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Veldfires

AGRICULTURAL LAW

We give accurate advice that you can set your course by.

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Rising from the ashes – dealing with the aftermath of a veldfire

A roaring veldfire in full blaze, fanned by strong winds, is a truly terrifying sight, especially if you own property downwind. If the conditions are right (or, rather, wrong), a veldfire becomes a tsunami of flames and smoke devouring everything in its path. It is very difficult to stop or even control and it can quickly reduce the lifework of generations to ashes.

Farms are especially at risk from veldfires. While farm buildings and equipment are normally insured, it is generally too expensive to insure vineyards, orchards and crops. These are normally uninsured. When they are destroyed by fire, the farmer’s loss is equal to the sum total of:

  • the replacement costs of such vineyards and orchards; and
  • the loss of income from crops suffered from the time of the fire up to the time when the replacement vineyards and orchards came into full production, this normally takes a few years.

These losses amount to many hundreds of thousands of rand per hectare lost.

The cash flow problems which the victim of a veldfire faces are twofold:

  • for years he will lose the cash flow which would have been generated by the destroyed vineyards and orchards; and
  • he will have to:
    • find the money to replace such vineyards and orchards, usually by means of a loan; and
    • service the interest on and repayment of such a loan from his remaining cash flow.

Depending on the extent of his damage and his level of gearing, these cash flow problems may be insurmountable.

The silver lining is, however, that although farmers generally do not carry insurance against damages to vineyards, orchards and crops, they do generally carry public liability insurance, up to a maximum amount of R25 000 000. So if a farmer or his employees acting within the scope of their employment, starts the fire in a deliberate or negligent manner, the farmer who suffered the loss caused by it, can claim his damages from the farmer who started the fire. This farmer will in turn hand over the claim to his insurance company. This insurance company will not pay out unless it is convinced that, amongst other things:

  • the insured farmer or his employees acting as said above:
    • did in fact cause the fire;
    • acted or failed to act deliberately or negligently;
  • the victim did in fact suffer the extent of the damages claimed; and
  • the calculation of the damages is not padded and is market related.

Put more simply, the victim will have to prove the guilt of the person who started the fire and that the amount claimed for damages is realistic and market related. Proving this requires very technical evidence provided by experts in their fields.

Who was responsible for starting the fire and the manner in which it spread is determined by a forensic fire investigator. These investigators are independent consultants and are experts in their field of fire science. They inspect the scene of the fire and its alleged source, collect evidence, gather information like weather data and compile a report which contains their findings and the facts on which they are based. The fire investigator’s report forms the basis of a claim for damages caused by fire and it is of the utmost importance to get a credible and respected investigator involved as soon as possible.

The quantum (amount) of the claim is proven with the assistance of various industry bodies, who continuously collates data from the industry and whose figures are the most authoritative on the subject. Once again it is very important to identify the appropriate industry body and to consult and get it on board as soon as possible. Putting the numbers together can be a bit tricky and the application of concepts like depreciation and betterment may lead to debates with the insurance company, but if fault had been firmly established and the figures on which the calculation of the quantum is based are firm, these debates are not difficult to settle. The important thing is to do the groundwork quickly and correctly. This facilitates prompt settlement and reduces the risk of drawn out and costly litigation.

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Andries Conradie

<h3>Andries Conradie<br><b>Director<br>
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