KNYSNA NEWS - Following numerous reports circulating regarding the origins of the June 2017 fires and who is responsible for the subsequent destruction – with most people blaming the Knysna municipality – a Rheenendal landowner reiterates that all is not as cut and dried as it may seem.
Deon van Zyl has been a Fire Prevention Association (FPA) representative since 2010, and is currently the Southern Cape FPA (SCFPA) representative responsible for the Rheenendal community.
He said that in this capacity he has heard and received many questions regarding the fire.
“People often ask why the fire brigade didn’t help, or why a helicopter was not sent to assist immediately, but most landowners forget there is a National Veld and Forest Fire Act (101 of 1998) that sets out specific guidelines and laws for rural landowners in a case like this.
"I don’t want to stir up a controversy here, but I think awareness needs to be created,” he says.
In addition, Van Zyl adds, the local fire brigade is primarily responsible for dealing with structural fires within the municipal area, which includes houses, business premises, and the like.
"It does not normally extend to dealing with wildfires on rural land,” he says.
“Obviously, where the fire brigade has the capacity to deal with a wildfire they will usually respond preemptively, but this does not relieve the landowner/s of their own responsibilities.
"It seems that because the fire brigade generally does respond to wildfire call-outs, many folks assume it is their duty to do so, and that landowners are only legally required to pick up a phone. This is a dangerous assumption,” Van Zyl warns.
The Act states firstly that landowners/users are responsible for fire protection on their land. This includes preventing fires from “starting on, leaving, or passing over their land”, and if a fire does escape, the landowner is “automatically assumed to be guilty of negligence, unless the landowner is an FPA member, in which case the automatic assumption of guilt is waived”, Van Zyl adds. Furthermore, he says, the Act states that there are penalties applicable for noncompliance.
Legal duties regarding prevention
The Act states, in no uncertain terms, that the legal duties of a landowner regarding wildfire prevention are as follows:
- You may not start a wildfire.
- You may only start a fire, including cooking or braai fire, in a designated area.
- Every landowner must have equipment and personnel available to fight wildfires, have a person on their property who keeps a lookout for fires, establish a system of fire breaks, manage the fuel load on land under their control, and remove invasive alien vegetation from the land.
- A landowner may not burn fire breaks or carry out controlled burns when the fire danger rating (FDR) is high.
Legal duties regarding suppression
- You may not allow a wildfire to spread across your land.
- You should develop a fire management plan that should identify the fire hazards on different parts of a property, the best position for fire breaks, areas where controlled burns should be carried out, and a timetable for carrying out controlled burns and for burning fire breaks.
- You must report a wildfire on your land to your neighbours, the fire department and the FPA.
- If you are requested to help fight a wildfire, you may not refuse to do so.
- You cannot interfere with or obstruct someone who is fighting a wildfire.
The Act also makes provision for unattended properties, stating that owners must ensure that in their absence, responsible persons are present on or near the land to extinguish a fire or assist in doing so, and take all reasonable steps to alert adjoining landowners and the relevant FPA, if any.
“When insurance companies get to court regarding the matter of damages they are first going to ask which landowners did not comply with these requirements and, in the case of the Elandskraal fires, what steps were taken by the landowners of the properties where it is alleged the fire started.
"They will ask what containment measures – such as fire breaks and alien vegetation clearing – were, or were not in place, firstly there, and then all the way down the line. It’s going to get messy,” says Van Zyl.
“Although it’s probably true that the June fire was way too big and fast-moving for most containment measures and firefighting units to have stopped it dead, I doubt that the insurance companies will accept that as an excuse for failing to take any of the preventative measures required by the Act.
"My own insurance cover is linked to compliance with the law. No driver’s licence, no cover – same thing,” he adds.
Role players' input
What do the various role players involved with the fire reports have to say about the Act?
The Knysna municipal response to questions regarding the Act’s influence on its report was, “We will not make any further media statements until our insurers have completed their investigation.”
AfriForum spokesperson Reint Dykema says the organisation is not involved in any litigation regarding the fires at present.
“The AfriForum report as compiled by (forensic investigator) Dr David Klatzow dealt only with the cause of the fires.
"We also sent a request to premier Helen Zille that a commission of enquiry should be established to look at the fire in depth, which will hopefully answer the question as to the liability of landowners and their role in the spread of the fire, if any.
“It is only through this commission that landowners’ liability can be assessed along with the negligence of other parties involved,” he says, adding, “If there is litigation involved, it will be up to the court to decide if Klatzow’s report is credible and relevant to the case."
Queries for comment have also been sent to Klatzow, the Council for Scientific and Industrial Research – whose senior scientist Dr Philip Frost has produced a report on the June fires and to Pretoria attorney Jean du Plessis who represents a group of Elandskraal residents who lost their homes in the fire. No response was received by the time of going to print.
* CSIR spokesperson Tendani Tsedu confirmed that the CSIR report has not been released yet.
A follow up regarding this report will be shared with readers as soon as it is available.
Litigation attorney Donald Curtis of Dercksens Inc attorneys in Knysna says the National Veld and Forest Fire Act (101 of 1998) is definitely relevant to the case, but that there are many factors to consider when looking at it.
“The Fire Brigade Services Act will also have to be taken into consideration," he says.
"This Act sets out duties of fire brigades, which areas they service, and their responsibilities."
Curtis says one has to differentiate between the cause of the fire, and also who the negligent party was.
“According to our information and independent reports, both the Knysna and Eden District municipalities face potential liability on the basis of their alleged negligence.
"The key issue, though, is that the court will have to decide. The question ‘should they have and could they have taken more action’ needs to be answered,” he says.
He referred the Knysna-Plett Herald to a Pretoria High Court case wherein both the local and district municipalities were held responsible for their negligent action – a case which Curtis believes is very similar to the Knysna fire case.
“There is sufficient evidence to conclude that the second defendant [the local municipality] failed to take adequate or reasonable precautions to ensure that the fire did not break out and spread… the employees acted wrongfully and negligently by failing to call for aerial support timeously…” – Pretoria High Court judge DS Fourie in the case of Bedrock Mining Support (Pty) Ltd v Greater Tzaneen Local Municipality, 2017.
But why not claim from your neighbour?
Curtis says this is an available option for potential claimants, but it would make the litigation of the case a lot more complicated and difficult.
“It could create additional issues the plaintiffs would have to overcome.
"Therefore it is likely more viable to go for the ‘root cause’ of your damage, the alleged negligence of the municipalities, rather than that which might have been caused by the fire spreading to your property from your neighbour,” he adds.
“It is likely that a test case will be completed first. The earliest this case could appear in court, though, in terms of a trial would be in 2022 or 2023.”
Read all the Knysna Fires' news here.
ARTICLE: STEFAN GOOSEN, KNYSNA-PLETT HERALD JOURNALIST
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