By Sanette Viljoen
Section 2(1) of the Game Theft Act (Act 105 of 1991) provides that a person who keeps game on land sufficiently enclosed as contemplated in subsection 2 of the Act does not lose ownership of that game should the game escape from the enclosed land or area.
In terms of section 2(2)(a) of this Act the said land will be regarded as sufficiently enclosed if a certificate confirming this is issued by the premier of the province in which the land is situated.
In the case of Eastern Cape Parks and Tourism Agency v Medbury (Pty) Ltd (816/2016)  ZASCA 34 the claimant was the Eastern Cape’s Parks and Tourism Agency, which was charged with the management and control of a nature reserve on which a herd of Cape buffaloes grazed. Except for a dam that formed a boundary between the reserve and the defendant’s property, the reserve was properly enclosed. However, because of drought the water level of the dam dropped and the herd of buffaloes subsequently escaped through the dam and landed on the defendant’s property.
The claimant subsequently instituted action against the defendant in order to get back the herd of buffaloes. The defendant claimed that the claimant was not entitled to ownership of the game because the claimant did not have the required certificate. The claimant held that the certificate ought not to be the only prerequisite and that factual evidence should also be regarded as sufficient.
The suppreme court, however, dismissed the claimant’s action with costs. The court held that a certificate of sufficient enclosure as contemplated in section 2(2)(a) of the Act was required. The claimant appealed this finding.
The appeal court handed down judgement in this case on 27 March 2018. The court held that the purpose of the submission was to provide evidence that the relevant land was sufficiently enclosed to contain the relevant species. It was not meant to prevent owners who had taken the necessary steps regarding enclosure from proving it. The appeal court found that the relevant provision could not exclude some other proof of enclosure.
The appeal was granted with costs, including the costs of two advocates.
It would, however, be wise for game farmers to make sure that they obtain a certificate in terms of section 2(2)(a)of the Game Theft Act (Act 105 of 1991). By obtaining such a certificate, many future disputes between you and your neighbours and many expensive court cases can be avoided.