Getting Ahead of the 'Game': The Reclassification of Wild Animals Contained in Protected Areas as Res Publicae"
DOI:
https://doi.org/10.17159/1727-3781/2023/v26i0a15848Keywords:
common law, conservation, Development of common law, escape rule, Game Theft Act, Public trust doctrine, property law classification, protected areas, res nullius, res publicae, wild animalsAbstract
The common law "escape rule" determines that if a wild animal escapes from its controlled environment and reverts to its natural state of freedom, it is res nullius and may be acquired by another party by occupatio. To place the owners of game in a more favourable position when their game escapes from its enclosure, the aforementioned common law rule was amended by the Game Theft Act 105 of 1991 (GTA). Sections of the Game Theft Act 105 of 1991 came under discussion in Eastern Cape Parks and Tourism Agency v Medbury (Pty) Ltd (Wildlife Ranching South Africa amicus curiae) 2016 4 SA 457 (ECG) and later in Eastern Cape Parks and Tourism Agency v Medbury (Pty) Ltd t/a Crown River Safari 2018 4 SA 206 (SCA). Two separate issues came before the courts. First, whether a certificate in terms of section 2(2)(a) of the GTA is a prerequisite for the operation of section (2)(1)(a) of the GTA; and second, whether the common law must be developed to provide that wild animals that are sufficiently contained in a protected area managed by an organ of state charged with the management thereof in terms of relevant nature conservation legislation in order to promote conservation, are res publicae owned by such organ of state. Neither one of the cases thoroughly considered the second issue before the court. Therefore, the purpose of this contribution is to investigate the possibility of developing the common law to provide that wild animals that are
sufficiently contained in a protected area managed by an organ of state charged with the management thereof in terms of relevant nature conservation legislation in order to promote conservation are res publicae owned by such organ of state. In Roman Law res publicae were classified as public things that were out of commerce and intended for public use. They are often referred to as state property, but they belong to the entire civil community and their common interests in these things are safeguarded by the state. This proposed development bears some resemblance to the international environmental law principle known as the public trust doctrine. The public trust doctrine determines that a country's sovereign acts as the guardian of the public interest in natural resources by holding them in trust for the benefit of the nation as a whole. The article provides a theoretical analysis of the proposed development of the common law by exploring (a) the significance of biodiversity conservation and protected areas in South Africa; (b) the application of the GTA in the context of protected areas; (c) the concepts of res nullius, res publicae and the public trust doctrine and (d) the development of the common law in South Africa.
Downloads
References
Bibliography
Literature
Araiza WD "The Public Trust Doctrine as an Interpretive Canon" 2012 UC Davis L Rev 693-739
Badenhorst PJ, Pienaar JM and Mostert H Silberberg and Schoeman's The Law of Property 5th ed (LexisNexis Durban 2006)
Blackmore AC "The Relationship between the NEMA and the Public Trust Doctrine: The Importance of the NEMA Principles in Safeguarding South Africa's Biodiversity" 2015 SAJELP 89-118
Blackmore AC "Getting to Grips with the Public Trust Doctrine in Biodiversity Conservation: A Brief Overview" 2018 Bothalia 1-8 DOI: https://doi.org/10.4102/abc.v48i1.2308
Blackmore AC "The Application of and the Prospects for the Public Trust Doctrine in South Africa: A Brief Overview" 2018 SALJ 631-641
Capmourteres V and Anand M "'Conservation Value': A Review of the Concept and its Quantification" 2016 Ecosphere 1-19 DOI: https://doi.org/10.1002/ecs2.1476
Casey ES "Water Law: Public Trust Doctrine" 1984 Nat Resources J 809-825
De Vos A et al "The Dynamics of Proclaimed Privately Protected Areas in South Africa over 83 Years" 2019 Conservation Letters 1-10 DOI: https://doi.org/10.1111/conl.12644
Du Plessis P Borkowski's Textbook on Roman Law 5th ed (Oxford Clarendon 2015) DOI: https://doi.org/10.1093/he/9780198736226.001.0001
Fagan A "The Secondary Role of the Spirit, Purport and Objects of the Bill of Rights in the Common Law's Development" 2010 SALJ 611-627
Fagan A "A Straw Man, Three Red Herrings, and a Closet Rule-Worshipper: A Rejoinder to Davies JP" 2012 SALJ 788-798
Freedman W "Conservation, Sustainable Use of Natural Resources and the Notion of Public Trusteeship" in Du Plessis A (ed) Environmental Law and Local Government in South Africa (Juta Cape Town 2015) 273-290
Freedman W "Rules of the 'Game': A Comment on Section 2 of the Game Theft Act: Horak NO v Smit [1999] 4 All SA 405 (T)" 2000 SAJELP 137-143
Freedman W "Environmental Conservation and the Concept of Ownership as an Absolute and Unrestricted Right: Minister of Public Works and Others v Kyalami Ridge Environmental Association and Another" 2001 SAJELP 128-134
Freedman W "A Critical Analysis of the Escape Rule: Eastern Cape Parks and Tourism Agency v Medbury (Pty) Ltd t/a Crown River Safari 2018 4 SA 206 (SCA)" 2019 TSAR 374-382
Freedman W "The Escape Rule and the Ownership of Enclosed Wild Animals in English and South African Law" 2022 TSAR 581-591 DOI: https://doi.org/10.47348/TSAR/2022/i3a11
Ghilarov AM "Ecosystem Functioning and Intrinsic Value of Biodiversity" 2000 Oikos 408-412 DOI: https://doi.org/10.1034/j.1600-0706.2000.900222.x
Glavovic PD "An Introduction to Wildlife Law" 1988 SALJ 519-532
Glazewski J "The Nature and Scope of Environmental Law" in Glazewski J (ed) Environmental Law in South Africa 2nd ed (LexisNexis Durban 2015) ch 1
Glazewski J "Wild Animals, Forests and Plants" in Glazewski J (ed) Environmental Law in South Africa 2nd ed (LexisNexis Durban 2015) ch 14
Hall CG (ed) Maasdorp's Institutes of South African Law: Volume II The Law of Things 8th ed (Juta Cape Town 1960)
Hall CG (ed) Maasdorp's Institutes of South African Law: Volume II The Law of Things 10th ed (Juta Cape Town 1976)
Hosten WJ et al Introduction to South African Law and Legal Theory 2nd ed (Butterworths Durban 1995)
Joubert CP Romeinse Reg: Vir Regspraktisyns en Akademici (IBEAR Tygervallei 2004)
Kidd M Environmental Law 2nd ed (Juta Cape Town 2011)
Muir A "Of Fences, Game and Property: Some Unresolved Issues of Ownership of Wild Animals in South Africa" 2016 Stell LR 136-139
Müller K "Environmental Governance in South Africa" in Strydom HA and King ND (eds) Fuggle and Rabie's Environmental Management in South Africa 2nd ed (Juta Cape Town 2009) 68-96
Noeth LV Common Law Perspectives on the Concept of Public Trusteeship (LLM-dissertation North-West University 2011)
Paterson AR "Biological Diversity" in King ND, Strydom HA and Retief FP (eds) Fuggle and Rabie's Environmental Management in South Africa 3rd ed (Juta Cape Town 2018) 519-572
Paterson TJM Eckard's Principles of Civil Procedure in the Magistrates' Courts 3rd ed (Juta Cape Town 1996)
Paterson AR Legal Framework for Protected Areas: South Africa (International Union for the Conservation of Nature Gland 2010)
Paterson AR "Protected Areas" in Glazewski J (ed) Environmental Law in South Africa 2nd ed (LexisNexis Durban 2015) ch 12
Ramosa R "The Limits of Judicial Law-Making in the Development of Common-Law Crimes: Revisiting the Masiya Decisions" 2009 SACJ 353-370
Rhul JB and McGinn TAJ "The Roman Public Trust Doctrine: What was it, and does it Support an Atmospheric Trust?" 2020 Ecology LQ 117-178 DOI: https://doi.org/10.2139/ssrn.3440244
Rumsey AB "Terrestrial Wild Animals" in Fuggle RF and Rabie MA (eds) Environmental Management in South Africa 2nd ed (Juta Cape Town 2009) 394-424
Sax JL "The Public Trust Doctrine in Natural Resource Law: Effective in Judicial Intervention" 1970 Mich L Rev 471-566 DOI: https://doi.org/10.2307/1287556
Schulz F Classical Roman Law (Oxford Clarendon 1961)
Slobodian L "Defending the Future: Intergenerational Equity in Climate Litigation" 2020 Geo Envtl L Rev 569-589
South African Law Commission Project 69: Report on the Acquisition and Loss of Ownership of Game (SALC Pretoria 1990)
Thomas JAC Textbook of Roman Law (North-Holland Amsterdam 1976)
Van Aswegen ME Different Modes of Public Participation in a Public Trust Regulatory Model (LLM-dissertation North-West University 2019)
Van der Merwe CG and Rabie MA "Eiendom van Wilde Diere" 1974 THRHR 38-48
Van der Merwe CG Sakereg (Durban Butterworths 1979)
Van der Schyff E The Concept of Public Trusteeship as Embedded in the South African National Water Act, 1998 (Water Research Commission Potchefstroom 2011)
Van der Schyff E The Constitutionality of the Mineral and Petroleum Resources Development Act 28 of 2002 (LLD-thesis North-West University 2006)
Van der Schyff E "Unpacking the Public Trust Doctrine: A Journey into Foreign Territory" 2010 PELJ 122-159 DOI: https://doi.org/10.4314/pelj.v13i5.65053
Van der Schyff E "Stewardship Doctrines of Public Trust: Has the Eagle of Public Trust Landed on South African Soil?" 2013 SALJ 369-389
Van der Schyff E and Viljoen G "Water and the Public Trust Doctrine: A South African Perspective" 2008 Journal for Transdisciplinary Research in Southern Africa 339-354 DOI: https://doi.org/10.4102/td.v4i2.156
Van Warmelo P 'n Inleiding tot die Studie van die Romeinse Reg (AA Balkema Cape Town 1965)
Van Zyl DH Geskiedenis en Beginsels van die Romeinse Privaatreg (Durban Butterworths 1977)
Viljoen G The Public Trust Doctrine in South-African Water Law (LLM-dissertation North-West University 2009)
Viljoen G Water as Public Property: A Parallel Evaluation of South African and German Law (LLD-thesis North-West University 2016)
Viljoen G "The Transformed Property Regime of the National Water Act 36 of 1998: Comparative Reflections on South Africa's Water in the 'Public Space'" 2019 VRÜ 172-194 DOI: https://doi.org/10.5771/0506-7286-2019-2-172
Viljoen G "Critical Perspectives on South Africa's Groundwater Law: Established Practice and the Novel Concept of Public Trusteeship" 2020 J Energy Nat Resources & Envtl L 391-408 DOI: https://doi.org/10.1080/02646811.2020.1775389
Case law
United States of America
Borough of Neptune City v Borough of Avon-by-the-Sea 61 NJ 296 (1972)
South Africa
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism 2004 7 BCLR 687 (CC)
Carmichele v Minister of Safety and Security 2001 10 BCLR 995 (CC)
Eastern Cape Parks and Tourism Agency v Medbury (Pty) Ltd (Wildlife Ranching South Africa amicus curiae) 2016 4 SA 457 (ECG)
Eastern Cape Parks and Tourism Agency v Medbury (Pty) Ltd t/a Crown River Safari 2018 4 SA 206 (SCA)
Government of the Republic of South Africa v Grootboom 2001 1 SA 46 (CC)
HTF Developers (Pty) Ltd v The Minister of Environmental Affairs and Tourism 2006 5 SA 512 (T)
K v Minister of Safety and Security 2005 9 BCLR 835 (CC)
Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte President of the Republic of South Africa 2000 2 SA 674 (CC)
Legislation
Charter of Justice (1827)
Constitution of the Republic of South Africa, 1996
Eastern Cape Parks and Tourism Agency Act 2 of 2010
Game Theft Act 105 of 1991
Local Government: Municipal Property Rates Act 6 of 2004
National Environmental Management Act 107 of 1998
National Environmental Management: Biodiversity Act 10 of 2004
National Environmental Management: Integrated Coastal Management Act 24 of 2008
National Environmental Management Laws Amendment Act 2 of 2022
National Environmental Management: Protected Areas Act 57 of 2003
National Water Act 36 of 1998
Public Finance Management Act 1 of 1999
Government publications
GN 1095 in GG 18163 of 28 July 1997 (White Paper on the Conservation and Sustainable Use of South Africa's Biological Diversity, 1997)
GN 749 in GG 18894 of 15 May 1998 (White Paper on Environmental Management Policy for South Africa, 1997)
GN 731 in GG 40402 of 4 November 2016 (Norms and Standards for the Inclusion of Private Nature Reserve in the Register of Protected Areas of South Africa)
International instruments
Convention on Biological Diversity (1992)
Internet Sources
Dudley N and Stolton S 2007 Defining Protected Areas bit.ly/3YtPlzn accessed 12 May 2022
DFFE 2020 https://bit.ly/3Yu8VLX
Department of Forestry, Fisheries and Environment 2020 The High-Level Panel of Experts for the Review of Policies, Legislation and Practices on Matters of Elephant, Lion, Leopard and Rhinoceros Management, Breeding, Hunting, Trade and Handling https://bit.ly/3Yu8VLX accessed 25 March 2022
Department of Forestry, Fisheries and the Environment 2023 National Assembly: Question No 2341 {NW2676E} Internal Question Paper 23 of 2023 https://www.dffe.gov.za/sites/default/files/parliamentary_updates/pq2341of2023_stateownedtouristsites.pdf accessed 6 August 2023
South African National Biodiversity Institute 2019 National Biodiversity Assessment 2018: The Status of South Africa's Ecosystems and Biodiversity http://bit.ly/2RkuLBB accessed 18 February 2022
Sandler R 2012 Intrinsic Value, Ecology, and Conservation https://www.nature.com/scitable/knowledge/library/intrinsic-value-ecology-and-conservation-25815400/ accessed 28 September 2023
SANParks 2003 Presentation by South African National Parks (SANParks) to the Parliamentary Portfolio Committee on the Local Government: Municipal Property Rates Bill https://static.pmg.org.za/docs/2003/appendices/030513sanparks.htm accessed 6 August 2023
Statistics South Africa 2021 Natural Capital Series 2: Accounts for Protected Areas, 1900 to 2020 https://bit.ly/3Y3BhwI accessed 14 March 2022
Secretariat of the Convention on Biological Diversity 2022 Country Profiles: South Africa Main Details https://www.cbd.int/countries/profile/?country=za accessed 2 March 2022
Published
Issue
Section
License
Copyright (c) 2023 Inge Snyman, Frank Philip Bothma
This work is licensed under a Creative Commons Attribution 4.0 International License.
.png){kind=spacer}