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[2009] ZASCA 57
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Mathenjwa NO and Others v Magudu Game Company (Pty) Ltd (258/08) [2009] ZASCA 57; 2010 (2) SA 26 (SCA) ; [2009] 4 All SA 15 (SCA) (28 May 2009)
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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No:
258/08
MKITHI JAPHET MATHENJWA NO First Appellant
JERE OLPAS GUMBI NO Second Appellant
EMMANUEL CEBO GUMBI NO Third Appellant
GUGU SYDNEY GUMBI NO Fourth Appellant
GQAMANGAYE MICHAEL GUMBI NO Fifth Appellant
BHINJA MIKAYELI MATHENJWA NO Sixth Appellant
MANDLA ELLIOT GUMBI NO Seventh Appellant
LONDO ISRAEL GUMBI NO Eighth Appellant
NTOMBEMHLOPHE ELIZABETH NGCAMPHALALAI NO Ninth Appellant
MBEKISENI ZEBLON GUMBI NO Tenth Appellant
SINDOSOWE MONICA MATHENJWA NO Eleventh Appellant
and
MAGUDU GAME COMPANY (PTY) LTD Respondent
Neutral citation:
Mathenjwa
v Magudu Game Company
(258/08)
[2009] ZASCA
5
7
(28 MAY 2009)
Coram:
STREICHER ADP, NUGENT,
LEWIS, PONNAN
JJA AND KROON AJA
Heard:
12 MAY 2009
Delivered:
28 MAY 2009
Summary:
Wild animals -
ownership
in
â whether
ownership
acquired and
thereafter lost
.
ORDER
On appeal from:
High Court
Pietermaritzburg (
Koen J
sitting as a court of first instance).
The appeal is dismissed with costs.
JUDGMENT
KROON AJA (STREICHER ADP, NUGENT, LEWIS, PONNAN JJA
concurring)
[1] This appeal relates to a vindicatory application
launched by the respondent in the Pietermaritzburg High Court in
which the
eleven appellants
inter alios
were
cited as respondents. (The respondent did not pursue relief against
three further entities cited as respondents in the court
a quo, and
they are not involved in this appeal). The matter concerns the
ownership of wild animals.
[2] The appellants are the trustees of the Emwokweni
Community Trust (the Trust) which, representing a local community,
is the
owner of certain farms situate in the Magudu area, Vryheid,
Kwazulu-Natal (the trust properties). The respondent is a registered
company and conducts the business of the Magudu Game Reserve, which
adjoins the trust properties.
[3] The relief sought by the respondent was the
following:
(a) a declarator that it is the owner of all the game
presently on the trust properties, as well as all game as may in
future enter
upon the properties from the Magudu Game Reserve, or
alternatively, is entitled to possession thereof.
(b) an order that the Trust, its employees, and/or any
associates through the Trust be interdicted from interfering with,
dealing
in, hunting, removing and/or in any way becoming involved
with the said game;
(c) a declarator that the respondent is entitled to
enter upon the trust properties for purposes of removing the game and
relocating
same to the Magudu Game Reserve.
[4] By agreement between the parties the issues embraced
in the relief sought were referred for the hearing of oral evidence.
Subsequent
to the hearing of the oral evidence the court a quo (Koen
J) was advised that the parties were agreed:
(a) that the game in issue was confined to specific
species. (In correspondence preceding the launch of the application
the Trust
conceded that the elephants, rhinoceroses and buffaloes on
the trust properties, did not belong to the Trust and no claim was
laid
thereto. The court a quo was advised that this was a gratuitous
concession, not based on any legal principle. (In fact, in the
correspondence the Trustâs attorneys advised the respondentâs
attorneys that the three species in question could be removed
by the
respondent)
);
(b) that the interdict referred to in the notice of
motion (if granted) should extend only to âdisposing of, dealing
in, hunting
and removingâ the game until the respondent had removed
the game from the trust properties.
[5] In the result, the court a quo in substance granted
the relief sought (in respect of the specified game, as agreed). It
is that
decision which the appellants seek to assail in this appeal.
The appeal is with the leave of the court a quo.
BACKGROUND
[6] In 1995 three farmers, Mr Greeff (representing Die
Greeff Eiendoms Trust), Mr Crafford (representing the Mahlatini Game
Ranch
(Pty) Ltd) and Mr Coetzer, whose farms were contiguous, agreed
to remove the fences between their farms to form a game reserve,
allowing the game on the farms to range freely between the various
properties. They decided to form a company (the respondent)
which,
the respondent alleged, would own the game on the reserve. Various
agreements were signed by the parties for the implementation
of their
arrangement. (Certain terms of these agreements will receive closer
attention later in this judgment). The court a quo
referred to the
contracting parties as âthe foundersâ.
[7] In 2001 a Mr Bouwer, the owner of the trust
properties inter alia, entered into negotiations with the respondent
and joined
the venture, and the fences between the reserve and his
land, including the trust properties, were subsequently removed and
his
land and game were added to the reserve. In 2001 Bouwer signed
certain of the agreements referred to in the preceding paragraph,
as
also other agreements with the respondent.
[8] Around the perimeter of the reserve the fence was
upgraded and electrified. In the case of Bouwerâs properties these
steps
were taken before the internal fences between those properties
and the remainder of the reserve were removed.
[9] In April 2006 Bouwer claimed that his agreement with
the respondent was void and he sought restitution, including all the
proceeds
received from the sale of game emanating from his properties
to various hunters since 2001.
[10] In May 2006, the Trust acquired ownership of the
trust properties pursuant to a successful land claim under the
Restitution
of Land Claims Act 22 of 1994 and the purchase by the
State, through the Regional Land Claims Commissioner, of the
properties from
Bouwer. After the purchase the properties were
transferred to the Trust.
[11] For the purposes of the acquisition of the trust
properties by the Land Claims Commission on behalf of the Trust from
Bouwer
the land was valued by an appraiser, Mr Pretorius. In his
report, confirmed in his evidence, he recorded that in arriving at a
value he took into account that, as he had been told by both Greeff
and Bouwer, ownership of the game on the properties vested
in the
respondent and game counts could not be done as the properties were
managed together with the greater Magudu Game Reserve
comprising a
total of some 15 000 hectares, accommodating four of the big five
wild animals (lions being excluded), but, on the
other hand, that
game did occur on or traverse the trust properties.
[12] After taking transfer of the trust properties the
Trust declined to become a member of the Magudu Game Reserve.
Following
on disagreements between the Trust and the respondent (the
former wishing to grant hunting concessions on the trust properties)
the
T
rust
denied the respondent, its employees or agents any right of access to
the properties and in fact obtained an interdict against
such access
(required by the respondent, so Greeff averred, for maintenance and
conservation purposes). (According to the judgment
of the court a quo
an interim working arrangement was, however, subsequently reached
which operates pending the outcome of the
proceedings, and the
interim interdict was discharged. We were advised from the Bar that
the interim arrangement permits hunting
to take place on the trust
properties subject to the proceeds being deposited into a trust
account.) The position remains that
there are no fences between the
trust properties and the land comprising the reserve.
[13] The institution of the present litigation ensued.
The essential questions that fell to be decided were whether the
respondent
acquired ownership of the game in question and, if so,
whether it retained or lost such ownership.
THE AGREEMENTS SIGNED
[14] The founders signed an âUmbrella Agreementâ, a
document titled âThe Magudu Game Reserve Association
Constitutionâ,
a âShareholdersâ Agreementâ, a âGame
Valuation and Count Agreementâ, various âUse Agreementsâ and
âAgreements of
Game Purchasedâ.
The effect of these agreements was that the shareholding
of each of the founders in the respondent (the incorporation of which
was
envisaged and was subsequently effected) was determined with
reference to the size of their respective properties, and a monetary
adjustment was made with reference to the value of the game found on
each founderâs land (as agreed) and contributed to the
joint
venture, so that a shareholderâs total contribution to the venture
(consisting of game, or game and money) corresponded
with his
shareholding. Each shareholder, however, retained ownership of the
property made available to the scheme by him or it.
[15] Pursuant to the negotiations with Bouwer in respect
of the addition of his land and game to the Magudu Game Reserve on a
similar
basis, the agreements (with the exception of the âUse
Agreementsâ) were extended to, and some new agreements concluded
with,
him. On 5 March 2003 Bouwer appended his signature to the
âUmbrella Agreementâ, the âConstitutionâ, a âDeed of
Acceptance
of Membership of the Magudu Game Reserve Associationâ
and the âShareholdersâ Agreementâ. He also signed (on a date
not
specified) a âRecord of Agreementâ between himself and the
respondent. On 7 July 2003 he signed a âKoopooreenkomsâ
(âpurchase
agreementâ) providing for the purchase by the
respondent from him of certain land and the game thereon as a going
concern.
[16] The final arrangement with Bouwer, although similar
to that between the three founding members, was, however, not
identical.
Initially, the âRecord of Agreementâ (which, while not
being a model of clarity, reflected an agreement in principle)
provided
inter alia that:
(a) Bouwerâs properties (set out in an annexure) would
form part of the Magudu Game Reserve;
(b) Bouwer would acquire a 20 per cent shareholding in
the respondent (to be transferred to him from the existing
shareholders);
(c) the value of all the game on the extended reserve
was R24 370 000;
(d) the consideration for the shareholding (R4 874 000,
being 20 per cent of R24 370 000) would be settled by the
selling of
certain land and game to the existing shareholders as well
as a cash payment, made up as follows:
land (± 1650 hectares at R1 100 each): R1 815
000
game: R1 289 840
cash: R1 769 160.
(e) all internal fencing was to be taken away by not
later than August 2002. (In fact, Greeff testified that a delay
supervened).
[17] However, it was thereafter agreed that the
shareholding in the respondent be increased and that Bouwer receive
20 per cent
of the increased shareholding (from the respondent) for
the consideration of R4 874 000. The âKoopooreenkomsâ
was
thereafter concluded. The total consideration payable by the
respondent in terms thereof was R1 951 105, which included
R572 605 in respect of game. The land which was the subject of the
agreement comprised portions of two of the properties referred
to in
the annexure to the âRecord of Agreementâ (which rendered it
necessary for subdivisions to be effected). The reasons
for the
restricted sale of ground need not be set out. According to Greeff
the game reflected by the sum of R572 605 was
the estimated
amount of game on the properties in question at the time.
[18] At a late stage in his oral testimony Greeff seemed
to suggest that the game to the value of R572 605 may have been in
addition
to the game to the value of R1 289 840 referred to in
the âRecord of Agreementâ. However, to the extent that that was
the import of his evidence, he was clearly confused and mistaken in
this regard. There was no suggestion that in the interim Bouwer
had
introduced further game onto his properties and Greeff had earlier
stated that the game referred to in the âRecord of Agreementâ
was
that which was on all of the properties referred to in the annexure
thereto.
[19] In the result, therefore, the final arrangement was
that as a quid pro quo for his 20 per cent shareholding Bouwer would
be
credited with the sale price provided for in the âKoopooreenkomsâ;
transfer the land referred to in the âKoopooreenkomsâ
to the
respondent; make the remainder of the land referred to in the
annexure to the âRecord of Agreementâ (of which he would
remain
the owner) available to the respondent as part of the extended
reserve; contribute game to a total value of R1 289 840 to
the
venture; and make payment of the cash amount of R1 769 160.
[20] The cash amount involved was paid by Bouwer (albeit
to the other shareholders, not the respondent). The land referred to
in
the âKoopooreenkomsâ was, however, never transferred to the
respondent and no shares were ever issued to Bouwer. The agreements
with him remained executory and became the subject of ongoing
litigation between the parties. However, the result of the removal
of the fences between Bouwerâs properties and the other land
utilized by the respondent was that the game that was on Bouwerâs
properties intermingled and roamed freely with the other game over
the extended reserve.
[21] Both prior to and subsequent to the negotiations
and agreements concluded with Bouwer, the respondent acquired
substantial
amounts of further game (over and above that originally
on the land) by purchase or barter, and added same to the reserve.
Progeny
has also been born to the game on the land.
THE ORAL EVIDENCE
[22] Greeff, a director of the respondent, deposed to
the founding and replying affidavits on behalf of the respondent. He
also
gave evidence at the oral hearing. In addition to sketching the
history of the matter, including the various agreements signed,
his
testimony was to the effect that the owners of the land which formed
the constituent parts of the game reserve all agreed that
the
respondent would become owner of all the game on the reserve and
that was their common intention. Crafford (whose interest
in the
venture was at a later stage acquired by Greeff) also testified that
as far as he was concerned, when the internal fences
were removed, so
that the game could roam over the entire reserve, the respondent
became the owner of the game. Under cross-examination,
however, he
agreed that the way in which the game previously on the farms was
dealt with was governed by the terms of the various
agreements âas
they interacted with each otherâ, that there were no separate oral
agreements that did not form part thereof
and that the consequences
of the arrangement were to be found âon an interpretation basisâ.
[23] The Trust did not tender any oral testimony. Its
stance in the answering affidavit filed on its behalf, and in
cross-examination
during the oral testimony, was that the respondent
was put to the proof of its allegation of its ownership of the game
in question
and that the various agreements invoked by the respondent
did not substantiate its claim.
THE JUDGMENT OF THE COURT A QUO
[24] Koen J had regard to the following common law
principles relating to the ownership in game:
(a) Wild animals which are in a natural state of freedom
become the property of their captor wherever and however captured
provided
that apart from physical control, the
animus
to be the owner is also present;
(b) A wild animal which escapes from physical control,
disappears from the sight of its previous owner and regains its
natural state
of freedom becomes
res nullius
with a consequent loss of ownership.
1
[25] The learned judge further held, correctly, that the
abstract theory applies in our law in respect of the passing of
ownership
in property.
2
In terms thereof, a valid underlying transaction or
iusta
causa traditionis
is not a requirement for
the valid transfer of ownership. Provided that the agreement to
transfer ownership (the âreal agreementâ
or âsaaklike
ooreenkomsâ) is valid, ownership will pass in pursuance and on
implementation thereof, notwithstanding that the
causa
(the âverbintenisskeppende ooreenkomsâ or âcontractual
agreementâ) may be defective. In other words all that is required
is delivery (actual or constructive) coupled with an intention to
pass and receive ownership.
[26] The conclusion reached by the learned judge was
that the individual parties to the game reserve venture (who were the
owners
of the game on their respective properties prior to the
dropping of the internal fences) intended that ownership of the game
pass
to the respondent, that the latter intended to receive ownership
and that delivery of the game was effected when the internal fences
were dropped. He reached this conclusion based on his assessment of
the evidence, the probabilities and the interpretation to be
placed
on the various agreements signed (insofar as these might have had a
bearing on the question of whether there was the requisite
intention).
[27] In respect of the requirement of control for there
to be ownership in the game at common law, it was held that the
upgraded
electrified perimeter fence around the extended reserve
(which was game proof) afforded the requisite control. That control
(over
game that happened to be on the trust properties) was not lost
when the Trust barred the respondent from access to the trust
properties
and the respondent remained owner of all the game on the
extended reserve as it was before the Trust decided not to be a
member
of the reserve.
[28] One last aspect was the subject of dispute in the
court a quo. The appellants argued that in the event of the court
deciding
the matter in favour of the respondent, a time limit should
be placed on the opportunity to be afforded to the respondent to
remove
its game, of one winter season (that being the season of the
year when removal of game from one area to another can be
undertaken).
The respondent contended for a minimum of two winter
seasons. The learned judge commented that the issue of what would
constitute
a reasonable period was not canvassed in the papers or the
evidence, and might very well require input from experts. He was not
prepared, in the absence of the issue being fully ventilated between
the parties, to make an arbitrary determination. He therefore
stated
that he would grant the relief in the form sought and if the parties
could not reach agreement and either party acted unreasonably,
the
court would have to be approached for the issue to be determined.
CONTENTIONS OF THE RESPONDENT
[29] The basis on which the respondent argued that it
became the owner of all the game in the reserve was framed as
follows:
(a) When the reserve was created and the fences removed
it was the intention of the farmers concerned that the respondent
would
become the owner and controller of their game; the respondent
was created for that purpose
3
.
The âreal agreementâ consisting of the intention to transfer and
receive ownership of the game is evidenced by the conduct
of the
owners who contributed land to the venture and removed the internal
fences, thus allowing their game, previously confined
to their
respective properties, to move between the various properties and to
intermingle.
(b) It would in fact not have been practicable for the
individual farmers to retain ownership of the game which they
contributed.
The game roamed over the whole reserve, moving freely
from one farm to another.
4
(c) The game intermingled and it became impossible to
identify the game contributed by each farmer.
(d) Delivery of the game to the respondent took place
when the internal fences were removed (thus enabling the game to roam
as referred
to above). The game reserve was securely enclosed by an
electrified game fence on the perimeter thereof. The respondent
accordingly
assumed the required control over all the game.
(e) The respondent later introduced further game to the
reserve, which it had acquired by purchase or barter. The benefit of
the
progeny of the game in the reserve also accrued to it.
(f) The appellants made the concession concerning
elephants, rhinoceroses and buffaloes referred to earlier.
5
[30] It was further submitted on behalf of the
respondent that nothing in the written agreements signed by the
parties detracts
from the notion that it was the common intention
that ownership in the game would pass from the farmers to the
respondent. On the
contrary, so it was argued, the contents of the
documents underlined the existence of the common intention contended
for. Counsel
pointed
inter alia
to the following:
(a) One of the suspensive conditions in the âUmbrella
Agreementâ was the signing of an agreement between the parties to
the
effect that they have agreed to the valuation and count of all
game. A formula was provided for a monetary adjustment so as to
achieve an equal contribution of game, or game and money, relative to
the shareholding of the parties.
(b) Various provisions in the agreements were to the
effect that, to the exclusion of a party thereto, the respondent
would be entitled
to undertake the control and administration of all
culling, catching and hunting of game on a partyâs land and to
trade therein
commercially, the nett proceeds thereof to accrue to
the respondent and be treated as income of the respondent. The
parties were
not to permit capturing, hunting or shooting of game on
their respective properties and would not be permitted to engage in
hunting
without a written permit issued by the respondent (and
subject to any conditions laid down by the respondent) and payment of
the
prescribed fees to the respondent. An infraction of these
provisions by any party would visit him or it with liability to pay a
compensatory fine.
(c) A formula was to be applicable when a new member
joined the reserve and added his land and game to it. In terms of
the âRecord
of Agreementâ (as later modified) concluded between
the respondent, the Magudu Game Reserve Association and Bouwer he
would acquire
a 20 per cent shareholding in the respondent, for which
he would pay by way of land, use of land, game and cash. The clear
effect
of the above, so it was argued, supported the contention that
on joining the reserve Bouwer would not retain ownership of his game.
(d) Clause 5 of the âUse Agreementsâ (Bouwer did not
sign such an agreement) provided that in the event of a land owner
ceasing
to be a member of the association he would be obliged to
re-erect fences on his land (to separate same from the properties
remaining
in the reserve)
and the respondent
would be entitled to capture and remove all wild game from his land.
(My emphasis). (The clause further provided
that the departing member would receive no compensation in respect of
the game so removed
other than through the compulsory sale and
purchase of any shares he has in the respondent).
(e) Clause 4 of the âUse Agreements made provision for
a waiver of ownership in the following terms:
â
The Landowner also expressly
waives any right to or claim to ownership of any wild game traversing
his land from time to time, such
waiver to be in favour of [the
respondent].â
[31] Counsel also invoked the following conduct on the
part of the parties:
(a) Hunting on the reserve was done by professional
hunters, pursuant to contracts concluded with the respondent, and the
profits
accrued to the respondent. Supporting documentation in
substantiation hereof was placed before the court a quo.
6
(b) Further documentation substantiated that the
respondent had also engaged both in the purchase of game to be added
to the reserve
as well as in the sale of game to other persons.
(c) As was deposed to by Mr Redelinghuys, the chartered
accountant who attended to the preparation of the respondentâs
financial
statements, the game was reflected therein as an asset of
the respondent. Similarly, the statements reflected expenses for the
purchase of game and income from the sale of game.
(It may be added that in correspondence between Greeff
and the Land Claims Commissioner the former recorded inter alia that
the
respondent is the owner of all game in the game reserve in that
it had purchased all the initial game on Bouwerâs properties
for
the amount of R1 289 840, and already owned the balance of the game
in the reserve).
[32] Counsel further invoked the fact that the agreement
in terms of which Bouwer disposed of the trust properties to the
National
Department of Land Affairs (which in turn transferred the
land to the appellants) concerned only the sale of the land and said
nothing about game.
[33] Counsel also adverted to the evidence of Bouwer
contained in the affidavit filed by him. (Bouwer, who was cited as
the 14
th
respondent in the court a quo, recorded that he had no personal
interest in the application, abided the decision of the court and
filed the affidavit for the assistance of the court). He stated inter
alia that the respondent purchased his game and that after
the
internal fences had been dropped the respondent used all the game in
its operation.
7
[34] In respect of the contention on behalf of the Trust
that the respondent had lost its ownership of the game in question,
counsel
supported the approach adopted by
Koen
J. He pointed out that the game remains where it was from the
outset, roaming all over the reserve, including the trust properties,
but confined by the perimeter fence. He submitted that the refusal
by the appellants to allow the respondent to remove game that
happens to be on the trust properties to the remainder of the
reserve, does not constitute a loss of control leading to a loss
of
ownership. He labelled the refusal as an unlawful attempt by the
appellants to appropriate to themselves game which is owned
by the
respondent.
[35] Finally, counsel supported the approach of
Koen
J with regard to the formulation of the order relating to the removal
by the respondent of the game from the trust properties.
He
emphasized that the respondent cannot begin with the relocation
process until the Trust has constructed a fence between its
land and
the reserve. He added that the Trust can hardly complain about the
fact that the animals are grazing on their land (about
which more
later when the Trustâs submissions are considered) when it refuses
to allow the respondent to remove the animals.
[36] In my judgment, the argument on behalf of the
respondent set out in the preceding paragraphs in general carries
persuasion,
as will appear from the discussion that follows on the
contentions raised on behalf of the Trust.
THE CONTENTIONS OF THE TRUST
[37] Mr Pillemer (who, with Mr Voormolen, appeared for
the Trust) confirmed that in the court below the Trust had not
disputed that
prior to the dropping of the internal fences the
parties to the game reserve venture were the owners of the game on
their respective
properties, and intimated that his stance in the
appeal was the same. He submitted, however, on the grounds discussed
below, that
the respondent had not acquired ownership of any of the
game on the properties.
[38] Reliance was placed on the evidence of the
appraiser, Pretorius, referred to earlier,
8
that in valuing the trust properties he took into account that game
from time to time roamed over the properties. The answer thereto
is
three-fold. First, the relevance of this evidence is not apparent.
Second, the evidence merely reflected the factual position.
Third,
it is no counter to the point taken on behalf of the respondent that
the subject matter of the sale from Bouwer to the
State was the land
and not the game thereon.
[39] Counsel sought to stress that there was no written
agreement that expressly purported to transfer ownership of the wild
animals
in the Magudu Game Reserve to the respondent, and certainly
none that transferred ownership from Bouwer, since, so it was
contended,
the agreements he signed remain executory and disputed.
Furthermore, so the argument continued, with the transfer of the land
to the appellants the agreements had become impossible of
performance.
[40] I will later deal more fully with the Trustâs
contentions founded on the contents of the various agreements. At
this stage
it is only necessary to repeat that the court a quo
correctly proceeded on the basis that the abstract theory of the
passing of
ownership applies in our law, and that the fact that the
agreements relating to Bouwer are executory and the subject of
dispute,
as well as the fact that Bouwer has transferred part of his
land to a third party, relate to the âverbintenisskeppende
ooreenkomsâ
and any defect therein would not affect the passing of
ownership in the game in question if the âreal agreementâ
relating
thereto was valid and implemented.
[41] Counsel adverted to the fact that the trust
properties are mountainous bushveld where animals would âdisappear
from sightâ
soon after they cross the boundary into the land.
Notwithstanding that the animals are restrained by the perimeter
fence running
along the outer boundary of the properties the
questions to be answered, counsel said, are whether or not animals
that enter the
trust properties and disappear from sight are at
common law deemed to have regained their natural freedom and whether
there is
the required degree of control in a âvastâ mountainous
area to which the entity claiming ownership of the animals has no
right
of entry, and, if so, does the control relate to all animals
on the land, including progeny and those that occur naturally and
were not introduced.
[42] It was submitted that the court a quo, in applying
the abstract theory in relation to the transfer of ownership, erred
by confusing
the authorities dealing with â
the
validity
of the underlying agreements with
the need for an interpretation of the agreements and whether the
parties intended thereby to
pass ownership of the game to the
respondentâ. However, counsel added that the question must always
be whether or not there
was delivery from the transferor to the
transferee with the reciprocal intention both to transfer and acquire
ownership, respectively,
and in that regard the intention of the
parties must be measured against the provisions of the common law
relating to the acquisition
and retention of ownership of wild
animals.
[43] These latter statements correctly reflect the
principles of the abstract theory. The earlier statement is not
wholly in accordance
therewith. While counsel correctly submitted
that the interpretation of the underlying agreements is relevant to
the extent that
they bear on the question whether the parties had the
required reciprocal intention, the question is not whether the
parties intended
that
ownership
pass
via the
agreements
. The legal issue is whether there
was a valid âreal agreementâ to transfer
ownership
on
delivery.
[44] The argument was that on a careful analysis of the
agreements the court a quo ought to have concluded that:
(a) the agreements, noticeably, refrained from stating
that the respondent would become the owner of the game within the
Magudu Game Reserve;
(b) the agreements contained a number of provisions
inconsistent with the respondent acquiring
ownership
of the game (as opposed to the right to
manage, capture and exploit the game);
[45] However, while it is true that there was no express
statement in the agreements that the respondent would acquire
ownership of
the game, I am persuaded that the provisions invoked by the
respondent, discussed earlier in this judgment, can only be
interpreted
as carrying the necessary implication that the respondent
was to acquire
ownership of
the game. And, as will appear below, I am not persuaded that there
are any provisions in the agreements inconsistent with the
respondent
acquiring
ownership of
the game.
[46] Counsel submitted that in contradistinction to a
reference to the respondent becoming the owner of the game, the
agreements
used language (such as âmanageâ, âcontrolâ,
âadministerâ and âuseâ) which suggests an awareness of the
limitations
placed by the common law upon the ownership of wild game.
The short answer to the submission is that the agreements must be
interpreted
in their entirety. If that exercise is undertaken, then,
firstly, it is apparent that the wording referred to by counsel was
entirely
appropriate in the context of the respondent conducting the
business of âthe conservation of veld and wild game resources on a
commercial basisâ and accepting responsibility âfor the
management and conservation of all veld and wild game resources in
the reserve including the land . . . on a commercial basis for its
own accountâ, on land which belonged to other persons or entities.
Secondly, the wording must be read together with other provisions in
the agreements which import the necessary implication that
the
respondent was to become the owner of the game. Asked to elucidate
how what he referred to as the common law limitations on
the
ownership of game affected the question whether the intention was
that the respondent acquire ownership of the game, counsel
stated
that he was referring to the requirement of control over the game. I
will revert to this issue below.
[47] Counsel next focused attention on the waiver
provision in clause 4 of the âUse Agreementsâ.
9
It was submitted that this express waiver was entirely inconsistent
with an intention by the parties that the ownership of the
wild game
be transferred to the respondent when the internal fences were
dropped. The essential basis of the submission was that
if ownership
in the game was intended to pass to the respondent when the internal
fences were dropped, it was unnecessary to make
provision for the
waiver. The allied submission was that the finding of the Court a quo
that the waiver was included
ex abundante
cautela
is contrary to the presumption
against tautology or superfluity in contracts, included as part of
the rules of interpretation of
contracts.
[48] I fail to understand why the waiver was said to be
inconsistent with the intention in question. I do not agree that the
language
utilised by Koen J offends against the presumption referred
to. I do agree with the learned judgeâs approach that, in effect,
the provisions underscored the common intention that the respondent
become the owner of the game â at the time the fences were
dropped.
It bears mention that counsel did not seek to suggest what other
effect the waiver had on the membersâ ownership of
the game on
their land.
[49] Similar comments apply to counselâs submission
that the provisions in the âUse Agreementsâ relating to the
exclusion
of compensation to the landowner in respect of game
captured and removed from his land by the respondent (upon
termination of his
membership of the association)
10
were entirely inconsistent with an intention to transfer ownership
of the game to the respondent when the fences were dropped.
Counsel
offered no submissions against the proposition that at least at that
stage a transfer of ownership would take place.
He sought to argue
that the then capture and removal of the game by the respondent and
the fencing off of the memberâs land would
meet the requirements of
the common law requirements for the acquisition of ownership in wild
game. However, counsel did not suggest
any reason why the parties
would have wanted to delay transfer of ownership in the game to the
time when a memberâs membership
of the association came to an end,
instead of an immediate transfer of ownership when the member joined
the venture. And as set
out above there is every indication that the
latter was intended. Counsel did not proffer an explanation for the
provision that
no compensation be paid notwithstanding that, as was
accepted, ownership in the game on the memberâs land immediately
prior to
his joining the venture reposed in him. The argument also
loses sight of the considerations, dealt with earlier, arising out of
the intermingling and free roaming of game over the whole of the
reserve.
[50] Counsel next referred to the provisions relating to
the entitlement of the respondent, to the exclusion of the members of
the
association, in respect of hunting operations on the reserve (and
other associated rights) and to receive the proceeds thereof.
11
The argument, if I understood it correctly, was that if the
respondent had become owner of all the game it was unnecessary to
provide for the respondent to have exclusive rights on this score.
It was suggested that the purpose of the provisions was to accord
the
respondent rights despite the ownership of the game remaining with
the landowners. However, far from these provisions being
inconsistent
with an intention that the respondent acquire ownership of the game
contributed by the members to the venture, in
my view they underscore
that intention.
[51] The essential submission on behalf of the
appellants, based on the factors referred to above, was that on a
proper analysis
of the agreements they created personal rights to
exploit the resources found on the land (which included, but were not
limited,
to game) in favour of the respondent, but fell short of
reflecting an intention to transfer ownership of the game to the
respondent,
probably, counsel said, on the basis that the ownership
of wild game which occurs naturally, is at common law problematic.
(Again,
it may be repeated, counsel invoked the requirement of
control â an aspect dealt with below.) I am unable to agree. As
already
recorded, nothing in the agreements casts doubt on the
notion that the intention of the parties was that ownership in the
game
was to pass to the respondent and thus to create real rights.
[52] With reference to the âKoopooreenkomsâ
concluded between Bouwer and the respondent in July 2003, in terms of
which the
land specified therein and the game thereon (valued at
R572 605) were sold to the respondent as a going concern,
counsel
pointed to the fact that the fences had by then already been
dropped. Ergo, so the argument ran, Bouwerâs state of mind at the
time the fences were dropped must have been that he retained
ownership of the game on his land. If, on the other hand, as Greeff
suggested, the game referred to in the âKoopooreenkomsâ was
additional game, then, even if Bouwer had intended the ownership
of
the game originally described to pass with the dropping of the
fences, he could not have intended to pass ownership of the
remaining game referred to in the âKoopooreenkomsâ. This,
counsel said, highlighted the problem of ownership of wild animals
that wander and cannot be individually identified, and the agreement
(which in fact was never executed) presented a âsignificantâ
obstacle in drawing the inference of an intention to pass ownership
of all of Bouwerâs game to the respondent when the fences
were
dropped. The short answer to the argument, however, is that, as I
have already found,
12
the game referred to in the âKoopooreenkomsâ formed part of the
total game Bouwer was to contribute to the venture. That
contribution was part of Bouwerâs
quid pro
quo
for the shareholding he would obtain in
the respondent and the only inference is that the game contributed
was to become the property
of the respondent.
[53] In the final result, counselâs argument (apart
from the reliance on his interpretation of the various agreements)
boiled
down to the following. With Bouwerâs entry into the game
reserve venture and the dropping of the internal fences between his
properties and the remainder of the reserve an additional
approximately 10 000 hectares was added to the venture (which up
to then had embraced approximately 5 000 hectares). The
additional land, and specifically the trust properties, was rugged
and mountainous where game could, and did, factually âdisappear
from sightâ. That circumstance, taken together with what counsel
referred to as the âvastnessâ of the reserve area rendered the
ârecovery of gameâ a difficult procedure. Accordingly,
notwithstanding that the upgraded and electrified perimeter fence
effectively contained the specified game within the confines of
the
extended reserve, the element of control required for ownership in
game was absent. Integral to the argument was the submission,
with
allusion to the âvastnessâ of the land, that it was a question of
degree whether the requisite control was present. The
required
degree, so it was argued, was not met in the instant case.
[54] Pressed on what he contended had become of the
ownership that the parties to the game reserve venture had had in the
game that
was on their respective properties prior to the dropping of
the internal fences counselâs final stance, on the basis set out in
the preceding paragraph, was that all the game in the reserve had
become
res nullius
. In
developing his argument, if I understood it correctly, counsel
submitted that the parties had probably not given thought to
what
would happen to the ownership in their game, but the effect of
relinquishing control of the game when the internal fences
were
dropped (as counsel contended for) was the loss of ownership.
[55] The argument cannot be upheld. In the first place,
as already recorded, the intention of the parties to the venture was
that
ownership in all the game in the reserve would pass to the
respondent. Secondly, I am unpersuaded by the argument that control
over the game was factually relinquished. As appears from the
decisions in the cases referred to in the following three paragraphs
(to which Mr Ploos van Amstel, for the respondent, referred us) the
applicable common law principles, when applied to the facts
of the
present matter, dispose of the submission.
[56] In
Richter v du Plooy
13
the plaintiff kept 57 wildebeest on 800 morgen of land which was
enclosed. Some of the animals strayed onto an adjoining farm
where
two of them were shot. It was held
14
that the size of the enclosure did not exclude that the confinement
of the animals was of such a character as to make the animals
the
property of their captor, but that their confinement (having regard
to the nature of the animals, the extent of the enclosure,
the object
of preserving the animals and their susceptibility to the control and
management of man) was not sufficient to take
them out of the
category of wild animals and if they emerged from their place of
detention they became
res nullius.
While
detained, however, they were the property of the landowner. (It may
be noted that the headnote of the case does not correctly
reflect
what was decided.)
[57] In
Lamont v Heyns &
Another
15
the plaintiff kept 110 blesbok in an enclosed camp some 250 to 300
morgen in extent. The defendants entered the plaintiffâs land
and
shot some of the animals. It was argued on their behalf that the
blesbok were wild animals not in the possession of the plaintiff
and
therefore not his property. The judgment contains the following
passage:
â
Under such circumstances it
would cause great surprise to farmers if the Court were to hold that
the blesbok in question were not
the property of the plaintiff. But
it is contended on behalf of the respondents that that is the law,
and various authorities were
referred to. . . . And Voet
says that wild animals which we have confined in zoological preserves
or fish which we have
cast into fish ponds are under our control, and
are therefore owned by us; but . . . wild animals roaming about in
fenced woods
are left to their natural liberty, nor are they
possessed by anyone; because fences are put up rather for defining
boundaries than
for the custody or closing in of wild animals. It may
have been the case at the time and in the country in respect of which
Voet
was writing that fences were put up for defining boundaries
rather than for closing in wild animals, but we must deal with the
facts in the present case.â
16
It was concluded that although the blesbok were wild
animals the plaintiff kept such control over them as to make him the
owner
of the animals.
[58] In
Strydom v Liebenberg
17
game was kept on 140 hectares enclosed with game proof fencing.
Portion of the land was owned by the plaintiff and the remainder
by a
company of which he was the sole shareholder and director. The
company was liquidated and the land belonging to it was sold
to the
defendants. The agreement of sale did not include the game. The
defendants erected a fence between the two portions of land
thereby
denying the plaintiff access to the game on the land previously owned
by the company. The defendants contended that the
plaintiff had lost
ownership in that game as he no longer exercised control thereof: the
game had therefore become
res nullius
.
The contention was rejected on the basis that the game remained
confined within the land that had been fenced and had not regained
their natural state.
[59] In the present matter regard must be had to the
nature of the game reserve venture conducted by the respondent (ie
large scale
game-farming). It was for the purpose of carrying on that
venture that the perimeter fence had been upgraded and electrified,
which
resulted in the game being confined within the boundaries of
the reserve. That confinement, coupled with the purpose thereof, and
seen in the light of the approach adopted in the three cases
discussed above, constituted the requisite control to vest ownership
of the game in the respondent. The size of the reserve and the
circumstance that ârecovery of the gameâ might be a difficult
and
time consuming exercise do not affect that conclusion; recovery of
the game would eventually be achieved.
FINDING
[60] I conclude accordingly that the respondent acquired
ownership of all the game in the reserve in that:
(a) the respondent and the founders had the common
intention that ownership of the game on the land of the founders
would pass
to the respondent, and subsequently the respondent and
Bouwer had the common intention that ownership of the game on the
land of
Bouwer would pass to the respondent;
(b) actual delivery of the game took place when the
internal fences were dropped, alternatively constructive delivery
took place
by virtue of the fences being dropped followed by the then
possession of game by the landowners on behalf of the respondent;
(c) ownership of the further game introduced into the
reserve by the respondent was acquired by it by purchase or barter;
(d) the pro
geny
of the game on the reserve accrued to the respondent.
DID THE RESPONDENT LOSE OWNERSHIP OF ANY OF THE GAME?
[61] Counselâs argument embraced an attack on Koen Jâs
finding that the wild animals from time to time on the properties now
registered in the name of the Trust had not regained their natural
state of freedom such as to amount to a loss of ownership.
It was
submitted that the only form of control previously exercised by the
respondent of the game on the properties was the fencing
in of the
game by the external fence. However, so the argument continued, for a
considerable period the respondent has effectively
had no means to
enter upon that land to maintain the fences or to exercise any other
control. It had been open to the respondent,
aware of the land
claim, to protect its rights by moving the animals from the farms in
question onto the remainder of the reserve
and erecting fences to
keep them there. It elected not to do so. That, counsel said,
amounted to an abandonment of control, and
if the respondent
previously had ownership of the game, it thereby lost such ownership.
[62] The argument cannot prevail. The evidence was that
there were negotiations between the respondent and the Trust
concerning
the latterâs becoming a member of the association.
These did not bear fruit. But, as already found, immediately prior
to the
Trust adopting the stance that it would not allow the
respondentâs representatives onto its land the respondent did have
effective
control over the game, and owned same. It is only that
stance of the appellants that interfered with the respondentâs
exercise
of its rights of ownership and prevented it from removing
the animals when it wished to do so, and it still so wishes. I align
myself with the approach that Koen J adopted on that score and
endorse the finding that the respondent did not lose control of
the
game on the trust properties and that it retained ownership of the
game.
[63] It was submitted that representatives of the
respondent may in terms of the court order enter upon the trust
properties to
remove game (without there being any limitation as to
the number of entries, and that the Trust must tolerate that
situation for
an indefinite period âuntil such times as the
respondent has removed its game from the propertiesâ. However, as
Koen J pointed
out the modus operandi of the relocation was not
canvassed in evidence before him. He accordingly granted the order
in the form
sought and recorded that should any disputes between the
parties arise which they are unable to resolve the court would have
to
be approached to determine those disputes. In my judgment, that
approach was a proper one.
[64] It was next said that in the meantime, and until
the game is removed, the respondent enjoys the benefit of the animals
grazing
upon the trust properties, to the detriment of the Trust, and
without compensation. The short answer to the objection is that it
does not lie in the mouth of the Trust to invoke the objection when
it has itself, by its own conduct, denied the respondent access
to
its properties for the purposes of the relocation. However, if it
considers that it has a claim for compensation it is at liberty
to
pursue same. It may further be noted that the issue was not raised
before the court a quo.
REPLACEMENT OF INTERNAL FENCING
[65] The circumstance of the absence of internal fencing
between the reserve and the trust properties was also raised in
argument.
A suggestion was made in the respondentâs papers that
the appellants are obliged to erect such fences (presumably on the
basis
that their predecessor in title, Bouwer, was, in terms of his
agreement with the respondent, obliged to replace internal fences
when he withdrew from the venture). It is not necessary, nor
possible, in the present judgment, to pronounce on the validity of
that stance. The respondent may have to erect the fencing itself
(and Greeff in fact testified that the respondent was entitled
to do
so) to enable it effectively to relocate its game, and thereafter
seek whatever remedy it feels it may have against either
Bouwer or
the Trust; or it may approach the court to resolve the issue of
responsibility for the erection of the fencing.
ORDER
[66] The appeal is dismissed with costs.
_____________________
F KROON
ACTING JUDGE OF APPEAL
Appearances:
For Appellants: M Pillemer SC
A V Voormolen
Instructed by:
Brett Purdon Attorneys
Durban
Honey Attorneys
Bloemfontein
For Respondent: J A Ploos van Amstel SC
Instructed by:
Harvey, Nossel & Turnbull
Johannesburg
Lovius Block Attorneys
Bloemfontein
1
Van der Merwe,
Things,
27
Lawsa
,
paras 325 and 406.
2
Commissioner of Customs and Excise v Randles
Brothers and Hudson
1941 AD 369
at
198-199;
Trust Bank van Afrika Bpk v
Western Bank Bpk
1978 (4) SA 281
(A)
at 301;
Air-Kel(Edms) Bpk h/a Merkel
Motors v Bodenstein
1980 (3) SA 917
(A) at 922.
3
The âShareholders Agreementâ referred to in paras [14] and [15]
above recorded that the
respondent
had as its purpose
ââ¦..carrying on the business of the conservation of veld and
wild game resources on a commercial basis
primarily in the area of
land to be called the
Magudu
Game Reserve
â.
4
The
founding
affidavit,
deposed to by Greeff, further recorded that because of drought
conditions game migrated to Bouwerâs farms and during
2002/2003
the respondent moved a considerable number of the game to those
farms to take advantage of the available grazing
there.
5
Para [4] above.
6
In the
founding
affidavit
Greeff
recorded that the hunting concessions granted during 2004 included
concessions granted specifically in respect of the land that
subsequently became the trust
properties
and
a hunting camp was leased from Bouwer for this purpose. In his
replying affidavit
Greeff
referred to invoices issued by the
respondent
to
Bouwer
for game he had shot on the reserve and game he purchased from the
respondent, as well as invoices relating to game meat
that Bouwer
had purchased from the respondent.
7
It may further be recorded that in proceedings instituted by the
respondent against Bouwer in the Johannesburg High Court for
the
enforcement of the sale of the land referred to in the
âKoopooreenkomsâ (which are still pending), the papers in which
were by agreement placed before Koen J, Bouwer filed an affidavit
which contained the following passage:
â
I
have paid the cash amount to the shareholders and the Applicant (the
present respondent) has taken over the game that was on
my farms.
This we did by dropping the fences between the properties and the
game was then allowed to move over the boundaries
to the various
properties. Since then the Applicant has been using the game in its
game farming operations.â
8
Para [11]
above.
9
Para
[30](e) above.
10
Para
[30](d) above.
11
Para
[30](b) above.
12
Para [18]
above.
13
1921 OPD 117.
14
At 118-119.
15
1938 TPD 22.
16
At 24-25.
17
[2007] ZASCA 117.