By Duncan Wild on 12 April 2014

In this case certain sections of the Pounds Ordinance, no 18 of 1938 (“the Ordinance“) which deals with the impoundment of livestock are challenged on various grounds, including its violation of the rights to equality, against the arbitration deprivation of property, to just administrative action and to the right of access to courts.

The Ordinance provides for the establishment of municipal pounds and the appointment of poundmasters. It provides that stray animals found on private property may be sent by the owner of that property to a pound, and for the impoundment of unattended animals found in public places.

The High Court found the Ordinance to be invalid, and the decision went for confirmation to the Constitutional Court.  The Constitutional Court, however, in a unanimous decision authored by Dambuza AJ, found that the as the Ordinance did not amount to a “provincial act”, the High Court’s finding of invalidity did not require confirmation by the Constitutional Court to be effective.  In the Eastern Cape then, the High Court’s order of invalidity stands, but not in the Western Cape and Northern Cape, the Constitutional Court however ordered that its decision be delivered to the Premier’s of the Western Cape and Northern Cape.

Section 14 of the Ordinance  provides that poundmaster “who knows the name” of the owner of an impounded animal must notify that person that the animal has been impounded.

Further sections of the Ordinance provide that impounded animals may be sold, after the intention to sell the animals has been advertised two weeks prior to the sale, and sets out a procedure for that sale.

The Ordinance also provides that a poundmaster may destroy diseased animals if “two disinterested landowners” have agreed on the need for their destruction. An arbitration panel consisting of “two landowners” and a justice of the peace may assess damages for trespassing of infected sheep and goats and where the owner of the land feels the applicable tariff is inadequate.

Mr Bension Mdodana is a blind subsistence farmer, he has no formal employment and lives, with his family, on income grants totalling  R2,650 a month and from the livestock he owns. These livestock consist of approximately 90 goats, sheep, cattle and chickens. During May 2010 his goats went missing, and were eventually located on 13 May 2013 at the Lukhanji municipal pound. In order have the animals released he was told to pay R41,157.20 comprising trespass fees, trespass mileage fees, subsistence and advertising fees.

Mdodana, with the assistance of the Legal Resources Centre, brought an application to challenge the relevant provisions of the ordinance. In brief, he did so because the notice provision infringed the right to fair administrative action because he argued the poundmaster was only required to notify owners of animals who he knew the identify of, and not to conduct a search for them.

The Court disagreed, finding that the provision could be read to require the poundmaster to attempt to ascertain the name of the owner through “the exercise of reasonable diligence”.

Mdodana argued the provisions allowing the sale of impounded animals allowed “self-help” and sales in execution without judicial supervision.  Referring the Constitutional Court’s decision in Zondi v MEC for Traditional Affairs and Local Government Affairs and Others 2005 (3) SA 589 (CC) concerning similar provisions of the KwaZulu-Natal Pound Ordinance, found that these sections were invalid. Although they serve a legitimate and important purpose of removing stray animals that could pose a danger to other animals or people, carry diseases and the like, that danger is removed once the animals are impounded. The provisions that allow the sale of animals without judicial supervision therefore are not necessary.

Finally, Mdodana argued that the sections that allow “landowners” to take decisions regarding the assessment of damages discriminated unfairly against the landless. The Lukhanji Municipality (the 5th respondent), argued that recognised these provisions were problematic and had ceased to use the process envisaged. The Court found these provisions had “disconcerting feudal overtones”, and limited the right to equality unjustly.

The Court therefore provided that relevant sections of the Ordinance were unconstitutional, but would allow 12 months for the premiers of the Eastern, Western and Northern Cape to correct the inadequacies. Pending that correction, the High Court ordered that the Magistrate’s Court must supervise the sale of impounded livestock and resolve disputes about the damages involved.

Download the judgment here.