them
in turn.
[28] If Plant a) had arrived earlier at the site of the fire and b) had been

accompanied by a crew, even a reduced one, with proper fire-fighting equipment
and  c) had been able to communicate with both the spotter plane and the Mondi
crew, then I believe it is more likely than not that he would have been directed by
the spotter plane to render ground support to the bomber on the eastern flank of the
fire  and, as Walker was able to do in the south with a mini crew at his disposal, that
he would have been able, by concentrating all available resources on that side, to
subdue or at least contain the fire when it was still manageable and so possible to
do so.  Thereafter he could have proceeded to the western side where the fire might
well not yet have reached the ridge where it would have met the full force of the
wind which could have caused “spotting” eastwards across the valley and onto the
Mondi property.  To illustrate the point I quote from certain exchanges that took
place between the court a quo and Plant:
“So, did you consider that Walker and his crew was sufficient
ground back-up for the bomber? --- No, I didn’t consider it sufficient,
but it was all we had.
And was it feasible at all that - I know it was an emergency

situation, but that with your training you would throw all the resources
that you had in assisting the bomber, and once everybody had
extinguished and contained the fire on the eastern side then the whole
lot could then concentrate on the western side?  Was that not feasible?
--- It would only have been feasible if we’d had a lot more people,
M’lord.  If I may just add something to that.  I was expecting that
Mondi, with their great numbers of labour and considerable
equipment, would have been able to come in and then - I was
absolutely certain they were aware of the fire because Mondi,
Babanango certainly was  - that they would have come in to help Peter
on that side.
That’s on the eastern side. --- Eastern side, yes.
And that is because Mondi would be threatened as being the
next in line? --- Absolutely.  Absolutely, M’lord.”
And further:
“Can I just ask you a hypothetical question?  What would have
happened if you did have radio contact with the spotter, and the
spotter said to you, ‘This is where the loads are going down,’ and you
knew where the bomber was going to put the loads?  Just put yourself
in that position.  What would have happened? --- I would have told
him to keep on the eastern side, to keep putting loads down on the
eastern side, because of the danger of the fire running directly across
the boundary if it didn’t spot, and it was going to get ...(intervention)
Because of the prevailing wind. --- With the prevailing wind.
And it was going to get into Mondi, and I knew that Mondi had this
huge sea of brushwood just behind that first compartment.

Yes, and apart from that if he’d then said to you, as apparently
he complained, ‘There’s insufficient - there’s no ground support.’  If
he’d radioed that to you what would you have done? --- We’re still
working on the assumption that I had radio contact with people?
Yes. --- I’d have asked Mondi please to come in and give us the
ground support to try and stop it where it was before it crossed over,
but preferably on both sides of the valley, because I knew
...(intervention)
But you and your crew would have remained on the western
side? --- I still believe it would have been important to do that,
M’Lord.”
Plant obviously believed that he could have persuaded Mondi to enter the fray more
actively that it did and that such intervention would have been significant.  The
chances are that he was right in thinking that.  To answer the hypothetical question
posed by the court a quo - a primary technique for testing probabilities: if Plant had
been better prepared it could well have made a difference in the long run.   On that
basis and as a matter of probability I therefore believe that it has not been shown
that the criticism of Plant’s conduct on the day in question related to matters which
were of no consequence.

[29] I turn to the further reason for concluding that the statutory presumption had
not been rebutted by the defendant.  As stated earlier the onus also rested on the
defendant, as part of the “question of negligence”, to show  that a finding by the
court (that its conduct was adjudged not to be reasonable) did not  matter because
the fire would in any event have escaped across the defendant’s borders ie that any
failure on its part would have made no difference to the eventual spread of the fire.
It was submitted by counsel for the defendant that the possibility cannot be
excluded that spotting in the east took place from either the fire in the valley, even
while it was being fought from the air and on the ground, or from the western ridge
when the fire eventually reached the full force of the north-westerly.  That may or
may not be so.  Because the onus is on the defendant in that respect it does not
avail the defendant to rely on speculation as a defence. Any uncertainty about the
matter must count against the defendant, for it is the defendant which had to bear
the brunt of placing evidence before the court which could have disposed of any

such uncertainties.  The evidence leaves many other questions similarly unanswered.
So, for example, one is left in the dark about the Mondi crew’s reluctance to come
to the defendant’s assistance on the eastern flank.  Mondi’s reply given to Buchler
and De Vries on the radio in response to their request for ground crew support, that
there was a difficulty of access, is hard to square with the evidence.  It was for the
defendant to explain or clarify this and the many other obscurities in the case.  It
failed to do so.
[30] On either of the above approaches (the probabilities or the burden of proof
in respect of non-causative negligence) the defendant failed to rebut the onus placed
on it by s 84 of the Act.  The appeal must accordingly fail.  The following order is
made:
“The appeal is dismissed with costs.”

...........................
P M NIENABER
JUDGE OF APPEAL
Concur :
Schutz JA
Mthiyane AJA