In the 1800s, before New Brighton was transformed into a “Model Native Settlement” by relocating blacks from the inner city locations to this area, this stretch of land between the mouth of the Papenkuils River and the Fishwater Flats abutting the Swartkops River, was known for the New Brighton Hotel and the Outspan, both owned by Matthew Berry.

The awarding of shooting rights to this flat vacant expanse of land and the mystery of the missing game birds would have to be settled in court.

Main picture: A duck hunter in 1890

Significance of the court case
An admirable quality of the settlers was their hardiness. On being deposited onto the African shore devoid of any facilities they possessed little more than their clothes and not much more besides that. Port Elizabeth subsequently experienced the various stages of social and personal development. Following Maslow’s Hierarchy of Needs, they first addressed their security needs such as work, food, and housing. Later they progressed to satisfy their religious and entertainment needs. Filling the latter need, were sports such as quoits and hunting.

For me, the significance of this court case is that it highlights the fact that by the late 1800s, the residents of Port Elizabeth had progressed past satisfying their existential needs and were now expressing their self-actualising needs. In this Court Case, Mr. Thomas O’Brien, the plaintiff, claimed £50 from the defendants, Hansen & Schrader, as damages and as well as applying for an interdict restraining the defendants from interfering with the right of hunting and shooting over a certain farm Deal Party.

Extent of the property
During the 1890s, the farm known as Deal Party was divided into two parts, and it was over one of these parts, called New Brighton, that the plaintiff, O’Brien, had acquired shooting rights. New Brighton was situated along the sea coast, a few miles from Port Elizabeth commencing at the Papenkuils River, and is about four hundred morgen in extent. The other portion of the farm Deal Party on the west of the railway line, belonged to a Mr. Galpin.

It was the portion of the farm known as New Brighton after the name of the hotel of the same name that a Mr Matthew Berry had erected on the property.  

Shooting Lease
On the 19th of February, 1892, the plaintiff, O’Brien, hired from Sarah Berry for £2 per annum the sole and exclusive right to course, hunt, shoot, and pursue all game on the farm Deal Party, for five years from the 1^st January, 1892, with right of renewal for further period of five years, and that Sarah Berry undertook to keep off all trespassers from the farm, and to prosecute them at the cost of the plaintiff. This amount equated to the amount of the annual rates and taxes on that property.

On the 2nd January, 1893, the defendants, Hansen and Schrader, purchased the farm New Brighton from Sarah Berry with full knowledge of this lease.

Stocking with birds
Prior to the plaintiff’s lease New Brighton was fairly well supplied with buck and hares but had very few birds on it. In 1892 and 1893 plaintiff stocked the farm with two or three  hundred  pheasants and partridges, but the pheasants, which constituted more  than  half  the birds introduced, were shown to have, for the most part, left the farm before 1896, being most probably attracted by the superior cover in the Galpin’s portion to the west.

At the trial, there was a conflict of evidence with regard to the number of partridges which had settled there. To foster the expansion of the animal population, no shooting at all was undertaken on the farm during 1892 or 1893 and it was not very extensively used for shooting in the two years thereafter.

Nub of the case
At the commencement of 1896, the new owners of the property permitted a racecourse, a little over a mile in circumference in an oval shape, to be constructed on the farm. On April 6th, 1896, a race meeting was held on this course and was extensively  attended. The court was informed that the stand, which had been erected on the course, was filled with a large crowd of spectators during the course of the whole day.

At the time when the plaintiff entered into the lease there was a hotel, New Brighton Hotel, on the farm, which operated as a holiday resort. It was argued that this race course would enhance the value of the hotel as the investment in it must have been large.

The racecourse, constructed within the game preserves and hunting-grounds of the plaintiff, resulting in a large portion of the bush, vegetation, and cover thereon being cleared away. Furthermore the Plaintiff contended that by allowing the course to be used by the New Brighton Sporting Club, a large quantity of the game was been driven away from the farm.

This contention was disputed by various parties in that the scrubby bush on the seaside was unsuitable for pheasants and partridges. Hence, they soon relocated of their own volition to Galpin’s property.

Richard Berry, the uncle of Herbert and Charles, who had known the farm for sixty years, and hired it periodically over many years as grazing ground for bis cattle, stated that until birds were let loose on it by O’Brien, there  were  none  resident there. He attributed this to the fact that there was scarcely any cover anywhere on New Brighton suitable  for  partridges, and that the area of the racecourse was absolutely unsuitable as cover, the low thorny scrub called Doornbeeze being very objectionable to them as cover. Furthermore he claimed that since the plaintiff had introduced  birds he had seen some near the fences and that before April the previous year, the number of partridges and pheasants on Galpin’s ground had increased, and that he thought he had recognized some of the plaintiff’s birds on Galpin’s ground and had informed him accordingly. After he had been shooting on Galpin’s property, he told O’Brien that he  was supplying Galpin with birds. Due to the fact that he had a lease over grazing rights on New Brighton, he had frequently been on the farm. He only saw birds at the barracks and at the cottages, and that when any birds took root they are still to be seen. John Berry, a nephew of Matthew Berry, corroborated Richard Berry’s facts as presented, and confirmed that the race­course area afforded the very worst cover for  birds  and that as it  was so far from the race-course by frightening away birds it has become a better feeding ground after the races due to the manure and the remnants of food left there.

Verdict
The plaintiff lost his case on the basis that he had not sustained substantial injury or more correctly, not been able to prove his assertion. The loss of the birdlife was determined to have resulted more from the nature of the soil and vegetation as the New Brighton property was not favourable for pheasants and partridges.

Future
This large slice of undeveloped land would shortly be become the home of thousands of blacks relocated to Red Location while the sea side with its sandhills covered with scrubby bush, which forms fair cover for game, would be converted into a railway yard. Eventually even Smelly Creek with its majestic flamingos would be negatively affected by progress becoming the junk yard of rusting railway wagons.

Such is the consequence of progress. Mankind gains and wild life suffers.

Source
Cape Law Journal Volume 13