The actio de pastu in South African law
All three remedies have come to be incorporated into the ius commune. Via the old Roman-Dutch authorities they were transplanted to the Cape of Good Hope, from where they spread to the other European settlements in Southern Africa.
There they have survived to this day. The range of application of the actio de pastu has, generally speaking, been defined rather liberally.[5793] It is applicable wherever damage has been done by grazing and it does not matter whether grass, crops, shrubs or trees have been affected.[5794] The defendant is liable even if his animals devour crops that have been reaped;[5795] [5796] and if, in the course of satisfying their appetite, the animals have trampled down the plaintiffs crops, the resulting damage is also recoverable by means of the actio de pastu.no Not only four-footed animals but also birds are covered by the remedy, as long, of course, as they can cause damage by grazing. Whether their owner is strictly liable, or only if he intentionally drove his animals onto the plaintiffs land, is still disputed; the Rhodesian Court of Appeal has adopted the latter view,[5797] but the (only) authority referred to, Voet's Commentarius ad Pandectas"2 does not actually support it. On the contrary: ever since the French humanist Cuiacius attempted to reconstruct the Sententiae Pauli, the actio de pastu has predominantly been held not to require proof of fault.[5798] [5799]An alternative remedy that originated in Germanic customary law has, incidentally, been recognized by the Roman-Dutch writers, and is still applicable today in the Republic of South Africa on the basis of provincial ordinances: rather than institute the actio de pastu to claim damages, the plaintiff may impound the animals trespassing on his land and keep them until their owner has paid both the pound fees and compensation for the damage caused.[5800]
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