Expert: Mike Otis replied 3 years ago.
Welcome, and thank you for your question.
The rights and duties in respect of wild animals under South African Law
Classification
In South African law, animals are divided into two main categories, namely domestic animals and wild animals (LAWSA 1(2) par 454). This classification is important as it affects the rights of property in animals as well as liability for their behaviour (LAWSA 1(2) par 454). Wild animals (ferae bestiae) are classified as those animals that belong to a species that exists in a wild state anywhere in the world (LAWSA 1(2) par 456).
There are no specific criteria for ascertaining whether or not an animal qualifies to be wild, although various species regarded as “game” have been recognise in South African case law as belonging to the class of wild animal species. This forms the basis for establishing property rights in these animals as well as liability for their behaviour.
Acquisition of ownership under common law
Wild animals enjoying a state of natural freedom are considered to be res nullius (i.e. belonging to no one). Because they belong to no one, they can be captured by any person and their capture does not amount to theft. If certain requirements are met, their capture may amount to occupatio, a method by which ownership in a wild animal can be acquired (LAWSA 1(2) par 461). The requirements for occupation are the following:
a) The wild animal must be ownerless (res nullius);
b) Physical control must be exercised over the animal; and
c) The captor must have the intention to become the owner of the animal (LAWSA 1(2) par 461).
Once a wild animal is captured, it remains the property of its captor as long as the latter retains sufficient control over it. Exactly what degree of ongoing control is sufficient to retain ownership of a wild animal is a question of fact that depends on the circumstances of each case.
Loss of ownership under common law
As soon as control over a wild animal is lost, it reverts to its state of natural freedom, ceases to be owned and becomes res nullius again, and is capable of being acquired again by a new owner. As soon as a wild animal emerges from its place of detention, it becomes res nullius again and is capable of being acquired by occupation by the first person who has the acquisitive instinct and the means to implement it.
Property rights of private land owners
The right of ownership of immovable property includes the right to possess, use, enjoy and alienate the property (LAWSA 14(1) par 7). This includes the right to use and enjoy all natural resources occurring on the land, provided this is not in conflict with any law (LAWSA 14(1) par 7). All res nullius wild animals occurring on private land are natural resources occurring on the land, to which the private land owner has the right of use and enjoyment, without intervention or interference from others, for as long as they occur on his land, and provided this does not conflict with any law.
Statutory intervention in favour of private game farmers
The common law principles regulating the acquisition and loss of ownership of wild animals on private game farms were radically modified by the Game Theft Act, 105 of 1991 (the Act). The Act regulates ownership of “game” which is defined in section 1 of the Act as meaning “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 Act deals with ownership in two ways: section 2(1)(a) provides that ownership is not lost if game escapes from land that is sufficiently enclosed (as defined in section 2(2)(a)); and section 2(1)(b) provides that ownership is not acquired by any person of game that escapes from sufficiently enclosed land, or is hunted, caught or possessed on the land of another without the consent of the owner of that land.
Land is deemed to be sufficiently enclosed if the Premier of the Province in which the land is situated, or his assignee, has issued a certificate stating that the land in question is sufficiently enclosed to confine to that land the species of game mentioned in the certificate. Once a certificate of adequate enclosure has been issued in respect of land, the sufficiency of the enclosure of that land for the purposes of the future application of the Act in any particular circumstance is not determined as a matter of act (as is the case under common law), but as a matter of law by virtue of the deeming provision of section 2(2)(a). In other words, the land is deemed to be sufficiently enclosed for the purposes of sections 2(1)(a) and (b) simply by virtue of the landowner holding a valid certificate issued under section 2(2)(a).
However, there is no requirement for the compilation of an inventory to be recorded in the certificate. Therefore, the owner will bear the onus of proving ownership of the escaped animal. Once ownership is established, the owner of such game is entitled to take all reasonable steps necessary to retrieve the animal. The requirement under common law that sufficient physical control over the animal be proven as a fact gives way to an administrative determination of this issue by the issuing of a certificate confirming the adequacy of the means of enclosure of the animal.
Thus, the Game Theft Act provides that ownership of a wild animal (as categorised) is not lost if it escapes from the control of its owner, provided the deeming provision of section 2(2)(a) is met.
Read more:
http://www.justanswer.com/south-africa- ... z3Q8HEvxdx