Mathenjwa NO and Others v Magudu Game Company (Pty) Ltd (258/08) [2009] ZASCA 57; 2010 (2) SA 26 (SCA) ; [2009] 4 All SA 15 (SCA) (28 May 2009)

Mathenjwa NO and Others v Magudu Game Company (Pty) Ltd (258/08) [2009] ZASCA 57; 2010 (2) SA 26 (SCA) ; [2009] 4 All SA 15 (SCA) (28 May 2009)

The Supreme Court of Appeal held that the respondent acquired ownership of all the game in the reserve. The court found that the parties had the common intention for ownership to pass to the respondent, and delivery occurred when the internal fences were dropped, allowing the game to intermingle and roam freely within the reserve. The upgraded electrified perimeter fence provided sufficient control over the game, satisfying the common law requirements for ownership. The agreements and conduct of the parties, including exclusive rights to hunting and management, financial treatment of game as assets, and hunting concessions, supported the inference of ownership. The respondent did not lose...

Citation
[2009] ZASCA 57
Parties
Appellant: Mkithi Japhet Mathenjwa NO; Appellant: Jere Olpas Gumbi NO; Appellant: Emmanuel Cebo Gumbi NO; Appellant: Gugu Sydney Gumbi NO; Appellant: Gqamangaye Michael Gumbi NO; Appellant: Bhinja Mikayeli Mathenjwa NO; Appellant: Mandla Elliot Gumbi NO; Appellant: Londo Israel Gumbi NO; Appellant: Ntombemhlophe Elizabeth Ngcamphalalai NO; Appellant: Mbekiseni Zeblon Gumbi NO; Appellant: Sindosowe Monica Mathenjwa NO; Respondent: Magudu Game Company (Pty) Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 May 2009
Case Number
258/08
Procedural Posture
Civil Appeal / Appeal From the High Court, Pietermaritzburg
Outcome
Appeal dismissed with costs.
Judges
Streicher, Nugent, Lewis, Ponnan, Kroon
Legal Topics
Ownership of Wild Animals, Passing of Ownership, Abstract Theory of Transfer, Game Farming, Constructive Delivery
Land and Property Commercial and Corporate Ownership of Wild Animals Passing of Ownership Abstract Theory of Transfer Game Farming Constructive Delivery

Case Brief

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Parties

Mkithi Japhet Mathenjwa NO

Appellant

Jere Olpas Gumbi NO

Appellant

Emmanuel Cebo Gumbi NO

Appellant

Gugu Sydney Gumbi NO

Appellant

Gqamangaye Michael Gumbi NO

Appellant

Bhinja Mikayeli Mathenjwa NO

Appellant

Mandla Elliot Gumbi NO

Appellant

Londo Israel Gumbi NO

Appellant

Ntombemhlophe Elizabeth Ngcamphalalai NO

Appellant

Mbekiseni Zeblon Gumbi NO

Appellant

Sindosowe Monica Mathenjwa NO

Appellant

Magudu Game Company (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From the High Court, Pietermaritzburg

Legal Issues

  1. 1 Whether the respondent acquired ownership of the wild game on the trust properties when the internal fences were removed.
  2. 2 Whether the respondent retained or lost ownership of the game after the trust properties were transferred to the appellants.
  3. 3 Whether the agreements between the parties evidenced the requisite intention and delivery for transfer of ownership of the game.

Ratio Decidendi

The Supreme Court of Appeal held that the respondent acquired ownership of all the game in the reserve. The court found that the parties had the common intention for ownership to pass to the respondent, and delivery occurred when the internal fences were dropped, allowing the game to intermingle and roam freely within the reserve. The upgraded electrified perimeter fence provided sufficient control over the game, satisfying the common law requirements for ownership. The agreements and conduct of the parties, including exclusive rights to hunting and management, financial treatment of game as assets, and hunting concessions, supported the inference of ownership. The respondent did not lose...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.
  • The respondent retains ownership of all specified game on the trust properties.