G A Strydom and W D La Grange v B J Liebenberg

The respondent (plaintiff) was the original owner of portions 11 and 14 of the farm Blaauwbank, and sole shareholder and director of a company that owned portions 2 and 7 of the same farm. The plaintiff erected game-proof fencing around the perimeter of all four portions, creating a 140 hectare unit, with only a cattle fence (non-game proof) dividing his portions from the company's. The plaintiff purchased various species of game valued at R250,000 in 2000, which he owned and which roamed freely across all four portions. In 2001, the company was placed in liquidation and the liquidator sold portions 2 and 7 to the first and second defendants respectively, without including the game in the sale. The defendants subsequently erected fences preventing the plaintiff from accessing his game on their portions. In August 2003, the plaintiff sold his portions 11 and 14 to Willem and Rudolf Brits, with the agreement that the game on those portions would form part of the sale once a game fence separating portion 11 from portion 7 was erected. The plaintiff claimed the return of his game from the defendants or payment of its value.

• Whether the plaintiff lost ownership of the game when the company went into liquidation and he no longer had physical access to portions 2 and 7
• Whether the game became res nullius (ownerless) when the liquidator took control of portions 2 and 7
• Whether delivery of the game to the Brits occurred on 15 August 2003 or when the game fence was erected
• Whether the defendants were bona fide possessors entitled to the game's progeny
• Whether the plaintiff was entitled to vindicate all game on the defendants' properties or only specific animals listed in the particulars of claim
• Whether the plaintiff could claim the value of the game jointly and severally from both defendants

Both the appeal and cross-appeal were dismissed with costs. The High Court's order requiring the appellants to return to the respondent all game on their properties was upheld.

The binding legal principles established are: (1) Ownership of game animals confined within game-proof fencing is not lost merely because the owner loses physical access to portions of the fenced area, provided the owner has not relinquished legal ownership and the game has not reverted to its natural state. (2) Game does not become res nullius simply because land on which it roams is sold to another party if the game was not included in the sale and remains confined. (3) A purchaser of land is not a bona fide possessor of game on that land if they are aware that the game was not included in their purchase and that another party claims ownership. (4) In vindicatory actions for the return of game, where game cannot be specifically identified or apportioned between multiple defendants who own separate properties, the court cannot order joint and several payment of the value of unreturned game, as the defendants' liability cannot be apportioned.

The court made observations regarding the interpretation of pleadings in the context of vindicatory actions, noting that prayer 1 should be read together with the substantive paragraphs of the particulars of claim and the evidence presented, rather than in isolation. The court also observed that evidence relating to the passing of ownership (delivery) is not subject to the parol evidence rule, as it does not concern the enforcement of contractual terms but rather the factual question of when ownership passed. The court noted that the erection of a game fence was 'the only practical way of effecting delivery of the game' in circumstances where animals roam freely across multiple portions of land.

This case clarifies important principles in South African property law regarding ownership of game animals on fenced properties. It establishes that ownership of game does not automatically transfer with the sale of land unless expressly included in the sale agreement. The case also demonstrates that loss of physical access to property does not necessarily result in loss of ownership, particularly where the owner has taken steps to maintain control (such as fencing) and has not relinquished legal rights (such as by pledging the property as security). The judgment provides guidance on when game becomes res nullius and the requirements for bona fide possession of game animals. It also illustrates the practical application of vindicatory actions in the context of movable property (game) on immovable property owned by different parties.