THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No:  293/06
NOT REPORTABLE

In the matter between:

G A STRYDOM                                                FIRST APPELLANT
W D LA GRANGE                                       SECOND APPELLANT

v

B J LIEBENBERG                                                   RESPONDENT

Coram:
Scott, Cachalia JJA et Kgomo AJA

Heard:
13 September 2007

Delivered: 25 September 2007

Summary:
Vindicatory action for return of game over which plaintiff claimed ownership.
Plaintiff’s properties but not the game thereon sold to private persons. Held plaintiff
entitled to claim the game, but not its value as it was not possible to apportion the
value of the game between the purchasers of the properties.

Neutral citation:
This judgment may be referred to as Strydom v Liebenberg
[2007] SCA 117 (RSA)

CACHALIA JA

[1] The respondent instituted a vindicatory action in the Pretoria High
Court against the first and second appellants for the return of a quantity of
different species of game alleged to be on their properties or payment of
the value of the game from the appellants jointly and severally. The High
Court (De Vos J) ordered the appellants to return to the respondent all
game on their properties and did not deem it necessary to deal with the
respondent’s claim for payment of their value. The appeal and cross-
appeal, with the High Court’s leave, is against this order. It will be
convenient to refer to the parties as they were during the trial, as plaintiff
and defendants.

[2] The relevant facts for the determination of this appeal are briefly
the following. The plaintiff was the original owner of portions 11 and 14
of the farm Blaauwbank. He was also the sole shareholder and director of
the company, Klein Bokkeplek Boerdery (Pty) Ltd, which owned
portions 7 and 2 of the farm. The four portions are adjacent to each other.
The plaintiff erected ‘game proof’ fencing around its perimeter thus
creating since 1997 a 140 hectare rectangular unit. A cattle fence (non-
game proof) divided the plaintiff’s portions from those of the company.

[3] The plaintiff purchased a variety of species of game for the farm.
This included ‘rooibokke, waterbokke, blesbokke and rooihartebeeste’.
He thus owned the game, valued in his February 2000 financial statement
at R250 000. He conducted a game-hunting business through the
company but retained ownership of the animals. He also hunted on the
farm with his family and occasionally with his friends. The game roamed
freely over the four portions and through a cattle gate on the cattle fence.

[4] In 2001 the plaintiff placed the company in liquidation following
its financial difficulties. The liquidator sold portions 2 and 7 to the first
and second defendants respectively in November. It is clear from the
plaintiff’s evidence, and that of the auctioneer who conducted the sale,
that the game was not included in the sale. And before us counsel for the
defendants eschewed any suggestion that they had purchased any game as
part of the agreement. Shortly after the defendants had taken occupation
of the two portions the first defendant erected a fence between portions 2
and 7, effectively preventing the plaintiff any access to the game on
portion 2. The second defendant also denied the plaintiff access to portion
7 thereby cutting him off from access to his game there as well.

[5] It was contended on behalf of the defendants that on the company’s
liquidation, and the liquidator’s assumption of control over portions 2 and
7, the plaintiff lost ownership of the game because he no longer exercised
control over the game there. The game thus, so they contended, became
res nullius (ownerless). This contention is without merit. The game
remained confined within the four portions that had been fenced and did
not revert to their natural state. The liquidator made no claim to the game.
And the fact that the plaintiff pledged the game as security for a loan of
R500 000 from Absa Bank is the clearest indication that he did not
relinquish ownership of the game.

[6] I return to the facts. During August 2003 the plaintiff sold his two
portions (11 and 14) to Willem and Rudolf Brits. The agreement stated
that they would assume ownership on the 15th; that the game currently on
those portions would form part of the sale and that the plaintiff would
erect, at his own expense, a game fence which would separate portion 11

from the second defendant’s property, portion 7. The plaintiff, however,
erected the fence only afterwards.
[7] The significance of the date of delivery is this: If it occurred on the
15th as the defendants contend it did, then the game on portions 14, 11
and 7 would have intermingled and none could be identified as the
plaintiff’s. This is because the game roamed freely on these portions and
through the cattle gate between portions 11 and 7 and it would thus not be
possible to distinguish the game that remained on portion 7 from that on
portions 14 and 11. If, however, delivery occurred at a later date, that is
when the plaintiff erected the fence, he could distinguish the game of
which the Brits’s became owners from that which remained on portion 7
over which, he asserts, he never relinquished control. The plaintiff
testified that he and the Brits’s had agreed that delivery would take place
when the fence was erected and it was accepted by them that the game
they acquired pursuant to the sale was the game on portions 11 and 14
following the erection of the fence.

[8] In my view there is no basis for going behind the plaintiff’s
evidence on this aspect because the erection of the fence was the only
practical way of effecting delivery of the game to the Brits’s. The
defendants argue that the plaintiff’s evidence should have been
disregarded because of its inadmissibility under the parol evidence rule.
But this argument overlooks that the evidence relates to the issue of
delivery, ie the passing of the ownership, not the enforcement of a
contract. The plaintiff therefore remained the owner of the game on
portion 7 after the fence was erected.

[9] The defendants contend, in the alternative, that they were bona fide
possessors and were therefore entitled to the game’s progeny after the

erection of the two game fences between portions 2 and 7 and portions 7
and 11. And the fact that, so they contend, the progeny is not capable of
being distinguished from the original game also means that the plaintiff
cannot succeed with its vindicatory action. The plaintiff’s evidence,
however, shows quite clearly that both defendants were aware that he had
never relinquished ownership over the game. In the case of the first
defendant this was made clear to him during the negotiations preceding
his purchase of portion 2, and in the case of the second defendant when
the game fence was being erected between portions 2 and 7. It is also
improbable that the defendants could have believed that they had
acquired ownership of the game by the simple expedient of purchasing
their respective properties. They knew they had not purchased the game.
They were aware, too, of its considerable value and the plaintiff’s claim
to ownership. In my view the evidence shows them not to have been bona
fide possessors.

[10] In prayer 1 of the particulars of claim the plaintiff claimed delivery
of the game referred to in para 4. Counsel for the defendants submitted
that in the event this court upholds the plaintiff’s right to vindicate his
property the order of the court below must be amended to order the
defendants to return only the specific game claimed in para 4 of the
particulars of claim. I cannot agree with this submission. As the court
below pointed out, prayer 1 was clearly a mistake. Paragraph 4 must be
read with paras 8 and 10 of the particulars and with the evidence.1 Read

1‘4.
Te alle relevante tye was die eiser die eienaar van die volgende diere met die volgende
markwaardes:
4.1
12 Roohartebeeste teen R3,000 stuk

R  36,000.00
4.2
8 Blesbokke teen R700 stuk

R    5,600.00
4.3
100 Rooibokke teen R500 stuk

R  50,000.00
4.4
10 Koedoes teen R1,500 stuk

R  15,000.00
4.5
35 Waterbokke teen R6,000 stuk

R210,000.00
4.6
4 Volstruise teen R1,500 stuk

R    6,000.00

thus it is clear from the particulars of claim that the plaintiff’s action was
aimed at securing from the defendants the return of all game on portions
7 and 2, not only those mentioned in para 4. The case was quite clearly
conducted on this basis. The court below was therefore correct to make
the order it did.

[11] In the cross-appeal the plaintiff asks for the value of the game
based on an estimate of the number of game that is likely to be on the
defendants’ properties.  The estimate was based on the plaintiff’s records
and expert testimony of the projected number of game on the two farms.
The plaintiff’s insurmountable difficulty is that neither he nor his expert
provided any indication as to the exact numbers or even proportion of
game on each of the two portions. The defendants do not own the
portions jointly and can thus not be jointly liable for the value of any
unreturned game. In these circumstances a court cannot apportion
between the defendants any value for the game. The cross-appeal must
therefore also fail.

TOTALE WAARDE:
R322,000.00
5.
. . .
6.
. . .
7.
. . .

8.
Sedertdien het die eerste verweerder geen verdere diere van voormelde aard na Gedeelte 2 van
die Plaas Blaauwbank gebring en vrygelaat nie, en die tweede verweerder het geen verdere
diere van voormelde aard na Gedeelte 7 van die Plaas Blaauwbank geneem en vrygelaat nie.

9.
. . .

10.
In die vooropstelling is die eiser teenoor elkeen van die verweerders geregtig op lewering van
alle diere van voormelde aard wat tans voorkom op gedeeltes 2 en 7 van die Plaas
Blaauwbank 241, JQ Noordelike Provinsie.’

[12] The following order is made:
The appeal and cross-appeal are dismissed with costs.

______________
A CACHALIA
JUDGE OF APPEAL

CONCUR:

SCOTT JA
KGOMO AJA

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA ALERT – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

MEDIA ALERT – G. A. Strydom and another v B. J. Liebenberg

From:
The Registrar, Supreme Court of Appeal

Date:
25 September 2007

Status:
Immediate

Please note that the media alert is intended for the benefit of the media
and does not form part of the judgement of the Supreme Court of Appeal

The Supreme Court of Appeal today dismissed an appeal against the judgment of the
Pretoria High Court ordering the appellants (Gustav Andries Strydom and Willem
Daniël Le Grange) to return a quantity of different species of game on their properties
to the respondent (Benjamin Jacobus Liebenberg).  The SCA also dismissed a cross-
appeal by Liebenberg for the value of any unreturned game. (The game was valued
at approximately R600 000.)

The facts briefly were these:  Liebenberg was the owner of portions 11 and 14 of the
farm Blaauwbank in the Brits District and also the sole shareholder and director of
the company, Klein Bokkeplek Boerdery (Pty) Ltd, which owned portions 7 and 2 of
the farm. ‘Game proof’ fencing was erected around its perimeter creating a unit. He
purchased a variety of species of game and conducted a game-hunting business
through the company but remained owner of the game. The four portions are
adjacent to each other. The game roamed freely over the four portions.

In 2001 Liebenberg placed the company in liquidation following its financial
difficulties. The liquidator sold portions 2 and 7 respectively to Strydom and

Le Grange. The game was not included in the sale. Shortly after taking occupation of
the two portions, they denied Liebenberg access to their properties thereby cutting
him off from access to his game.

The SCA rejected their argument that once the liquidator had taken control of
portions 2 and 7, Liebenberg lost ownership of the game because he no longer
exercised control over the properties and the game thereon. The court stated that the
clear indications that Liebenberg remained the owner of the game on the two
portions were that the property remained fenced, that the liquidator of the company
have made no claim to the game and that Liebenberg had pledged the game as
security for a loan of R500 000 from ABSA bank.

On 15 August 2003 Liebenberg sold his remaining portions (11 and 14) to Willem
and Rudolf Brits together with the game that was currently on those portions. At the
time of the sale the game on portions 11 and 14 intermingled with the game on Le
Grange’s property. The appellant’s argued that because the animals on those
portions had intermingled, none could be identified as belonging to Liebenberg. In
rejecting this argument the SCA held that Liebenberg’s erection of a game fence
between portions 7 and 11 distinguished the game on the Brits’s property from that
on portion 7, which Liebenberg owned.

The court also rejected their argument that they possessed the game in good faith
and were therefore entitled to its progeny. The SCA said that they had not purchased
the game and that they were aware not only of Liebenberg’s claim to ownership but
also of the game’s considerable value. They could thus not claim that they had
possessed the game in good faith.

The court, however, rejected Liebenberg’s claim for the payment for the value of the
game not returned to him because he had not proved what number of game was
respectively on Strydom’s and Le Grange’s properties.