Reflections on the concurrence of the remedies in terms of the reformed Pound legislation and the actio de pastu

Van der Merwe, C. G. (2014-01)

CITATION: Van Der Merwe, C.G. 2014. Reflections on the concurrence of the remedies in terms of the reformed Pound legislation and the actio de pastu. Stellenbosch Law Review = Stellenbosch Regstydskrif 25(3):612-627.

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A landowner who finds animals trespassing on his land has the following alternatives: he can chase the animals off the land; impound the animals; or institute the actio de pastu for monetary compensation for damage caused to his land. Administrative proceedings under the pound ordinances were cheaper and speedier than action proceedings under the actio de pastu. After impoundment, the poundkeeper could sell the animals, without giving notice to the owners, and compensate the landowner for damage from the proceeds of sale. The constitutional validity of certain of the above provisions incorporated in the Natal Pound Ordinance 32 of 1947 was successfully challenged in the High Court of KwaZulu-Natal and confirmed by the Constitutional Court in 2005 in Zondi v MEC for Traditional and Local Government Affairs 2005 3 SA 589 (CC). The consequences of Zondi were that the administrative proceedings sanctioned by the Natal Pound Ordinance were replaced by judicial proceedings after impoundment through their rules over the process of execution, denied by the Natal Ordinance; assessment of damages caused by stray stock can no longer be made by private persons but must be incorporated in the judicial process established for supervising the process of impoundment; and the landowner and the poundkeeper are henceforth required to exercise care to identify the stockowner and to notify him or her at all stages of the execution process of what is happening to his or her stock. As a result of Zondi the KwaZulu-Natal Pound Act 3 of 2006 replaced the Natal Pounds Ordinance of 1947 with new legislation which would satisfy the constitutional dictates of Zondi. It is concluded that although the KwaZulu-Natal Pound Act has placed constitutional burdens on the landowner, the fact that it allows motion proceedings to found a judgment debt, means that impoundment proceedings would still be speedier than the action procedure under the actio de pastu.

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