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[2007] ZASCA 117
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Strydom and Another v Liebenberg (293/06) [2007] ZASCA 117; [2007] SCA 117 (RSA) (25 September 2007)
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THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Case No: 293/06
NOT REPORTABLE
In
the matter between:
G
A STRYDOM
.......................
FIRST APPELLANT
W
D LA GRANGE
.......................
SECOND APPELLANT
v
B
J LIEBENBERG
.......................
RESPONDENT
Coram:
Scott, Cachalia JJA et Kgomo AJA
Heard:
13 September 2007
Delivered:
25 September 2007
Summary: Vindicatory action for
return of game over which plaintiff claimed ownership. Plaintiff’s
properties but not the game
thereon sold to private persons. Held
plaintiff entitled to claim the game, but not its value as it was not
possible to apportion
the value of the game between the purchasers of
the properties.
Neutral citation:
This judgment may be referred to as
Strydom
v Liebenberg
[2007]
SCA 117 (RSA)
JUDGMENT
CACHALIA
JA
[1] The respondent
instituted a vindicatory action in the Pretoria High Court against
the first and second appellants for the return
of a quantity of
different species of game alleged to be on their properties or
payment of the value of the game from the appellants
jointly and
severally. The High Court (De Vos J) ordered the appellants to return
to the respondent all game on their properties
and did not deem it
necessary to deal with the respondent’s claim for payment of
their value. The appeal and cross-appeal,
with the High Court’s
leave, is against this order. It will be convenient to refer to the
parties as they were during the trial,
as plaintiff and defendants.
[2] The relevant
facts for the determination of this appeal are briefly the following.
The plaintiff was the original owner of portions
11 and 14 of the
farm Blaauwbank. He was also the sole shareholder and director of the
company, Klein Bokkeplek Boerdery (Pty) Ltd,
which owned portions 7
and 2 of the farm. The four portions are adjacent to each other. The
plaintiff erected ‘game proof’
fencing around its
perimeter thus creating since 1997 a 140 hectare rectangular unit. A
cattle fence (non-game proof) divided the
plaintiff’s portions
from those of the company.
[3] The plaintiff
purchased a variety of species of game for the farm. This included
‘rooibokke, waterbokke, blesbokke and rooihartebeeste’.
He thus owned the game, valued in his February 2000 financial
statement at R250 000. He conducted a game-hunting business
through
the company but retained ownership of the animals. He also
hunted on the farm with his family and occasionally with his friends.
The game roamed freely over the four portions and through a cattle
gate on the cattle fence.
[4] In 2001 the
plaintiff placed the company in liquidation following its financial
difficulties. The liquidator sold portions 2 and
7 to the first and
second defendants respectively in November. It is clear from the
plaintiff’s evidence, and that of the auctioneer
who conducted
the sale, that the game was not included in the sale. And before us
counsel for the defendants eschewed any suggestion
that they had
purchased any game as part of the agreement. Shortly after the
defendants had taken occupation of the two portions
the first
defendant erected a fence between portions 2 and 7, effectively
preventing the plaintiff any access to the game on portion
2. The
second defendant also denied the plaintiff access to portion 7
thereby cutting him off from access to his game there as well.
[5] It was contended
on behalf of the defendants that on the company’s liquidation,
and the liquidator’s assumption of
control over portions 2 and
7, the plaintiff lost ownership of the game because he no longer
exercised control over the game there.
The game thus, so they
contended, became
res
nullius
(ownerless).
This contention is without merit. The game remained confined within
the four portions that had been fenced and did not
revert to their
natural state. The liquidator made no claim to the game. And the fact
that the plaintiff pledged the game as security
for a loan of R500
000 from Absa Bank is the clearest indication that he did not
relinquish ownership of the game.
[6] I return to the
facts. During August 2003 the plaintiff sold his two portions (11 and
14) to Willem and Rudolf Brits. The agreement
stated that they would
assume ownership on the 15
th
;
that the game currently on those portions would form part of the sale
and that the plaintiff would erect, at his own expense, a
game fence
which would separate portion 11 from the second defendant’s
property, portion 7. The plaintiff, however, erected
the fence only
afterwards.
[7] The significance
of the date of delivery is this: If it occurred on the 15
th
as the defendants
contend it did, then the game on portions 14, 11 and 7 would have
intermingled and none could be identified as the
plaintiff’s.
This is because the game roamed freely on these portions and through
the cattle gate between portions 11 and 7
and it would thus not be
possible to distinguish the game that remained on portion 7 from that
on portions 14 and 11. If, however,
delivery occurred at a later
date, that is when the plaintiff erected the fence, he could
distinguish the game of which the Brits’s
became owners from
that which remained on portion 7 over which, he asserts, he never
relinquished control. The plaintiff testified
that he and the Brits’s
had agreed that delivery would take place when the fence was erected
and it was accepted by them that
the game they acquired pursuant to
the sale was the game on portions 11 and 14 following the erection of
the fence.
[8] In my view there
is no basis for going behind the plaintiff’s evidence on this
aspect because the erection of the fence
was the only practical way
of effecting delivery of the game to the Brits’s. The
defendants argue that the plaintiff’s
evidence should have been
disregarded because of its inadmissibility under the parol evidence
rule. But this argument overlooks that
the evidence relates to the
issue of delivery, ie the passing of the ownership, not the
enforcement of a contract. The plaintiff
therefore remained the owner
of the game on portion 7 after the fence was erected.
[9] The defendants
contend, in the alternative, that they were bona fide possessors and
were therefore entitled to the game’s
progeny after the
erection of the two game fences between portions 2 and 7 and portions
7 and 11. And the fact that, so they contend,
the progeny is not
capable of being distinguished from the original game also means that
the plaintiff cannot succeed with its vindicatory
action. The
plaintiff’s evidence, however, shows quite clearly that both
defendants were aware that he had never relinquished
ownership over
the game. In the case of the first defendant this was made clear to
him during the negotiations preceding his purchase
of portion 2, and
in the case of the second defendant when the game fence was being
erected between portions 2 and 7. It is also
improbable that the
defendants could have believed that they had acquired ownership of
the game by the simple expedient of purchasing
their respective
properties. They knew they had not purchased the game. They were
aware, too, of its considerable value and the plaintiff’s
claim
to ownership. In my view the evidence shows them not to have been
bona fide possessors.
[10] In prayer 1 of
the particulars of claim the plaintiff claimed delivery of the game
referred to in para 4. Counsel for the defendants
submitted that in
the event this court upholds the plaintiff’s right to vindicate
his property the order of the court below
must be amended to order
the defendants to return only the specific game claimed in para 4 of
the particulars of claim. I cannot
agree with this submission. As the
court below pointed out, prayer 1 was clearly a mistake. Paragraph 4
must be read with paras 8
and 10 of the particulars and with the
evidence.
1
Read thus it is
clear from the particulars of claim that the plaintiff’s action
was aimed at securing from the defendants the
return of
all
game on portions 7
and 2, not only those mentioned in para 4. The case was quite clearly
conducted on this basis. The court below
was therefore correct to
make the order it did.
[11] In the
cross-appeal the plaintiff asks for the value of the game based on an
estimate of the number of game that is likely to
be on the
defendants’ properties. The estimate was based on the
plaintiff’s records and expert testimony of the projected
number of game on the two farms. The plaintiff’s insurmountable
difficulty is that neither he nor his expert provided any indication
as to the exact numbers or even proportion of game on each of the two
portions. The defendants do not own the portions jointly and
can thus
not be jointly liable for the value of any unreturned game. In these
circumstances a court cannot apportion between the
defendants any
value for the game. The cross-appeal must therefore also fail.
[12] The following
order is made:
The appeal and
cross-appeal are dismissed with costs.
______________
A CACHALIA
JUDGE OF APPEAL
CONCUR:
SCOTT JA
KGOMO AJA
1
‘
4.
Te alle relevante tye was die eiser die eienaar van die volgende
diere met die volgende markwaardes:
4.1 12 Roohartebeeste teen R3,000 stuk R 36,000.00
4.2 8 Blesbokke teen R700 stuk R 5,600.00
4.3 100 Rooibokke teen R500 stuk R 50,000.00
4.4 10 Koedoes teen R1,500 stuk R 15,000.00
4.5 35 Waterbokke teen R6,000 stuk R
210,000.00
4.6 4 Volstruise teen R1,500 stuk
R
6,000.00
TOTALE WAARDE: R322,000.00
5. . . .
6. . . .
7. . . .
8. Sedertdien het die eerste verweerder geen verdere diere van
voormelde aard na Gedeelte 2 van die Plaas Blaauwbank gebring en
vrygelaat nie, en die tweede verweerder het geen verdere diere van
voormelde aard na Gedeelte 7 van die Plaas Blaauwbank geneem
en
vrygelaat nie.
9. . . .
10. In die vooropstelling is die eiser teenoor elkeen van die
verweerders geregtig op lewering van alle diere van voormelde aard
wat tans voorkom op gedeeltes 2 en 7 van die Plaas Blaauwbank 241,
JQ Noordelike Provinsie.’