The National Veld and Forest Fire Act, 101 of 1998 (“the Act”) places a legal duty on owners of a property to prepare and maintain firebreaks on the boundaries of their property. If an owner fails to do so they risk exposing themselves to potential civil claims being instituted against them by their neighbours for damages caused by fire spreading from that person’s property.
 
Section 12 of the Act sets out that there is a duty on every owner on whose land a veldfire may start or burn or from whose land the fire may spread to prepare and maintain firebreaks on his or her side of the boundary between his or her land and any adjoining land.
 
The Act does not specify detailed requirements for firebreaks. This is because the requirements will vary from one situation to the next. On the whole, local practice and local issues must determine what these requirements are.
 
Nevertheless, the Act does require owners to pay attention to the length and width of firebreaks. Firebreaks must also be reasonably free of inflammable material and not cause erosion.
 
It is obvious to anyone with knowledge of veldfires that a firebreak will not necessarily stop every veldfire. There will inevitably be a time when conditions are so severe that a fire will cross a break, by spotting (jumping) or otherwise. On the other hand, experience has shown consistently and repeatedly that firebreaks are useful in stopping many fires, in providing a line from which to combat wildfires by backburning or other measures, and for protection of property generally. The preparation of firebreaks must be seen as an essential element of fire management.
 
It is important to note that it is a criminal offence, as per Section 25 of the Act, if a person fails to prepare or maintain a firebreak in terms of this Act.
 
Section 34 of the Act goes one step further and says that:
 
“If a person who brings civil proceedings proves that he or she has suffered loss from a veldfire which-
 
(a) the defendant caused; or
(b) started on or spread from land owned by the defendant,
 
the defendant is presumed to have been negligent in relation to the veldfire until the contrary is proved, unless the defendant is a member of a fire association in the area where the fire occurred.”
 
The above section of the Act allows the courts to presume negligence in cases of civil claims where someone has suffered a loss from a veldfire. The injured person (the claimant) must first prove that he or she has in fact suffered a loss before the court presumes negligence on the part of the person against whom the claim is laid (the defendant). The claimant must also prove that the defendant actually did wrong in causing the fire or allowing it to spread, that is, committed an offence under the Act. This presumption stands until the defendant is able to prove that he or she was not negligent. However, this presumption of negligence does not apply to members of fire associations.
 
It is also important to look at the definition of what constitutes a “veldfire”. Some definitions include the following:
 
“A veld, forest or mountain fire, where veld means the open countryside or peri-urban land beyond the urban limit or homestead boundary.”
 
“Uncultivated and unoccupied portion of land, as distinct from portion which is cultivated, occupied and built upon.”
 
In a 2005 case of GOUDA BOERDERY BK v TRANSNET 2005 (5) SA 490 (SCA), the court considered the aspects of negligence in these circumstances. In this regard, the court would first look at whether the damage or loss was foreseeable. What those steps would need to be depends on an examination of all the relevant circumstances and involves a value judgment which is to be made after balancing various competing considerations. These are said to have included:
 
(a) the degree or extent of the risk created by the actor’s conduct;
(b) the gravity of the possible consequences if the risk of harm materialises;
(c) the utility of the actor’s conduct; and
(d) the burden of eliminating the risk of harm.
That is, if a reasonable person would have done no more than was actually done, there is no negligence.
 
By nature, veldfires do not respect property or boundaries. Without preventive measures put in place, veldfires will continue to burn for as long as the weather is favourable and there is vegetation to burn. Anyone owning land has the first responsibility to control fires on his or her own land. But when fires burn in severe conditions they quickly extend beyond any one property and become a problem that cannot be handled by individuals, but can only be controlled by joint, co-ordinated efforts. Veldfires are thus a matter of common concern. For this reason, in South Africa as in other countries, effective policies and plans for preventing and combating veldfires must be clear about individual responsibility as well as about co-operative and co-ordinated roles and responsibilities.