About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2017
>>
[2017] ZAFSHC 4
|
|
Appelgryn N.O. and Another v Jankielsohn and Others (3809/2016) [2017] ZAFSHC 4 (19 January 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION,
BLOEMFONTEIN
Case
number: 3809/2016
In the
matter between:
JOHANNES
JACOBUS APPELGRYN N.O.
First
Applicant
PATRICIA
YVONNE VAN WYK
N.O.
Second
Applicant
(in their capacities as
trustees of the
TWO
AA TRUST, IT NO. 599/02
)
and
DOCTOR
A JANKIELSOHN
First Respondent
CREZCO
STEEL AND HARDWARE TRADERS
(PTY)
LTD
Second Respondent
DOCTOR
WESSELS STRYDOM
Third Respondent
THE
FREE STATE PROVINCIAL DEPARTMENT
OF
ECONOMIC DEVELOPMENT, TOURISM AND
ENVIRONMENTAL
AFFAIRS
Fourth Respondent
SOUTH
AFRICAN NATIONAL ROAD AGENCY
LIMITED
Fifth Respondent
ISABELLA
PIETERS MARCO VERMEULEN &
Sixth Respondent
ALIDA
ELIZABETH VERMEULEN
Seventh Respondent
GEORGE
PIETER DIRK MEIRING
Eight Respondent
SUSANNAH
DOROTHEA KRUGER
Ninth Respondent
SARA
NEL
Tenth Respondent
CORAM:
RAMPAI, J
HEARD
ON:
27 OCTOBER 2016
JUDGMENT
BY:
RAMPAI, J
DELIVERED
ON:
19 JANUARY 2017
[1]
The matter came to court by way of motion proceedings. The
applicant primarily seeks an interim interdict pending resolution
of
factual disputes through contrived interpleader process. Only
the first respondent opposes the application. In addition
to
her opposition, the first respondent raises certain preliminaries and
also applies to have certain parts in the founding affidavit
struck
out. The remaining respondents chose not to enter the fray.
[2]
There are two applicants in the matter, namely: MrJJ Appelgryn
N.O. and Ms P.Y van Wyk N.O. They acted in their
representative
capacities as trustees of an entity called Two AA Trust IT No
599/02. From now on I shall simply refer to
the entity as the
Trust. The Trust is the registered owner of a piece of land
known as Farm Pielanshoek 944 District Bethlehem
Province Free State,
measuring 229, 7704 hectares.
[3]
The first respondent is Dr A Jankielsohn. She is the lawful
owner of a piece of land known as Farm Bruwershoop 1718 District
Bethlehem Province Free State. The applicants seek direct
relief against her.
[4]
The second respondent is a corporate enterprise called Crezo Steel
and Hardware Traders (Pty) Ltd. The enterprise is the
lawful
owner of a piece of land known as Farm Hulp 733 District Bethlehem
Province Free State. The sole shareholder of the
2
nd
respondent is Ms Azetta Appelgryn, the ex-wife of the first
applicant. The applicants seek no direct relief against the
second respondent. The second respondent has agreed to provide
interim storage or safe keeping of the animals in dispute on
its
property in accordance with the relief sought by the applicants.
[5]
The third respondent, Dr W Strydom, is a farmer. He owns a
property described as Farm Schalkie 1788 District Bethlehem,
Province
Free State. Besides being a landowner, he is also a
veterinarian of Bethlehem Animal Hospital. No direct relief
is
sought against him.
[6]
The fourth respondent is the Department of Economic Development,
Tourism and Environmental Affairs: Free State Provincial
Government. The department is the responsible authority whose
duty it is to oversee all matters pertaining to any dealing
with
threatened or protected species. The fourth respondent has been
joined in these proceedings by virtue of its public
interest in the
subject matter of this application. The applicants seek a
directory relief against the fourth respondent
for the sake of
completeness.
[7]
The fifth respondent is the lawful owner of the Farm Asrivier 1437;
the sixth respondent is the lawful owner of the Farm
“The Glen”
791 Bethlehem RD, P:0; the seventh respondent of the Farm The
Glen 791 Bethlehem RD, P:1, the eight
respondent of the Farm
Nonnashoek 1795 Bethlehem RD, P:0, the ninth respondent of the Farm
Rosenhof 1707 Bethlehem RD, P:1, and
the tenth respondent the lawful
owner of the Farm Nonnashoek RD, P:0. These last six
respondents were cited in this current
application on account of the
interest each of them may possibly have in the relief sought and also
on account of the wish of the
applicants to enter, with the leave of
the court, the various farms owned by these various respondents for
the purpose of capturing
certain antelopes. To those six
farmers, the first respondent’s farm must be added. The
addition brings to seven
the total number of farms on which the
antelopes are suspected to be. In this judgment, wherever
plural reference is made
to the respondents, it must, be understood
to mean all the respondents save for the second respondent, third
respondent and fourth
respondent.
[8] In
the founding affidavit the trust declared its case. I summarise
the material aspects thereof. The trust alleged
that it owned a
landed property, Pielanshoek Farm, in the district of Bethlehem.
The farm is situated in the meandering Asrivier
valley. In the
vicinity of the farm, there is a dam, Sol Plaatjies Dam, previously
known as Saulspoortdam. I guess
that the sanctuary formed by
the rivier mouth and the dam is a paradise for wildlife. The
farms of the seven respondents
described in the preceeding paragraph
are all situated in the same vicinity as Pielanshoek Farm. All
of them lie to the north
of N5 National Road. The farm of the
second respondent and the third respondent lie to the south of the
national road.
The road creates a kind of a man-made barrier
between the farms on either side. The seven farmers on the
northern side of
the road are located in the drainage area of the
river before it enters the dam.
[9]
From its property, Pielanshoek Farm, the trust conducts the business
of game farming operations. The farm is specially
fenced for
the purpose. The special fence consists of 2.4 meter high field
fence as well as 21 strand fence. The trust
possesses a quality
fence certificate issued by the 4
th
respondent. Of all the northern farms, the trust farm was the
only one so securely fenced. The rest were not specially
game-fenced.
[10]
The farms owned by the respondents, are situated relatively close to
the town of Bethlehem. Due to such proximity, there
are no
naturally occurring animals. Any such animals, if any can be
found there, must have had to be introduced to those
farms at one
point or another. Otherwise such animals must have escaped from
farms where they had been introduced.
[11]
On behalf of the trust, the applicants have conducted game farming
and game breeding operations since 2002. During 2008
the
applicants purchased 30 antelopes at a purchase consideration of
R4500 apiece. Therefore, the total purchase price was
R135 000. The seller of the game was Expectra 391 (Pty)
Ltd. The transaction concerned a specific species of the
game
known as the Red Lechwe Antelope. I shall refer to these
animals simply as antelopes. Those animals or antelope
species
is not an endemic species to the country in general or to the
Bethlehem district in particular. They do not naturally
occur
in the area. They are a species of antelope endemic to Zambia.
[12]
By law the applicants were obliged to obtain a permit of
authorisation to hold the game. They were also obliged to
obtain
certificate of special fencing. Such a certificate
was an official confirmation that the farm on which the game was
to
be kept, was securely circumscribed by a suitable fence. On 23
January 2009 the required certificate of adequate fencing
was
officially issued in favour of the first applicant in respect of
Pielanshoek Farm – see “anx fa5”.
With that
permit and certificate in place, the antelopes were delivered to the
applicants during or about Jan 2009. The delivery
represented
the first introduction of the antelope species into the immediate
area. Over the years the animals bred and,
through such
breeding, multiplied. The current permit was officially issued
in favour of the second applicant on 19 February
2016 – see
“anx fa16”.
[13]
The applicants, on behalf of the trust, are entitled to hold the
antelopes as the possession of the trust by virtue of the
certificate
of adequate fencing and the authorised species permit. Like the
applicants, the second respondent and the third
respondent are also
entitled to possess such antelopes. They have factually
acquired such exotic animals over time.
By contrast, the seven
respondents are not entitled to be in possession of such antelopes.
Their farms are evidently not
circumscribed by suitably secured game
fences. These then were the material facts according to the
applicants.
[14]
At the beginning of this year (2016), the applicants ascertained that
some of the antelopes were missing. It was suspected
that the
missing antelopes might have escaped from Pielanshoek Farm by
swimming across the Sol Plaatjie Dam to one of the properties
in the
Asriver valley, namely: Rendezvous Farm 1491, Bethlehem
RD. The farm was owned by Mantonio Property (Pty)
Ltd.
The applicants then launched an application against the corporate
owner of Portion 4 of Rendezvous Farm in order to
secure the return
of the antelope. On 12 May 2016 Molemela JP accordingly granted
an order by consent – see “anx
fa8”.
[15]
The applicants subsequently executed the court order on 11 July
2016. They utilized a helicopter to drive the antelopes
for the
purpose of capturing them. The operation led to the captured of
17 antelopes. The operation consisted of air
support, ground
support and veterinary support. The antelopes were then darted
and removed from the Farm Rendezvous.
During the course of
rounding-up the antelopes, several of them were seen escaping from
the Farm Rendezvous and fleeing in the
direction of the nearby
Asrivier Farm and Bruwershoop Farm.
[16]
Following the escape, the applicants and the first respondent
exchanged correspondence in connection with the antelopes.
They
did so through their respective attorneys, namely: Edward S
Classen & Associates and Kruger & Bender Attorneys.
The
material aspects of the correspondence revealed: that there
were no antelopes on the Farm Asrivier; that there
were at
least 37 antelopes (red lechwes) on the Farm Bruwershoop; that
such farm was owned by Dr A Jankielsohn; that
the applicants
claimed to be the owners of the antelope; that the first respondent
purchased the farm in 2004; that ever
since then the number of
antelope on the farm increased from 3 to 37; that the antelope
were not always in the first respondents
possession on the farm
because they had the habit of freely coming and going; that the
first respondent enquired from the
applicants whether the applicants’
antelope had any distinct identification marks; that the first
respondent had a
retention right over the antelope that might be
shown to belong to the applicants and that the first respondent
refused to give
the applicants the required consent to enter the Farm
Bruwershoop for the purpose of capturing the antelopes. See
“anx
fa9” read with “anx fa10”.
[17]
The applicants explained to the first respondent why the antelopes
were most likely their lawful property. They further
asserted
that the first respondent was not entitled to be in possession of the
antelopes – see “anx fa11” dated
15 July 2016.
In response to the applicants assertions, the first respondent
repudiated the applicants’ claim of ownership.
She
described it as an attempt by the applicants to lay claim to all free
roaming lechwes. – see “anx fa12” dated
18 July
2016.
[18]
In view of the deadlock which stemmed from the two competing claims,
the applicants, addressed the third letter to first respondent
and
outlined the form of relief they would seek in the contemplated court
application – see “anx fa13” dated
20 July 2016.
The first respondent immediately responded. She replied that
the antelope were no longer on her property.
She persisted with
her refusal to recognise not only the applicant’s claim that
they owned the antelopes but also their claim
that they were entitled
to possess them – see “anx fa14” dated 20 July
2016. She claimed such right.
[19]
Although the first respondent expected the antelopes to return to the
Farm Bruwershoop, she offered no assistance to the applicants
by
allowing them to round them up in order to capture and to remove them
to a lawful place of safety where they could be held and
protected
pending the resolution of all the competing claims through a
contrived interpleader process. The applicants suspected,
in
view of the first respondent’s stance, that the first
respondent had expediently chased the antelopes off her property
when
she was faced with the imminent threat of litigation.
[20]
The applicant stated that the second respondent had consented to act
as a stakeholder in connection with the claims that might
be
submitted in respect of the antelopes rounded up and captured on the
seven targeted farms. They stated that they required
the court
authorization to enter the respondents’ farms, to round the
antelopes up, to capture them, to mark them and to
ship them out to
the second respondent’s farm. The second respondent
possessed a valid certificate for adequate fencing.
[21]
The antelopes that the trust purchased were not earmarked.
Subsequently to their acquisition, the applicants did not
brand them
with any exclusive marks of identification. Moreover, the
applicants could not identify or account for the progeny
of the
original herd. The progeny was similarly unmarked. The
applicants were one of three holders of three lawful
permits in the
area as regards the antelopes. The other two holders were the
second respondent, and the third respondent.
They contended, that
since the second respondent and the third respondent did not lose any
of their antelopes, the only reasonable
conclusion was that those
antelopes freely roaming on the other farms in the valley belonged to
the applicants’ trust.
It was their case, therefore, that
the trust as the owner, was entitled to recover the antelopes
wherever they could be found.
This completes my summary of the
raw version of the applicants. Now I turn to first respondent’s
version.
[22]
In her answering affidavit, the first respondent declared that she
purchased the property known as the Farm Bruwershoop.
She
became the farm owner during 2006. She confirmed that she never
farmed with the red lechwes. But she averred that
when she took
occupation of the farm she found red lechwes on her new farm.
From time to time they came and went. She
described the animals
as free roaming wild antelopes. Over the years they grew in
numbers. She estimated that the herd
had increased in excess of
30 antelope over the years.
[23]
The antelopes often freely roamed about not only on her farm but also
on various farms surrounding Bruwershoop. However,
their free
roaming activities were more prevalent on her farm than on any other
farm. She explained the reason why there
was such prevalent
occurrence of the antelopes on her farm. She stated that
directly adjacent to her farm, there was a marshland.
Because
antelopes have an intrinsic affinity for waterwells, they frequent
the marshland and prefer to remain in that area for
most of the time.
[24]
The first respondent disputed the assertions by the first applicant
that he was the first farmer who introduced the animals
in the area
in 2008; that all the antelopes in the area were members of the
herd of antelopes owned by the applicant’s
trust; that
the applicants were, without of proof of ownership, entitled to the
relief sought; that the applicants
were lawful possessors of
all the free-roaming antelopes in the area; that she was not
entitled to possess antelopes without
the certificate of adequate
fencing; that the first applicant purchased the antelopes from
Expectra 391 (Pty) Ltd;
that the alleged seller company was
lawfully licensed to hold and to breed antelopes for commercial
purposes; that any antelopes
had ever escaped from the trust
farm; that such animals started roaming about on the
neighbouring farms; that there
were any antelopes on her farm
belonging to the applicant’s trust; that there were no
naturally occurring game of antelopes
of any appreciable numbers on
the farms of the various respondents owing to the close proximity of
the town to such farms and that,
therefore, any game, in other words
antelope, currently on those farms must have been introduced to the
farms or must have escaped
at one point or another from a farm where
they had been introduced; that the red antelopes could not be
held without an official
permit; that the applicants were
lawful possessors of all the free-roaming antelopes in the area;
that she was not
entitled to possess antelope without the certificate
of adequate fencing; that one is required to have a certificate
of adequate
fencing when game wanders onto and from one’s farm
unless one allows hunting of such game and that the applicants had
the
right to round up, to capture, to mark and to remove all the
antelopes from the farms of the respondents.
[25]
The first respondent admitted the following averments made by the
applicants:
that
there were often antelopes on her; that she did not own such
antelopes; that the trust farm, the first respondent’s farm
and
the rest of the northern farms owned by the various respondents were
situated in the same vicinity within the drainage area
of the
Asrivier; that the applicants had once entered her farm where
they endeavoured to capture the antelopes and that she
claimed she
had the right to possess them.
[26]
The first respondent contended that the applicant’s trust was
not certificated to hold more than 30 antelope; that
the
applicant’s trust did not have a lawful certificate to hold
antelope between 2012-2016; that the applicant’s
trust,
therefore, had no right to take control of almost all the antelopes
in the area and that the antelopes and their progeny
observed on her
farm and the neighbouring farms since 2006 could not belong to the
applicants’ trust. She maintained
that she was a
bona
fide
possessor of the free roaming red antelopes that entered her farm
from time to time. Her case was and still is that she does
not
purport to effect any measure of control over them. She
asserted that in keeping with her respect for their natural freedom,
she does not fence them in and she does not hunt them, she does not
let them to be hunted, and that she does not allow any commercial
exploitation of those animals. She further asserted that she
had a possessory right to the antelopes as and when they are
freely
roaming on her farm. She allowed them to enjoy their natural
freedom as wild animals. During such periodic migrations,
she
lawfully held the red antelopes. Consequently the applicants
had no right to gather and to remove them.
[27]
The antelopes that had been occurring on her farm in the Asrivier
valley have to be regarded as
res
nullius
.
She first spotted the red antelope on her farm during 2006, two years
before the applicants’ trust acquired such type
of antelopes.
She believed that the red antelope on her farm consisted of those
that had earlier escaped from the farms owned
by a certain Mr M Naude
and a certain Ms MD Goldblatt and their progeny. As ownerless
things, they should be allowed to continue
roaming freely as nature
has always intended. The allegation that she chased the
antelopes away from her farm was untrue.
She stated that they
drifted away on their own free accord in pursuit of their natural
instincts.
[28]
According to the first respondent, the applicants’ version was
very vague as regards details of the alleged escape of
the red
antelope from the trust property, Pielanshoek Farm. Neither the
number of the escaped red antelopes nor the exact
date of the alleged
escape was mentioned in the founding affidavit. She denied that
there were any red antelope that had
escaped from Rendevous Farm onto
her property, Bruwershoop Farm on 11 July 2016.
[29]
She acknowledged that there were two different herds of antelopes
roaming the valley. The one wild and the other not.
The
red antelopes as depicted in “anx d1 to anx d5” were part
of the wild ownerless animals. Some were last photographed
on
17 March 2014 before the alleged escape of the unfree red antelopes
from the applicants’ trust farm early in 2016.
She
declined to surrender possession of the red antelopes to the
applicants because, among others, the applicants had failed to
provide adequate proof of their alleged ownership.
[30]
The first respondent asserted that the red antelopes had been safe
and free on her farm since 2006. Since then they have
been
grazing, roaming, mating, reproducing progeny and growing in
numbers. The relief proposed by the applicants would disturb
the natural balance and adversely affect the ecological status of the
free roaming red antelopes. The applicants should have
sought a
remedy by way of action proceedings and not motion proceedings in
view of the factual disputes.
[31] The first respondent
contended that the applicants had failed to establish that the trust
has a
prima facie
right to the relief sought; that the trust
would suffer irreparable harm to its right unless the interim
interdict is granted;
that the trust has no other satisfactory relief
apart from the proposed interpleader process and that the balance of
convenience
favours the grant of the interim interdict.
Accordingly she prayed that the application be dismissed.
That
completes the summary of the raw version of the first respondent.
[32]
In the replying affidavit, the applicants attacked the preliminary
objections raised by the first respondent, as well as the
substantive
merits of her version. Her application to strike out was filed
subsequent to the filing of the replying affidavit.
It too was
challenged during the course of argument. Let me deal with the
substantive merits first.
[33]
Firstly the applicants denied several allegations made by the first
respondent in the answering affidavit. The deponent
of the
trust, in other words the first applicant, dismissed the suggestion
that “anx fa4” was a dubious invoice.
He replied
that the first respondent was being disingenuous in her attempt to
sow confusion concerning the difference between the
corporate name of
Expectra 391 (Pty) Ltd and Tau Steel. It was obvious
ex
facie
“anx b”, which formed an integral part of the first
respondent’s papers, that Expectra (Pty) Ltd underwent a
name
change on 18 June 2008. It followed, therefore, that Expectra
391 (Pty) Ltd and Tau Steel were one and the same corporate
enterprise. Therefore, it could not be correct to say Expectra
391 (Pty) Ltd was a fictitious entity.
[34]
Secondly the first applicant dismissed as disingenuous the first
respondent’s complaint that the invoice, “anx
fa4”,
was invalid because no official registration number for value-added
tax was printed thereon. The applicants contended
that if the
receiver of revenue wished to raise an issue in that connection, he
would undoubtedly have done so and that it was
not for the first
respondent to do so in these proceedings. The complaints
insinuated that the trust did not really acquire
the red antelopes as
it claimed to have. The applicants maintained that those
disingenuous complaints would not disturb their
rights of ownership
and other claims in and to the red antelopes which form the subject
matter of this dispute.
[35]
Thirdly the applicants denied the allegation that their red antelopes
escaped from the trust property, Pielandshoek during
the course of
February 2016. They replied that it was not their case that
they discovered in February 2016 that some of their
red antelopes
might have escaped. They replied that their case was that they
were not in a position to say precise when the
animals had escaped.
However, they believed that they had been escaping over the years
from as far back as the year 2009.
They were of the opinion
that the first respondent misread the founding affidavit.
[36]
Fourthly the applicants denied the allegation by the first respondent
that none of the red antelopes that were roaming on her
farm and the
various farms of the other respondents could be owned by the
applicants’ trust. They persisted that the
chances were
that, at least some of those red antelopes belonged to their trust.
[37]
Fifthly the applicants denied the first respondent’s allegation
that the rumour they heard about the possible escape
of their red
antelopes was untrue. They persisted that it was so rumoured.
They explained that the rumour had it that some
of their red
antelopes might have escaped from their trust property by swimming
across the dam to the neighbouring farms.
They replied that
they verified the rumour. They then removed certain red
antelope from their farm. Seemingly the removal
was done in bid
to do some damage control. They repeated that during the court
sanctioned search operation launched on Rendezvous
Farm, some red
antelope escaped to Bruwershoop Farm. They suspected that some
of those escapes might well belong to their
trust. They stated
that, at all times material to the case, they had proper permits to
hold the antelopes, contrary to the
first respondent’s
allegation.
[38] Sixthly, the
applicants denied the first respondent’s version that all the
red antelopes that frequent her farm were
the progeny of the two ewes
she first spotted on her farm in 2006; that those ewes were
res
nullius
; that she became a
bona fide
possessor
thereof as and when the herd emerged and roamed on her farm;
that she required no permit or certificate of adequate
fencing to
hold such an alien species of antelopes; that the herd was no
longer on her farm; that the applicants were
not entitled to
round up, capture, and remove such free roaming animals without any
proof that the trust was the lawful owner thereof;
that the
applicants had wrongly followed motion instead of action procedure in
bringing the matter to court; that interpleader
procedure was
not designed for simulated factual circumstances; that the
proposed form of relief was untenable and that the
applicants were
effectively seeking the relief that was final in nature.
[39] The applicants made
certain admissions. They admitted that their red antelopes were
not branded or labelled with any
distinct marks of identification but
averred that there were other reliable ways of proving animal
ownership besides physically
marking them; that the trust was
not permitted to hold so many red lechwes but averred that the
excessive number was occasioned
by purchases, sales and natural
breeding; that the first respondent was not prepared to let
them roundup capture and remove
the red antelopes on condition they
produced proof that the trust was the lawful owner; that the
first respondent’s
concession that there may well be two herds
of red antelopes roaming in the river valley of which one probably
belonged to the
applicants’ trust was correct.
Here
ends the summary of the raw reply by the applicants.
[40]
The issue in the case was simply whether the applicants had
established the requisites for the grant of an interim interdict.
[41]
On the one hand Mr Vetten, counsel for the applicants, submitted that
a proper case had been made out for the relief sought.
Therefore, he called on me to reject the first respondent’s
grounds of resistance. He urged me to decide the issue
in
favour of the applicants.
[42]
On the other hand, Mr Rautenbach, counsel for first respondent,
differed. He submitted that the applicants had failed
to make
out a proper case for the grant of the relief sought. Counsel
argued that the applicants failed to comply with the
legal
requirements for an interim interdict. Therefore, he urged me
to decide the issue in favour of the first respondent.
[43]
The law in relation to wild animals needs to be restated. In
the first place, I give an exposition of wild animal law
from a
common law perspective. The following passages randomly
extracted from an article in LAWSA Volume 1 par 399 are instructive.
43.1
“
Wild
animals enjoying a state of natural freedom are considered as
res
nullius
,
that is things belonging to no-one. Because they are
res
nullius
,
the capture of these animals does not amount to theft. On the
contrary, if the requirements are fulfilled, capture might
amount to
occupatio
,
a method by which ownership is acquired.”
43.2
“Once a wild animal is captured, it remains the property of the
captor as long as
the latter retains sufficient control over it. The
question as to what degree of control is sufficient is a question of
fact.”
43.3
“As soon as control over a wild animal is lost, it reverts to
its state of natural
freedom, ceases to be owned and becomes res
nullius again and thus capable of being acquired by occupatio by a
new owner.
It is regarded as having regained its natural
freedom if it is no longer in sight, or still in sight but difficult
to pursue.”
43.4
“It makes no difference where a wild animal is captured. A
hunter becomes the owner
of the animal irrespective of whether the
hunter captures it on his or her own land, on another person's land
or on land belonging
to the state. Even if a person expressly forbids
a hunter to hunt on his or her land, the latter still becomes the
owner of the
wild animals captured on the other's land. The landowner
may only institute an action for damages on the ground of trespass on
his or her land.”
[44]
From the above comments it is apparent that if a person was in
possession of a wild animal, he became an owner thereof but
once such
an animal escaped, it became
res
nullius
once again. An animal that wanders about, whose origin could
not be readily ascertained, was considered to be ownerless.
Once captured, irrespective of where it was captured, such wild
animal became the property of the capturer provided the requirements
of occupation were met. The principle applies even if the
capture occurred without the permission of the landowner upon whose
land the wild animal had been captured.
[45]
The requirements for occupation are relatively simple. First,
the capturer must exercise physical control over the captured
wild
animal. Second, the capturer must capture the wild animal
cum
animo occupandi
-
in other words he must have the intention to keep the animal for
himself. So much about the legal position of wild animals
at
common law.
[46] In the second place,
an exposition of the law in relation to wild animals from the
statutory perspective is also necessary.
Nowadays the animal
law in relation to wild animals that can be classified as “game”
is contained in the statute known
as the Game Theft Act 105 of 1991.
That statute is of cardinal importance to the dispute at hand.
Sec 1
defines the word ‘game’ as follows:
“
1
Definition In this Act, unless the context otherwise indicates-
'game' means all game kept or held for commercial or hunting
purposes, and includes the meat, skin, carcass or any portion of the
carcass of that game.”
[47]
Sec 2 Act No 105 of 1991 provides as follows as regards ‘ownership
of game’:
“
2
Ownership of game (1) Notwithstanding the provisions of any other law
or the common law- (a) a person who keeps or holds game
or on behalf
of whom game is kept or held on land that is sufficiently enclosed as
contemplated in subsection (2), or who keeps
game in a pen or kraal
or in or on a vehicle, shall not lose ownership of that game if the
game escapes from such enclosed land
or from such pen, kraal or
vehicle; (b) the ownership of game shall not vest in any person who,
contrary to the provisions of any
law or on the land of another
person without the consent of the owner or lawful occupier of that
land, hunts, catches or takes
possession of game, but it remains
vested in the owner referred to in paragraph (a) or vests in the
owner of the land on which
it has been so hunted, caught or taken
into possession, as the case may be. (2) (a) For the purposes of
subsection (1) (a) land
shall be deemed to be sufficiently enclosed
if, according to a certificate of the Premier of the province in
which the land is
situated, or his assignee, it is sufficiently
enclosed to confine to that land the species of game mentioned in the
certificate.
[Para. (a) amended by s. 4 of Act 18 of 1996.] (b) A
certificate referred to in paragraph (a) shall be valid for a period
of three
years.”
[48]
The current legal position is, therefore, that if a wild animal was
once held as game, on land that is sufficiently enclosed,
escapes, it
does not, as would ordinarily be the position under common, become a
res
nullius
.
Instead, the rights of its owner are protected in terms of section 2
Game Theft Act 105/1991. The game owner’s
real rights of
ownership are not automatically eroded and nullified by the loss of
actual possession of his lawful game
Magudu
Game Company (Pty) Ltd v Mathenjwa N.O. & Others
[2008] 2 ALL SA 338
(N) (23.01.2008) par 39-5.
[49]
There is an important deeming provision in sec 2(2) Act No 105/1991.
Land is deemed to be sufficiently enclosed if officially
certificated. By mere production of such a certificate, the
land concerned is presumed to be sufficiently enclosed to prevent
animals held for hunting or commercial purposes from escaping.
The presumption is, of course, a rebuttable one at the instance
of he
who disputes that the land so certificated, was sufficiently
enclosed. In those circumstances, the holding of a fencing
permit by the landowner becomes an all important factor. The
owner of a game that has escaped from the land certified as
secured,
holds a ‘passport’ that authorizes him to search, find
and recapture the game that lawfully belongs to him.
Eastern
Cape Parks & Tourism Agency v Medbury (Pty) Ltd
2016 (4) SA 457
(ECG) 461 – 4.
[50]
A further material consideration is the categorisation of animals
into ordinary species, alien species and invasive species
under the
provisions of the
National Environmental Management:
Biodiversity Act 10 of 2004
, ‘Nemaba’. The statute
regulates the position of each of these categories of animals.
[51]
Sec 1
Act No 10/2004 defines alien species as follows:
“
(a)
a species that is not an indigenous species;
or
(b)
an indigenous species translocated or
intended to be translocated to a place outside its natural
distribution range in nature, but not an indigenous species that has
extended its natural distribution range by natural means of
migration
or dispersal without human intervention;”
[52]
The activities of persons are restricted as regards their dealings
with alien species. Sec 65 Biodiversity Act 10/2004
delineates
that a person may not carry out a restricted activity involving a
specimen of an alien species without a permit and
that such a permit
may be issued only after a prescribed assessment of risks and
potential impacts and biodiversities have been
carried out.
[53]
In turn the words ‘restricted activities’ are defined in
the same statute:
“
restricted
activity’-
(a)
In
relation to a specimen of a listed threatened or protected species,
means-
…
;
and
(b)
in
relation to a specimen of an alien species or listed invasive
species, means-
(i)
importing
into the Republic, including introducing from the sea, any specimen
of an alien or listed invasive species;
(ii)
having
in possession or exercising physical control over any specimen of an
alien or listed invasive species;
(iii)
growing
breeding or in any other way propagating any specimen of an alien or
listed invasive species, or causing it to multiply;
(iv)
conveying,
moving or otherwise translocating any specimen of an alien or listed
invasive species;
(v)
selling
or otherwise trading in, buying, receiving, giving, donating or
accepting as a gift, or in any way acquiring or disposing
of any
specimen of an alien or listed invasive species; or
(vi)
any
other prescribed activity which involves a specimen of an alien or
listed invasive species;”
[54]
It follows, from the aforegoing definition of the words ‘restricted
activity’, that, as regards wild animals, a
person cannot
freely enjoy those classified as alien species. The mere
enjoyment thereof, let alone activities such as possession
or
exercising physical control, is prohibited unless the claimant of
enjoyment - holds a valid permit issued in terms of sec 65(1).
Any contrary enjoyment or any dealing with animals so classified
constitutes a restricted activity which the statute prohibits.
[55]
Now I proceed to apply the law to the facts. I consider the
version of the first respondent first. The high watermark
of
her version is encapsulated in four paragraphs of her previous
answering affidavit.
55.1
The first of those relevant passagesis is par 17.3 “anx ra2”
where she stated:
“”
17.3
Since 2007, these Red Lechwes have bred and grazed on my property on
an intermittent basis. As an ecologist, I have followed these
Red Lechwes and observed their population increase with keen
interest
and have seen the population increased to approximately 40 animals in
2016. I humbly submit that the Red Lechwes
antelope that the
applicant now wishes to capture, could never have belonged to him.”
55.2
The
second is par 17.4 “anx ra2” where she stated:
“
I
have resided on Bruwershoop with my family since I purchased the
property. We do not allow any hunting- or capturing on
my
property of approximately 150 hectares and have also developed the
property into a haven for neglected and abandoned animals.”
55.3
The
third is par 25.4 “anx ra2” where she stated:
“
I
do not claim possession of the Lechwes due to being in possession of
a fencing permit, but certainly the Fourth Respondent do
not require
farm owners to hold such permits when their farms are grazed upon
from time to time by wild game and antelope that
roam freely, such as
the herd of Lechwes found on my farm from time to time.”
55.4
The
fourth is par 25.5 where she stated:
“
Again
I am advised that section 2(1)(b) of the Game Theft Act prohibits the
removal of the Lechwes from my possession on my farm
by somebody who
cannot adequately prove ownership of such Lechwes. I do not
intend to retain these Lechwes on my farm for
any economic benefit,
and treat these as
res
nullius,
which they undoubtedly are. The occurrence of such wild roaming
game on farms does not require a fencing permit from the
Fourth
Respondent.”
[56]
The foundation of the first respondent’s opposition is
threefold. The essence of the three cornerstones of her
foundation are:
·
firstly,
that the animals forming the focus of this application are
res
nullius
;
·
secondly,
that she is not legally required to have any official certificate to
confirm that her land is sufficiently enclosed, to
confine game or
any official permit in connection with her possession in relation to
those animals;
·
thirdly,
that she is absolutely free to enjoy the animals in their wild state
regardless of any statutory provisions.
[57]
I am of the view that the first respondent’s involvement with
the lechwe, in other words the red antelopes, transverses
restricted
activities. One needs to look no further than the four relevant
passages selectively extracted from her previous
answering affidavit,
“anx ra2”. It is clear and obvious that her actual
dealings with those animals constitute:
57.1
possessing an alien species in contravention of the statutory
definition
of the words restricted activity – vide par (b)(ii);
57.2
breeding and in any other way propagating a specimen of an alien
species
or causing it to multiply in contravention of par (b)(iii);
57.3
receiving of an alien species in contravention of par (b)(v).
[58]
Two conclusions of law flow from the contraventions highlighted
above. The first is that seeing that the first respondent
has
being acting in violation of the provisions of the statute, the
Biodiversity Act, she has no
locus standi
to oppose the relief
sought. This is so because she has unclean hands in the matter.
The
second, and perhaps a more important conclusion than the first, is
that the first respondent has no leg to stand on in order
to prevent
the gathering of the wild animals on her farm or any of the other
respondents, since she has filed no counter application
for an
interdict in relation to what she terms ‘wild animals’ on
her farm.
[59]
The first respondent’s repeated contention that the applicants
are not entitled to capture the wild animals that freely
roam on her
farm in particular and the area in general is a misstatement of the
law. She obviously confuses ‘wild animals’
with
‘game’ as defined in the Game Theft Act. Such
contention is a distraction, as far as the issues relevant
to the
determination of the application are concerned.
[60]
The flagship of the first respondent’s grounds of opposition
was said to be the failure by the applicants to prove ownership
of
the red antelopes in order to sustain the relief they sought.
It has to be constantly kept in mind that the interdictory
relief
that is sought is an interim and not a final one – pending the
outcome of the proposed interpleader proceedings for
the adjudicative
resolution of all possible disputes in connection with the competing
claims pertaining to the red antelopes.
The interim relief
sought is not by itself an ultimate end but rather a connective means
to the ultimate end of the contest.
[61]
Any contestant would be afforded adequate opportunity in due course
to prove his or her claim whether such competing claim
concerns the
right of ownership or the right of possession or the right of
retention or any other conceivable right. Now
time is not yet
ripe for the real and final contest. In these initial
proceedings all that is sought by the applicants is
to have the red
antelopes secured and detained in a safe, central and neutral
sanctuary until such time as all shades of competing
claims can be
made, considered and resolved.
[62]
As regards the first requisite of an interim interdict, the test is a
prima
facie
right even if such right is open to some doubt.
Webster
v Mitchell
1948 (1) SA 1186
(W);
Goold
v Minister of Justice & Another
1955 (2) SA 682
(c) at 688E-F;
Ladychin
Investment (Pty) Ltd v South African National Roads Agency Ltd &
Others
2001 (3) SA 344
(N) at 353-4. I am inclined to think that the
applicants passed the test.
[63]
There appears to be a dispute as regards the possible source for the
very first introduction of the red antelopes in the Asrivier
valley.
The red antelope were already roaming the area before the trust
allegedly acquired red antelope, according to the
first respondent.
However, their trust was not such source. The contention that
the trust was the first agency responsible
for the very first
introduction of the antelopes in the area was historically
incorrect. The contrary version of the applicants
was beefed up
by way of documentary evidence – “anx fa4”, but the
version of the first respondent was not.
The photographic
evidence on which the first respondent relied had very law probative
value – “anx d1 to anx d5”.
Such photographs
were taken years after the applicants had acquired the red
antelopes. Moreover, only a handful of the red
antelopes and
not the entire herd thereof was depicted. In my view there was
nothing suspicious or questionable about the
acquisition of the
antelopes by Expectra 391 (Pty) Ltd. The complaints of the
first respondent were disingenuous indeed.
At any rate, those
two conflicting versions are not relevant now. They will be
relevant during the next stage, being the
interpleader hearing.
[64]
Consequently I accept that the applicants trust initially owned
thirty red antelope. On the strength of the available
evidence,
I am provisionally persuaded that it appeared that they were the
first landowners who introduced the red antelope in
the area, even
though their
prima
facie
right, which concerns the real right of ownership to the red antelope
wandering in the area, may be open to some doubt.
[65]
I am persuaded that the applicant’s trust is missing some of
its red antelopes. Such missing animals might have
escaped from
Pielandshoek Farm as early as 2009 in drips and draps. Unlike
domestic animals such as sheep or cattle, red
antelopes are
intrinsically undomesticated. They live in the wild
environment. They are not gathered every night, kraaled,
counted and released every morning to roam about. In the light
of all these considerations, it came as no surprise to me
that the
applicants were for many years, unaware of the deficit or escapes
until early in 2016 when they rounded up their red antelopes.
On the facts, I am persuaded that, at worst for the applicants, some
of the herd of red antelopes wandering in the environment
of the
various farms in the valley may well be escapees from Pielandshoek.
[66]
It appeared unlikely that they, a rare alien species could,
therefore, be regarded as
res
nullius
.
This is particularly so when one bears in mind that the town of
Bethlehem, where they recently occurred, is hundreds and hundreds
of
kilometres away from Zambia, their indigenous origin or natural
habit. They probably could, therefore, not be
res
nullius
.
The contentions that they were possibly pre-owned before their
occurrence and wandering on the farms of the respondents
was more
convincing than the contrary contention. They might have been
lawfully owned. At least that much the first
respondent
conceded. The concession was a material consideration in these
initial or interim proceedings.
[67]
The first respondent denied, but could not seriously do so, that on
11 July 2016 some of the red antelopes spotted on Rendezvous
Farm
fled and escaped from there to her property, Bruwershoop. She
could not deny it because she did not witness the operation
to
capture. The applicants’ attempts to pursue the escapees
were frustrated by the first respondent’s objection.
I
have earlier demonstrated that the first respondent’s objection
was informed by ignorance of the law. She erroneous
reckoned
that she was a
bona
fide
possessor of the red antelopes on her farm and thus entitled to
peacefully hold them without any disturbance. She regards
the
relief sought by the applicants as a disguised act of dispossession
with the ultimate intention of claiming all the red antelopes
currently roaming freely in the area.
[68]
I am not so persuaded. The applicants have captured 17 red
antelopes on Rendezvous Farm but they did not immediately
claim the
captured animals to be theirs. Instead they are prepared to
subject those 17 animals to the proposed interpleader
proceedings in
order to afford all competing claimants to prove their alleged
ownership claims or whatever rights they may assert.
On the
contrary, the first respondent is clearly opposed to the proposed
resolution of the disputes. She demanded that the
applicants
should first prove that ownership of the red antelopes roaming on her
farm vested in the trust before she could let
them round up, capture
and remove them. However, it was obvious that she would not
have released the animals even if the
applicants had produced proof
of ownership. In that event, she would have attempted to keep
their possession by claiming
a right of retention. Her
contention was flawed. She could not have a valid lien on an
alien species of animals in
contravention of the statute.
[69]
The obstructive stance of the first respondent implicitly confirmed
that she is not and has never been the lawful owner of
any of those
animals, not that she claimed to be. She will also have an
insurmountable mountain to climb in order to prove
her alleged right
of possession or right of retention. Such resistant stance,
however, explains her reluctance or unwillingness
to participate in
the proposed contest to be overshadowed by the proposed interpleader
adjudicative process. Her contention
that such animals were
res
nullius
and that she was their lawful possessor, albeit an intermittent and
not a permanent possession, boiled down to misconception of
the law.
[70]
She vacillated between two extreme propositions, the one being a
denial, which was far from the truth and the other being an
admission, which was closer to the truth. In view of that, it
has to be accepted that on her farm there are currently red
antelopes
which might have been pre-owned by applicant’s trust prior to
their arrival on her farm. If the applicants’
trust was
the possible owner prior to the escape from its farm, it would merely
have lost its right of physical possession but
not its right of
ownership in the escapees. It follows, therefore, as a matter
of logic, that the escapees cannot be regarded
and treated as
res
nullius
ex
lege
.
This is the law and has always been the law since 1991.
[71]
The first respondent has no cogent evidential material whatsoever,
other than her own say-so regarding the advent of the first
two and
then four ewes on her farm in 2006/7. She provided no factual
details as to what occurred to those few animals post
2009 and how
their propagation rapidly exploded in such a phenominal manner from 2
to a herd almost 40 in less than a decade.
She is an ecologist
by profession. As such one would have expected her to have
fairly documented the phenominal explosion
of the exotic creatures
that are so close to her heart. However, no meaningful
information other than photographs depicting
no more than eleven red
antelopes was adduced. The omission materially watered down her
version.
[72]
Moreover, her version as contained in the answering affidavit was not
consistent with her previous version as contained in
her attorney’s
letter “anx f10”. In the annexure it was stated
that she bought the property Bruwershoop
in 2004; that there
were 3 lechwes already on the farm; that the number had grown
from 3 in 2004 to 37 as on 13 July
2016. The inconsistency is
telling.
[73]
I have to reiterate, for the sake of emphasis, that it was not
incumbent upon the applicants at this initial stage to finally
prove
its right of ownership in respect of those wandering animals.
They are entitled to capture the animals by virtue of
the following
considerations:
73.1
The undeniable or shall I rather say the admitted probability that
their trust owns at least
some of the animals;
73.2
The existence of the previous court order per Molemela JP that
authorised the capture of the
animals from the farm of one of the
respondents;
73.3
The fact that if those antelopes are indeed wild animals as the first
respondent contends and
not game as the applicants contends –
at common anyone may enter the first respondent’s farm to
capture such wild animals
and thereby acquire ownership by way of
occupatio whether the first respondent as the landowner had consented
to such entering
or not.
[74]
Any of the above three reasons establishes a
prima
facie
right to proceed in the manner the applicants seek to proceed.
In these circumstances, I am convinced that the first element
of an
interim interdict has been satisfied.
[75]
In one moment the first respondent admitted, through her attorney,
that there were red antelopes on her farm. The next
moment she
denied, again through her attorney, that the animals were still on
her farm. There was no explanation as to how
they had suddenly
disappeared as quickly as they had suddenly appeared, if the animals
had in fact disappeared. It was common
cause that the animals
wandered from farm to farm from time to time. Now if they had
already drifted away from her farm,
then the first respondent had
nothing to lose by letting the applicants come onto her farm to see
for themselves that indeed the
animals were gone. Instead she
denied them access and she persists with her stance to this day.
Her refusal strongly
suggested that she had something to hide.
The applicants feared that the first respondent would conceal or
dissipate the
animals to frustrate their claim.
[76]
In view of the escape of the red antelopes from the trust property,
the first respondent’s refusal to let the applicants
search for
their missing animals on her farm and the undisputed fact that there
is a tendency by the animals to wander off –
I am persuaded
that the applicants have established a reasonable apprehension that
they might suffer irreparable harm unless they
are granted interim
interdict to protect their
prima
facie
right.
[77]
The basis upon which the relief sought has been structured
constitutes a practically expedient and effective way of settling
the
contestations between or among all the parties who may have vested
interest in the capture and removal of the red antelopes.
It is
an undisputed fact that the applicants’ red antelopes were not
branded or labelled. As such they had no distinct
and peculiar
marks whereby they could be identified as the property of the
applicants’ trust. It would also appear
that the first
respondent was aware that the red antelopes wandering on her farm
were, likewise, unmarked.
[78]
The applicants appreciate the reasonable possibility that such
animals may or may not all be escapees from their trust farm.
It must be understood, and it is very important to understand, that
the applicants do not intend to capture, remove and forever
keep as
their own the antelopes, captured or to be captured on the farm of
any respondent. They only want to be authorized
to capture the
red antelopes from the various farms, remove them from those farms
and centralise their safekeeping on one secure
farm in order to
afford all interested landowners in the area the opportunity of
proving their competing claims at a trial-like
interpleader hearing.
[79]
Besides the first respondent none of the respondents opposes the
proposed method of resolving the disputes as regards the genesis
or
competing rights concerning the red antelopes. It would seem
fair to say that the rest of the affected farmers, unlike
the first
respondent, implicitly support the interim relief sought. The
applicants thought out of the box, as the cliché
goes.
The respondents, with the exception of the first, have no
reservations about it. I could find nothing wrong with
such a
creative and innovative thinking and adaptation of the interpleader
procedure to expediently and effectively resolve some
civil
wranglings in that particular farming community. The proposed
procedure does no violence to the spirit, object and
purpose of rule
58.
[80]
The first respondent’s critique was baseless. Therefore,
I am persuaded that the applicants have established that
they had no
other more adequate alternative remedy than the relief sought to
effectively and expeditiously have the dispute resolved
in a
satisfactory way other than by way of the simulated interpleader
procedure. The third element of an interim interdict
is
accordingly satisfied.
[81]
The applicants wish to have all the captured red antelopes to be
provisionally detained or held on the second respondent’s
property, Hulp Farm. There are already red antelopes held on
that farm. The one lot came from Pielandshoek Farm whereas
the
other came from Rendezvous Farm. Pending the outcome of the
proposed contestations, the applicants have tendered to pay
the costs
of the temporary safekeeping of the red antelope. To safeguard
the interest of all concerned, the applicants already
have a plan to
have the red antelopes, captured or still to be captured from any
given farm, distinctively marked in order to facilitate
the ease of
their identification later on. It seemed to me, therefore, that
the proposed capture, removal and centralised
detention of the
animals would not be detrimental to the interest of any of the
affected respondents.
[82]
For the reasons enumerated above, I am inclined to accept the
submission that the balance of convenience favours the applicants.
The stronger the applicant’s right and the greater the harm
appears to be the more readily the courts find that the balance
of
convenience favours the applicant. The converse is also true.
In this instance, the converse holds no water.
[83]
Consequently I have come to the conclusion that the applicants are
entitled to the grant of the relief sought. Seeing
that they
have established all the requisites of an interim interdict, the
issue must be decided in their favour.
This
completes my consideration of the substantive merits. As
regards this component of the application, I would dismiss the
first
respondent’s opposition. In coming to this conclusion, I
am fortified by the stance adopted by the rest of the
respondents, in
particular the fourth respondent, who is the guardian of wild animals
in general.
This
settles the third component of the application
[84]
The first component of the application concerned the preliminaries
raised by the first respondent. I proceed to consider
those
special pleas now.
[85]
As regards the first point
in
limine
,
the first respondent contended that the matter was
lis
pendens
.
The gist of her contention was that in this matter, case number
3809/16, the applicants were seeking precisely the same
relief as
they were seeking under case number 3420/16. During the course
of argument it became an undeniable fact that the
previous
application 3420/16 had already been withdrawn by the time the
current application under 3809/16 was launched (vide “anx
ra1”). Consequently there was nothing further to be made
of the first point
in
limine
.
[86]
As regards the second point
in
limine
,
the first respondent contended that the first applicant was not
authorised by the trust to bring the current application.
The
objection was prompted by the fact that no confirmatory affidavit by
the second applicant was annexed to the founding affidavit.
The
alleged lack of authorisation contended for by the first respondent,
was shown to be without substance. It was subsequently
refuted
by the second respondent, the co-trustee, in her confirmatory
affidavit, “anx ra3”. Moreover, the applicants
were
not forewarned about it. The point was not properly raised by
way of a preceding notice in terms of Rule 7 as it has
been
authoritatively held it should –
Unlawful
Occupiers School Site v City of Johannesburg
2005 (4) SA 199
(SCA). It follows, therefore, that the point
was procedurally doomed from the outset.
[87]
As regards the third point
in
limine
,
the first respondent complained about the proposed procedure as
prayed for in the notice of motion through which competing claims
to
the red antelopes can be made. She contended that resorting to
interpleader proceedings, in these prevailing circumstances,
was bad
in law. The contention failed to impress me. The
development of our law can be adversely hampered if the rules
of
procedure were rigidly applied, in a formalistic manner, to a
recognised and exhaustive class of unchanging factual situations
only. Law is dynamic. Because it is not static, sometimes
judges have to think out of the box in applying it in order
to
resolve disputes expeditiously, provided no injustice will thereby be
done to anyone. The facts and dispute in the instant
matter are
amenable to the adoption of such a flexible and creative utilization
of the interpleader rule of procedure. The
pragmatic advantage
of the proposed procedure are in keeping with the dynamic character
of our legal system. There can, therefore,
be no abuse of
process or rule to talk about.
[88]
The first respondent’s argument is also bad for another
reason. It originates from an incorrect premise.
Her
contention is that some of the red antelopes which freely roam in the
area are wild animals or
res
nullius
to be legalistic. If that is so, then it is open to anyone to
capture and remove such wild animals wherever they may be and
irrespective of the place where the capture takes place – with
or without the landowner’s permission. In this
instant
matter, what the applicants seek to do, through an open and
participative process, is to allow, by due process of law,
anyone
with any claim to the red antelopes to have a fair opportunity of
proving such claim.
[89]
The rest of the respondents do not oppose this application.
They may well have so acted because they were probably advised
that
the forum where the real traction is to be obtained, would be the
court hearing the interpleader trial proceedings.
All that is
sought in the current application is to provisionally secure the game
and to place such game in a secure centralised
safekeeping until such
time as all competing claims can be made, considered and resolved by
due process of law.
[90]
The first respondent does not claim to hold the red antelopes as the
owner. On the contrary she persists that they are
ownerless
animals. As an aside, it is clear why she does not claim
ownership of those animals. She is probably aware
that red
antelopes, as an alien species, may not be lawfully owned without a
permit. Her contention that she is entitled
to possess those
alien animals without a permit is misguided. Indeed she
possesses them because she does not only let them
come to her farm
and roam about. She is more involved than that. She
provides sanctuary to them as she does to a great
variety of other
indigenous animals. She feeds them and cares for them in
various other ways. But she is apparently
unaware that all
those admirable deeds of kindness constitute restricted activities
which cannot be carried out without a permit.
[91]
It may well be that some of the red antelope which may be captured on
the various farms may turn out to have originated from
a land whose
owner holds a game fencing permit. Such landowner can,
therefore, persist in asserting an ownership claim via
Sec 2 Game
Theft Act 105/1991. The procedure in determing factual disputes
in that connection must be by way of a trial.
I am persuaded,
however, that the interpleader proceedings are best suited for that
purpose.
[92]
As regards the fourth point
in
limine
,
the first respondent contended that the applicants sought a mandatory
order against the fourth respondent which mandamus could
not, for
various reasons be granted against the fourth respondent as an organ
of state. Now, the fourth respondent does not
oppose the
application. Contrary to the first respondent’s
contention, the fourth respondent has a statutory duty,
in any event,
to oversee and to act as a guardian of wild animals as well as game
and also to act as a guardian of any process
involving the capture
and removal of such animals.
[93]
Similarly, the fourth respondent has a statutory duty to enforce the
provisions of the Biodiversity Act and to prevent possession
of alien
species in contravention of such a statute by individuals such as the
first respondent. It was, therefore, necessary
for the
applicants to cite the fourth respondent so that the state, through
the fourth respondent could participate in this open
process, if so
advised. It is noteworthy to point out yet again that the
fourth respondent, as an organ of state, does not
object to the order
sought against it. The first respondent has, therefore, no
locus
standi
to champion the cause of the fourth respondent who saw it fit not to
advance that cause. Therefore, the first respondent
is
precluded from acting as the fourth respondent’s messiah,
however good her intentions may be.
[94]
Having considered all the points
in
limine
raised by the first respondent, I have come to the ultimate
conclusion that none of them was well taken. Not one of those
preliminaries had any forceful substance to preclude me from
entertaining the substantive merits of the application. None
of
them can be sustained. I hereby dismiss each one of them with
costs.
[95]
There remains one more aspect – the first respondent’s
application to strike out. It was the second component
of the
application. It was opposed by the applicants. During the
course of argument, I summarily dismissed such application.
Subsequent to the argument, I once again had occasion to reflect on
the grounds of such application and the argument presented
for and
against it. I abide by my decision. I am of the view that
it will serve no useful purpose to elaborate further.
[96]
The applicants have emerged victorious on both the preliminary front,
the substantive front and the challenge to strike out
somewhere
between the two fronts. They are, therefore, entitled to the
fruits of their success. No reason exists as
to why the costs
should not follow success.
[97]
Accordingly I make the following order:
97.1
The applicants are granted an interim interdict and mandamus
authorising them or their duly authorised agents to enter
the
following premises:
97.1.1
The first respondent’s property described as the Farm
Bruwershoop 1718 District Bethlehem RD, P:1;
97.1.2
The fifth respondent’s property described as Farm Asrivier 1437
District Bethlehem RD, P:1;
97.1.3
The sixth respondent’s property described as Farm The Glen 791
District Bethlehem RD, P:0;
97.1.4
The seventh respondent’s property described as Farm The
Glen 791 District Bethlehem RD. P:1;
97.1.5
The eighth respondent’s property described as Farm
Nonnashoek 1795 District Bethlehem RD P:0;
97.1.6
The ninth respondent’s property described as Farm Rosenhof 1707
District Bethlehem RD, P:1;
97.1.7
The tenth respondent’s property described as Farm
Nonnashoek 1760 District Bethlehem RD, P:0,
97.2
The authorized purpose for the entery of each farm is to:
97.2.1
search for, to capture and to remove all the specimens of the Red
Lechwe Antelope found upon such properties,
and to do so without
interference by the respondents, their agents or employees and there
97.2.2
to mark the antelopes so captured for identification purposes.
97.3
The respondents, the applicants or any other person who makes claim
to the rights in or to the antelopes, are directed
to pay the costs
of the steps set out in paragraph 1 above jointly and severally.
97.4
The fourth respondent is called upon to authorise the applicants or
their agents to enter the aforesaid properties and
to conduct the
search, to capture, to mark and to remove the animals as previously
described.
97.5
The antelopes captured from any of the aforesaid farms must be
removed from there to the property of the second respondent
more
fully described as the Farm Hulp 733, District Bethlehem for their
temporary safekeeping and central detention.
97.6
The antelopes so captured, marked, removed and detained, shall be
maintained at the expense of the applicants, any respondent
or third
party who makes claim to any rights in or to the antelopes, pending
the final outcome of the interpleader proceedings
as adumbrated
below.
97.7
The respondents or any interested part may lay claim to the antelopes
in the second respondent’s possession in
terms of this order,
within 14 calendar days of the delivery of the antelopes to the
second respondent, and in that event, the
second respondent shall be
obliged to initiate interpleader proceedings in accordance with the
provisions of Rule 58 of the Rules
of the Conduct of Proceedings.
Thereupon the applicants or the respondents, or any other third party
shall be entitled to
pursue their rights as claimants under the
aforesaid rule.
97.8
In the event that no competing claims are lodged with the second
respondent in relation to the antelopes placed in the
second
respondent’s possession, the applicant shall be entitled to
take possession thereof on such terms and conditions as
the court
hearing the interpleader application may deem appropriate.
97.9
The first respondent is directed to pay the cost of this application.
______________
M.H.
RAMPAI, J
On behalf of the
applicants:
Adv. Dirk Vetten
Instructed
by:
Edward
S Classen & Associates
Sandton
and
Honey
Attorneys
Bloemfontein
On behalf of the 1
st
respondent: Adv. J.S. Rautenbach
Instructed
by:
Horn &
Van Rensburg
Bloemfontein