TAKE a drought, an empty dam and 20 missing buffalo and it promises to be a good legal story. Add former Springbok centre Hennie le Roux into the mix and there’s a ruck in the making.
He’s the owner of Crown River Safaris, a private reserve on Medbury Farm outside Grahamstown, offering accommodation and hunting. Bordering on Crown is the Thomas Baines Nature Reserve, managed by the Eastern Cape Parks and Tourism agency, formerly the provincial Parks Board.
According to their respective websites both reserves offer buffalo sightings among other attractions, but for several years the two reserves have been fighting over who actually owns these animals.
Their dispute, the first part of which was argued in court last month, involves questions of crucial concern to all conservation efforts, nature reserves and game farms. It could even see South African law being re-written.
Provincial officials who manage the Thomas Baines reserve say the reserve was formerly home to a herd of about 20 valuable, disease-free buffalo. They were retained in the reserve by proper enclosures and, in some stretches, by the Settlers Dam which formed part of the border between the two reserves. Then, starting December 2010, came a serious drought. The dam level dropped significantly and all but one buffalo escaped across to Crown Safaris.
After the drought broke the buffalo were still on the Crown Safari side. Concerned at the loss of so significant an asset – the numbers could have increased to as many as 40 by this time – the agency is trying to get them back.
The status of wild animals that leave their “owners” has been the subject of laws and rules since ancient times. In short, common law says that under such circumstances the animals become creatures that belong to no-one; if they end up on your land, you could become their new owner as long as you intend to keep them and contain them so they can’t wander off somewhere else.
It’s this part of the common law the provincial officials want changed, so that in circumstances such as that provoked by the dry dam, wild animals would not be regarded as owned by no-one but as owned by an organ of the state, custodians fulfilling a public conservation function under the constitution.
Complicating the question is a relatively new law, the Game Theft Act of 1991. This provides that if you have a certificate issued by the provincial premier, saying that your wild animals are properly contained, then you can claim them back even if they stray.
But the exact interpretation of this provision is disputed by the two sides. Crown River says you must have a certificate or you can’t get animals back. The provincial officials, who did not have such a certificate, say that in order to get straying wild animals back you must either have proper fencing so they are properly ‘contained’ or you must have a certificate from the premier. In addition Crown says that the Game Theft Act contains quite enough protection and that the common law doesn’t need to be developed or changed.
When these initial matters were argued in the high court during January, it became clear that constitutional issues were at stake. The correct procedure when this happens is that 20 days’ public notice must be given so any interested party can apply to become a ‘friend of the court’.
The matter had been set down for argument before the 20 days had passed, so all parties agreed to an unusual solution: the matter was argued – and a recording made – but the judge agreed not to finalise his decision for at least 20 court days giving time for other relevant parties to apply to get involved and give their views.
Since those key legal issues were argued notifications have gone out far and wide informing conservation bodies of the dispute. And according to lawyers close to the case inquiries have already been made by several bodies keen to become involved in the legal dispute over the crucial question of whether to change the law on ownership of straying wild animals.
Apart from ownership there are several related problems that conservation authorities will surely have in mind if they decide to become involved in the case. One major example would be the question of liability. If wild animals escape, damage property, and are then re-claimed by their original owners, will these owners have to pay compensation for the damage?