By Sanette Viljoen
Will the court assist me in certain circumstances where my cattle die due to malignant catarrhal fever? To answer this question, we look at a court case at the end of 2014, namely Oosthuizen v Van Heerden t/a Bush Africa Safaris 2014 (6) SA 423 (GP).
Lately there have been increasingly more court cases regarding the spread of malignant catarrhal fever that is transmitted by blue wildebeest, and which is a fatal disease for cattle. Blue wildebeest are carriers of the disease, but are not themselves affected by it.
In various rulings a lot of testimony has been put forward in this regard and various expert opinions have been accepted as the standard truth. One of these opinions highlighted by our courts and accepted as such, is that should the blue wildebeest be kept at least one kilometre away from the cattle, the probability that these blue wildebeest would infect the cattle with malignant catarrhal fever is minimal or even completely improbable. A general rule was therefore laid down by our courts that the blue wildebeest should stay one kilometre away from cattle.
In this case two farmers in Lephalale appeared in the local magistrate’s court with regard to a dispute about malignant catarrhal fever. A very important aspect was that the defendant in this case had been farming with game, including blue wildebeest, with the necessary permits since 2002. The other important aspect was the fact that the claimant, when he started his lease on the farm, was aware that the defendant had blue wildebeest and as an experienced farmer knew that blue wildebeest were carriers of malignant catarrhal fever and that it could have harmful consequences for his cattle farming. However, in spite of this he hired the land.
Both parties testified in court that they were of the opinion that the risk of malignant catarrhal fever being transmitted was minimal. According to the defendant, the owner of the game, he had since the year 2000 not had one case of malignant catarrhal fever, while for several years numerous other farmers adjacent to his farm were farming with cattle. The new cattle farmer now pitched up and suddenly there is a case, after there not having been a case for years.
The claimant, the new farmer, himself said that he had farmed next to another game farmer with blue wildebeest for years and there had never been any incident. Now that he had moved to a new farm, suddenly there is malignant catarrhal fever.
The claimant lost the case and appealed to the High Court of Northern Gauteng in Pretoria. The High Court ruled that the magistrate’s court in Lephalale had been correct by finding that the defendant was not liable for the damage suffered by the claimant.
The symptoms of malignant catarrhal fever are severe. It causes great suffering for the animals. Once an animal is infected, there is no medicine that will help; it is a fatal disease.
The magistrate’s court ruled that the claimant did not succeed in proving that it was the defendant’s blue wildebeest that transferred the disease and caused the cattle to die, as there was an adjoining farm where blue wildebeest were also being kept.
The High Court in Pretoria concurred with the finding of the magistrate’s court, but looked at more detail as to whether this game farmer might have been delict in his conduct and perhaps negligent. The court however found that it was not negligent per se to keep blue wildebeest. It is a given fact that malignant catarrhal fever are transmitted by these animals, but it is important to emphasise that the person who alleges that his cattle died due to malignant catarrhal fever contracted from the blue wildebeest of a specific owner, has to prove that it is this specific person’s blue wildebeest and according to the court negligence was not proved.
The last important question was if the conduct of the person who had to be held liable was wrongful. The court once again emphasised that not every infringement on a right could be considered wrongful. The essential question was whether the defendant violated the rights or interests of the claimant in an unreasonable manner. Here the court specifically took in account that the claimant brought his cattle to the new farm knowing full well that there were blue wildebeest on the adjacent farm. The court said he therefore accepted the risk. This case must be distinguished from the other cases where the blue wildebeest are brought into an area where cattle farming exists. If you bring blue wildebeest into a cattle farming area there is a legal duty to contact all the adjacent farmers and inform them of the blue wildebeest, so that can protect their rights and take preventative measures.
Both parties had the right to reasonable use of their properties and it was unfair to argue that it was wrongful per se to keep blue wildebeest. Once again the court emphasised that the game farmer had been farming next to cattle farmers for many years and there had been no incidents. The game farmer also had all the necessary permits.
The court maintained that it was the obligation of both farmers to minimise the risk of malignant catarrhal fever. The obligation did not rest on the game farmer alone. The new cattle farmer should have approached the game farmer and discussed how the risk could be minimised; he could not expect that the minute he arrived on the scene with his cattle, the game farmer suddenly had to erect a game fence to keep the new farmer’s cattle at a distance of one kilometre. The new farmer also should have taken steps to prevent his cattle from contracting the disease.