In a curious case relating to the escape of wild animals the court analysed the nature of a deeming provision in a statute.
It found that a deeming provision may deem things to be what they are not. But something which is deemed may also be regarded as an exhaustive description of the subject matter. Therefore a deeming provision must always be construed contextually and in relation to the legislative purpose.
Wild animals had escaped from a nature reserve in the Eastern Cape. The question was whether the land was ‘sufficiently enclosed’ for the purposes of the Game Theft Act 1991.
Section 2(2)(a) of the Act says that land is deemed to be sufficiently enclosed if, according to a certificate of the Premier of the province, it is sufficiently enclosed to confine to that land the species of game mentioned in the certificate. It was suggested that this was an exhaustive description of what was considered ‘sufficiently enclosed’.
The court said it was absurd to construe the deeming provision as providing that the certificate was a prerequisite for the protection afforded by the Act to the owners of game. The deeming provision was not meant to deprive owners who had taken the necessary measures (in fact) to sufficiently enclose game on the land.
The deeming provision could not be extended to preclude some other form of proof that the land was sufficiently enclosed.
The matter has still to go to trial on the question whether the game was in fact sufficiently enclosed. A herd of 20 buffalos escaped to the neighbouring farm when a drought reduced the level of the dam separating the two properties.
The case usefully summarises the law regarding deeming provisions and should be read by everyone who uses ‘deem’ in their contracts.