Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Before: Acting Justice Cockrell
Date of hearing: 22 January 2024
Date of judgment: 26 January 2024
Case No: 6939/22
THE TRUSTEES FOR THE TIME BEING OF THE HUMANE
SOCIETY INTERNATIONAL – AFRICA TRUST First Applicant
BERNARD ORSETE UNTI N.O. Second Applicant
GEORGE TOMAS WAITE N.O. Third Applicant
ANDREW NICHOLAS ROWAN N.O. Fourth Applicant
DONALD FRANK MOLTENO N.O. Fifth Applicant
CHRISTOBEL BLOCK N.O. Sixth Applicant
ALEXANDRA GABRIELLE FREIDBERG N.O. Seventh Applicant
and
THE MINISTER OF FORESTRY, FISHERIES AND
THE ENVIRONMENT First Respondent
2
THE DEPARTMENT OF FORESTRY, FISHERIES AND
THE ENVIRONMENT Second Respondent
JUDGMENT
Judgment delivered by email to the parties’ legal representatives and by release to SAFLII.
COCKRELL AJ:
Introduction
[1] On 10 March 2022, the applicants launched an application to review and set aside the
decision of the first respondent (“the Minister”) to allocate hunting and export quotas
in respect of elephant, black rhinoceros and leopard for the calendar year 2022. Final
relief was sought in Part B and interim relief was sought in Part A.
[2] On 21 April 2022, Gamble J granted interim relief in terms of Part A.
[3] Upon receipt of the Rule 53 record, the applicant s amended Part B of their notice of
motion. Prayers 1 and 2 continued to ask for the relief that had been sought in the
original notice of motion. However, a new prayer 3 was added in which the applicants
now sought what they described as “expanded relief”.
[4] This judgment deals with the relief sought in Part B of the amended notice of motion.
3
The legal framework
[5] The following legal instruments are relevant to this application.
[6] South Africa is a signatory to the Convention on International Trade in Endangered
Species of Wild Fauna and Flora (“CITES”). As the name suggests, CITES seeks to
protect certain species of wild fauna and flora against over -exploitation through
international trade.
[7] The National Environmental Management: Biodiversity Act 10 of 2004 (“the
Biodiversity Act” ) is domestic legislation that provides for the management and
conservation of South Africa’s biodiversity.
[8] In GNR 152 of 23 February 2007, the Minister made Regulations in terms of section 97
of the Biodiversity Act re lating to listed threatened and protected species (“the TOPS
Regulations”). The TOPS Regulations provide for a permit system in the case of “listed
threatened or protected species”. They are the species that have been listed in terms of
section 56(1) of the Biodiversity Act.
[9] In G NR 173 of 5 March 2010, the Minister made Regulations in terms of
section 97(1)(b)(iv) of the Biodiversity Act relating to CITES (“the CITES
Regulations”). The CITES Regulations apply to all plant and animal species listed in
Appendices I, II and III. Regulation 1 defines “quota” as “the prescribed number or
quantity of specimens that can be harvested, exported or otherwise used over a specific
period of time and is a total national quota” (my underlining). Regulation 3(2) provides
that the duties of t he National Management Authority (i.e. the Minister) include “to
4
consult with the Scientific Authority on … the setting and management of quotas”1 and
“to coordinate requirements and allocate annual quotas to provinces”.2
[10] The interrelationship between these legal instruments is a matter of some complexity .
Although the interrelationship was addressed in the founding affidavits of the
applicants and in the answering affidavits of the Minister, the treatment in the affidavits
was not always conducive to clarity and the argument before me was not aligned with
the affidavits in all respects.
[11] The interpretive issues are further clouded by the fact that Regulation 1(3) of the CITES
Regulations provides that “[r]ecommendations included in Resolutions and Decisions
of the Conference of the Parties to CITES can serve as a source of interpretation of the
provisions of these Regulations”. The Min ister’s answering affidavit referred to two
Resolutions of the Conference of the Parties (“COP”), but the interpretive issues arising
from these COP Resolutions were not fully explored. Indeed, some paragraphs in the
Minister’s affidavit dealing with the implications of the COP Resolutions appear to be
wrong in law, as was accepted by counsel for the Minister.3
[12] Be that as it may, it will become clear below that it is unnecessary for me to express a
final view on the interrelationship between these legal instruments and I refrain from
doing so. These are complex and important issues that should be determined in
circumstances where the international-law issues have been canvassed more fully than
has occurred here.
1 Regulation 3(2)(f).
2 Regulation 3(2)(k).
3 See, for example, para 139 page 1325 and para 141 page 1326.
5
The impugned decision
[13] I shall refer to the decision of the Minister that forms the subject matter of prayer 1 of
Part B of the notice of motion as “the impugned decision”.
[14] A convenient starting point is to ask: what was the purpose of the impugned decision
and in terms of what empowering provision was the impugned decision taken?
Unfortunately, this simple question does not permit of a simple answer on the papers.
[15] The impugned decision4 recorded that the Minister was publishing “annual quotas for
hunting and/or export of African elephant ( Loxodonta africana), black rhinoceros
(Diceros bicornis) and leopard ( Panthera pardus ) h unting trophies for the 2021
calendar year, set in accordance with regulation 3(2)(k) of the [ CITES Regulations]”.
In the case of leopard, the “2021 allocation” was said to be 10 male leopards of which
seven were allocated for Limpopo, one for KZN and two for the North- West province.
In the case of black rhinoceros, the “2021 allocation” was ten in total and nothing was
said about provincial allocation. In the case of African elephant, the “export quota for
2021 [was] maintained at 300 tusks from 150 animals” and nothing was said about
provincial allocation. The implementation of all these quotas was deferred to 2022.
[16] The impugned decision referred in express terms to Regulation 3(2)(k) of the CITES
Regulations. That Regulation contemplates the allocation of “annual quotas to
provinces”. Ex facie the impugned decision, there was indeed a provincial allocation
for leopard but there appears to have been no allocation to the provinces in the case of
black rhinoceros and elephant.
4 Annexure BC1 page 1391.
6
[17] The Minister’s stance in her affidavits is that , in the case of all three species, the
overarching quotas were determined at an international level in terms of CITES:
17.1. The Minister referred to this in her answering affidavit in Part A. The applicants
did not respond to the Minister’s averments on this topic when they filed their
replying affidavit in Part A.
17.2. In her answering affidavit in Part B, the Minister returned to the topic . There
she stated that the “overarching quota limits [are] either established by a
Conference of Parties or set out in the CITES Resolutions”. 5 In the case of
elephants, she averred that the “CITES total allowable annual export quota” was
“set at 150 elephants”. 6 In the case of black rhinoceros, she averred that “the
CITES total allowable annual export quota remains set at 0.5% of the Black
rhinoceros population”.
7 In the case of leopard, she averred that “the CITES
total allowable annual export quota remains set at 150 leopards”. 8 All of these
averments were admitted by the applicants in their replying affidavit in Part B.9
[18] It is therefore common cause on the papers that quotas for leopard, black rhinoceros
and elephant have been set at an international level in terms of CITES . What
complicates matters is that the impugned decision did not necessarily reflect those
quotas. For example, the Minister explains in her affidavit that the impugned decision
“set the hunting quota at 10 leopard while the CITES total allowable annual export
5 Para 44 page 1282.
6 Para 71 page 1300.
7 Para 89 page 1306.
8 Para 106 page 1312.
9 Para 157 page 1600, para 166 page 1602 and para 173 page 1604.
7
quota remains set at 150 leopards”. 10 In other words, the Minister says that “although
the CITES Convention is permissive in allowing the international trade of up to 150
leopards, South Africa is of the view that a hunting quota of 10 male leopards, older
than 7 years, is appropriate in the circumstances relevant to the year in which the advice
was given”.
11
[19] By virtue of the imprecision in the Minister’s affidavit and other documents, it is not
clear what empowering provision (or provisions) the Minister relied on when she made
the impugned decision:
19.1. The Minister’s answering affidavit in Part A referred to “a decision which I have
made in the exercise of my powers as the National Management Authority under
regulation 3(2)(k) of the CITES Regulations to allocate annual quotas to
provinces”.
12
19.2. The Minister’s answering aff idavit in Part B referred in passing to “ [t]he
exercise of a statutory power vested in me to determine annual quotas for the
hunting and export of CITES listed species”13 without identifying the “statutory
power”.
19.3. The DG’s memorandum to the Minister stated that, as a party to CITES, “South
Africa is required to establish hunting export quotas for the African Elephant,
Black Rhino and Leopard and to communicate these to the CITES
10 Minister’s answering affidavit para 106 page 1312.
11 Minister’s answering affidavit para 115 page 1317.
12 Para 66 page 74.
13 Minister’s answering affidavit para 222 page 1348.
8
Secretariat”.14 The memorandum “recommended that the quotas be adopted
and set according to the relevant legislative requirements”,15 but did not identify
the “relevant legislative requirements”. It is possible that the DG may have had
in mind Regulation 3(2)(f) of the CITES Regulations, which provides that the
National Management Authority is required to consult with the Scientific
Authority on “the setting and management of quotas”. Elsewhere, the DG’s
memorandum referred to Regulation 3(2)(f) as being one of the CITES
Regulations “referenced in the submission”. 16 Moreover, in her letter s to the
MECs, the Minister noted that “the determination of quota [sic] in terms of
Regulation 3(2)(f) constitute [sic] administrative action as contemplated in the
Promotion of Administrative Justice Act” and stated that she intended to invite
members of the public to submit comments “relevant for the determination of
the export quota”.
17
19.4. Against this background, it is conspicuous that the Notice published pursuant to
the impugned decision referred only to Regulation 3(2)(k). It is not apparent to
me why the Notice refers to Regulation 3(2)(k) even though, ex facie the
impugned decision, there appears to be no allocation to the provinces in the case
of black rhinoceros and elephant. The notice inviting public comment had also
referred to Regulation 3(2)(k).
18 I should nevertheless make it clear that this is
14 Annexure BC1 para 2.1 page 1374.
15 Annexure BC1 para 2.9 page 1383.
16 Annexure BC1 para 3 page 1385.
17 Annexure BC8 page 1415.
18 Annexure FA2 page 48.
9
not a review ground that was advanced by the applicants in their founding
papers.
[20] For all of these reasons, a reading of the papers gives rise to several questions regarding
the empowering provision (or provisions) on which the Minister relied when she made
the impugned decision. Whatever the answers to those questions may be, they are not
readily apparent from the affidavits. As will become clear below, however, this does
not impact on the relief sought in the application.
The declaratory relief
[21] Prayers 1 and 2 of Part B of the notice of motion sought the following relief:
21.1. Prayer 1 sought an order to the effect that the decision of the Minister taken on
31 January 2022 “to allocate a hunting and export quota for elephant (Loxodonta
africana), black rhinoceros (Diceros bicornis) and leopard (Panthea pardus) for
the calendar year of 2022 is declared unlawful, reviewed and set aside”.
21.2. Prayer 2 sought an order directing the Minister to reconsider the allocation of a
“trophy hunting quota” for elephant, black rhinoceros and leopard for 2022.
[22] The applicants continued to ask f or all this relief in their heads of argument. At the
hearing, however, the applicants’ counsel indicated that the applicants no longer ask for
the setting aside of the impugned decision in terms of prayer 1 or for remittal in terms
of prayer 2. The applicants only ask for a declaration of unlawfulness in terms of prayer
1. I shall refer to this as “the declaratory relief”. (I deal separately below with the
“expanded relief” in prayer 3.)
10
[23] A Full Court of this Division has held that “ [a] case is moot and therefore not
[justiciable] if it no longer presents an existing or live controversy or the prejudicing or
threat of prejudice, to a party, no longer [exists]”.19
[24] The impugned decision purported to deal with quotas (as that term is defined in the
CITES Regulations) for the 2022 calendar year. The 2022 calendar year has now
passed. There is nothing on the papers to indicate that the quotas for 2022 were rolled-
over into the 2023 or 2024 calendar years.
[25] Since the quotas only applied during the 2022 calendar year, granting the declaratory
relief would have no practical effect . Moreover, an order that the Minister acted
unlawfully when she took the impugned decision would have no practical consequences
for what did, or did not, happen in the 2022 calendar year in relation to the quotas. That
is because, during the 2022 calendar year, the interim interdict of Gamble J restrained
the Minister from giving effect to the impugned decision. It also restrained the Minister
“or any person so- delegated” from issuing any permits for the hunting and export of
elephant, black rhinoceros and leopard. If it were to transpire that the impugned
decision was lawful, that would not undo the fact that the impugned decision could not
have been implemented in 2022. If a declaration were to issue that the impugned
decision was unlawful, it would have no practical effect since the impugned decision
was not implemented in 2022. In either event, the historical events of 2022 could not
be rewritten.
[26] Counsel for the applicants appeared to accept that the grant of declaratory relief would
have no practical effect, but argued that the grant of such relief would nevertheless
19 Vinpro NPC v President of the RSA [2021] ZAWCHC 261 (3 December 2021) para 33.
11
provide guidance to the Minister when she makes similar decisions in future years. But
even if that were the case, it would not be a consequence of the order of this Court; it
would rather be a consequence of the reasons of the Court. The judgment of the SCA
in Stransham-Ford indicates that it is the order of a Court that must have a practical
impact on the conduct of the parties if a matter is to present a live issue.20 That would
not be the case here for the reasons already given.
[27] Stransham-Ford held that, unlike an appeal court or the Constitutional Court, the High
Court sitting as a court of first instance has no overriding discretion to decide a case
that has become moot.21 That is the way in which Stransham-Ford was interpreted by
the Full Court of this division in Vinpro 22 and in SAB. 23 As the Full Court put it in
Vinpro, “this court does not have any discretion to hear a matter which has become
moot”. All of these judgments are binding on me.
[28] I am cognisant of the fact that, in the SPCA case, Kollapen J held that “even if it can be
said that the matter is moot in the limited sense of the 2017 and 2018 quotas being
insulated from any practical as opposed to legal review, my view is that the issues the
application presents and the public interest require that the Court deal with the
dispute”.
24 A similar view was taken in the WWF case, where Rogers J held that “a
20 Minister of Justice and Correctional Services v Estate Late James Stransham-Ford 2017 (3) SA
152 (SCA) para 24.
21 Stransham-Ford (supra) paras 24 and 25.
22 Vinpro NPC v President of the RSA [2021] ZAWCHC 261 (3 December 2021) para 42.
23 South African Breweries Proprietary Limited v President of the RSA [2022] 3 All SA 514
(WCC) para 28.
24 National Council of the Society for Prevention of Cruelty to Animals v Minister of
Environmental Affairs [2019] 4 All SA 193 (GP) para 42.
12
court has a discretion in the interests of justice to entertain a matter, even if it is moot”.25
However, these judgments do not refer to Stransham-Ford and I assume that the Court’s
attention was not drawn to Stransham -Ford in either case. Moreover, in WWF the
position was that “although a declaration of invalidity concerning the 2017/201 8
determination would not affect fishing in the season governed by that determination, a
previous year’s determination may be relevant to the succeeding year’s
determination”.26 That is not the case here.
[29] Even if I had a discretion to hear a matter that is moot, I would not have been inclined
to exercise the discretion in favour of determining the declaratory relief. Since the
Minister says in her answering affidavit that “the 2023 hunting quota allocation is being
carried out differently to the process followed in 2021”,27 it is not apparent on the papers
whether a judgment on the declaratory relief would provide any guidance in respect of
years after 2022. A further consideration is that the applicants introduced “expanded
relief” in their supplementary founding affidavit, and the “expanded relief” could have
been formulated so as to provide guidance in other years. (Whether or not the expanded
relief did so, is an issue that I address below.)
[30] Since I find that the matter is moot and that I have no discretion to hear it, I refrain from
expressing any view on the merits of the declaratory relief.
25 WWF South Africa v Minister of Agriculture, Forestry and Fisheries 2019 (2) SA 403 (WCC)
para 77.
26 WWF (supra) para 75.
27 Para 7 page 1265.
13
The interdictory relief
[31] That leaves prayer 3 of the notice of motion, where the applicants seek an order in the
following terms:
“The first respondent may not issue any quotas for the trophy hunting or export of any
TOPS listed species until such time as, after having given due regard to animal welfare,
as required by law:
3.1 the publication of annual hunting -off take limit in terms of regulation 72 of
TOPS by [the South African National Biodiversity Institute]28 has occurred;
3.2 there has been compliance with sections 97, 99 and 100 of the Biodiversity Act
in respect of the quotas to be published, which may include a quota of ‘zero’;
3.3 the publication of an annual non-detriment finding in terms of section 62 of the
National Environmental Management: B iodiversity Act 10 of 2004 by the
Scientific Authority; and
3.4 advise the CITES Secretariat of this decision.”
[32] The applicants called this “the expanded relief”. I shall refer to it as “ the interdictory
relief”.
[33] There is no suggestion that the interdictory relief is moot. The only question is whether
the applicants have made out a proper case for the interdictory relief.
[34] The interdictory relief applies to all “TOPS listed species”. In other words, it would
apply to all species listed as a threatened or protected species in terms of section 56(1)
of the Biodiversity Act. I was informed by the Minister’s counsel that this list runs to
more than 100 species of animals.
28 The words in square brackets were inserted by an amendment that was moved during the
hearing.
14
[35] Until the interdictory re lief was introduced in to the amended notice of motion, the
application had been limited to three species: leopard, black rhinoceros and elephant.
That is the way in which the founding affidavit was drawn since those were the three
species that formed the subject matter of the impugned decision . That is also the way
in which the supplementary founding affidavit approached the matter until the
interdictory relief was addressed at the end . The case made out in support of the
interdictory relief was this:
“We have further amended our relief to request that this Honourable Court issue
an order that the Minister may not issue any quotas for the trophy hunting or
export of any TOPS listed species until such time as [the requirements in prayer
3 of the notice of motion are satisfied].”29
[36] In effect, that is all that was said in support of the interdictory relief. Although the
supplementary founding affidavit contained a heading “Requirements for a Final
Interdict”, the four paragraphs under that heading went little further than to aver that
“the applicants have a clear right to the protection and conservation of the animals
which are the subject of the quotas” and “there is no alternative remedy to these injuries
[i.e. to the animals]”.30 No attempt was made to explain why a final interdict was being
sought in relation to all TOPS listed species.
[37] In her answering affidavit, the Minister adopted the stance that she could not be
expected to meet an expanded case dealing with all TOPS listed species since no facts
had been adduced in support of this relief. She pointed out that “there are some 131
fauna species that are listed as threatened or protected in terms of section 56(1) of
NEMBA”, and stated that “in the absence of any proper case being made out for the
29 Para 236 page 525, italics in original.
30 Paras 229 and 231 page 521.
15
expanded relief, the respondents are simply unable to set out their opposition with the
necessary level of detail for purposes of responding to the expanded relief in relation to
each of the 131 fauna species impugned by the applicants”.
31 In my view, the Minster’s
stance was justified.32 It would in any event have been difficult for the Minister to
respond meaningfully to the interdictory relief because of the vagueness of the order
that was sought. I shall say more about this below.
[38] Since the applicants seek a final interdict, they are required to establish an “injury
actually committed or reasonably apprehended”.33 Even if it were to be assumed in the
applicants’ favour that they made out such a case in relation to leopard, black rhinoceros
and elephant, they did not make out s uch a case in relation to any other “TOPS listed
species”. Indeed, their founding affidavit did not even attempt to make out such a case
since all other “TOPS listed species” were addressed in the single paragraph quoted
above. So, to use the Minister’s example,
34 the applicants have not shown that an injury
is reasonably apprehended in the case of Riverine Rabbit because the founding
affidavits did not say anything about the pending imposition of “quotas” for Riverine
Rabbit.
31 Paras 23.3 and 23.4 page 1272.
32 Cf National Commissioner of Police v Gun Owners South Africa 2020 (6) SA 69 (SCA) para
42 (“The high court seems to have accepted that GOSA did not proffer ‘real evidence’, but
referred to ‘generally accepted circumstances in press reports’ which the appellants had not
denied, and concluded that ‘judicial notice’ could be taken of dishonest and untoward behaviour
in certain ranks of the police in relation to the guarding and handling of firearms. The court
erred. Aside from disputing GOSA’s assertions, the appellants made it clear at the beginning
of the answering affidavit that it was impossible to answer Mr Oxley’s generalised assertions
concerning the conduct of members of the SAPS, which were devoid of facts or evidence, other
than by a general denial.”)
33 Setlogelo v Setlogelo 1914 AD 221 at 227.
34 Para 23.3 page 1272.
16
[39] In their main heads of argument, the applicants ’ case for the interdictory relief is
addressed in one page. There the applicant s contend that “the public have a clear,
statutorily prescribed right to there being no quota issued for the hunting or export of
leopard, black rhino and elephant without a non-detriment finding and/or an annual off-
take limit; to informed public participation; and the application of the rule of law”. 35
The applicants then contend that “the Minister has stated, unequivocally, that the
Minister intends to embark on processes that will infringe on these rights … and in that
situation these rights will be irreparably harmed”.36 The problem for the applicants is
that all of these contentions are limited to leopard, black rhinoceros and elephant. No
case is advanced as to why an injury is reasonably apprehended in the case of all other
“TOPS listed species”.
[40] A further difficulty for the applicants is that, since the late-blooming interdictory relief
was tagged on at the end of the supplementary founding affidavit, there was no
motivation for the interdictory relief and no explanation as to what that relief entails. It
will be obvious from even a cursory reading of the interdictory relief that it suffers from
considerable imprecision. For example:
40.1. Prayer 3 refers to “trophy hunting”. However, that is not a defined term in the
Biodiversity Act, the TOPS Regulations or the CITES Regulations. The TOPS
Regulations define the term “hunt”, and the CITES Regulations define the term
“hunting trophy”. Neither set of Regulations defines “trophy hunting”.
35 Para 134, my underlining.
36 Para 135, my underlining.
17
40.2. Prayer 3 refer s to “quotas ”. The CITES Regulations define “quota” but that
term is not defined in the TOPS Regulations. On the face of it, therefore,
prayer 3 would appear to be referring to quotas within the meaning of the CITES
Regulations. If that were the case, however, then the interdictory relief should
refer to CITES listed species rather than to TOPS listed species. The reason for
this is obvious: “quotas” as defined in the CITES Regulations could not apply
to species that are not listed in terms of the CITES Regulations.
40.3. In oral argument, counsel for the applicants sought to meet this difficulty by
contending that the word “quotas” in prayer 3 does not bear the meaning
assigned to it in the CITES Regulations. There is nothing in the text of the
interdictory relief to support this contention. But in any event, it is difficult to
know what is meant by a “quota” in prayer 3 if that word does not bear the
meaning in the CITES Regulations . As I have already indicated, the TOPS
Regulations do not define the term “quotas”. They refer to “hunting off-take
limits” in Regulation 72, but the “quotas” in prayer 3 must presumably be
something different to the “hunting off-take limits” in prayer 3.1.
40.4. Prayer 3.3 seeks to restrain the Minister from issuing any quotas for the trophy
hunting or export of any TOPS listed species until the Minister “advise [sic] the
CITES secretariat of this decision”. If such a duty existed, it could only apply
in the case of species listed in terms of the CITES Regulations. It is therefore
difficult to understand how prayer 3.4 could apply to “TOPS listed species” that
are not listed in terms of the CITES Regulations.
40.5. If the “quotas” in prayer 3 include quotas as defined in the CITES Regulations,
then it is not clear in what circumstances the Minister would be said to “issue
18
quotas” within the meaning of prayer 3. That uncertainty could have significant
implications for the future conduct of the Minister. For example, it is not clear
whether the Minister would be said to “issue quotas” if she were to allocate to
the provinces annual quotas that have been determined at an international level
(as envisaged in Regulation 3(2)(k) of the CITES Regulations).
[41] In sum, the interdictory relief seeks to do too much, too fast. It straddles the TOPS
Regulations and the CITES Regulations, but it is entirely unclear which of those
regulatory regimes is said to provide the basis for the obligations that are sought to be
imposed on the Minister. That is what has given rise to the imprecision described
above.
[42] The Supreme Court of Appeal has held that an order of court must be “written in a clear
and accessible manner”. 37 That is because “l itigants who are required to comply with
court orders, at the risk otherwise of being in contempt if they do not, must know with
clarity what is required of them”. 38 In the present case, I am of the view that the
interdictory relief is formulated in terms that are “indeterminate, open ended and
irredeemably vague”. 39 If the interdictory relief were to be granted , it would “ be
difficult in the extreme for the Minister to know with any measure of confidence
precisely what steps she is required to take to comply with the order of the high court”.40
The difficulties are compounded by the fact that, if the interdictory relief were to be
37 Minister of COGTA v De Beer [2021] 3 All SA 723 (SCA) para 107.
38 Minister of Home Affairs v Scalabrini 2013 (6) SA 421 (SCA) para 77.
39 Minister of Water and Environmental Affairs v Kloof Conservancy [2016] 1 All SA 676 (SCA)
para 13.
40 Ibid.
19
granted, this may conceivably impact on South Africa’s compliance with its
international-law obligations under CITES.
[43] I conclude that, by reason of the inadequate manner in which the case was pleaded, the
failure to show an injury reasonably apprehended in the case of all “TOPS listed
species” and the imprecision in the terms of the order sought, the interdictory relief
should not be granted. That makes it unnecessary for me to express a view as regards
whether a clear right was made out for the interdictory relief and I refrain from doing
so.
Costs
[44] The Minister accepted that the Biowatch principle applies in this case.
[45] Gamble J reserved the costs of Part A for determination in Part B. Counsel for the
applicants argued that, if I were to find that the declaratory relief is moot, the n the
applicants should be awarded the reserved costs in Part A because the Minister’s delay
in filing her answering affidavit would have been the cause of the mootness. That may
not necessarily be correct. The order in Part A was granted on 21 April 2022. After
that, the Rule 53 record was furnished and the applicant s lodged their supplementary
founding affidavit on 1 July 2022. Even if the Minister had lodged her answering
affidavit within the time period in Rule 53, it may not have been possible to have Part
B determined before 31 December 2022. However, since this cannot be known with
certainty and since the lateness of the Minister’s answering affidavit certainly played a
role, I consider it just and equitable to award the applicants 60% of their costs in Part A.
20
[46] At the hearing of this matter, I granted condonation for the late filing of the Minister’s
answering affidavit on an unopposed basis. The applicants ask for the costs occasioned
by the Minister’s condonation application, including the drafting of the ir replying
affidavit. The costs of the replying affidavit were not occasioned by the lateness of
Minister’s answering affidavit, and I therefore do not see any basis for such an order.
As regards the costs occasioned by the condonation application itself : the Minister
sought an indulgence and there is no reason why she should not pay the costs (if there
are any).
Order
[47] In the result, I make the following order:
1. Part B of the application is dismissed.
2. The first respondent is to pay the costs occasioned by the application for
condonation for the late filing of the first respondent’s answering affidavit
in Part B.
3. Save as set out in paragraph 2 above, each party is to pay its own costs in
Part B.
4. In relation to the reserved costs in Part A, the first respondent is to pay 60%
of the applicants’ costs in Part A (including the costs of two counsel).
A. COCKRELL
Acting Judge of the High Court
Cape Town
26 January 2024
21
APPEARANCES
Applicants’ counsel: LJ Morison SC and B Prinsloo
Applicants’ attorneys: Lopes Attorneys Inc
Respondents’ counsel: N Rajab-Budlender SC and R Matsala
Respondents’ attorneys: State Attorney, Cape Town