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Veld fires in South Africa have a devastating impact on agriculture and run into millions of rands of damages to property, loss of human lives, live stock, game and grass land annually. Santam Agriculture has a thorough understanding of liability cover and claims handling in respect of veld fires and compliance with the National Veld and Forest Fire Act of 1998.
Pro-active risk management
The Act not only applies to farmers, but Santam too has to comply. “We are not only encouraging our clients to act within the law, but we are also encouraging them to become members of registered Fire Protection Associations (FPAs). By belonging to FPAs and taking a pro-active stance on managing their risks, Santam will in turn offer discounted rates on their insurance premiums,” says Hanlie Kroese, Head Segment solutions Santam Agri.
Benefits of belonging to an FPA
“There are numerous benefits for farmers to become members of a registered FPA,” says Kroese: Farmers do not have to spend excessive amounts of money on fire fighting equipment and protective clothing for their workers as required by law. As a member of an FPA, a farmer only needs to buy limited equipment because the FPA and all other members of the FPA (who will assist him in the case of a fire) also have equipment and protective clothing.
According to the Act, if a farmer is a member of an FPA, no presumption of negligence would apply in case of a civil claim for damages where a fire has spread from a member’s land and caused damages or losses to the property or land of another person. The benefit lies in the fact that the plaintiff will carry the onus to prove negligence on the part of the defendant regarding the cause of the fire, or the spreading of the fire to other farms. Another benefit to farmers is the advantage of a possible waiver of certain precautions, such as the preparation of firebreaks. Firebreaks are mandatory unless exempted by the Minister. The FPA may compile regulations in order to accommodate personal circumstances.
In the event of a veld fire the farmer may call on a Work on Fire team for assistance and he only has to pay for the fuel of their vehicles to get to his farm and providing them with food. If he is however not a member of an FPA, he will be responsible for all their costs such as the use of their equipment, clothing etc.
Although the Act does not require farmers to belong to an FPA, the Act allows farmers who are already members of a Farmers’ Association in a specific region to form an FPA in their area. That FPA will lay down rules and regulations which will be applicable to all members of the FPA. Such an FPA must be registered by the Department of Agriculture as an approved FPA by the Minister.
“The Act stipulates, if a fire could start or burn on your land, or if a fire could spread from your land, the landowner has to make and maintain a firebreak on the boundary of the land.
FPAs do however, have the right to decide at their discretion, at a recognised or constitutional meeting, whether they want firebreaks in their area or not. The decision is subject to an application by the FPA to the Minister.
"Although the Act insists that an FPA has to be registered by the issuing of a certificate by the Department of Water Affairs and Forestry, the signing off of the business plans, including any firebreak concessions must be done in terms of Section 15 of the Act. In terms of the Act, the Minister may exempt any owner or group of owners from the duty of making firebreaks. Special conditions may be set for such an exemption. FPAs may also apply for exemption from making firebreaks in certain areas of the country. We have no record of any concessions given in this regard. The Minister will register and issue a certificate if he is satisfied that there are capacity and representation. The only concession of firebreaks is in terms of Section 15 of the Act however.
A firebreak can be burned, cleared, ploughed, or the grass or vegetation can be destroyed using a chemical product (such as Roundup - several brands are available). According to the Act, a firebreak should be wide enough and long enough to have a reasonable chance of preventing a veld fire from spreading over the break. One should take local conditions, such as the weather, climate, terrain and vegetation, into account. The Act also stipulates that all owners (including a lessee) on whose land a hellfire may occur or spread must make firebreaks.
“Santam was requested by some FPAs to sign off their business plans and rules, but is in no position to do so. Santam will follow the Department of Agriculture’s decision regarding the acceptance of such business plans,” says Kroese.
Santam’s interpretation of the The National Veld and Forest Fire Act of 1998
“If a veld fire originates next to public roads and the farmer acts within the law, by preparing a firebreak on the outskirt of his land or act within the rules of the FPA (of which he is a member) he will not be held responsible for losses or damages to other property. If damages occur to property insured by Santam, Santam will hold the organisation or party whose duty it is to prepare firebreaks (according to the Act) responsible if they did not act within the Act.
The Act also allows you to enter land in order to combat or extinguish a fire that is deemed to be dangerous to property, the environment, you and your workers. According to the Act, you may also destroy any trees, grass, crops or other vegetation in the process of fire fighting, and you may break into any premises and may remove any vehicle or other implements, in performing your fire fighting duties,” says Kroese.
Natural causes of fire
If a veld fire was caused by lightning, the farmer cannot be held responsible, but he can still be held accountable for losses or damage caused to other property if he did not act within the Act in respect of preparing firebreaks on the outskirts of his farm or act within the rules of the FPA of which he is a member.
It is essential that a client does not plead guilty to any charges of negligence, because if they do so they bind the insurer to a liability of which they may not be liable to pay.
“We believe the agriculture sector and local, provincial and national government can work together in organising forums to discuss the possibilities of veld fires in their respective regions and way to fight such fires if they would occur, as well as to work together to train people in fighting fires and to prepare firebreaks as a team.
In view of the increased risk management and legislative benefits provided by FPA membership, Santam will be offering premium and excess incentives to members of approved FPAs. The approval and rating of FPAs is still in progress and once this is finalised, Santam will communicate with their brokers who in turn will carry the message to the Agriculture market. The structure will initially be rolled out in the Free State, followed by the remainder of the provinces.
Fire and explosion liability is excluded under the Public liability secion of the Agri policy, and the policy must therefore be extended to include this. It should be noted that this extention is subject to the National Veld and Forest Act (No 101 of 1998).
A large focus of the Act was to provide for the introduction of Fire Protection Associations (FPAs) to deal with all aspects of veldfire prevention and fire fighting. Whilst the Act does not make membership compulsory, there are a number of benefits to belonging to an FPA.
One of the most important aspects of the Act is that it brings a presumption of negligence for a farmer from whose land a fire has spread (ie. he is presumed to have been negligent unless it can be proven otherwise). When such a farmer is a member of an approved FPA, that presumption of negligence is changed back to the usual common law position where negligence must be proved by the claimant before the farmer can be held legally liable.
Every FPA must draw up a Business Plan detailing the amount of fire fighting equipment and protective clothing required to effectively control a fire – instead of a single farmer having to carry the cost for his own equipment, the cost is spread across all the members of the FPA.
There is an improved communication network amongst farmers who belong to FPAs which improves the speed with which the fire can be fought, as well as the manpower available to put out the fire.
FPAs also keep their members alerted to veldfire conditions and advise them when the burning of fire breaks may take place.
Clearly, FPA membership is therefore beneficial not only to the farmer, but it also means that members of FPAs are a better risk for the Insurer in terms of risk management.
It is for this reason that we have decided to differentiate our rating structure between FPA members and non FPA members.
Farmers can be more fire-smart and that will include Investing in their own well-maintained fire fighting equipment (such as a petrol/diesel-powered water pump)and create a veld fire plan, covering the eventualities of both staying and defending their property or leaving it ahead of the veld fire.
Restricting the use of farm machinery on days when the fire danger is high and being extra careful when using welding, cutting and grinding equipment will also contribute to reduce the risk of fire.
Establishing firebreaks between their land and roads or railways and training staff in firefighting techniques and safety standards for smoking, burning rubbish, etc. is crucial.
We currently have an extension under the Fire section which gives cover for fire extinguishing charges when the insured’s own property is threatened by fire. But what if the insured property is not under that big a threat, but such fire could result in huge damages to neighbouring farms?
The new Fire extinguishing charges cover under the Public Liability section of the Agriculture policy will indemnify the Insured for all reasonable fire extinguishing costs and expenses which the Insured becomes legally liable to pay as a result of the extinguishing or fighting of fire (including water-bombing by air) to prevent the spreading of such fire beyond the borders of the Insured's own premises.
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