PART TWO: THE LEGAL RESPONSIBILITY OF A PROPERTY USER/OWNER FOR PLANTS ON HIS PROPERTY

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– Jan Joubert

In part two,  of the legal responsibility of a property user/owner, we look in  more depth at other legal implications and protected plants.

OTHER LEGAL IMPLICATIONS

  1. Under Common Law” (King v Dykes 1971(3) SA 540 (RA) at 545) you can be held liable if IAP’s from you property start invading that of a neighbour. With modern DNA technology it would be easy to prove the origin of such pests.
  1. In terms of the present property transaction laws the owner is liable for any latent defects which are not declared at the time of the sale. As IAP’s are illegal such could be considered as defect to the property if not declared. The NEMBA act contains a very specific requirement in this respect
  1. “(3) The seller of any immovable property must, prior to the conclusion of the relevant sale agreement, notify the purchaser of that property in writing of the presence of listed invasive “ Act 107 of 1998 Sec 29

PROTECTED PLANTS (PP)

 These are scarce, unique, or endangered species. Such plants are listed in the amendment R1187 of 14 December 2007 to NEMBA Act, as well as amendment R 908 of 21 Nov 2014 to the National Forestry Act, act 84 of 1998. Such plants may only be removed after obtaining a permit from the relevant national authorities. PP may be trimmed back but to very limited extend. For guidance contact you nearest Cape Nature office.

These plants are too numerous to include as a listing. If you are not certain please consult Cape Nature, or Harold porter Gardens.

Apart from the legally PP there are other plants which are endangered and contained in a voluminous listing google – www.redlist.sanbi.org . Unfortunately to use the listing you need the botanical name. You may arrive at it by googling the common name which may steer you to a web containing the botanical name.

GUIDANCE TO ASSIST IN THE CLEARING OF IAP’S

 The clearing of IAP’s can be done by most property users, but it depends on the size of the tree. The following are some points which will guarantee good results.

  • Removing the IAP roots-and-all is the first prize. It is not necessary to apply herbicide. If you can get at the plant when it is young pulling it out is easy. It also prevents spreading of seeds. When the plants get bigger use a tree-popper to pull them out up to 20-25mm diameter main stems
  • If you cut them cut as low as possible, not more than 25mm above the ground level. This is to prevent buds sprouting. Remember that a large percentage of the IAP’s are from Australia (about 48%) and are botanically linked to our fynbos in that they have a strategy to survive fires, in that they re-sprout (coppice) after a fire. The plant sees a cut stem as the same danger as burnt stem and endeavours to re-sprout.
  • ALL cut stems must be covered with an herbicide for the same reasons as above. Follow the instructions of the supplier, or ask the guidance of your Botsoc Branch. If using herbicide remember to observe the following:
  1. Only cover the cut area of a stem. Do not spill it on other plants, or the ground
  2. The cut must be treated within minutes as the cells of the stem shrink very quickly and can prevent the herbicide to be effective.
  3. The herbicide must be freshly mixed within the specifications of the manufacturer
  4. The herbicide must be coloured with a vegetable die so that cut stems which haven’t being treated can easily be seen. In such a case the stem must be freshly cut before treatment.
  5. If you intend employing a contractor to do the clearing ensure that he will observe the above. If he does not it will be to your cost as the job will have to be done again at greater cost due to all the re-sprouters.
  • The Swordfern (Nephrolepsis exaltata) must be dug up and the soil sifted for the little bulbs on the roots. These bulbs must be treated with a hormone
  • Plants which are propagated by small pieces of plant material taking root on the ground must be removed roots-and-all. The plant rests must be placed in a container to keep it from contact with the soil until it has dried out completely, or burned in a contained way (Bit by bit in your fireplace in winter). An example of such plants are all the Prickly Pear family (Opuntia), or the leaves of the Sisal (Agave) family
  • Some plants have hard seed houses with a large number of fine seeds in it. These seed housings must be removed from the cut-down tree and burned. Examples are the Hakea and Callistennon (bottlebrush) families
  • Some plants are propagated by their roots, for example Canna (Canna indica)., and the flowering ginger family (Hedychium) The roots must be totally dug up

REMEMBER THAT THE NEMBA ACT REQUIRES YOU TO ENSURE THAT PROPAGATION OF THE PLANT WILL BE PREVENTED. THIS MEANS CUT IT AS CLOSE TO THE GROUND AS POSSIBLE, AND APPLY HERBICIDE TO THE CUT STEM