The number of deadly wild animals escaping from game reserves has spiked significantly in recent years in South Africa. The animals are off-limits to many people, but some people have made attempts to catch and retain the animals as their own. This article explores the common law concepts of acquiring property rights of wild animals, how legislation has developed these concepts, and the implications of relevant policies and case law.
History of game ownership in South Africa
Disputes over the ownership of game have existed in South Africa at least since 1652, when some groups of people were forbidden from taking part in animal hunting. The Better Preservation of Game Act 36 was passed by the Cape Colony in 1886, and it placed restrictions on the landowner's ability to "kill, catch, capture, pursue, hunt, or shoot game" unless they had a valid licence. This rule, which allowed the land owner an unrestricted right to manage wildlife on his or her property, served as the first legal basis for the development of a game farm in a number of ways, including an intrusion on the res nullius status of wildlife. The Better Preservation of Game Act, however, no longer governs the possession of game in South Africa. Its relationship to common law has changed significantly along with the laws and case law pertaining to this area of the law.
The Common Law Principles
Roman-Dutch law served as the foundation for South Africa's legal system, as it has for many other nations. The Law of Things is a subset of Property Law in this system of law. To ascertain which laws are relevant for the acquisition, protection, and enforcement of rights pertaining to a thing or property, the two must be distinguished. In order for an object to be classified as a ‘thing’, it must meet five requirements namely, corporeality, an impersonal nature, independence, appropriability as well as use and value. It is important to state that wild animals are non-human independent objects which economic value and are capable of private ownership by humans (res commercio).
Non-negotiable (res extra commercium) objects, such as res publicae— things under government control for the benefit of the public or community—and res communis— things not owned by any state — are in contrast incapable of private ownership.
Res nullius is a legal term for ownerless property that is not subject of any rights. Uncaptured wild animals fall under this category; nevertheless, once captured, they are no longer res nullius. In the unlikely event that they escape from their owner’s enclosure, they can regain this status. Res nullius are thus free to be acquired by means of the common law mode of ownership occupatio, which entails the unilateral taking of the physical control of a res nullius with the intention of becoming its owner. Banks J in Underwater Construction v Bell confirmed this principle when he held that “... ownership is acquired as soon as there is a seizure with the intention of becoming owner.”
However, occupatio has brought its own set of legal challenges. The legislature passed the Game Theft Act to address the challenges of proving occupatio and to fulfil their constitutional mandate to develop common law in accordance with the Constitution of the Republic of South Africa, 1996. Legislative Framework
The Game Theft Act's preamble states that the Act's purpose is "to regulate the ownership of game in certain instances; to combat theft and wrongful and unlawful hunting, catching, and taking into possession of game..." Section 2 of the Act achieves the goal of protecting game owners' rights by stipulating that if game escapes from enclosed territory, ownership is not forfeited and the wild animals do not regain the res nullius status. Also, it is clearly states in this section of the Act that new ownership of the said escaped wild animals cannot take place without the owner's permission.
A certificate from the premier of the relevant province is required as evidence that a property in which the wild animals in enclosed is suitably fenced for keeping game under Section 2(2)(a) of the Game Thief Act and Section 35 of the Nature Conservation Ordinance. Thus, the wildlife enclosure needs to comply with the specifications in order for the owner of a game farm to receive protection under the Act. Another policy document, such as the Policy on Fencing and Enclosure of Game, Predators, and Dangerous Animals in the Western Cape Province, contains the prerequisites for getting a certificate. The various provincial policies governing certificates of adequate enclosure, which call for the issuance of certificates of adequate enclosure, are aligned with the Game Theft Act and the Nature Conservation Ordinance.
There are times when the game farm enclosure gets damaged without the owner's fault, for example, when a force majeure — an extraordinary event or circumstance beyond their control occurs, such as a storm. Such occurrences may cause the enclosure to fall short of the legal standards outlined in the Game Theft Act. The consequences of this are not as obvious, but they are also not overly complex, as will be illustrated with case in the discussion below. However, in short, one must have taken reasonable measures to remedy the enclosure defects as per provincial wildlife regulatory frameworks and perhaps also read with s 10(1) and (2) of the Fencing Act.
Case Law
In Eastern Cape Parks and Tourism Agency v. Medbury, the Supreme Court of Appeal reviewed the obligation to possess a certificate. The ownership of a priceless herd of Cape Buffalo was the subject of the appeal. In this instance, the respondent argued that the applicant needed a certificate to demonstrate that the Thomas Baines Nature Reserve was sufficiently enclosed to the legal specifications. The issues on appeal were whether the Game Theft Act's certificate is the only requirement for wild animals to avoid regaining the res nullius status upon escape, and whether the common law needs to be developed in order to uphold the spirit, purport, and objectives of the Constitution's Bill of Rights pursuant to the owner of the sufficiently fenced enclosure not losing ownership. In developing the common law doctrine of Occupatio, the Supreme Court of Appeal adopted the purposive approach of statutory interpretation.The court held that the certificate cannot be a prerequisite when another form of proof of adequate fencing can be furnished. It further held that making the certificate mandatory would result in absurdities contrary to the entire purpose of the Game Theft Act. Watermeyer CJ remarked that the certificate served “to facilitate proof that the land in issue is sufficiently enclosed to confine the species in question.” The implication of this is that the owners who take reasonable measures to adequately enclose game on a particular property may not arbitrarily lose ownership of their escaped game through occupatio. This judgment by the Supreme Court of Appeal confirms its earlier judgment in Strydom v Liebenberg, where it was argued that the plaintiff lost ownership of the game as he no longer exercised control over the game. The court held that the loss of control did not lead to the game being res nullius and, therefore, not subject to occupatio.
The effect of the judgment is that land can be classified as “sufficiently enclosed’ for the purposes of the Act without the certificate of the premier.” Notably, there are additional descriptions of “sufficiently enclosed” or adequate enclosure. An adequate enclosure is defined in the Natural and Environmental Conservation Ordinance as “any fence, wall or obstruction of any kind whatsoever forming an enclosure from which any wild animal of a species… is unable to escape without breaking”. The game enclosure's robustness of security rather than acquiring the certificate is therefore of greater importance. This is obviously not intended to encourage disregard for the legislation governing wild animals, as such careless conduct may result in additional legal issues, and lengthy and lengthy and costly litigation. In conclusion, while it may be thrilling for South Africans to know that they can acquire ownership of escaped wild animals through occupatio, the promulgation of the Game Theft Act and various policies demonstrate that the principle's applicability has been severely constrained. With the many regulatory and legal frameworks, as well as case law that has emerged to prevent escape games from needlessly regaining the status of res nullius, the requirements to own and govern games are more onerous and costly.
It is noteworthy that, despite the fact that the legal development of this common law principle may appear to be at odds with its origins, the development was necessary to adequately protect private property ownership in terms of section 25 of the Constitution as well as to combat game theft and poaching in light of recent incidents in South Africa.
________________________________________________________________________________ SOURCES
Legislation
The Game Theft Act 105 of 1991.
The Fencing Act 31 of 1975.
Nature Conservation Ordinance No. 19 of 1974.
Constitution of the Republic of South Africa 1996.
Policy
1. Stellenbosch (2014) Policy on Fencing and Enclosure of Game, Predators and Dangerous Animals in the Western Cape
Case Law
1. Strydom and Another v Liebenberg 2007 (293/06) 117 (SCA).
2. Eastern Cape Parks and Tourism Agency v Medbury (Pty) Ltd t/a Crown River Safari 2018 (4) SA 206 (SCA).
3. Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex Parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC).
4. Underwater Construction and Salvage Co (Pty) Ltd v Bell 1968 (4) SA 190 (C) 193E.
5. Mathenjwa NO and Others v Magudu Game Company (Pty) Ltd 2010 (2) SA 26 (SCA).
Textbooks
Van der Walt A (2009) Law of Property Casebook for Students South Africa[MMS3] : Juta Legal and Academic Publishers.
Van der Walt A & Pienaar GJ (2017) Introduction to Property Law South[MMS4] Africa: Juta Legal and Academic Publishers.
Badenhorst PJ et al (2006) Silderberg and Schoeman’s The Law of Property South Africa: LexisNexis.
Mostert H & Pope A (eds) (2010) The Principles of the Law of Property in South Africa South Africa: Oxford University Press.
Christie RH & Bradfield GB (2011) Christies Law of Contract in South Africa Durban: LexisNexis.
Thomas PJ et al (2005) The Historical Foundations of South African Private Law South Africa: LexisNexis.
Monograph
1. Mattei U (2000) Basic Principles of Property Law: A Comparative Legal and Economic Introduction England: Praeger.
Journal Articles
Muir A “Offences, game and property – some unresolved issues surrounding ownership of wild animals in South Africa” (2016) 27 Stellenbosch Law Review 136.
Blackmore C & Trouwborst A “Who owns and is responsible for the elephant in the room? Management plans for free-roaming elephant in South Africa.” (2018) 48(2) Bothalia - African Biodiversity & Conservation 1.
Nasarre-Aznar S “Ownership at stake (once again): housing, digital contents, animals and robots” (2018) 10 Journal of Property, Planning and Environmental 69.
Merril TW “Accession and Original Ownership” (2009) 1 Journal of Legal Analysis 459.