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[2018] ZASCA 34
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Eastern Cape Parks and Tourism Agency v Medbury (Pty) Ltd t/a Crown River Safari (816/2016) [2018] ZASCA 34; 2018 (4) SA 206 (SCA) (27 March 2018)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 816/2016
In
the matter between:
EASTERN
CAPE PARKS AND TOURISM AGENCY
APPELLANT
and
MEDBURY
(PTY) LTD t/a CROWN RIVER SAFARI
RESPONDENT
Neutral
Citation:
Eastern
Cape Parks and Tourism Agency v Medbury (Pty) Ltd
(816/2016)
[2018] ZASCA 34
(27 March 2018).
Coram:
Navsa,
Seriti, Saldulker and Swain JJA and Schippers AJA
Heard:
28
February 2018
Delivered:
27
March 2018
Summary:
Interpretation
of s 2 of the Game Theft Act 105 of 1991 (the GTA) : whether
ownership of animals which escape from land on which
they have been
contained is lost in the absence of a certificate provided for in s
2(2)
(a)
of the
GTA stating that land sufficiently enclosed to contain species of
game : deeming provision interpreted in context and with
regard to
legislative purpose : deeming provision not precluding owner in
absence of certificate from proving that land sufficiently
enclosed
to contain species.
ORDER
On
appeal from
:
Eastern Cape High Court, Grahamstown (Smith J sitting as court of
first instance).
The
following order is made:
1
The appeal is upheld with costs, including the costs of two counsel.
2
The order of the court below is set aside and replaced with the
following:
‘
(a)
The separated issue set out in para 27.1 is decided in favour of the
plaintiff.
(b)
The defendant is ordered to pay the plaintiff’s costs,
including the costs of two counsel.’
JUDGMENT
Navsa
JA (Seriti, Saldulker and Swain JJA and Schippers AJA
concurring)
[1]
This dispute concerns the ownership of a valuable herd of Cape
Buffalo, which escaped from the Thomas Baines Nature Reserve
in the
Eastern Cape, a provincial nature reserve managed in the public
interest by the appellant, the Eastern Cape Parks and Tourism
Agency
(the Agency). The Agency asserted that despite the escape of the
buffalo and the consequence that might otherwise have followed
at
common law it, as an organ of state which manages the reserve, has
the right to exercise control over the buffalo and is entitled
to the
return of the herd, either in terms of prevailing legislation, or by
way of a decision by the court, after developing the
common law, in
line with constitutional principles relating to conservation. The
respondent, Medbury (Pty) Ltd t/a Crown River
Safari (Medbury)
contended that since the buffalo, after their escape, had been
confined within its property it legitimately acquired
ownership of
the herd. The appeal is before us with the leave of this court. The
background is set out hereafter.
[2]
The Agency instituted action in the Eastern Cape High Court,
Grahamstown, for the return of the buffalo and the parties agreed
to
have the dispute adjudicated on the basis of a stated case from which
two issues, set out below, arise for decision. Although
some of the
material allegations in the stated case are disputed by Medbury the
parties were agreed that for the purposes of the
adjudication of the
separated issues the allegations in the agreed stated case should be
assumed to be correct. The relevant parts
of the stated case appear
in the paragraphs that follow.
[3]
The Agency was established in terms of s 10 of the provincial Eastern
Cape Parks and Tourism Agency Act 2 of 2010 (the ECPTAA).
On 19
December 1980, acting under s 6(1) of the Nature and Environmental
Conservation Ordinance 19 of 1974 (the Ordinance), the
then
Administrator of the Cape Province established the Thomas Baines
Nature Reserve (the reserve) as a provincial nature reserve.
[4]
With effect from 17 June 1994, acting in terms of s 235(8) of the
Interim Constitution, the President assigned the administration
of
the Ordinance to a competent authority, which vested in the
Provincial Government. On 23 March 2005 the management of the reserve
was assigned to the Eastern Cape Provincial Parks Board in terms of s
41 of the Provincial Parks Board Act 12 of 2003 (Eastern
Cape).
[5]
On 1 July 2010 the Agency, in terms of the ECPTAA, was established as
successor to the Provincial Parks Board and assumed responsibility
for the management of the reserve. The Agency’s statutory brief
is to promote conservation in the province and, in so doing,
to
protect the environment for present and future generations, as
contemplated in s 24
(b)
(ii)
of the Constitution. The Agency charged the general public an entry
fee upon visits to the reserve and was entitled to engage
in
commercial activity to meet its statutory and constitutional
objectives.
[6]
At all material times the reserve was a protected area as
contemplated in the ECPTAA and a provincial protected area, as
envisaged
in the National Environmental Management: Protected Areas
Act 57 of 2003 (NEMPAA).
[7]
At relevant times Medbury was the owner of a property known as the
Medbury and Aloe Ridge Game Farm and as the Medbury Game
Reserve. The
property abuts the reserve. The common boundary between the Medbury
property and the reserve has always been the Settlers
Dam (the dam).
According to the Agency the water in the dam formed a barrier between
the adjoining properties. Before the events
referred to in the next
paragraph, there was within the reserve a herd of Cape Buffalo, which
in terms of our law are wild animals.
There were approximately 20
buffaloes in the herd. The reserve was enclosed by a fence save for
the part of the common boundary
with Medbury that was the dam. The
dam was historically considered by the Agency to be sufficient to
contain the buffalo because
the water level did not allow the buffalo
to cross. The Agency alleged that it was the owner of the buffalo
because they are wild
animals sufficiently contained on the reserve,
with the intention that they should be and remain its property.
[8]
During the period December 2010 and February 2011 and in the course
of an extreme drought in the area in question the water
in the dam
dropped to such a level that some of the buffalo found their way onto
Medbury’s property. After the water level
was restored the
buffalo remained there. Medbury contended that it thus acquired
ownership of the buffalo and refused to return
the herd to the
agency. That led to the action instituted by the Agency for the
return of the herd.
[9]
It is necessary at this point to have regard to statutory provisions
essential in the adjudication of the dispute, namely s
2 of the Game
Theft Act 105 of 1991 (the GTA), which provides:
‘
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 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)
. . . .
(2)
(a) For the purpose 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.
(b)
A certificate referred to in paragraph (a) shall be valid for a
period of three
years.’
[10]
The buffalo are game as defined in the GTA.
[1]
At no relevant time has the Premier of the Province issued a
certificate in terms of s 2(2)
(a)
of the GTA stating that the reserve was sufficiently enclosed.
Medbury adopted the attitude that such a certificate was a
prerequisite
for the operation of s 2(1)
(a)
of the GTA, which provides that 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 s 2(2)
(a)
,
or who keeps game in a pen or kraal or vehicle, shall not lose
ownership of that game if that game escapes from any of the confines
referred to. Absent such a certificate, so it was contended on behalf
of Medbury, the Agency, because of the operation of the common
law,
is to be regarded as having lost its rights in relation to the herd,
and Medbury subsequently having exercised control over
the herd of
buffalo was now the owner.
[11]
The issues identified by the parties for adjudication by the court
below were as follows:
(i)
Whether a certificate in terms of s 2(2)
(a)
of the GTA is the
sole prerequisite for the operation of s 2(1)
(a)
of the GTA
and;
(ii)
whether the common law must be developed to promote the spirit,
purport and object of the Bill of Rights in the Constitution,
more
specifically s 24
(b)
(ii)
thereof to provide that wild animals which are sufficiently contained
within a protected area managed by an organ of state
in terms of
nature conservation legislation are
res
publicae
owned by such organs of state.
[12]
The court below (Smith J), had regard to the provisions of s 2 of the
GTA and concluded as follows (paras 24 and 25):
‘
Mr
Smuts has, however, in my view correctly submitted that subsection
(2)(a) does not constitute a deeming provision of something
that is
not in fact what it purports to be. It simply means that if, for the
purposes of subsection (1)(a), it is considered whether
or not there
is protection against the loss of ownership of escaped game, the
certificate referred to in subsection (2)(a) is deemed
to be the
protective mechanism. It is thus not a deeming provision that can be
rebutted by evidence.
In
addition, the certificate is clearly a practical mechanism to obviate
the need for forensic investigation into the adequacy of
fencing, and
thus serves to avoid unnecessary disputes between land owners. A
construction of the section which would allow rebuttal
of the
certificate by contrary evidence, or allow a land owner who had
failed to obtain a certificate of sufficient enclosure to
establish,
through evidence, that the game were in fact sufficiently enclosed,
would in my view distort and frustrate the objectives
of the Act.
Furthermore, the provisions of the Act had the effect of amending an
existing common law rule and should thus “
not
be interpreted so as to alter the common law more than it is
necessary unless the intention to do so is clearly reflected in
the
enactment, whether by expression or by necessary implication
.”
(
Nedbank Limited v National
Credit Regulator
2011 (4)
All SA 131
(SCA), at paragraph 38). In my view the intention of the
legislator was clearly to limit protection against loss of ownership
only
to circumstances where a certificate of sufficient enclosure had
been issued in terms of subsection (2)(a) of the Act. When construed
in this manner, the Act provides a practical and effective mechanism
to protect compliant game owners against loss of ownership.
The
absurdity contended for by the plaintiff does accordingly simply not
arise. The first separated issue is therefore decided
in favour of
the defendant.’
[13]
In relation to the development of the common law the court below had
regard to the submissions on behalf of the agency that,
ss 8(1),
39(2), 173 or 24
(b)
(ii)
[2]
of the Constitution compel the conclusion that wild animals that are
sufficiently contained in a protected area managed by an organ
of
state charged with the management thereof are
res
publicae.
Smith J rejected that contention after he took into account that at
common law wild animals are
res
nullius
(i.e.
things owned by no-one) and that ownership could only be acquired
through occupation, namely capturing and exercising effective
control
over them with the intention to possess them, but when, however, they
managed to escape they reverted to once again become
res
nullius.
[14]
The court below also had regard to the contention on behalf of the
Agency that maintaining the aforesaid principles would undermine
rather than promote the spirit, purport and object of s 24(2)
(b)
of the Constitution, which provides that everyone has the right to
have the environment protected for the benefit of present and
future
generations, which includes conservation. As stated above it was
submitted that the common law should be developed so as
to provide
that public nature conservation animals that escape from a protected
area managed by an organ of state remain the property
of the State.
Smith J considered the submissions on behalf of Wildlife Ranching
South Africa, admitted as amicus curiae, that to
develop the common
law as contended would be to usurp the function of the legislature.
On behalf of Medbury it was submitted that
the classification of wild
animals as
res
publicae
was inappropriate as the term is employed to refer to things that are
extra
commercium
,
rather than to animals and that to develop the common law as
suggested would expose the State to far-reaching delictual liability
in respect of damage caused by animals that escape from national
parks.
[15]
The court below concluded as follows:
‘
[33]
I am not convinced that on the facts of this case it is either
necessary or appropriate to develop
the existing common law rule. In
my view the plaintiff has been unable to show that the rule is in
conflict with any constitutional
provision, or that it falls short of
the spirit, purport, or objective of section 24 of the Constitution.
First, the common law,
as amended by the provisions of the Act,
provide effective protection to an owner of land on which game had
been sufficiently enclosed.
All that is required of the owner is to
obtain a certificate of sufficient enclosure mentioned in subsection
(2)(a). The applicant
has all along contended that the reserve had in
fact been sufficiently enclosed to contain the buffalo. All that was
therefore
required of it was to apply for the certificate. It has
failed to avail itself of this statutory protection and now instead
impermissibly
seeks development of the common law to obtain
ex
post facto
protection.
.
. . .
35.
Second, it appears that the plaintiff is in effect seeking a
legislative amendment without following due processes. . . .
.
. . .
37.
It is nevertheless clear that the implications of the existing common
law rule (and the provisions of the Act) are being reviewed
by the
legislature. During the course of that legislative process the
department will no doubt consult extensively with all role
players
regarding the implications of such legislative changes. The resultant
statutory provisions will no doubt take account of
various
difficulties which may be caused by ill-advised changes to the common
law, mentioned in the Law Commission’s report
and also during
argument in this court. It is, in my view, thus inappropriate for
this court to develop the common law to the extent
contended for by
the plaintiff without the benefit of sufficient evidence regarding
the consequences of such an amendment, and
in circumstances where an
effective statutory remedy was available to the plaintiff. In the
result I am of the view that the plaintiff
has failed to make out a
case for the contended development of the common law, and this issue
must accordingly also be decided
in favour of the defendant.’
[16]
Consequently, the court below made the following order:
‘
(a)
The separated issues mentioned in paragraph 27 of the stated case are
both decided in favour of the defendant.
(b)
The plaintiff’s action is dismissed with costs, including the
costs of two counsel.’
[17]
It is against that order and the conclusions reached by the court in
relation thereto that the present appeal is directed.
[18]
In adjudicating the appeal a good starting point is what has already
been referred to by the court below, namely, that, at
common law,
wild animals such as the buffalo in question are
res
nullius
and that ownership can only be acquired through
occupatio
(i.e. capturing and exercising effective control over them with the
intention to possess). In this regard see Van der Merwe &
Rabie
‘Eiendom van wilde diere’
[3]
1974
THRHR
38
,
Rabie & van der Merwe ‘Wildboerdery in Regsperspektief –
Enkele Knelpunte’
[4]
(1990)
Stell
LR
112
at 115 para 3.1,
S
v Mdaba & others
2002 (1) SACR 556
(ECD) 558a-c and Swan & Labuschagne
‘Eiendomsreg op en Diefstal van Wilde Diere’ (2002) 23
2
Obiter
401
at
403-404. At common law ownership was retained for as long as the
person who captured the wild animal exercised sufficient control
over
it and it did not regain its natural freedom. See Rabie & Van der
Merwe
op
cit
at
115 para 3.1.1. The exercise of sufficient control is, of course, a
factual question.
[19]
At common law, a wild animal which had been captured regains its
natural state of freedom once it escapes. It reverts to
res
nullius
,
with the result that any person can acquire ownership of it anew
through
occupatio
.
[5]
That is the basis of the claim of ownership by Medbury in this case.
[20]
The present appeal turns on the provisions of the GTA, which came
into operation on 5 July 1991. It is necessary, before turning
to its
material provisions, to have regard to its genesis. In this regard
the report of the then South African Law Commission’s
report on
the ‘Acquisition and loss of ownership of game’ is
instructive.
[6]
[21]
On 26 October 1988 the Law Commission was requested by the then
Minister of Justice to carry out an investigation into the
acquisition and loss of ownership of wild animals. The request was as
a result of calls by various interested parties for ‘more
effective protection of game farmers’. During its first
congress in 1982 the South African Agricultural Union had requested
the Minister’s department to deal with this question. It
appears that game farmers were aggrieved that they did not receive
protection of the kind awarded by the Stock Theft Act 57 of 1959 to
farmers who lost stock due to theft.
[22]
As already recognised in the Commission’s report in 1990, game
farming has developed into a very promising part of agriculture
and
the economy. Very few people living in this country can be unaware of
the phenomenally burgeoning eco-tourism and game farming
industry. In
the report, which is now almost two decades old, the rand values
attached to a range of game, show how lucrative game
farming and
consequently, how financially devastating the loss of ownership can
be. It bears noting that the position in Roman-Dutch
law that loss of
possession resulted in loss of ownership was inspired by the fact
that during those times it was difficult to
identify, amongst other
game, an escaped wild animal.
[7]
Due to technological advances that is no longer the case.
[23]
In the oft cited case of
Richter v Du Plooy
1921 OPD 117
at
119, the court said the following in relation to the wildebeest that
featured in that case:
‘
the
confinement of these animals . . . is not sufficient to take them out
of the category of wild animals, and if they emerge from
their place
of detention they become
res
nullius
– liable to
be appropriated by the first person who has the acquisitive instinct
and the means to gratify it.’
In
motivating the need for legislative steps the Law Commission said the
following (at 2.48):
‘
It
can be inferred from the above that, irrespective of whether the game
was acquired by
occupatio
or by delivery, ownership is lost as soon as the game escapes. The
unjust result of such a rule is obvious. A person who has paid
R15 000 for a hippopotamus at a game auction would find himself
in an unenviable position should his hippopotamus escape and
be taken
into possession by another. The problem is that it may be difficult
for him to prove ownership. The problem of proof may
possibly be
reduced if he was the only person in the vicinity who owned a
hippopotamus, or if he had identified the hippopotamus
by a clear
mark. Even then however, it would be possible for the accused to
claim that the animal became
res
nullius
and
therefore
susceptible to being acquired in property by
occupatio
.
This obvious contradiction in the case of ownership of wild animals
was already dealt with by the Roman-Dutch authorities. It
is
suggested that a measure be implemented in terms of which mere loss
of possession does not necessarily establish loss of
ownership.’(Footnotes
omitted.)
[24]
Past authorities and present commentators are divided about whether a
person may acquire ownership of game in contravention
of legislation
regulating the capture, the killing or possession of game. In this
instance, we were not called upon to decide whether
the possession by
Medbury of the game in question is in contravention of regulating
legislation and it is not necessary to explore
this aspect any
further other than to reflect that the principle of legality may
intrude upon that question.
[25]
In the Law Commission’s report, under the heading ‘Summary
and discussion of problem areas’, the following
appears at para
3.6:
‘
It
would appear that the common law should be adjusted by legislation to
keep pace with present-day needs with regard to the acquisition
and
loss of ownership of game.
’
A
draft bill introduced in parliament by the then Minister of Justice
followed upon the Law Commission’s report. It is necessary
to
consider the wording of s 2 of the draft bill and compare it to s 2
of the GTA, set out in para 10 above. Section 2 of the draft
bill
reads:
‘
2.
(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 holds game in a pen
or kraal or in or on a vehicle, shall not lose ownership of that game
merely because
the game escapes from such enclosed land or from such
pen, kraal or vehicle;
(b)
ownership of game shall not vest in
any person who, contrary to the provisions of any law or on the land
of another without the
consent of the owner or lawful occupier of
that land, hunts or catches or occupies game.
(2)
For the purposes of subsection (1)(a) land is sufficiently enclosed
if it is, according to a certificate by the Administrator
of the
province in which the land is situated, or his representative,
sufficiently enclosed to detain the game in respect of which
the
enclosure was erected on that land.’
[26]
I pause to note that the explanation provided by the Law Commission
for legislative intervention in the terms set out in its
proposed
draft bill, more particularly clause 2, was that it was aimed at
laying down a criterion in accordance with which it could
be
established whether a person exercised sufficient physical control
over game to be regarded as the owner thereof. It had suggested
that
land upon which game was found should be enclosed in such a manner
that game could not readily and spontaneously escape from
it. The
Commission avoided laying down specifications for enclosures ‘because
the Commission considered that it should be
left to the game farmer
to prove that his land was enclosed in such a manner. It should be
reasonably easy for the game farmer
to prove that his land is
sufficiently enclosed to detain blesbok, for example’. See para
6.5 at 53-54 of the report. Para
6.18 at 57-58 of the report is also
significant.
[27]
The Law Commission went on to have regard to the view of the then
Directorate of Nature and Environmental Conservation of the
Orange
Free State and the Natal Parks Board; that a certificate by a
regulating authority should be issued ‘since it will
alleviate
the onus on the game owner in an ownership action to prove that his
fence is sufficient’. The Commission then,
somewhat
contradictorily, if regard is had to what is set out in the preceding
paragraph, recorded its view that the provisions
of clause 2 of the
draft bill, required a certificate as a pre-condition for the
retention of ownership of game. See para 6:19
and 6.26 at 61 of the
report.
[28]
The essential difference between clause 2(2) of the Law Commission’s
draft bill and s 2(2)
(a)
of the GTA is that the latter contains a deeming provision and the
former not. I am unpersuaded that the Law Commission’s
view,
set out in the preceding paragraph, that clause 2(2) of its proposed
bill could be read to mean that a certificate by the
Administrator,
is a pre
condition
for the retention of ownership, is correct. More particularly because
of its explanation, earlier in the report, that
it should be left to
a game farmer to prove that his land was sufficiently enclosed to
enable him or her to exercise sufficient
control over game and that
in relation to certain species it would be fairly easy to do.
However, we are not called upon to interpret
the Law Commission’s
draft bill but rather s 2(2) of the GTA. It is to that task that I
now turn.
[29]
At the outset it is necessary to have regard to how deeming
provisions in legislation, have been dealt with in case law and
by
commentators. Bennion
Statutory Interpretation
3 ed 1997 says
the following about deeming provisions at 735:
‘
Deeming
provisions
Acts
often
deem things to be what they are not.
[8]
In construing a deeming provision it is necessary to bear in mind the
legislative purpose.’ (My underlining.)
The
first sentence of the quote is demonstrated by the facts in
Mouton
v Boland Bank Ltd
2001 (3) SA 877
(SCA). In that case the court
was dealing with a deeming provision contained in the
Close
Corporations Act 69 of 1984
, relating to the reregistration of a
close corporation. The deeming provision there in question read as
follows:
‘
The
Registrar shall give notice of the restoration of the registration of
a corporation in the
Gazette
,
and as from the date of such notice
the
corporation shall continue to exist and be deemed to have continued
in existence as from the date of deregistration as if it
were not
deregistered.
’
(Emphasis added.)
That
provision deemed something to be what in fact was not so, namely,
that the close corporation was never deregistered.
[30]
An exposition of types of deeming provisions and how they should be
construed is to be found in the decision of this court
in
S v
Rosenthal
1980 (1) SA 65
(A). Trollip JA said the following
at 75G-H:
‘
The
words “shall be deemed” (“word geag” in the
signed, Afrikaans text) are a familiar and useful expression
often
used in legislation in order to predicate that a certain
subject-matter, eg a person, thing, situation, or matter, shall
be
regarded or accepted for the purposes of the statute in question as
being of a particular, specified kind whether or not the
subject-matter is ordinarily of that kind. The expression has no
technical connotation. Its precise meaning, and especially its
effect, must be ascertained from its context and the ordinary canons
of construction.’
[9]
[31]
The court in
Rosenthal
went on to explain:
‘
Some
of the usual meanings and effect [deeming provisions] can have are
the following. That which is deemed shall be regarded or
accepted (i)
as being exhaustive of the subject-matter in question and thus
excluding what would or might otherwise have been included
therein
but for the deeming, or (ii) in contradistinction thereto, as being
merely supplementary, ie, extending and not curtailing
what the
subject-matter includes, or (iii) as being conclusive or
irrebuttable, or (iv) contrarily, thereto as being merely
prima
facie
or rebuttable. I
should add that, in the absence of any indication in the statute to
the contrary, a deeming that is exhaustive
is also usually
conclusive, and one which is merely
prima
facie
or rebuttable is
likely to be supplementary and not exhaustive.’
[10]
[32]
Trollip JA considered the deeming provision in issue in
Chotabhai
to be an example of an exhaustive deeming provision. In that case
‘certain classes of Asiatics’ were deemed lawfully
resident for the purposes of the statute there in question and the
court held that the deeming provision intended to exhaust the
list of
those who were to be included in that expression.
[11]
[33]
The court in
Rosenthal
, at 76B-77A, had regard to
R v
Haffejee & another
1945 AD 345
, in which a War Measure
empowered a price controller to calculate and determine the cost,
percentage of gross profit, price or
factor of any goods. The
controller’s determination could be ‘
prima facie
proved’ by the production of a statement in writing,
purporting to have been issued by or on the authority of the
controller,
setting forth the determined cost, price, etc. Such cost,
price, etc. in terms of the relevant provision was ‘deemed’
to be the true cost, price, etc. At 352-353, Watermeyer CJ, in
considering the meaning and effect of deeming provisions, with
reference to English case law, said the following:
‘
It
is difficult to extract any principle from these cases, except the
well-known one that the Court must examine the aim, scope
and object
of the legislative enactment in order to determine the sense of its
provisions. Applying that principle to the present
case, it seems
that
Regulation 14
was clearly a provision to
facilitate
proof of matters
which
might otherwise be difficult to prove in a Court of Law. It is an
encroachment, and presumably a necessary one, on the rules
of
evidence, but I am not prepared to hold that the legislator intended
to make the Controller’s certificate
conclusive
evidence
against an accused
person. If it were conclusive, then an accused person would be
precluded from establishing his innocence in
a case in which the
Controller’s “determination” is in fact wrong, even
if the error is merely due to a mathematical
mistake. This is an
unreasonable result which would follow from holding that the
Controller’s certificate is conclusive,
and it is one which
should be avoided if the words of
Regulation 14
can be given a
reasonable meaning which does not lead to such a result. (See the
remarks of Lord Cairns in the case of
Hill
v East & West India Dock Co
9 AC at p 456.) In the present case there is no difficulty in
construing the words to mean that the Controller’s certificate
must be accepted as correct, unless the contrary is proved by the
accused and that, in my judgment, is the meaning of the regulation.’
(Emphasis added.)
[12]
[34]
From what is set out above, it follows that a deeming provision must
always be construed contextually and in relation to the
legislative
purpose. I leave aside the question whether the validity of the
certificate by the Premier of the province or his assignee
can be
rebutted, as for instance where it was procured by fraud or where a
lax official issued it without due regard to whether
the facts
justified the certification. That is not an issue before us. The
primary question posed, as agreed by the parties, and
set out in para
11 above, is whether the certificate by the Premier of the province
in which the land is situated, in terms of
s 2(2)
(a)
of the
GTA, is the sole prerequisite for the protection against loss of
ownership provided for in
s 2(1)
(a)
.
The question is more accurately posed as follows: whether a
certificate in terms of
s 2(2)
(a)
is the only basis for the protection, afforded by
s 2(1)
(a)
,
against loss of ownership.
[35]
It is absurd to construe the deeming provision in the manner
contended for by Medbury, namely, that the certificate is a
‘prerequisite
for the protection afforded by the [GTA] to
apply’. This would defeat the purpose of the GTA, which is to
ensure that owners
of game, who had in fact taken adequate measures
to enclose land in order to confine game do not lose ownership in the
event of
loss of control due to escape. The result of following
Medbury’s construction would be that even where the land is
in
fact
sufficiently enclosed to confine a species to it, the protection
provided for by
s 2(1)
(a)
would be rendered nugatory. The production of a certificate was
meant, in the words of Watermeyer CJ, ‘to facilitate proof’’
that the land in issue is sufficiently enclosed to confine the
species in question. It was not meant to deprive owners who had
taken
the necessary measures to sufficiently enclose game on land. The
deeming provision in question cannot be extended to preclude
another
form of proof that the land was sufficiently enclosed so as to
confine the relevant game. In that respect, it cannot be
conclusive
or indisputable.
[36]
There is no justification for reading
s 2(1)
(a)
to mean
that where it states ‘sufficiently enclosed’ as
contemplated in
s 2(2)
(a)
it must
mean that it refers to the certificate. In my view it is clear that
what was intended was that ‘sufficiently enclosed
as
contemplated in subsection 2’ means that the species of game is
sufficiently enclosed to confine it to the land in question.
The
contention on behalf of Medbury that the interpretation set out in
this and the preceding paragraph is a strained attempt to
avoid the
application of the
res
nullius
principle
is thus fallacious.
[37]
The interpretation of the deeming provision in question set out in
the two preceding paragraphs is not only consistent with
existing
authority and serves the legislative purpose; but it is also
consonant with the policy underlying the introduction of
the GTA as
described earlier, which is to protect ownership, and is consonant
with constitutional values, including those relating
to conservation
as provided for in s 24 of the Constitution.
[13]
[38]
The parties were agreed that in the event of the primary question
being answered in favour of the Agency, it would not be necessary
to
answer the second question posed, namely, whether the common law
should be developed. The effect would be that the matter would
proceed in the court below in relation to the outstanding issues,
including the question whether the land was sufficiently enclosed
so
as to confine the buffalo to that land.
[39]
The following order is made:
1
The appeal is upheld with costs, including the costs of two counsel.
2
The order of the court below is set aside and replaced with the
following:
‘
(a)
The separated issue set out in para 27.1 is decided in favour of the
plaintiff.
(b)
The defendant is ordered to pay the plaintiff’s costs,
including the costs of two counsel.’
___________________
M
S Navsa
Judge
of Appeal
Appearances:
On
behalf of the Appellant:
R G Buchanan SC (with him A M Breitenbach
SC)
Instructed by:
Nettletons, Grahamstown
Honey Attorneys,
Bloemfontein
On
behalf of the Respondents: I J Smuts SC (with
him N Molony)
Instructed by:
Waldick Jansen van
Rensburg Inc, Centurion
Symington & De Kok,
Bloemfontein
[1]
The following is the definition of
game in s 1 of the GTA:
‘“
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.’
The
Concise Oxford English Dictionary
(12 ed) 2011 defines ‘game’
as:
'wild
mammals or birds hunted for sport or food.’
[2]
Section 8 deals with the binding
nature of the Bill of Rights. Section 39(2) provides:
‘
When
interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum must promote
the
spirit purport and objects of the Bill of Rights.’
Section
24
(b)
(ii) of the Constitution reads as follows:
‘
(b)
to have the environment
protected, for the benefit of present and future generations,
through reasonable legislative and other
measures that –
.
. .
(ii)
promote conservation . . .’
[3]
Ownership of wild animals.
[4]
Game farming in legal perspective.
[5]
CG Van der Merwe & MA Rabie ‘Animals’ (2014) 1 LAWSA
para 399.
[6]
Project 69-report dated March 1990.
[7]
See p13 of the report and the
authorities there cited.
[8]
In this regard see also
Chotabhai
v Union Government (Minister of Justice) and Registrar of Asiatics
1911 AD 13
, in which the following is stated at 33:
‘
The
use of the word “deemed” was perhaps not a very happy
one, because that term
may
be employed to denote merely that the persons or things to which it
relates are to be considered to be what really they are not,
without
in any way curtailing the operation of the Statute in respect of
other persons or things falling within the ordinary
meaning of the
language used.’ (Emphasis added.)
[9]
See also
Statutory
Interpretation
at 736
where the following is stated:
‘
The
intention of a deeming provision, in laying down an hypothesis, is
that the hypothesis shall be carried as far as necessary
to achieve
the legislative purpose, but no further.’
This
quote was cited with approval in
Mouton
para 13.
[10]
75H-76A.
[11]
at 33.
[12]
See also the Australian case of
Muller v Dalgety & Co
Ltd
[1909] HCA 67
;
(1909) 9 CLR 693
at
696, where the following is stated:
‘
The
words “deem” and “deemed” when used in a
statute thus simply state the effect of meaning which some
matter or
thing has – the way in which it is to be adjudged. This need
not import artificiality or fiction. It may be simply
the statement
of an indisputable conclusion.’
[13]
A court interpreting legislation is
bound to promote the spirit, purport and object of the Bill of
Rights. See
Fraser v ABSA
Bank Ltd (National Director of Public Prosecutions as Amicus Curiae)
[2006] ZACC 24
;
2007 (3) SA 484
(CC) para 43.