Abstract

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.

Keywords

Common law; conservation; development of the common law; escape rule; Game Theft Act; public trust doctrine; property law classification; protected areas; res nullius; res publicae; wild animals.

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1 Introduction

In Eastern Cape Parks and Tourism Agency v Medbury (Pty) Ltd (Wildlife Ranching South Africa amicus curiae) 1

 Inge Snyman. LLB LLM (Environmental Law and Governance) LLD (NWU). Postdoctoral research fellow, Faculty of Law North-West University, South Africa. Email: ingesnyman@gmail.com. ORCiD: https://orcid.org/0000-0002-7388-0411.

 Philip Bothma. LLB LLM (NWU). Lecturer, Faculty of Law, Rhodes University, South Africa. Email: philip.bothma@ru.ac.za. ORCiD: https://orcid.org/0000-0002-1021-2993.

1 Eastern Cape Parks and Tourism Agency v Medbury (Pty) Ltd (Wildlife Ranching South Africa amicus curiae) 2016 4 SA 457 (ECG) (hereafter the court a quo-case).

(1) Notwithstanding the provisions of any other law or the common law –

(a) a person who keeps or holds game or on behalf of whom game is kept or held on land that is sufficiently enclosed as contemplated in subsection (2), or who keeps game in a pen or kraal or in or on a vehicle, shall not lose ownership of that game if the game escapes from such enclosed land or from such pen, kraal or vehicle;… 7

7 Section 2(1)(a) of the GTA.

(2) (a) For the purposes of subsection (1)(a), land shall be deemed to be sufficiently enclosed if, according to a certificate of the Premier of the province in which the land is situated, or his assignee, it is sufficiently enclosed to confine to that land the species of game mentioned in the certificate... 8

8 Section 2(2)(a) of the GTA.

The GTA was passed in 1991 after extensive deliberations by the South African Law Commission (SALC) on the modern-day validity and fairness of the common law "escape rule". 9

9 See in general SALC Acquisition and Loss of Ownership of Game. The South African Law Commission (SALC) was renamed the South African Law Reform Commission on 17 January 2003.

The anticipated purpose of the passing of the GTA was to amend the abovementioned common law rule to place the owners of game in a more favourable position when their game escapes from its enclosure. 12

12 Glazewski "Wild Animals, Forests and Plants" para 14.4.1.2.

The possibility of developing the common law even further in this regard came under discussion yet again in the abovementioned cases. The proposed further development under investigation in the present cases entails that wild animals which 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 an organ of state. 14

14 Court a quo-case para 2.

The court a quo fleetingly considers and subsequently dismisses the necessity to further develop the common law regarding the ownership of wildlife to promote the spirit and objectives of section 24 of the Constitution of the Republic of South Africa, 1996. 18

18 Constitution of the Republic of South Africa, 1996 (hereafter the Constitution). Court a quo-case paras 33-35.

Everyone has the right—

(a) to an environment that is not harmful to their health or wellbeing; and

(b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that—

(i) prevent pollution and ecological degradation;

(ii) promote conservation; and

(iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

Section 24(b) places a constitutional imperative on the state, through its organs, to secure environmental rights through reasonable legislative and other measures aimed at the achievement of the listed objectives under subsection (b)(i)-(iii). 19

19 HTF Developers (Pty) Ltd v The Minister of Environmental Affairs and Tourism 2006 5 SA 512 (T) para 17.

legislation to protect the environment but also to actively pursue the achievement of the intended result and to implement balanced and flexible supporting policies and programmes. 20

20 Government of the Republic of South Africa v Grootboom 2001 1 SA 46 (CC) paras 42-43.

There has not been much discussion of these two court cases. Freedman's 21

21 Freedman 2019 TSAR 374-382.

The purpose of this article is to investigate the possibility of further 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 an organ of state. To provide some background on the matter, this article briefly discusses the facts of the aforementioned cases and the judgments delivered by the respective courts. The article then 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. The following section details the facts of the cases and the legal issues before the courts.

2 Facts and legal questions before the courts

The dispute at hand is concerned with the ownership of a valuable herd of Cape Buffalo. The herd escaped from the Thomas Baines Nature Reserve 27

27 Hereafter the Reserve.

The Reserve is categorised as a provincial protected area 29

29 Sections 23-27 of the National Environmental Management: Protected Areas Act 57 of 2003 (hereafter NEMPAA).

At the time when the herd of buffalo escaped from the reserve a prolonged drought was afflicting the area, which caused the dam's water level to drop to a historic low. 32

32 Court a quo-case para 12.

The Agency (the plaintiff) instituted civil action against Medbury (the defendant) in the court a quo for the restoration of the ownership of the buffalo. 35

35 Court a quo-case para 1.

The Agency in turn relied on section 2(1)(a) of the GTA as cited above. The Agency argued that even though the buffalo had escaped from the nature reserve's controlled environment, the property was indeed sufficiently enclosed and that the

Agency therefore retained ownership of the escaped animals under the protection of section 2(1)(a) of the GTA. 37

37 Court a quo-case paras 16 and 17.

Medbury contended that the Agency could not rely on section 2(1)(a) of the GTA because it had neglected to apply for a certificate in terms of section 2(2)(a) of the GTA, 38

38 Appeal court case para 10.

Two separate issues were considered by the court a quo. 39

39 Court a quo-case para 2.

3 Judgments

3.1 Reasoning of the court a quo

Regarding the first issue the court followed the letter of the law in interpreting the GTA and shied away from a broad interpretation. 41

41 Court a quo-case paras 22, 24 and 25.

intention of the legislature was to limit the protection given by section 2 of the GTA to owners who took the trouble to acquire a certificate. 45

45 Court a quo-case para 33.

Regarding the second issue, the court opted not to develop the common law. The court found that it was unnecessary to develop the common law under the facts of the present case and that any such development was the responsibility of the legislature. 46

46 Court a quo-case paras 33-34.

3.2 Reasoning of the Supreme Court of Appeal

The SCA found the Agency's argument on the first issue valid and upheld the appeal. 48

48 Appeal court case paras 35-37, 39.

Given that the court a quo dismissed the second issue (the development of the common law) and the SCA missed out on the opportunity to evaluate and weigh in on the issue, the consecutive sections will analyse the possible development of the common law in South Africa 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 an organ of state. 55

55 Court a quo-case para 2.

Before the proposed development of the common law can be considered and discussed, it is necessary to briefly discuss the significance of biodiversity conservation and protected areas in the South African context.

4 The significance of biodiversity conservation and protected areas in South Africa

South Africa is viewed as one of the most biologically diverse countries in the world due to its topography, climate, geology, diversity of species, ecosystems and natural and cultural resources. 56

56 GN 1095 in GG 18163 of 28 July 1997 (White Paper on the Conservation and Sustainable use of South Africa's Biological Diversity, 1997).

Protected areas are a central component of South African conservation efforts. 61

61 Paterson "Protected Areas" paras 12.5.1-12.5.2. S 9 of the NEMPAA distinguish a system of protected areas with different categories.

2003. 65

65 The NEMPAA. Stats SA 2021 https://bit.ly/3Y3BhwI 14-16.

With this abundance of biodiversity and protected areas comes the major responsibility to manage, conserve and protect. Cognisant of its voluntary commitments to the international and African regional environmental law framework and answering its constitutional mandate in terms of section 24 of the Constitution, the South African government has exhibited a great commitment to biodiversity conservation and protected areas by enacting sundry legislation to this effect. 68

68 Conservation is a functional area of concurrent national and provincial legislative competency in South Africa. Refer to Schedule 4 of the Constitution. See in general Müller "Environmental Governance" 69; Rumsey "Terrestrial Wild Animals" 394; GN 749 in GG 18894 of 15 May 1998 (White Paper on Environmental Management Policy for South Africa, 1997); Paterson "Biological Diversity" 544.

The abovementioned environmental laws that regulate conservation in South Africa do not pay special consideration to the protection of the ownership of wild animals found in protected areas managed by organs of state. Instead, in South Africa, as

briefly explained above, the ownership of wild animals is determined by the provisions of section 2 of the GTA or alternatively by the "escape rule" as set out in the common law. Accordingly, the application of the GTA in the context of protected areas managed by an organ of state needs further consideration. The following section analyses the application of the GTA in the context of protected areas managed by an organ of state.

5 Application of the GTA in the context of protected areas managed by an organ of state

The aim of the GTA is to regulate the ownership of game in certain instances. 72

72 Preamble of the GTA.

"Game" in the context of the GTA refers to

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. 74

74 Section 1 of the GTA. Own emphasis added.

Glazewski 75

75 Glazewski "Wild Animals, Forests and Plants" para 14.4.1.2.

A close reading of the definition of "game" in the context of the GTA reveals that the legislature (in all likelihood, unintentionally) created a test for the application of the GTA. This test asks if the wild animals in question are kept or held for commercial or hunting purposes. If the wild animals in question are kept or held for commercial or hunting purposes, section 2 of the GTA will apply if these wild animals were to escape from their enclosure and regain their natural state of freedom. If, however, the wild animals in question are kept or held for any other purpose (e.g. conservation or scientific purposes), section 2 of the GTA will not apply if the wild animals escape from their enclosure. 77

77 Freedman 2000 SAJELP 141-142.

In a recent report the Department of Forestry, Fisheries and the Environment 79

79 DFFE 2020 https://bit.ly/3Yu8VLX 137-138.

by organs of state versus nature reserves or game farms managed by private landowners:

[South Africa] pursues a public conservation model on public lands, where the management of national parks, protected, and conservation areas provides public goods and emphasises unpriced conservation values as well as public access and economic impact. South Africa is [also] a world-leader in conservation on non-state land, where it promotes conservation by devolving property and resource use rights, to ensure that wildlife is an economically competitive land-use option that can displace (i.e. rewild) less ecologically desirable land-use options. 80

80 DFFE 2020 https://bit.ly/3Yu8VLX 137-138. Own emphasis added.

It can be concluded from this that the main difference between the public and private conservation models is that they pursue different aims and intentions. The public conservation model, which is enforced in protected areas by organs of state, strives to conserve the integrity of a particular ecosystem or biodiversity for its unpriced intrinsic value to provide communities with public access to natural resources for various uses or aesthetic enjoyment. The intrinsic value of such ecosystems or biodiversity may be measured or influenced by various considerations such as (a) their "complexity, diversity, spiritual significance, wildness, beauty, or wondrousness"; 81

81 Sandler 2012 https://www.nature.com/scitable/knowledge/library/intrinsic-value-ecology-and-conservation-25815400.

Drawing from the explanation above, one may argue that if the GTA's intention is to regulate the ownership of wild animals kept or held for commercial or hunting purposes, 83

83 Refer to the definition of "game" in s 1 of the GTA.

The argument that protected areas do not hold or keep wild animals for commercial or hunting purposes may be taken further by considering the status of protected areas more broadly. Generally, protected areas are managed by SANParks and various provincial conservation authorities as appointed by the minister. 86

86 Section 38 of the NEMPAA. For a detailed list of the provincial conservation authorities, see Paterson "Biological Diversity" 546-547.

SANParks is an organ of state, and the State receives all income derived by SANParks. SANParks declares no profit and is limited in its function to a statutory mandate. As a result, no part of a national park is used for business purposes (assuming that "business" by definition entails the intended making of a profit). While commercial transactions are required (and authorised by statute) for SANParks to fulfil its statutory function, those transactions are for the benefit of the State. In view of the foregoing, no part of a national park is used for business purposes … On the other hand, SANParks is required to make national parks accessible to the nation and [is] authorised to charge fees for doing so … In addition, to make national parks accessible to the people of South Africa, it is necessary to provide accommodation and related products and services. Without these, it would not be possible for SANParks to fulfil its mandate. Any income derived from the provision of these services are received by SANParks as an organ of State and used for purposes specifically authorised by statute. While commercial transactions are required (and authorised by statute) for SANParks to fulfil its statutory function, those transactions are for the benefit of the nation. The national economy benefits from the allure that South Africa's national parks have for international tourists, while the provincial and local economies within which national parks are situated benefit directly from their proximity to national assets. 91

91 SANParks 2003 https://static.pmg.org.za/docs/2003/appendices/030513sanparks.htm.

As explained in the quotation above, SANParks (and, by implication, other conservation management authorities of protected areas) are authorised by legislation to conduct commercial transactions in protected areas to contribute to the accessibility of these areas to the nation (and international tourists). The financial benefit that is derived from these commercial transactions is internalised by the state to fulfil its constitutional mandate to promote conservation. 92

92 See s 24(b)(ii) of the Constitution.

to SANParks may be exercised only to the extent that those powers are consistent with the purpose for which the protected area was declared. Therefore, one may argue that even though protected areas managed by organs of state exercise some forms of commercial activities, 95

95 Section 55(2) of the NEMPAA.

Consequently, if the GTA does not regulate the ownership of wild animals that are kept or held in protected areas for conservation purposes, the common law rule (that was found unsatisfactory by the SALC in 1990) would still apply. As far back as 1974 Van der Merwe and Rabie 97

97 Van der Merwe and Rabie 1974 THRHR 47.

In die lig van … die feit dat toestande vandag verskil van dié van die Romeinse tyd toe die beginsel dat wilde diere res nullius is, gegeld het, het 'n hersiening van dié beginsel nodig geword. Met die grootskaalse uitroeiing en gevolglike vermindering van die eens ryke erfenis van wilde diere in die wêreld in die algemeen en in Suid-Afrika in die besonder, kan die beginsel dat wilde diere steeds as res nullius beskou moet word, nie meer aanvaar word nie. Aangesien wilde diere 'n nasionale bate is wat deur die staat ten behoewe van die hele gemeenskap bewaar word, behoort eiendomsreg daaroor in beginsel aan die staat toegesê te word. 98

98 Own translation: In the light of ... the fact that the situation today differs from that of Roman times, where wild animals were regarded as res nullius, a reconsideration of this principle has become necessary. With the large-scale eradication and consequent loss of the once-rich heritage of wild animals in the world in general and in South Africa in particular, the principle that wild animals must still be regarded as res nullius can no longer be accepted. Wild animals are a national asset which should, in principle, be assigned to the ownership of the state to be conserved for the benefit of all members of the community.

Van der Merwe and Rabie thus expressed their present-day disinclination towards the Roman law classification of wild animals as res nullius. The writers went further by underlining the supposed profound influence of conservation and the concerning

levels of biodiversity loss when reconsidering the development of the common law "escape rule". If the common law rule were still to be applied to wild animals found in protected areas managed by organs of state, no strides would in fact have been made to place protected areas in a more favourable position, as was intended by the SALC in 1990, regarding the protection of the ownership of escaped wild animals.

Realising the shortcoming, it seems that concerns about the application of the GTA in the context of protected areas are shared by the Department of Forestry, Fisheries and the Environment. In the National Environmental Management Laws Amendment Act 2 of 2022 (NEMLAA) the legislature has recently attempted to provide some extended protection of ownership to organs of state charged with the conservation of faunal biological resources. Section 45 of the NEMLAA proposes to amend section 3 of the NEMBA by stating that:

[t]he Minister may, by notice in the Gazette, specify the species and the circumstances under which the State remains the custodian of faunal biological resources that escape from land under its control. 99

99 Section 45 of the NEMLAA.

The implication of this proposed amendment would be that protected areas (land under the control of the state) are removed from the ambit of the GTA. The result of this amendment would be that organs of state charged with the management of protected areas would be afforded similar or somewhat more comprehensive protection of their ownership over wild animals as was afforded to owners who keep or hold wild animals for commercial or hunting purposes in terms of the GTA. This power to be vested in the minister in terms of the proposed amendment of the NEMBA may still be flawed since protected areas may still be susceptible to loss of the ownership of wild animals by accident or misadventure in instances where the Minister had not yet published a notice to this effect in the Gazette or such notice is not detailed enough.

Therefore, the development of the common law regarding the ownership of wild animals in protected areas managed by organs of state must be revisited and reconsidered. The following section will initiate this conversation by re-examining the concepts of res nullius, res publicae and the public trust doctrine.

6 Res nullius, res publicae and the public trust doctrine

In order to correctly frame both the problem at the root of this matter and the possible solution, a focussed discussion of the relevant common law principles and terms is necessitated. "Res nullius" is the term used to classify property belonging to no one or property that was never the object of ownership – in this case, wild animals in their natural state of freedom – but which is capable of being privately owned. 100

100 Badenhorst, Pienaar and Mostert Silberberg and Schoeman's The Law of Property 32; Joubert Romeinse Reg 162; Hall Maasdorp's Institutes 8th ed 6-7; Van Zyl Geskiedenis en Beginsels van die Romeinse Privaatreg 148; Van Warmelo Inleiding tot die Studie van die Romeinse

additional term to be understood is "res publicae". Res publicae is the term used to classify property belonging to the state but ultimately intended to benefit and be used by the public. 101

101 Badenhorst, Pienaar and Mostert Silberberg and Schoeman's The Law of Property 25-29; Hall Maasdorp's Institutes 8th ed 6-7; Van der Merwe Sakereg 24; Schulz Classical Roman Law 340-341; Van Zyl Geskiedenis en Beginsels van die Romeinse Privaatreg 122-123; Van Warmelo Inleiding tot die Studie van die Romeinse Reg 112; Thomas Textbook of Roman Law 129; Du Plessis Borkowski's Textbook on Roman Law 156-157. Res publicae can be regarded as the ancient origin of the public trust doctrine.

These three core principles and terms are discussed below.

6.1 The common law concepts: res nullius and res publicae

In terms of Roman property law animals, are broadly divided into three categories. 102

102 Badenhorst, Pienaar and Mostert Silberberg and Schoeman's The Law of Property 32; Joubert Romeinse Reg 143; Van Zyl Geskiedenis en Beginsels van die Romeinse Privaatreg 148-149; Van Warmelo Inleiding tot die Studie van die Romeinse Reg 113, 124-125; Thomas Textbook of Roman Law 166-167; Du Plessis Borkowski's Textbook on Roman Law 157, 196-198.

classified as res nullius, and ownership of that wild animal may be acquired by way of occupatio. 107

107 Schulz Classical Roman Law 361-362; Joubert Romeinse Reg 162; Van Warmelo Inleiding tot die Studie van die Romeinse Reg 113, 124-125; Thomas Textbook of Roman Law 166-167; Du Plessis Borkowski's Textbook on Roman Law 157, 196-198.

The second category is wild animals domesticated to habitually return to their owner. 108

108 Badenhorst, Pienaar and Mostert Silberberg and Schoeman's The Law of Property 32-33; Joubert Romeinse Reg 162; Van Warmelo Inleiding tot die Studie van die Romeinse Reg 113, 124-125; Thomas Textbook of Roman Law 166-167; Du Plessis Borkowski's Textbook on Roman Law 157, 196-198.

The third and final category is domestic animals (non est fera natura). 111

111 Joubert Romeinse Reg 162. Animals without a wild nature (own translation). Van Zyl Geskiedenis en Beginsels van die Romeinse Privaatreg 148-149; Van Warmelo Inleiding tot die Studie van die Romeinse Reg 113, 124-125; Du Plessis Borkowski's Textbook on Roman Law 196.

In terms of these three categories, it is clear that for as long as the owner of a wild animal can confine or physically control the wild animal, the owner retains ownership of the animal, but when it escapes or regains its natural state of freedom, it reverts to res nullius. 113

113 Badenhorst, Pienaar and Mostert Silberberg and Schoeman's The Law of Property 32-33; Schulz Classical Roman Law 361-362; Hall Maasdorp's Institutes 10th ed 31; Van Zyl Geskiedenis en Beginsels van die Romeinse Privaatreg 148; Van Warmelo Inleiding tot die Studie van die Romeinse Reg 113, 124-125; Thomas Textbook of Roman Law 166-167; Du Plessis Borkowski's Textbook on Roman Law 157, 196-198.

This position was deemed unsatisfactory by the SALC, and steps were taken to strengthen the position of the owners of wild animals by providing additional protection in the form of the GTA. 114

114 As discussed above.

solely to wild animals that are held by owners for commercial or hunting purposes 115

115 Section 1 of the GTA; Badenhorst, Pienaar and Mostert Silberberg and Schoeman's The Law of Property 32.

This imbalance was, as mentioned above, probably unintended, but the consequences remain severe and far-reaching. 118

118 As is evidenced by the cases mentioned.

This goal could be achieved by the judiciary or the legislature through the simple expediency of reclassifying the subjects of conservation efforts. Reclassifying these animals as res publicae would remove the inherent risks 119

119 Though the fencing certificate in terms of the GTA provides extended protection to game owners, it can be argued that it is not suitable for conservation purposes. In order for the fencing certificate to provide the required protection, positive action by all the various agencies would be required. Game owners must apply for these certificates and then ensure that all of the possible species of biodiversity are included on the certificate, and this must be kept up to date whenever there is a change. This burden and risk factor could easily be removed if the wild animals and biodiversity were reclassified as recommended.

The term res publicae encompass property owned by the state for the use and benefit of the public. 121

121 Badenhorst, Pienaar and Mostert Silberberg and Schoeman's The Law of Property 25-29; Van der Merwe Sakereg 24; Schulz Classical Roman Law 340-341; Van Zyl Geskiedenis en Beginsels van die Romeinse Privaatreg 122-123; Van Warmelo Inleiding tot die Studie van die Romeinse Reg 112; Thomas Textbook of Roman Law 129; Du Plessis Borkowski's Textbook on Roman Law 156-157.

vest in the state to the exclusion of others but in the public at large. 122

122 Badenhorst, Pienaar and Mostert Silberberg and Schoeman's The Law of Property 25-29; Van der Merwe Sakereg 24; Schulz Classical Roman Law 340-341; Van Zyl Geskiedenis en Beginsels van die Romeinse Privaatreg 122-123; Van Warmelo Inleiding tot die Studie van die Romeinse Reg 112; Thomas Textbook of Roman Law 129; Du Plessis Borkowski's Textbook on Roman Law 156-157.

Examples of res publicae from the Roman and Roman-Dutch law are harbours, public roads and public buildings. 124

124 Van der Merwe Sakereg 24; Schulz Classical Roman Law 340-341; Van Zyl Geskiedenis en Beginsels van die Romeinse Privaatreg 122-123; Van Warmelo Inleiding tot die Studie van die Romeinse Reg 112; Thomas Textbook of Roman Law 129; Du Plessis Borkowski's Textbook on Roman Law 156-157.

If protected areas and the biodiversity found in protected areas were to be classified as res publicae, it would be no great leap to extend such a classification to the biodiversity, including wild animals, found in protected areas. This could provide the same protection to organs of state charged with the management of protected areas to promote conservation that the GTA provides to private owners of game. 130

130 Section 1 of the GTA.

Reclassifying wild animals held or kept for conservation purposes by an organ of state charged with the management of protected areas in terms of relevant nature conservation legislation in order to promote conservation as res publicae would

support the state in its conservation responsibilities and would ensure that the state could not relinquish these rights by accident or misadventure. 131

131 Van der Schyff Constitutionality of the Mineral and Petroleum Resources Development Act 112-113.

The concept of res publicae is regarded as the ancient origin of the public trust doctrine, which will be discussed in the following section.

6.2 The public trust doctrine in South African biodiversity law 132

132 The purpose of this discussion is not to provide an encyclopaedic description and in-depth analysis of the public trust doctrine. A discussion of this magnitude falls out of the ambit of this study and a myriad of scholars has already undertaken it. The main aim of this discussion is to highlight the fact that the concept of the public trust features prominently in the South African environmental legislation pertaining to biodiversity conservation and protected areas and hence provides a practical recourse for the development of the common law in South Africa. Refer to Sax 1970 Mich L Rev 473-474; Van der Schyff 2010 PELJ 122-159; Van der Schyff 2013 SALJ 369-389; Freedman "Conservation" 273-290; Van der Schyff and Viljoen 2008 Journal for Transdisciplinary Research in Southern Africa 339-354; Viljoen Public Trust Doctrine; Viljoen 2019 VRÜ 172-194; Van der Schyff Concept of Public Trusteeship 3-8, 17-45; Viljoen 2020 J Energy Nat Resources & Envtl L 391-408; Van Aswegen Different Modes of Public Participation 6-29; Viljoen Water as Public Property 183-195; Blackmore 2018 SALJ 631-641.

The premise of the public trust doctrine is that the government, fulfilling the role of fiduciary or custodian, holds certain natural resources in trust because of their public nature, significance or scarcity, for the use and to the benefit of all its citizens. 133

133 Glavovic 1988 SALJ 529.

Considerable strides have been made in the development of modern interpretations of the public trust doctrine, which is traditionally restricted to waterbodies. 135

135 The traditional public trust doctrine mainly descends from 19th century American law where land submerged by water (tidelands), land adjacent to water, waters used in navigation, other water resources such as underground water and water-related commerce are held by the sovereign in trust for the benefit of all citizens. The citizens (as beneficiaries) have the right of the use and enjoyment of these water resources and hold the sovereign (as the trustee) accountable to protect the water resources accordingly. The development of the traditional public trust doctrine has been given significant consideration in American legal literature and jurisprudence and further discussion on these aspects in this instance would be superfluous. See Van der Schyff 2010 PELJ 122-159; Viljoen Public Trust Doctrine 33-53.

[t]he public trust doctrine - like all common law principles - should not be considered fixed or static, but should be moulded and extended to meet changing conditions and needs of the public it was created to benefit. 136

136 Borough of Neptune City v Borough of Avon-by-the-Sea 61 NJ 296 (1972) 309.

Modern interpretations "proclaim conservationist principles" 137

137 Van der Schyff Constitutionality of the Mineral and Petroleum Resources Development Act 131.

The public trust doctrine finds expression in South African environmental law by forming part of the guiding environmental management principles contained in the National Environmental Management Act 107 of 1998. 139

139 National Environmental Management Act 107 of 1998 (hereafter the NEMA). As environmental framework legislation the NEMA is firmly rooted in the expectations of s 24 of the Constitution and provides national environmental management principles which serve as a general framework to guide the interpretation, administration, implementation and decision making of environmental management in South Africa. S 2(1) of the NEMA. Glazewski "Nature and Scope of Environmental Law" para 1.4.6.

the environment is held in public trust for the people, the beneficial use of the environmental resources must serve the public interest and the environment must be protected as the people's common heritage.

Section 1 of the NEMA defines the "environment" as

the surroundings within which humans exist and that are made up of- (i) the land, water and atmosphere of the earth; (ii) micro-organisms, plant and animal life; (iii) any part or combination of (i) and (ii) and the interrelationships among and between them; and (iv) the physical, chemical, aesthetic and cultural properties and conditions of the foregoing that influence human health and well-being.

The public trust doctrine is further refined in the context of biodiversity and protected areas under section 3 of the NEMBA and section 3 of the NEMPAA respectively. Section 3 of the NEMBA describes the "State's trusteeship of biological diversity" in the following manner:

In fulfilling the rights contained in section 24 of the Constitution, the state through its organs that implement legislation applicable to biodiversity, must –

(a) manage, conserve and sustain South Africa's biodiversity and its components and genetic resources; and

(b) implement this Act to achieve the progressive realisation of those rights.

Section 3 of the NEMPAA appoints the state as the trustee of protected areas by determining that:

In fulfilling the rights contained in section 24 of the Constitution, the State through the organs of state implementing legislation applicable to protected areas must –

(a) act as the trustee of protected areas in the Republic; and

(b) implement this Act in partnership with the people to achieve the progressive realisation of those rights.

The combined reading of the abovementioned sections reveals that South African environmental law has adopted a wide interpretation of the public trust doctrine by incorporating the whole of the environment under the protection of the public trust. To date, the South African courts have not yet had the opportunity to interpret and

provide an exposition on the doctrine. 140

140 Van der Schyff 2010 PELJ 124.

The immense scope of the public trust doctrine in the South African context is illustrated by expanding its application to the conservation of biodiversity and protected areas. 142

142 Freedman "Conservation" 282. The public trust doctrine is also incorporated in s 12 of the National Environmental Management: Integrated Coastal Management Act 24 of 2008 and s 3 of the National Water Act 36 of 1998.

The "state" is appointed as the trustee of the public trust, 147

147 Section 2(4)(o) of the NEMA and s 3 of the NEMPAA.

[t]he state is regarded as the trustee of property impressed with the public trust doctrine, and the legislature is charged with the task of managing the trust. As such, an affirmative duty is imposed on the legislature to act in all circumstances in which action is necessary, be it to preserve or promote that which is held in trust. The judiciary is to act as a watchdog of the trust, and existing precedents have indicated that the judiciary would go beyond form to substance to ensure that the legislative authority fulfils its duty in administering the trust. 151

151 Own emphasis added.

Van der Schyff provides an original delineation of the respective roles and responsibilities of the legislature and judiciary towards the public trust corpus. One could add to the quoted observation above that any other concerned organs of state act as the workforce that ensures the daily operational management and supervision of the natural resources held in trust by the state. Different state departments, statutory authorities and provincial conservation agencies fulfil the role of custodians responsible for supervising the conservation, management and administration of matters relating to biodiversity and protected areas in South

Africa. 152

152 Section 54 of the NEMPAA. Also see Paterson "Protected Areas" paras 12.7.1.5 and 12.8.1; Paterson "Biological Diversity" 544-547.

According to Freedman 154

154 Freedman "Conservation" 288.

All South African citizens are the beneficiaries of the public trust. 157

157 Section 2(4)(o) of the NEMA.

Matters relating to ownership and the alienation of the corpus of the trust cannot be deduced from the sections cited above. Blackmore 160

160 Blackmore 2015 SAJELP 114.

The public trust doctrine grants a pre-existing title in favour of the government as trustee – to regulate the use of biodiversity on private property. The application of the doctrine, therefore, provides specifically for the protection of existing public rights where there is a potential for the irreversible loss of the country's biodiversity. It would thus be incorrect to assume that private property rights take precedence over public interests. Such an assumption is likely to result in a private gain from the unsustainable destruction of biodiversity, a shrinkage of the trust entity, and an ongoing cost borne by the public. The exercising of the common-law public trust doctrine – either directly or indirectly through the application of environmental principles – cannot be regarded as a deprivation of private property...

The writer explains that the state's responsibilities are limited to the role of a fiduciary of common property and cannot encroach on the domain of private ownership. 161

161 Also see Blackmore 2018 Bothalia 4.

Blackmore 162

162 Blackmore 2018 Bothalia 4.

This discussion illustrates how the Roman law classification of res publicae already forms part of the South African environmental and conservation context through the incorporation of the public trust doctrine in the NEMA, NEMBA and NEMPAA.

Following below is a brief discussion regarding the development of the common law in South Africa.

7 Development of the common law in South Africa: possibility and barriers

Sections 173 and 39(2) of the Constitution 168

168 Section 8 of the Constitution regulates the horizontal application of the Bill of Rights.

The discussion below will focus on the possibility of developing the common law, the barriers to the further development of the common law and a brief conclusion.

The development of the common law by the judiciary raises a concern regarding the separation of powers doctrine. State functions must be classified as legislative, executive or judicial, and each of these functions is to be performed by different branches of government. 170

170 Ramosa 2009 SACJ 365-367.

The judiciary is best suited to interpret and apply the law in order to take the developing mores of society into account. Common law is judge-made law. 172

172 Fagan 2010 SALJ 612.

Section 39(2) fulfils a dual function: first, to ensure that there are guidelines in place to manage the development of the common law and second, to ensure that the values enshrined in the Constitution are infused in the common law. 177

177 K v Minister of Safety and Security 2005 9 BCLR 835 (CC) para 17.

Constitution does not expressly impose the obligation to develop the common law, but it does recognise that every court has the power to develop the common law and provides that if the court decides to develop the common law, they must do so with regard to the spirit, purport and objects of the Bill of Rights.

In K v Minister of Safety and Security the court identified the various ways in which the common law may be developed. The court can develop the common law (i) by changing a rule altogether; (ii) by introducing a new rule; or (iii) by determining whether or not a new set of facts falls within or beyond the scope of an existing rule. When the court decides to develop the common law in one of the aforementioned ways, the development must be done with regard to the spirit, purport and objects of the Bill of Rights. 180

180 K v Minister of Safety and Security 2005 9 BCLR 835 (CC) paras 14-18.

The issue at hand is that the common law "escape rule" can hamper the conservation efforts of the state since the state can lose ownership of those natural resources they are mandated to conserve and protect. In this instance, the court could, if it so wished, have changed the common law escape rule altogether. The court would then have had to decide that exercising its discretion is appropriate to promote the spirit, purport and object of section 24 of the Constitution. The second option available to the court was to create an entirely new rule dedicated to promoting the state's conservation efforts. This newly created law could have created a separate rule regarding the ownership and retention of ownership of wild animals that are the subject of conservation efforts by the state. The third option, and possibly the least intrusive option, could have been to merely determine that when the common law escape rule is read with the public trust doctrine and the various environmental and conservation statutes, it is possible to conclude that the law already provides for the distinction between wild animals that are held or kept for commercial purposes on the one hand and wild animals that are not held or kept for commercial purposes. 181

181 See the discussion on the close reading the GTA above.

Both the judiciary and the legislature are able to develop the common law. If the court decides that it is appropriate, desirable and in the interest of justice to develop the common law, it must do so with due consideration to the spirit, purport and object of the Bill of Rights. 182

182 The separation of powers doctrine, for example.

In matters regarding the conservation of natural resources such as the Cape Buffalo, it would be appropriate to develop the common law and provide a practical and positive solution, since the law already makes provision for conservation.

8 Discussion and concluding remarks

The intended purpose of this article was to investigate the possibility of further 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.

Background information on the matter was gathered from two consecutive court cases that dealt with the ownership of a valuable herd of Cape Buffalo that escaped from a protected area in the Eastern Cape. What followed was a cumbersome debate on the conditions for the application and the correct interpretation of section 2 of the GTA versus the application of the common law "escape rule" in the alternative, bearing in mind that the initial intended purpose of the GTA was to amend the common law "escape rule" to place the owners of game in a more favourable position when their game escapes from its enclosure. The central factor that contributes to this need is rooted in the contemporary importance of promoting the conservation of biodiversity. Neither one of the court cases thoroughly considered the possibility of further developing the common law in this regard. Even though the SCA's interpretation of section 2(2)(a) of the GTA significantly simplified the purpose and necessity of a certificate of enclosure as a means to retain ownership over escaped wild animals, it may possibly not be the last word on the matter in the future.

The analysis in this article on the possibility of developing the common law revealed that the abundance of biodiversity and the sheer size of protected areas in South Africa gives rise to the present-day legal significance of property rights in wild animals found in protected areas and warrant an in-depth conversation on the legislation that protects these rights. Whilst South African environmental laws do not pay special consideration to the protection of the ownership of wild animals found in protected areas managed by organs of state, the focus must be placed on revisiting the development of the common law to place protected areas managed by organs of state in a more favourable position when wild animals escape from these areas.

The necessity to revisit the development of the common law is highlighted by the discussion on the application of the GTA in the context of protected areas. A close interpretation of the definition of "game" in section 1 of the GTA demonstrated that protected areas managed by organs of state are excluded from the prospective protection against the loss of ownership of wild animals that the GTA provides. This is because, as explained above, protected areas managed by organs of state do not keep or hold wild animals for commercial or hunting purposes but rather to prioritise and ensure biodiversity conservation.

This shortcoming of the GTA compelled the need to re-examine the concepts of res nullius and res publicae, which revealed that res publicae may be regarded as the

ancient origin of the public trust doctrine in Roman law and can be used to further the conservation efforts of South African protected areas.

When analysing South African environmental law it was found that the public trust doctrine features prominently in South African environmental legislation pertaining to biodiversity conservation and protected areas and hence provides a practical recourse for the development of the common law in South Africa. One could argue that section 2(4)(o) of the NEMA (including section 3 of the NEMBA and section 3 of the NEMPAA) intends that all wild animals sufficiently contained in a protected area and managed by an organ of state should be classified as a sui generis form of res publicae to be held in trust by the state for the benefit and enjoyment of the people of South Africa. Hereby an unambiguous mandate and inseparable obligation is placed on relevant organs of state to hold the environment and all its various components in trust for the use and benefit of present and future generations as their common heritage. Furthermore, according to section 24 of the Constitution, it is required of organs of state as trustees of the public trust to actively pursue the management, conservation and protection of biological resources and protected areas by taking positive legislative and administrative action when performing their enforcement duties. This inalienable responsibility to protect these public rights should be regarded as of paramount importance and should not be viewed as subordinate or inferior to the protection of private rights.

Both the protected area as well as the biological resources found in the protected area could easily be reclassified as res publicae either by the courts' development of the common law or by legislative intervention. 183

183 As indicated above, the argument can be made that the land area of protected areas (and not necessarily the biological resources thereon) is already considered res publicae.

It could be argued that the responsibility to develop the common law vests in the legislature, as commented by the court a quo, but the scope of the envisioned development would be limited, and since the concepts of res publicae and the public trust doctrine are already firmly rooted in law, this would not amount to law-making. The envisioned development of the common law would therefore simply give practical effect to the public trust doctrine contained in our law.

When considering the possibility of further 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 an organ of state; the following concluding findings are made:

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List of Abbreviations