Constitutional court of south africa

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Case CCT 4/96



Heard on: 7 November 1996

Decided on: 18 April 1997



[1] Much of South Africa is tinder dry. Veld, forest and mountain fires sweep across the land, causing immense damage to property and destroying valuable forest, flora and fauna. The Forest Act 122 of 1984 (the “Act”) has as one of its principal objects the prevention and control of such fires. A major method of achieving this is to create various fire control areas where schemes of compulsory fire control are established, with special emphasis on the clearing and maintenance of fire belts between neighbouring properties.1 Landowners in areas outside of such fire control areas are, on the other hand, encouraged but not required to embark on similar fire control measures.2 A number of provisions prescribe criminal penalties for landowners in fire control areas who fail to fulfil their statutory obligations.3 In addition, an offence is created in respect of persons who are wilfully or negligently responsible for fires “in the open air”,4 while it is an offence for any landowner in any area to fail to take such steps as are under the circumstances reasonably necessary to prevent the spread of fires.5
[2] One provision in the Act dealing expressly with responsibility for a fire on land outside of a fire control area is section 84. It reads as follows:
84. Presumption of negligence. - When in any action by virtue of the provisions of this Act or the common law the question of negligence in respect of a veld, forest or mountain fire which occurred on land situated outside a fire control area arises, negligence is presumed, until the contrary is proved.”
It is the constitutionality of this provision which is under consideration in the present matter.


[3] The present matter comes before us by way of a referral made in terms of section 102(1) of the Constitution of the Republic of South Africa, 1993 (the “interim Constitution”)6 by Van der Walt DJP in the Transvaal Provincial Division of the Supreme Court (as it was then called). Action had been instituted in that division by the first respondent (as plaintiff) as a result of damage allegedly caused to his farmlands by the spread of a fire from the neighbouring land of the applicant (defendant in those proceedings).7 It was common cause in this Court that the fire occurred on land situated outside a fire control area.

[4] As this Court has held on a number of occasions, a court should only exercise its power under section 102(1) after it is satisfied: first, that the issue falls within the exclusive jurisdiction of the Constitutional Court; secondly, that it may be decisive for the case; and, thirdly, that it would be in the interest of justice for the referral to take place.8
[5] Dealing with the second requirement, Didcott J in Luitingh v Minister of Defence held that the requirement was satisfied “once the ruling given there may have a crucial bearing on the eventual outcome of the case as a whole, or on any significant aspect of the way in which its remaining parts ought to be handled”.9 In Brink v Kitshoff NO, Chaskalson P commented that this would include an issue which, if decided in favour of the party who raised it, would put an end to or materially curtail the litigation.10 It would also include an issue such as the onus of proof in relation to the admissibility of a confession in a criminal trial, which arose in S v Zuma and Others11 and S v Mhlungu and Others.12 In Zuma’s case the decision of the entire case in fact depended on where the onus lay. In Mhlungu’s case a ruling would determine the way in which the voir dire was to be conducted, and was also necessary in fairness to the accused to enable them to decide whether or not to give evidence.
[6] Van der Walt DJP issued an order granting the application. His reasons appear from an annexure to the order in the following terms:
“1.3 Dit is van wesenlike belang dat die geskilpunt of die vermoede van skuld geskep soos in Artikel 84 ongrondwetlik is al dan nie, en daarop staat gemaak kan word al dan nie, beslis word voordat die verhoor tussen die Applikant en eerste Respondent ‘n aanvang neem, omdat dit sal bepaal watter getuies die gedingspartye (indien enige) gaan roep as getuies om die party wat die bewyslas dra hom daarvan te laat kwyt, en wie die beginlas om met die verhoor op die meriete te begin dra.

1.4 Hierdie is nie ‘n geval waar die vraag of Artikel 84 grondwetlik bestaanbaar is al dan nie eers uitgemaak kan word nadat getuienis oor die ander geskilpunte tussen die partye aangehoor is en feitebevidings [sic] daaroor gemaak is wat tersake kan wees nie, omdat die vraag na wie die bewyslas en beginlas dra, van deurslaggewende belang is vir hoe die saak deur die partye in die hof aangevoer moet word.”13

[7] In the case of Stevens v Stevens,14 Wright J came to the opposite conclusion in an action which was also brought under the Act. His opinion that a referral of the constitutionality of section 84 of the Act was, at that stage, not in the interest of justice was based on the probability that either of the parties would be able, without the assistance of the presumption, to either prove or disprove the negligence of the defendant. It is neither necessary nor desirable to attempt to resolve the apparent conflict between the conclusions of Van der Walt DJP and Wright J because every case must be decided on its own particular facts and circumstances and what is essentially a judgment on the peculiar facts and pleadings before a judge requested to refer a matter in terms of section 102(1) cannot be elevated to a rule of law which is capable of automatic application to the referral of all other cases brought under the Act.
[8] Van der Walt DJP clearly formed the view, as is evident from the above reasons, that the ruling on the constitutionality of section 84 of the Act might have a crucial bearing on a significant aspect of the way in which the parties would conduct their cases. This brings it within the formulation of the requirement in Luitingh quoted above. It cannot confidently be stated that Van der Walt DJP was wrong in the judgment he formed in this regard and accordingly it cannot be concluded that this particular referral requirement was not met. That Van der Walt DJP must have considered it in the interest of justice to refer the matter at that stage follows inevitably from the reasons furnished regarding the crucial importance of deciding the incidence of onus at the commencement of the proceedings. The learned judge did not furnish explicit reasons why he considered that there was a reasonable prospect of the section being declared unconstitutional, but at the time that the referral was made there was little guidance on the construction of section 8, which is a matter of some complexity. Under these circumstances it is fair to infer that, at the time and in the context of the referral, Van der Walt DJP must have considered that there was such a reasonable prospect. In any event no useful purpose would be served in the circumstances of this particular case by considering how the applicant’s prospects of success on the constitutional challenge looked at the time of the referral. Full argument has been heard on the challenge and the Court is in a position to deal with that definitely and finally. In our view the referral should be accepted and the merits of the constitutional challenge to section 84 considered.
[9] The issues in the referral were formulated as follows:
“2. Die geskilpunt tussen die partye is meer in die besonder die vraag of die vermoede van skuld wat geskep word deur Artikel 84 van die Boswet nie in botsing is met die fundamentele regte vervat in Hoofstuk 3 van die Grondwet nie, en meer in die besonder:

2.1 Die reg op gelykheid voor die reg en op gelyke beskerming deur die reg soos vervat in artikel 8(1) van die Grondwet;

2.2 Die verbod op diskriminasie soos vervat in artikel 8(2) van die Grondwet;

2.3 Die reg om onskuldig geag te word totdat skuld bewys word soos vervat word [in] Artikel 25(3)(c) van die Grondwet.”

Whether there is a constitutional right to a fair civil trial and, if so, whether an onus provision such as that provided for in section 84 might infringe such right, are issues with which we are not concerned in this case and on which we need express no view. Counsel for the applicant expressly renounced reliance on any such argument.

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