Court declares sections of pound laws unconstitutional

THE Grahamstown High Court has declared as unconstitutional and in valid certain sections of the Cape Pound Ordinance, which it said was enacted during a time when there was scant regard for basic human rights.

The ordinance – which permits the impounding of stray, dangerous, or trespassing animals as well as the sale or destruction of the seized animals under certain circumstances – was enacted by the Provincial Council of the Cape of Good Hope in 1938 and remains in operation in the Eastern, Western and Northern Cape.

But disabled Lady Frere pensioner and subsistence farmer Bension Mdodana – who had 91 of his goats seized by the Lukhanji Municipality after they strayed onto a commercial farmer’s lucerne fields – sought to have sections of the ordinance declared unconstitutional because he says its effect was to arbitrarily deprive of him of his property.

Mdodana is blind and relies on his disability grant and his subsistence farming to support himself, his disabled wife and their grandchildren.

While Judge John Smith found the language of the or dinance was “embarrassingly redolent of an era when the ma jority of South African citizens were subjected to discriminato ry laws which resulted in their social and economic disempow erment”, he said there remained a compelling social need for legislation that empowered local authorities to deal with the se rious problems caused by unat tended animals straying onto public roads and commercial farms. “Livestock that stray on to public roads pose a serious threat to the safety of motor ists.In addition, neglected animals of indifferent breed that stray onto commercial farmland can spread contagious diseases, or cover stud animals which may cause unwanted progeny and resultant economic loss”

The Legal Resources Centre (LRC), on behalf of Mdodana, argued the ordinance put in place a scheme that sanctioned the ar bitrary deprivation of property as well as sales in execution without notice to the owner or judicial supervision.

Finally, the ordinance provided that two landowners could decide on damages caused by the stray animals or the destruction of diseased animals. This, the LRC contended, discriminated against the landless.

Smith found the immediate seizure and impoundment of trespassing animals without first obtaining a court order was often necessary and justifiable to limit the dangers such animals posed. But, he said those sections of the ordinance that then allowed for the sale of impounded livestock under conditions dictated exclusively by the poundmaster without any judicial supervision or sanction was unconstitutional.

“Once straying animals have been impounded, the immediate danger to other livestock, members of the public and motorists has been removed. There is therefore no reason why further processes such as the levying of fees, the destruction of diseased animals and sales in execution, cannot be subjected to judicial supervision.”

He also found that those provisions that allowed only for landowners to assist the poundmaster with certain crucial decisions discriminated against the landless and were also unconstitutional.

Smith referred his declaration of unconstitutionality and invalidity to the Constitutional Court for confirmation. He ordered the three provinces would have just 12 months after confirmation by the Constitutional Court to remedy the identified constitutional defects.

In the meantime, things will still have to be done differently. Poundmasters would have to exercise reasonable diligence to ascertain and notify owners of the impoundment of their animals, he said.

All sales of impounded stock would have to be authorised by magistrates’ courts.