What does the “fire law” say about farm and holding owners’ responsibilities BY Andre Smit

[Nat Quinn]

What does the “fire law” say about farm and holding owners’ responsibilities BY Andre Smit

Compiled by: Griffiths & Associated Attorneys

Your responsibilities as owner or person in charge of a farm or smallholding in terms of the “Fire Act”

With the current cold and dry weather conditions in certain parts of the country and the winds blowing like this, we are once again at risk from wildfires.

We read this morning of an incident where runaway wildfires caused the deaths of several firefighters. Owners of farms and smallholdings, or persons in charge thereof, have an increased responsibility at this time to be and remain vigilant, especially in light of the provisions of the National Wildlands and Forest Fires Act no. 101 of 1998.

The Act sets certain requirements that owners and persons in charge of land must comply with in order to prevent wildfires and prevent their spread and non-compliance naturally leads to criminal liability.

In addition, violators may also incur civil liability for damages, where the spread of the fire was foreseeable and the owner or person in charge failed to take steps to prevent it.

What does the law say?

Section 12 of the Act specifically stipulates that fire strips must be made and the Act also prescribes how the owner must go about informing and involving the owners of neighbouring properties.

Article 13 provides that taking into account the terrain and vegetation, the firebreak must be long and wide enough to stand a reasonable chance of preventing a fire from spreading over it. Furthermore, the strip must reasonably be free of combustible material, but at the same time may not aid or promote soil erosion.

The law, unfortunately, does not prescribe exactly how wide the strip should be. Fire associations in each region usually prescribe how the strips are to be made and owners and persons in charge of land are strongly advised to join such associations, in order to ensure that they get the right guidance and assistance and prevent them from incurring liability.

The Act expressly stipulates that an owner of land, or a person in charge of land himself, must be present during a wildfire, or ensure that a responsible person is present on the land that can prevent and fight fire. The Act further requires that there must be sufficient equipment on site to fight fires and furthermore that the employees on the land must be provided with the necessary protective gear and also receive adequate firefighting training. Failure to ensure the above may result in criminal liability, but may also result in negligence which may result in civil liability for damages.

Liability for damages arises where an unlawful act is committed. If the legal sense or beliefs of the community determine that a landowner or person in charge of land has a legal duty not to act with negligence towards the owners of adjoining land, it would be considered unlawful to act negligently.

Negligence is determined on the basis of what is foreseeable in the circumstances and if something is foreseeable and if the reasonable man would have taken steps to prevent it, the action taken by the owner is measured by the actions of the reasonable man in the same circumstances. If the owner’s actions fall short, negligence is present.

For example, it would be negligent to fail to make fire strips, or ensure that the strip is reasonably clean of combustible material. Sometimes firebreaks are plowed over to provide better prevention and sometimes grass is simply cut short.

For example, the latter will not comply with the requirements of the Act. The mere spraying of vegetation with poison would also not be complete if the remaining combustible material were not also removed afterwards. It would further be negligent if there was not sufficient equipment on the ground with which fires could be fought, or extinguished, or where the equipment was not properly maintained. Also where staff are not properly trained to fight fires.

There must be water points available at all times where fire equipment can be filled and should there be pumps that have not been maintained, for example, this could be termed as negligence. The owner, or person in charge of the land, will then also have to make a proper effort to combat any fire that may arise and should it result in negligence in not getting involved or deputising a properly trained person himself.

If the landowner is further aware, for example, that there are campers on his land making fires and the owner fails to take steps that could prevent the start and spread of fires in the vicinity of the campers, he would be negligent. The mere posting of notices will not suffice.

The same would apply if, for example, the owner is aware of illegal occupiers and where it can be foreseen that such occupiers can make fires and where the owner fails to take decisive steps to prevent the spread of fires in the affected area. The fact that the occupiers are there illegally does not impose the responsibility of the owner in terms of the Act and in such cases, for example, it would be advisable to make additional fire strips.

Section 34 of the Act contains a rebuttable presumption to the effect that the owner, or person in charge of land, is negligent unless he can prove that he is a member of a registered fire union. Importantly, membership does not automatically mean that the owner or person was not negligent.

The fact of the membership merely takes away the rebuttable presumption of negligence, resulting in the negligence of the owner or person in charge having to be proved by evidence. However, it is true that fire associations have the necessary knowledge and means to assist owners in complying with the Act in all respects and can also, in many cases, provide the necessary training required. Such associations usually carry out the necessary liaison with the authorities in respect of the road reserves and railway reserves adjacent to the land of their members, making the task of a landowner considerably easier.

Therefore, enquire in your immediate vicinity and join if you have not already.

Lower your risk of financial liability for your neighbour’s loss of pasture, or the deaths of his livestock, the damage to his harvesters and tractors, or the loss of his house and his furniture.

Insurance is not always the answer and you can help your attorney help you by at least meeting the basic requirements.

 

source:What does the “fire law” say about farm and holding owners’ responsibilities – People’s Power News (volkskrag.co.za)

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