Johannes Jacobus Appelgryn N.O. and Another v Doctor A Jankielsohn and Others

The applicants were trustees of the Two AA Trust, which owned Farm Pielanshoek in the Bethlehem district. The Trust conducted game farming operations on the property, which was specially fenced and certified for game farming. In 2008, the Trust purchased 30 Red Lechwe Antelope (an exotic species from Zambia, not endemic to South Africa) for R135,000. The animals bred and multiplied over the years. In 2016, the applicants discovered that some antelopes were missing. They obtained a court order to capture 17 antelopes from Rendezvous Farm, but during the operation, several antelopes escaped to neighboring farms, including the first respondent's Farm Bruwershoop. The first respondent, Dr. Jankielsohn, claimed she had observed Red Lechwe on her property since 2006 (before the Trust's purchase) and that they were wild, ownerless animals (res nullius) that she was entitled to possess without permits or game fencing. She refused the applicants access to capture the antelopes. The applicants sought an interim interdict to enter various farms (including the first respondent's) to capture, mark and remove the antelopes to a central location pending resolution of ownership disputes through interpleader proceedings.

• Whether the applicants established the requisites for an interim interdict (prima facie right, irreparable harm, no alternative remedy, and balance of convenience)
• Whether escaped game animals remain the property of their owner or become res nullius (ownerless)
• The application of the Game Theft Act 105 of 1991, specifically section 2 regarding ownership of escaped game from sufficiently enclosed land
• Whether the Red Lechwe Antelope constituted an 'alien species' under the National Environmental Management: Biodiversity Act 10 of 2004 (NEMBA)
• Whether possession of alien species without a permit constitutes 'restricted activities' under NEMBA
• Whether the first respondent was entitled to possess alien species without appropriate permits or adequate game fencing
• Whether interpleader proceedings could be appropriately adapted to resolve competing claims to unmarked game animals
• Various preliminary objections including lis pendens, lack of authorization, and procedural challenges

The application was granted. The applicants were authorized to enter seven specified farms (including the first respondent's) to search for, capture, mark and remove Red Lechwe Antelope found on those properties. The captured antelopes were to be detained on the second respondent's Farm Hulp pending interpleader proceedings. Any party could lodge claims within 14 days of delivery of the antelopes, triggering formal interpleader proceedings under Rule 58. The fourth respondent (provincial environmental authority) was directed to authorize the operation. The first respondent was ordered to pay the costs of the application. All preliminary objections and the application to strike out were dismissed.

The binding legal principles established are: (1) Under section 2(1)(a) of the Game Theft Act 105 of 1991, a person who keeps game on land that is sufficiently enclosed (as evidenced by a certificate) does not lose ownership of that game if it escapes. Escaped game does not become res nullius but remains the property of the certified owner. (2) Red Lechwe Antelope, being non-indigenous to South Africa, constitute an 'alien species' under the National Environmental Management: Biodiversity Act 10 of 2004. (3) Possessing, breeding, propagating or receiving alien species without a permit issued under section 65 of NEMBA constitutes 'restricted activities' that are prohibited, regardless of whether the possessor claims the animals are wild or exercises control over them. (4) A person engaging in restricted activities in contravention of NEMBA has no locus standi to resist lawful recovery efforts by permitted owners and possesses 'unclean hands' that preclude equitable relief. (5) Interpleader proceedings under Rule 58 may be creatively adapted to resolve competing claims to game animals where ownership cannot be immediately determined due to lack of identifying marks, provided the procedure is fair and no injustice results. (6) For an interim interdict, a prima facie right (even if open to some doubt) is sufficient at the initial stage, particularly where disputes will be finally determined at a subsequent hearing.

The court made several non-binding observations: (1) It noted that at common law, wild animals in a state of natural freedom are res nullius and can be acquired by occupatio (capture) regardless of where capture occurs, even on another's land without permission, though the landowner may claim damages for trespass. (2) The court observed that the first respondent's version was inconsistent and unconvincing, noting discrepancies between her affidavit and earlier correspondence regarding when she acquired the property and the number of antelopes present. (3) The court commented favorably on the applicants' proposal to mark captured animals distinctively and maintain them at their expense, viewing this as evidence of good faith. (4) The judgment praised 'thinking out of the box' and judicial flexibility in applying procedural rules dynamically rather than rigidly, stating that law is not static and judges must sometimes adopt creative approaches to resolve disputes expeditiously. (5) The court noted that the first respondent's admirable deeds of providing sanctuary and care to animals, while well-intentioned, nonetheless constituted restricted activities under NEMBA. (6) The court observed that as an ecologist, the first respondent should have documented the population growth of the exotic antelopes, and the lack of such documentation weakened her version. (7) The court expressed the view that none of the other respondents opposed the application, suggesting implicit support for the proposed procedure.

This case is significant for South African environmental and property law as it clarifies several important principles: (1) It affirms that section 2 of the Game Theft Act 105 of 1991 protects ownership rights in escaped game from certified enclosed land, preventing such animals from reverting to res nullius status under common law. (2) It interprets the National Environmental Management: Biodiversity Act 10 of 2004, holding that possession of alien species without permits constitutes restricted activities that are prohibited, regardless of claims that the animals are 'wild' or that the possessor exercises no control. (3) It demonstrates judicial willingness to apply procedural rules creatively and flexibly to achieve practical justice, specifically adapting interpleader proceedings to resolve complex disputes over unmarked game animals. (4) It establishes that persons engaging in prohibited activities under NEMBA have no locus standi to resist lawful recovery efforts due to their 'unclean hands'. The judgment balances property rights, conservation imperatives, and procedural fairness in the context of game farming with exotic species.