Eastern Cape and Tourism Agency v Medbury (Pty) t/a Crown River Safari and Another (1466/2012) [2016] ZAECGHC 26 (5 May 2016)

IN

THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION – GRAHAMSTOWN

Case no: 1466/2012

Case Heard: 07/04/2016

Date Delivered: 05/05/2016

In the matter between:

EASTERN

CAPE AND TOURISM AGENCY

APPLICANT

and

MEDBURY (PTY) LTD t/a CROWN RIVER SAFARI 1ST

DEFENDANT

WILDLIFE

RANCHING SOUTH AFRICA Amicus Curiae

JUDGMENT

ON APPLICATION FOR LEAVE TO APPEAL

SMITH J:

[1] The plaintiff seeks leave to appeal to the Supreme Court of Appeal, alternatively to the Full Bench of the Eastern Cape Division, against my judgment delivered on 18 February 2016. The defendant opposed the application.

[2] Mr Buchanan SC, who appeared for the plaintiff, submitted that there are reasonable prospects that an appeal court may find that to interpret section 2(1)(a) of the Game Theft Act, 105 of 1991 (“the Act”) so as to extend protection against loss of ownership of escaped game only to land covered by a certificate of sufficient enclosure mentioned in section 2 (2)(a) of the Act, results in an absurdity not intended by the legislature. The contended absurdity lies in the fact that, interpreted in this manner, the section provides no protection in respect of land, which, although de facto sufficiently enclosed, has not been issued with the certificate of sufficient enclosure. He argued that there are reasonable prospects

that another court may find that a reasonable interpretation of that section would be that the protection against loss of ownership

extends to land which is in fact sufficiently enclosed, or in respect of which a current certificate mentioned in section 2(2)(a) of the Act had been issued.

[3] I do not agree. For the reasons mentioned in my judgment, when considered in the light of the accepted canons of construction, the

wording of the section allows for only one interpretation namely, that section 2(1)(a) of the Act limits protection against loss of ownership only to land in respect of which a certificate mentioned in section 2)(2)(a) had been issued. The construction contended for by the plaintiff is so far removed from the ordinary meaning of the wording of the section that it is really contending for a legislative act rather than a mere construction of the section. I do not think that there are reasonable prospects that another court may find differently.

[4] I am similarly of the view that there are no reasonable prospects that another court may find that the plaintiff has made out a case for the development of the common law. As mentioned in my judgment, the legislature has already amended the common law by virtue of the provisions of the Act. The plaintiff’s contention is in essence that it has not gone far enough in this regard. The appropriate course in such a case is the amendment of the legislation and not the development of the common law by the court. In the light of the fact that it is common cause that the Department of Environmental Affairs has undertaken a process that may result in the reform of the impugned common law rule, it is both unnecessary and inappropriate for the court to develop the common law in these circumstances. In the event, I have also found that the plaintiff has not made out a case for the contended alteration of the common law, and the court has not been provided with a satisfactory factual and scientific bases for such an undertaking. An ill-considered development of the common law, founded upon insufficient information, will do more harm than good, and could have numerous unforeseen (and perhaps even unfortunate) ramifications.

[5] I am accordingly not satisfied that there are reasonable prospects that another court may find that a proper case has been made out for the contended development of the common law.

[6] In the result the application for leave to appeal is refused with costs, including the costs of two counsel.

_____

J.E

SMITH

JUDGE

OF THE HIGH COURT

Appearances

Counsel for the Plaintiff : Mr Buchanan SC

Attorney for the Plaintiff : Netteltons

118A High Street

GRAHAMSTOWN

Ref: Mr Hart

Tel: 046 611 7149

Counsel for the Defendant : Mr Smuts SC

Attorney for the Defendant : Weyer Waldick and Willemse

c/o

Wheeldon Rushmere and Cole

199 High Street

Grahamstown

Ref: B Brody

Attorneys for the Amicus Curiae: McCallum Attorneys

87 High Street

Ref: M G McCallum

Date Heard

: 07 April 2016

Date Delivered : 05 May 2016