Frontier Safaris (Pty) Ltd v Government of the Republic of Ciskei

• Jurisdiction: South Africa
• Judge: Heath J
• Judgment Date: 05 October 1995
• Citation: 1996 (3) SA 1069 (CkS)
• Docket Number: 181/94
• Hearing Date: 31 August 1995
• Counsel: D A Gordon SC (with him K V Matthee) for the plaintiff. G D van Schalkwyk SC (with him J W Eksteen) for the defendant.
• Court: Ciskei Supreme Court

Heath J:

In this matter the plaintiff has instituted various claims against the defendant C arising out of what could be briefly stated as breach of contract.

When the contract was signed on 24 November 1989 it was signed by one F B Burchell on behalf of a company to be formed, which company was eventually registered as the present plaintiff.

D At that stage, in terms of the provisions of the Nature Conservation Act 10 of 1987, the government (defendant) was the owner of three national nature reserves established in terms of the provisions of s 23 of Act 10 of 1987 (Nature Conservation Act). The full description of the national nature reserves is provided for in Schedule 9 to the Act.

The contract was, according to the description on the first page thereof, entered into 'in E respect of the lease, administration and management of game reserves'. In terms of para B on the second page of the contract it was stated that, 'Burchell has agreed to lease the reserves and to perform certain further services for and on behalf of the government subject to the terms and conditions set out hereinafter and the parties wish to record these terms; . . .'.

F Clause 1.1 of the contract reads as follows:

'1.1 Term of lease

Burchell agrees to lease from the government the reserves, wild animals, fixtures and rights referred to in para 2 of this agreement, for a period of 40 years commencing on the commencement date as set out herein and terminating 40 G years thereafter to the day.'

Clause 2 of the contract reads as follows:

'2. Property subject to the lease

2.

The following property shall be subject to the terms of the lease:

2.1

H That area of land proclaimed in terms of the provisions of the Nature Conservation Act 10 of 1987 to wit:

2.1.1

Tsolwana Game Reserve;

2.1.2

Lennox Sebe Game Reserve;

2.1.3

Mpofu Game Reserve,

which properties are more fully described in the annexure hereto marked "P D".

2.2

I The wild animals which at the time of commencement are contained in the reserves (the parties acknowledge for the purposes of this agreement that the wild animals are capable of being owned).

2.3

Fixtures in the form of fencing, buildings and attachments thereto, windmills and other improvements.

2.4

In respect of the farm Lily Fountain, Burchell shall further have the right to occupy and use, for the purposes contemplated by J this

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A agreement, the residence, outbuildings and services on the farm and to use for the purposes of wildlife utilization, the said farm as detailed in annexure "B".

2.5

Burchell further agrees to endeavour to maintain the relationship existing between the Tsolwana Reserve Authority and the Hinana Tribal Authority in respect of hunting rights over the B Hinana Tribal Resource Area falling under their jurisdiction.'

The rental payable in terms of the agreement amounted to R10 000 per annum.

The provisions of clauses 5, 6 and 7 are also relevant and I quote these paragraphs:

C '5. Infrastructure

5.1

The government undertakes to attend to the provision of the following elements of bulk infrastructure in accordance with acceptable engineering standards:

5.1.1

Main access roads within the reserves as well as from the D perimeter to adjacent national roadways.

5.1.2

Fencing of the perimeter of the reserves as envisaged by the loan agreement entered into as between the government of the Republic of Ciskei and the Development Bank of Southern Africa (a copy of which is annexed hereto marked "A") and dated 4 July 1989.

5.1.3

Bulk water supplies in the form of main storage dams.

5.1.4

Viewing roads which will be identified and agreed to on structure E plans by consultation between the parties.

5.1.5

The erection of gate houses and entrance gates as may be reasonably required by the reserves.

5.2

The government further undertakes to:

5.2.1

Attend to the maintenance of law and order within the reserves F and this will include the administration and observance of the provisions of the Nature Conservation Act 10 of 1987.

5.2.2

Re-settle all persons presently settled on farms in the areas incorpo-rated by the reserves.

5.2.3

Ensure the prevention of poaching and trespassing.

5.2.4

G Maintain the infrastructure as specified in para 5.1.

5.3

The parties record as a term of this agreement that the government will implement the terms of the Development Bank of Southern Africa project loan agreement, a copy of which is annexed hereto marked "A" and dated 4 July 1989, in close consultation with Burchell and will execute the works in accordance with acceptable engineering standards.

6.1

H Burchell undertakes to attend to the maintenance of the following elements of infrastructure in accordance with acceptable standards:

6.1.1

Surface drinking water, as well as the maintenance and upkeep of windmills, boreholes and small dams.

6.1.2

The maintenance of hunting access roads.

6.1.3

Maintenance of game farming infrastructure and buildings.

6.2

Burchell further undertakes the following obligations and responsibilities:

6.2.1

I The collection of all gate moneys as more fully provided in para 8.3.

6.2.2

The management and utilisation of wild animals and game in accordance with acceptable standards recognised in this discipline which shall be recorded in Game and Resource Management Plans, provided that the said Game and Resource Management Plans shall not in their interpretation and J application take precedence over this agreement.

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6.2.3

A The development and control of fauna and flora according to acceptable standards within the discipline.

6.2.4

Tick and vermin control.

6.2.5

The continuation and development of game and trophy hunting operations.

6.2.6

The continuation and development of tourism in the form of game B viewing and photographic safaris in accordance with the resource management plans referred to in clause 4.2.2.

7.1

Burchell further, as part and parcel of this agreement, agrees, subject to the provisions of clause 20.1, 20.2, 20.3 and 20.4, to generally assume responsibility for the management and maintenance of the C reserves in accordance with acceptable standards, and more particularly, agrees and undertakes to:

7.1.1

Employ and pay all staff necessary to administer and maintain the reserves (save for the employment of law enforcement officers and staff retained by the government for the purposes of meeting its obligations in terms of this agreement).

7.1.2

D To supply those persons resident on and adjacent to the reserves with surplus meat at a privileged rate as and when this may be available.

7.1.3

Permit local residents, under supervision, to obtain certain herbs for their own use where this is feasible and not objectionable to the good management of the reserves.

7.1.4

Permit local residents under supervision to collect thatching grass where this is feasible and not objectionable to the good E management of the reserves.

7.1.5

Permit local residents to collect firewood under supervision where this is feasible and not objectionable to the good management of the reserves.

7.1.6

In consideration for hunting on the Hinana Tribal Resource Area, to pay the said authority a mutually agreed percentage of F the daily rates and hunting fees for this activity.

7.2.1

Burchell further agrees to instruct Ciskei citizens employed by him in the reserves in their respective duties, crafts and trades, in order that they may in due course be duly qualified in the various aspects of the management of the reserves.

7.2.2

G Burchell specifically undertakes on written request of the Ciskeian Government to train Ciskeians to key posts such as buyers, managers, caterers in order that the control of the reserve may in due course be placed entirely in the hands of Ciskeians. (The Ciskei Government will upon consultation reimburse Burchell for any costs incurred in such training schemes.)'

H From these clauses it is clear that the plaintiff undertook certain management and maintenance and other tasks.

For the purposes of this judgment it is only relevant to consider the second alternative to the defendant's second special plea as this is the only special plea that the defendant has I proceeded with as a point in limine after certain other preliminaries had been disposed of. I quote the second alternative plea:

'2.13

Subsection 25(1) of the Ciskei Nature Conservation Act 10 of 1987, as amended, provides as follows:

"The control, maintenance, development and management of a national nature reserve shall vest in the Department of Agriculture, Forestry and Rural Development, which shall be competent to J exercise

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A all or any of the powers mentioned in ss (2) of this section or which are otherwise necessary for the attainment of the objects described in s 24."

2.14

The written agreement, annexure "A" to the plaintiff's particulars of claim, purports to divest the said department of the control, maintenance, development and management of the three national nature reserves mentioned B therein.

2.15

Defendant avers that the Government of the Republic of Ciskei was in law not competent to conclude a contract in such...