WDJ Lubbe v BWB Louw

On 8 November 1997, a fire started on the appellant's farm Oranjevlei in the southern Free State and spread to three neighbouring farms leased by the respondent (Boven-Dwarsrivier, Smartryk and Oaklands), causing damage. The fire was started by the appellant's employees (Draadmaker and Rolls) who attempted to smoke out bees from a poplar tree to collect honey. Another employee, Koleto, warned them against it but they proceeded. They claimed to have extinguished the fire but it reignited. Koleto attempted to put it out but lacked proper equipment. By the time the appellant arrived with firefighting equipment, the fire was out of control. The area had experienced five fires shortly before this incident. The grass was long, dry and highly inflammable. No precautionary measures had been taken to prevent fire spreading, and workers lacked basic firefighting equipment. The magistrate's court dismissed the respondent's claim, finding no negligence and no vicarious liability.

• Whether a landowner has a legal duty to prevent fire from spreading from his property to neighbouring properties
• Whether the appellant's omissions in failing to prevent the fire spreading constituted wrongful conduct
• Whether the presumption of negligence under section 84 of the Forest Act 122 of 1984 had been rebutted
• Whether the onus to prove wrongfulness in cases of omission rests on the plaintiff despite the statutory presumption of negligence
• Whether the appellant was vicariously liable for the conduct of his employees

The appeal was dismissed with costs. The High Court's decision holding the appellant liable was upheld.

A landowner who becomes aware that a fire has broken out on his property and who foresees or ought reasonably to have foreseen that if not controlled or extinguished it might spread to and cause damage to another's property, is under a legal duty to take reasonable steps with such means as are at his disposal to control or extinguish the fire. This duty arises from ownership and control of the land itself and establishes wrongfulness. The duty is not absolute - what constitutes reasonable steps depends on the circumstances. The factors relevant to assessing what fire-fighting action could reasonably be expected (such as cost, topography, availability of equipment, and customary practice) relate to the question of negligence (breach of duty), not wrongfulness (existence of duty). Section 84 of the Forest Act 122 of 1984 creates a presumption of negligence in veld fire cases which the landowner must rebut by showing reasonable precautionary and firefighting measures were taken.

The court acknowledged academic criticism that the test for wrongfulness in Administrateur, Transvaal v Van der Merwe was formulated in such broad terms as to blur the distinction between wrongfulness and culpability, but found it unnecessary to determine the validity of this criticism given that the case was distinguishable. The court also noted that mere control of property without more is not sufficient to establish wrongfulness in all omission cases, but distinguished situations where control derives from ownership versus mere statutory supervisory powers.

This case reinforces the established principle in South African law that landowners have a positive legal duty to take reasonable steps to control or extinguish fires on their property to prevent spread to neighbouring land. It clarifies that this duty arises from ownership and control itself, not from creating the danger, and applies even where the landowner did not start the fire. The case distinguishes wrongfulness (the existence of the duty) from negligence (breach of the duty), confirming that factors such as cost, practicality and customary practice go to negligence rather than wrongfulness. It also confirms the operation of the statutory presumption of negligence in veld fire cases under the Forest Act (now replaced by similar provisions in the National Veld and Forest Fire Act 101 of 1998), placing the onus on the landowner to prove they took reasonable precautionary and firefighting measures.