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Private ownership of wildlife in South Africa

24 February 2015

www.leopard.tvThe extensive wildlife production industry in South Africa has largely been built on a single change of legal status of wildlife in 1991. Although the first documented auction of live wildlife occurred in Bloemfontein in the then Orange Free State in April 1874, when among others zebras (quaggas), blesbok, springbok, wildebeest, greater kudus and steenbok were sold, all wildlife reverted to res nullius and became the property of the state in the constitution of the Union of South Africa in 1910. Until 1991, wildlife producers therefore had no legal claims of ownership of any wild animals that escaped or were stolen from their properties. However, in 1988, the extensive wildlife producers, as then represented by the National Game Organization, were addressed by the then President P W Botha of South Africa at their Annual General Meeting. As they were experiencing considerable theft of wildlife in specific regions, they requested that the national government examine the possibility of legislation that was specifically aimed at the theft of wildlife.

www.leopard.tvPresident Botha requested the South African Law Commission to look into this request and it subsequently reported to the National Game Organization executive on possible changes to the legal status of wildlife on those wildlife ranches that were fenced with wildlife-proof fences according to the specifications that were set by the various provincial conservation authorities. This eventually led to the promulgation of the Game Theft Act of 1991 (Act 105 of 1991), the aim to which was to confer the ownership of wildlife to bona fide wildlife ranchers, and to regulate the theft, illegal hunting and capture of such wildlife. In this Act, right of private ownership of wildlife was only conferred to a wildlife producer who could prove ownership in case of dispute. It also exempted such a wildlife producer from certain provincial ordinances regarding the use of wildlife on his property. Among others, exemption certificates allowed the hunting and capture of wildlife throughout the year provided that the procedures being used and existing environmental conditions do not cause suffering in the wildlife. The exemption certificates are valid for of three years before renewal is necessary. This Act has since been augmented to allow wildlife producers to qualify for exemption under strict guidelines when hunting protected or threatened species and subspecies according to TOPS (Threatened or Protected Species) regulations which provide uniform protection at the national level for specific listed types of wildlife for specific activities.

www.leopard.tvThe Game Theft Act has been amended by the Justice Laws Regulation Act (Act 18 of 1996) and the Judicial Matters Amendment Act (Act 62 of 2000) and was updated in 2002 with the aim to refine and regulate the ownership of game in specific instances, to capture and keep such wildlife and to provide for matters relating to such matters. It defines game as any wild animal that is being kept or held for commercial hunting purposes and includes the meat, skin, carcass or any portion of the carcass of such game. By definition then, the term game only refers to animals that are being hunted while the term wildlife refers to al wild animals.

www.leopard.tvThe wildlife producer only retains ownership of his game when he, or someone on his behalf, holds the game on land that is sufficiently enclosed according to a certificate of the Premier, or his assignee, of the province in which the land is situated. This certificate allows the wildlife rancher to confine to his land the types of game that are set out in the exemption certificate. However, ownership also applies to game in a pen, a boma, in or escapes from a vehicle. Another set of regulations, however, concern and define hunting and specifically forbids the hunting of wildlife under a whole range of conditions, including so-called canned hunting.

www.leopard.tvThe ownership of game is not legally vested in any person who hunts, catches or takes possession of wildlife without the consent of the owner or lawful occupier of land. The Game Theft Act specifically designates the entering of land, dispersing or killing of game animals with the intent to steal or disperse them as being illegal and tantamount to an attempt of theft, including to do so without physically entering another person’s land.

The Game Theft Act confers the right of arrest to any peace officer as defined in the Criminal Procedure Act (Act 51 of 1977 as amended) or the lawful occupier of the land upon which the game occurs. Such arrest can be done without a warrant of arrest when such action is based upon a reasonable suspicion of any offence.

www.leopard.tvThese officers, or the legal occupiers of the land that are involved, may also search any receptacle or vehicle, remove any covering and arrest any person who is in possession of such stolen goods and may seize the game, receptacle, covering or vehicle that is involved in a transgression. Such an offender, the game, receptacle, covering or vehicle should then be taken to a police station or charge office as soon as possible. However, malicious arrest under the pretext of this Act may cause the initial arresting person to be arrested and charged with an offence in turn. The jurisdiction of the magistrates’ courts in respect of sentencing is also described in this Act.

The allowable compensation for theft and damage appears in the relevant provisions of the Criminal Procedure Act (Act 51 of 1977 as amended) or as published in the most recent Government Gazette. If charge of game theft is not proven but involves game that are regarded as livestock then the Stock Theft Act (Act 57 of 1959 as amended) becomes applicable. In both game and livestock production, the Biodiversity Act (Act 10 of 2004) remains applicable.

 

References:

Anon 2002. Game Theft Act. Cape Town: Government Gazette 23548.

Bothma, J du P, H Suich and A Spenceley 2009. Extensive wildlife production on private land in South Africa. In H Suich, B Child and A Spenceley (Eds). Evolution and innovation in wildlife conservation. London, Earthscan, pp. 147 – 161.

Du Toit, J G In Press. Legislation and codes of conduct. In J du P Bothma and J G du Toit (Eds), Game ranch management, sixth edition. Pretoria: Van Schaik.

 

article by Prof J du P Bothma

 

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