THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Of no precedential significance

Case No: 240/10

In the matter between:

IVAURA ESTATES (PTY) LTD

Appellant

and

THE MEMBER OF THE EXECUTIVE COUNCIL,
DEPARTMENT OF ROADS & TRANSPORT, MPUMALANGA    Respondent

Neutral citation: Ivaura Estates (Pty) Ltd v The Member of the Executive

Council, Department of Roads & Transport, Mpumalanga

(240/10) [2011] ZASCA 9 (10 March 2011).

Coram:
HARMS DP, CLOETE and MALAN JJA

Heard:
4 March 2011

Delivered:
10 March 2011

Summary:
Delict: negligence: fire.

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ORDER
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On appeal from: North Gauteng High Court (Pretoria) (Legodi J sitting as
court of first instance):

The appeal is dismissed, with costs.
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JUDGMENT
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CLOETE JA (HARMS DP and MALAN JA concurring):

[1] On 12 October 2005 a fire destroyed or damaged a considerable
number of mango trees on the appellant company's property. The appellant
sued The Member of the Executive Council, Department of Roads and
Transport, Mpumalanga Province, alleging negligence on the part of
employees of the department ('the road workers') who had been cutting the
grass on the road reserve of the D533 adjacent to the plaintiff's farm. The
court a quo (Legodi J) dismissed the claim but granted leave to appeal to this
court.

[2] For the purposes of this judgment I shall assume in favour of the
appellant that the road workers were negligent in starting and not controlling
the fire. A passerby noticed the fire burning in the road reserve and alerted Mr
Peter Spear, who telephoned his brother, Mr John Spear, the managing
director of the plaintiff. Mr John Spear dispatched a tractor towing a 2 000 litre
high pressure sprayer to fight the fire.

[3] When Mr John Spear arrived at the site of the fire, he found that it had
been extinguished by his brother, a team of five or six labourers using the
high pressure sprayer and the road workers. Nevertheless, to make
assurance doubly sure, the burnt grass was swept towards the middle of the

burnt area and it was again sprayed with water. The appellant's employees
then left the scene.

[4] It was the appellant's case that the fire flared up again and spread to
the mango orchards owned by it. Assuming, again in favour of the appellant,
that this is so, there was in my view no negligence on the part of the road
workers. The appellant's representatives arrived on the scene and took over
the fighting of the fire. They had the equipment and the knowledge how to do
so. Mr John Spear said that he and his brother had acquired knowledge of
fighting fires over some thirty years of farming and he said that he had been
involved in fighting between 100 and 200 fires himself. When the appellant's
employees left, Mr John Spear was satisfied not only that the fire had been
extinguished, but also that sufficient precautions had been taken to prevent it
flaring up again. In these circumstances, it cannot be found that a reasonable
man in the position of the road workers would have foreseen that it would, and
accordingly the first requirement set out in Kruger v Coetzee 1966 (2) SA 428
(A) at 430E-F, the locus classicus of the test for negligence, has not been
satisfied.

[5] The appeal is dismissed, with costs.

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T D CLOETE
JUDGE OF APPEAL

APPEARANCES:
APPELLANTS:

E B Clavier
Instructed by Du Toit-Smuts & Mathews Phosa
c/o De Swardt Vögel & Myambo, Pretoria
Symington & De Kok, Bloemfontein

RESPONDENTS:

T P Krüger
Instructed by The State Attorney, Pretoria
The State Attorney, Bloemfontein