Reflections on the Concurrence of the Remedies in terms of the Reformed Pound Legislation and the Actio De Pastu

• Jurisdiction: South Africa
• Published date: 16 August 2019
• Citation: (2014) 25 Stell LR 612
• Pages: 612-627
• Author: CG van der Merwe
• Date: 16 August 2019

612

REFLECTIONS ON THE CONCURRENCE

OF THE REMEDIES IN TERMS OF THE

REFORMED POUND LEGISLATION AND THE

ACTIO DE PASTU

CG van der Merwe

BA LLB BA Hons (Oxon) BCL (Oxon) LLD

Senior Research Fellow, University of Stellenbosch; Emeritus Professor of Civil Law,

University of Aberdeen

1 Introduction

Under both the actio de past u1 and the administ rative procedure cater ed

for in the Provincial Pound Ordi nances2 or Regional Pound Acts,

3

compensation can be claimed by a la ndowner for damage caused by gra zing

and collater al damage to crops. A landowner who nds ani mals trespassing

on his land has the following alter natives: he can chase the anim als off the

land,4 impound the a nimals and can be eventu ally compensated for any loss

when the anim als are sold in execution by the poundkeeper. Alternatively

he may institute the ac tio de pastu for monetar y compensation for damage

caused to his land by gr azing and certain other forms of da mage.

Liability under both the a ctio de pastu and the pou nd legislation to pay

compensation is str ict. Fault need not be proved on the part of the owner of

the animal that cau sed the damage.5 A stray animal found on land may,

without fur ther ado, be impounded. However, in the past the landowner who

followed the administr ative procedure available under the pou nd ordinances

had certai n advantages. Compensation u nder the pound ordina nces could

be obtained without proof of the identity of the owne r of the trespassing

animals.6 The kind of damages which could be claimed under cer tain of

the pound ordinanc es was not limited to compen sation for damage caused

by grazing, but extende d to damage for the spread of infect ious diseases7

1 Se e in general CG van der Merwe & M Blackbe ard “Animals” in WA Jouber t & JA Faris (eds) LAWSA 1

2 ed (2003) paras 470- 474

2 Ca pe Pounds Ordinance 18 of 1938; Natal Pound Ordinance 32 of 1947; OFS Pound Ordinance 18 of 1952;

Transvaal Poun ds Ordinance 13 of 1972

3 Pou nds Act (Ciskei) 43 of 1984; Limpop o Pounds Act 3 of 2002; KwaZulu-Natal Pou nd Act 3 of 2006;

North West Ani mal Pounds Act 7 of 2010

4 T he landowner is not entitled t o impound animals in a p rivate camp on his or her land See Trys tam v

Knight 1922 NPD 186; Pounds Act (Ciskei) ss 5(4) an d 14(d); Lim popo Pound s Act s 23; Nort h West

Animal Pou nds Act s 5(6)

5 Se e dicta in Kock v Klein 1933 CPD 194 197; Constant v Louw 1951 4 SA 143 (C) 148

6 Mu rray v Behr (1906) 2 BAC 302

7 Ca pe Pounds Ordina nce ss 37-39

(2014) 25 Stell LR 612

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and the prematu re covering of mares, cows and ewes.8 Under the pou nd

ordinances the la ndowner could have the extent of the damage suf fered

determined by ext ra-judicial proceedings i n the form of two “disinterested

persons” nominated by him and the stockowner,9 or by the nearest justice

of the peace,10 as umpire, and t wo landowners as arbitrator s.11 The main

advantage of the admi nistrative proceedi ngs under the pound ordi nances

was, however, that such proceedings were ultim ately cheaper and speedier

than commencing jud icial proceedings under t he actio de pastu. After the

stray animals h ave been impounded, the pou ndkeeper has the author ity to

sell the animals, w ithout giving notice to the owners , and to compensate the

landowner for damage from t he proceeds of sale.12

The constitutional val idity of certain of the above provisions ta ken over

in the Natal Pound Ordina nce 32 of 1947 was successfully challenged in

the Hig h Court of KwaZulu-Natal. Thereafter the Constitutional Court was

approached t o conrm the invalidity of these provisions. In the High Court

judgment Kondile J made the following state ment:

“It has been asserted by the applicant that the apparent purpose of the offending provisions of the

ordinance is to facilitate, for no good reason, the deprivation of stockowners’ private property in an

environment of self-help to enrich landowners and poundkeepers. Further there is no evidence before

the Court to show that it is in practice impossible or unduly burdensome for the landowners to recover

damages from the stockowner. The common law action resulting from consumption of pasture (actio

de pastu) affords landowners and stockowners equal protection and benet of the law. It makes

the owner of an animal which has caused damage by grazing strictly liable. In the circumstances

there is no necessity nor justication for the oppressive and arbitrary decisions authorised by the

ordinance which inict immense and disproportionate hardship on the socially vulnerable landless

rural stockowners and impoverish them.”13

The aim of this contr ibution is to indicate which pound provisions t he

Constitutional Cou rt found to be invalid, and to determ ine whether it will still

be worthwhile for a landowner who nds str ay ani mals on his farm to pursue

the stockowner under the pou nd ordinances, in stead of instituti ng the actio

de pastu to recover compensat ion for damage caused by grazi ng. By way of

conclusion the effect of Zondi v MEC for Traditional and Local Governm ent

Affairs (“Zondi ”) on similar provisions in pound ordinances of the other

regions will be considered.

8 Unde r Natal Pound Or dinance s 28 a l andowner w ho find s a st allion, bu ll or ram tr espassing on land

reserved for his breedi ng stock of the same species i s entitled (withou t being requi red to prove da mage)

to addit ional tresp ass fees a s prescribe d Under Ca pe Pounds O rdinance s 41, t he landowner is entitled

to a fixed penalty for every stall ion, bull or ram so found The OFS Pound Ordinance s 45 provides for a

special pena lty to be paid to the la ndowner for the tr espass of any stall ion, bull, ram or goat- ram amongst

his or her breed ing stock See also Pou nds Act (Ciskei) s 9(2)(b)

9 Nat al Pound Ordinan ce s 29(1)

10 Under sch 1 of the Justices of the Peace and Co mmissioners of Oaths Act 16 of 1963, mag istrates,

additional m agistrates an d assistant magis trates can act a s justices of the peac e

11 Cape Pounds O rdinance ss 34(1) and 39

12 See the Cape Poun ds Ordinance s 70; Nat al Pound Ordinan ce s 38

13 Zondi v MEC for Tradit ional and Local Gove rnment Affairs 20 05 3 SA 25 (N) 37A-C

POUND LEGISLATION AND THE ACTIO DE PASTU 613

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