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[2010] ZASCA 151
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SA Predator Breeders Association and Others v Minister of Environmental Affairs and Tourism (72/10) [2010] ZASCA 151; [2011] 2 All SA 529 (SCA) (29 November 2010)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 72/10
In the matter between:
SA PREDATOR BREEDERS
ASSOCIATION
............................................
1
ST
Appellant
M C MOSTERT
............................................................................................
2
ND
Appellant
D CILLIERS
..................................................................................................
3
rd
Appellant
and
MINISTER OF
ENVIRONMENTAL AFFAIRS AND TOURISM
.....................
Respondent
Neutral citation
:
SA Predator Breeders Association v Minister of Environmental
Affairs
(72/10)
[2010] ZASCA 151
(29 November 2010)
Coram:
HEHER,
SNYDERS, BOSIELO, SHONGWE JJA and R PILLAY AJA
Heard:
4 November
2010
Delivered:
29
November 2010
Updated:
Summary:
Environmental
management – Biodiversity Act 10 of 2004 – regulations
made in terms of s 97 – reg 24(2) validity
– hunting of
captive-bred lions – prohibition – upliftment of
prohibition – Minister’s reasons for
making regulation
irrational.
____________________________________________________________________________________
ORDER
On appeal from:
Free State High Court
(Bloemfontein) (Rampai and Van der Merwe JJ sitting as court of first
instance):
1. The appeal succeeds,
in part, with costs, including the costs of two counsel.
2. The order of the court
a quo is set aside and replaced with an order in the following terms:
‘
(a)
It is declared that the inclusion of the lion (
panthera
leo
)
within the definition of ‘listed large predator’ in the
definition in regulation 1 of the Threatened or Protected
Species
Regulations published on 23 February 2007 as amended, would have the
effect of rendering regulation 24(2), in its present
form, invalid in
so far as it applies to a ‘put and take’ animal that is a
lion.
(b) The relief claimed in
respect of the definition of ‘put and take animal’ and
regulation 60 is refused. No order
is made in respect of regulation
71.
(c) The respondent is to
pay the costs of the application including the costs of two counsel.’
_______________________________________________________________________
JUDGMENT
_____________________________________________________________________
HEHER JA (SNYDERS,
BOSIELO, SHONGWE JJA AND R PILLAY AJA concurring):
[1] This appeal concerns
the validity of certain regulations made by the respondent under
s 97
of the
National Environmental Management: Biodiversity Act 10 of
2004
.
[2] The first appellant
is a society that represents the interests of breeders of predators
and of hunters of such animals bred
in captivity. It is a nationwide
consolidation of various societies which previously existed to
further regional and local interests.
It has 123 members of whom
about half reside and carry on their activities in the Free State
province. The second appellant, Mr
Matthys Mostert, is a farmer at
Bothaville who is engaged in breeding lions with the intention of
reproducing the Cape lion, extinct
since 1832. The third appellant is
Mr Deon Cilliers who farms at Excelsior where he breeds lions in
captivity which are sold and
hunted, in particular by persons who
come to this country as visitors for that purpose.
[3] The respondent (‘the
Minister’) is the Cabinet member responsible for national
environmental management and, as
such, for the administration of the
Act.
[4]
On 23 February 2007 the Minister caused to be published in GN R.152
the Threatened or Protected Species Regulations. In GN R.150
and
R.151, published simultaneously, he respectively determined the
effective date of the Regulations as 1 June 2007 and published
lists
of critically endangered, endangered, vulnerable and protected
species. The lion (
panthera
leo
) appeared in
the category
Vulnerable
species-Indigenous
facing
a high risk of extinction in the wild in the medium-term future,
although they are not a critically endangered species or
an
endangered species
.
[5]
On 4 May 2007 the appellants applied to the Free State Provincial
Division of the High Court for an order reviewing, correcting
and
setting aside the Regulations. In the alternative they sought an
order to the same effect but limited to the definition of
‘put
and take animal’ in regulation 1, the whole of regulation 24,
and the whole of regulation 60, and in addition
an order reviewing,
correcting and setting aside the Minister’s decision not to
include in regulation 71 a transitional provision
that allowed a
period of grace in respect of the effective commencement of the
regulations concerning the hunting of lions.
1
[6]
After the application was launched the Minister published various
amendments to the Regulations. For purposes of the application
(and,
likewise, the appeal) GN R.69 of 28 January 2008 is of importance. In
addition to introducing the so-called ‘fair chase
principle’
and substituting the definition of ‘put and take animal’,
2
the lion was removed from the
definition of ‘listed large predator’.
[7] As the court a quo
(Van der Merwe J, Rampai J concurring) pointed out in its judgment
delivered in June 2009 much of the relief
claimed in the notice of
motion was thereby rendered inappropriate. However, because the
Minister had made it clear that the removal
of lions from the
definition was done only to allow the balance of the regulations to
be put into operation pending a decision
in the application, and as
his expressed intention was, in the event of the application being
dismissed, forthwith to again amend
the definition to include the
lion as a ‘listed large predator’ (and thereby make the
regulations applicable to lions),
the parties requested the court a
quo to determine the validity of the challenged regulations as if
they remained applicable to
lions and, if justified, to issue a
suitable declaratory order. The court a quo approached the
application on that basis and, the
same considerations applying, we
do likewise.
[8] In the event, the
High Court found no merit in any of the appellants’ criticisms
of the validity of the regulations. It
therefore dismissed the
application with costs, including those resulting from the employment
of two counsel.
[9] The High Court
subsequently dismissed an application for leave to appeal against its
order. On application to this Court leave
was granted.
[10]
The Act became operative on 1 September 2004. Its stated objectives
3
include, within the
framework of the
National Environmental Management Act 107 of 1998
,
provision for the management and conservation of biological diversity
within the Republic and the components of such diversity.
4
[11]
Chapter 4 of the Act deals with Threatened or Protected Ecosystems
and Species. Its purposes include provision for the protection
of
species that are threatened or in need of protection to ensure their
survival in the wild.
5
[12] Section 56 of the
Act empowers the Minister to publish in the Gazette lists of
critically endangered species, endangered species
and vulnerable
species, the common characteristic of which is a high risk of
extinction in the wild (distinguished by differences
in imminence of
the threat) and protected species (which are of such high
conservation value or national importance that they require
national
protection). It was in the exercise of this power that the Minister
published GN R.151.
[13] Section 57 provides
(to the extent that is relevant):
‘
(1)
A person may not carry out a restricted activity involving a specimen
of a listed threatened or protected species without a
permit issued
in terms of Chapter 7.
(2)
The Minister may, by notice in the
Gazette
,
prohibit the carrying out of any activity -
(a)
which is of a nature that may negatively impact on the survival of a
listed threatened or protected species; and
(b)
which is specified in the notice,
or
prohibit the carrying out of such activity without a permit issued in
terms of Chapter 7.’
[14] A ‘restricted
activity’ is extensively defined in s 1(1) of the Act. In
relation to a specimen of a listed threatened
or protected species it
includes breeding, hunting, catching, capturing or killing any living
specimen, and pursuing, lying in
wait for or luring such a specimen.
[15]
One of the specified functions of the Minister is to prescribe a
system for the registration of institutions, ranching operations,
nurseries, captive breeding operations and other facilities.
6
[16]
The Minister is required to establish a scientific authority for the
purpose of assisting in regulating and restricting the
trade in
specimens of listed threatened or protected species.
7
The functions of
the scientific authority include
i)
monitoring the legal and illegal trade in specimens of listed
threatened or protected species;
8
ii)
advising the Minister and other organs of state on the matters that
it monitors;
9
iii)
making recommendations on applications for permits referred to in
section 57(1) or (2);
10
and
(iv)
advising the Minister on the registration of captive breeding
facilities.
11
(v)
dealing with any other function prescribed or delegated to it by the
Minister.
12
The
scientific authority must, when necessary, consult with, organs of
state, the private sector, non-governmental organizations,
local
communities and other stakeholders before making any findings or
giving any advice.
13
[17]
Section 97 empowers the Minister to make regulations on a wide
variety of topics including the carrying out of a restricted
activity
involving a specimen of a listed threatened or protected species,
14
the facilitation of
the implementation and enforcement of s 57(1) and any notice
published in terms of s 57(2)
15
and the composition
and operating procedure of the scientific authority.
16
[18]
Before exercising a power to make or amend regulations under s 97 the
Minister must follow an appropriate consultative process,
including
consultation with the MEC for Environmental Affairs of each province
that may be affected by the exercise of the power
and allowing public
participation in the process in accordance with s 100.
17
Before publishing
any regulations in terms of s 97(1) or any amendment to them, the
Minister must follow a consultative process
in accordance with
sections 99 and 100.
18
[19]
The Regulations published on 23 February 2007 contained
19
the following
provisions which were specifically attacked in the appellants’
notice of motion in the High Court:
(a) the definition of
‘put and take animal’:
‘”
put
and take animal” means a live specimen of a captive bred listed
large predator . . . that is released on a property irrespective
of
the size of the property for the purpose of hunting the animal within
a period of twenty four months’.
By
the amendment published on 28 January 2008 the words ‘on a
property irrespective of the size of the property’ were
deleted. The words ‘after its release from a captive
environment’ were added before the full stop.
20
(b) Regulation 24:
‘
(1)
The following are prohibited activities involving a large listed
predator,
Ceratotherium
simum
(White
rhinoceros) or
Diceros
bicornis
(Black
rhinoceros):
‘
(a)
The hunting of a listed large predator,
Ceratotherium
simum
(White
rhinoceros) or
Diceros
bicornis
(Black
rhinoceros) that is a put and take animal;
(b)
the hunting of a listed large predator,
Ceratotherium
simum
(White
rhinoceros) or
Diceros
bicornis
(Black
rhinoceros) in a controlled environment;
(c)
the hunting of a listed large predator,
Ceratotherium
simum
(White
rhinoceros) or
Diceros
bicornis
(Black
rhinoceros) under the influence of any tranquilising, narcotic,
immobilising or similar agent; and
(d)
the hunting of a listed large predator released in an area adjacent
to a holding facility for listed large predators; and
(e)
the hunting of a listed large predator,
Ceratotherium
simum
(White
rhinoceros) or
Diceros
bicornis
(Black
rhinoceros) by making use of a gin trap;
(f)
the hunting of a listed large predator,
Ceratotherium
simum
(White
rhinoceros) or
Diceros
bicornis
(Black
rhinoceros), unless the owner of the land on which the animal is to
be hunted provides an affidavit or other written proof
indicating -
(i)
the period for which the species to be hunted has been on that
property, if that species was not born on that property; and
(ii)
that the species to be hunted is not a put and take animal;
(g)
the breeding in captivity of a listed large predator, unless the
prospective breeder provides a written undertaking that no
predator
of that species will be bred, sold, supplied or exported for hunting
activities that are considered prohibited activities
in terms of
paragraphs (a) to (e) of this subregulation;
(h)
the sale, supply or export of a live specimen of a listed large
predator,
Ceratotherium
simum
(White
rhinoceros) or
Diceros
bicornis
(Black
rhinoceros) bred or kept in captivity unless the person selling,
supplying or exporting the animal provides an affidavit
or other
written proof indicating -
(i)
the purpose for which the species is to be sold, supplied or
exported; and
(ii)
that the species is not sold, supplied or exported for hunting
activities that are considered prohibited activities in terms
of
paragraphs (a) to (e) of this subregulation;
(i)
the purchase or acquisition of a live specimen of a listed large
predator species,
Ceratotherium
simum
(White
rhinoceros) or
Deceros
bicornis
(Black
rhinoceros) bred or kept in captivity unless the person purchasing or
acquiring the species provides an affidavit or other
written proof
indicating-
(i)
the purpose for which the species is to be purchased or acquired; and
(ii)
that the species is not purchased or acquired for hunting activities
that are considered prohibited activities in terms of
paragraphs (a)
to (e) of this subregulation.
(2)
Subregulation (1) does not apply to a listed large predator,
Ceratotherium simum
(White rhinoceros) or
Diceros
bicornis
(Black
rhinoceros) bred or kept in captivity which -
(a)
has been rehabilitated in an extensive wildlife system; and
(b)
has been fending for itself in an extensive wildlife system for at
least twenty four months.’
According to Regulation
1:
‘‘‘
extensive
wildlife system” means a system that is large enough, and
suitable for the management of self-sustaining wildlife
populations
in a natural environment which requires minimal human intervention in
the form of -
(a)
the provision of water;
(b)
the supplementation of food, except in times of drought;
(c)
the control of parasites; or
(d)
the provision of health care’.
‘‘‘
bred
in captivity” or “captive bred”, in relation to a
specimen of a listed threatened or protected animal species,
means
that the specimen was bred in a controlled environment’.
‘‘‘
controlled
environment” means an enclosure designed to hold specimens of a
listed threatened or protected species in a way
that -
(a)
prevents them from escaping;
(b)
facilitates intensive human intervention or manipulation in the form
of the provision of -
(i)
food or water;
(ii)
artificial housing; or
(iii)
health care; and
(iv)
facilitates the intensive breeding or propagation of a listed
threatened or protected species, but excludes fenced land on
which
self-sustaining wildlife populations of that species are managed in
an extensive wildlife system’.
‘‘‘
captive
breeding operation” means a facility where specimens of a
listed threatened or protected animal species are bred in
a
controlled environment for -
(a)
conservation purposes; or
(b)
commercial purposes’.
(c) Regulation 60:
‘
(1)
The Scientific Authority consists of:
(a)
Two members to represent the Department [the national Department of
Environmental Affairs and Tourism];
(b)
one member to represent each provincial department;
(c)
one member to represent South African National Parks;
(d)
one member to represent SANBI [the South African Biodiversity
Institute];
(e)
one member to represent the natural history museums;
(f)
one member to represent the National Zoological Gardens.
(2)
The Minister appoints the members of the Scientific Authority.
(3)
The Director-General must request each provincial department, South
African National Parks, the SANBI, the natural history museums
or the
National Zoological Gardens, as the case may be, to nominate persons
for appointment to the Scientific Authority in accordance
with
sub-regulation (1).’
[20] The main relief that
the appellants sought in the application (and persisted in during the
appeal) depended on various procedural
shortcomings prior to the
publication of the regulations as well as failures in the
consultative process.
[21] There is much to be
said for the submission of appellants’ counsel that the
Minister could not and did not apply his
mind to the substance of
their written representations concerning the draft regulations
published for comment on 5 May 2006. Those
representations were
received by the Department in June 2006 but were not seen by the
Minister until 7 February 2007. By that time
the form and substance
of the regulations had to all intents and purposes been finalized and
in fact the Regulations were published
barely two weeks later.
[22] There also appears
to be merit in the appellants’ contention that the failure to
include transitional provisions to cater
for the ban on hunting
brought about by reg 24(1)(a) was grossly unreasonable having regard
to the size of the industry, its long
duration, the extent of
investment in infrastructure and forward planning, the economic
effects on the many persons employed in
and in connection with it and
the large stock of captive-bred lions for which provision would have
to be made.
[23] Success in any of
the procedural respects might result in the setting aside of the
regulations as a whole. There are however
three reasons why I
consider that a decision about the alternative relief is more
appropriate. First, the appellants have no quarrel
with the substance
of the regulations in general. Even those specified as flawed are
alleged to be so only in so far as they affect
the hunting of
captive-bred lions save, in the case of reg 60, the perceived
shortcomings in the membership of the scientific authority
set up by
the Minister to advise him. Second, the regulations have now been in
force for almost four years. We have not been addressed
on the
results of nullifying them at this stage. Third, the regulations
affect many more interested parties than the appellants.
I should be
loath to make any order which may radically prejudice such persons
without adequate notice and the opportunity to join
in these
proceedings.
[24] Therefore, whatever
the merits of the other arguments raised on behalf of the appellants,
it seems to me that the appeal can
and should be decided on other
matters of substance that must necessarily affect the future approach
of the Minister. I shall accordingly
confine the remainder of this
judgment only to the targeted regulations.
The Panel of Experts
[25] In June 2005 the
Minister appointed experts to advise him on the drafting of norms and
standards for professional and recreational
hunting in South Africa.
It is common cause that one of the reasons for doing so was the
adverse publicity in South Africa and
abroad which attached to
certain malpractices in the hunting industry, particularly through
so-called
‘canned lion hunting’.
21
The panel received
oral and written submissions from a variety of sources including the
hunting industry. In November 2005 it published
its final report and
submitted it to the Minister. The panel was then disbanded. The draft
regulations were published in May 2006.
The panel was not
reconstituted and afforded an opportunity of considering and
commenting on the representations received by the
Minister in
response to the draft regulations.
[26] The Minister’s
duty was to consider and accept or reject representations made to him
in response to the draft regulations.
In so far as compromises were
reached by the panel without any consideration or knowledge of the
content of those representations
it behoved the Minister not merely
to accept the panel’s conclusions but to test them against the
substance of the representations.
There is no indication in his
affidavit that he did so.
[27] Examination of the
panel’s final report strongly suggests that the Minister
misinterpreted or distorted its ‘recommendations’
in this
regard as I shall attempt to show.
[28]
The appellants directed their attack on reg 24(2) at the perceived
absence of rationality underlying the Minister’s decisions.
Rationality, as a necessary element of lawful conduct by a
functionary, serves two purposes: to avoid capricious or arbitrary
action by ensuring that there is a rational relationship between the
scheme which is adopted and the achievement of a legitimate
government purpose
22
or that a decision
is rationally related to the purpose for which the power was given,
23
and to ensure the
action of the functionary bears a rational connection to the facts
and information available to him and on which
he purports to base
such action.
24
As noted in the
Pharmaceutical
case
at para 90 ‘a decision that is objectively irrational is likely
to be made only rarely but, if this does occur a court
has the power
to intervene and set aside the irrational decision’.
[29] The appellants’
attack on the definition of ‘put and take animal’ and on
reg 24 was substantially aimed at
the imposition in reg 24(2) of the
24 month sterilization of the hunting of captive-bred lions. In short
they contended that:
1. The period of 24 months bore no rational
connection to any legislative purpose of the Act.
2. No rational basis
existed for the underlying assumption that a captive-bred lion can be
rehabilitated at all.
3. The period of 24
months could not be rationally justified by any information in the
possession of the Minister when he approved
the Regulations or
subsequently.
The legislative basis
for the imposition of the prohibition in reg 24(1)(a)
[30] Regulation 24
requires to be read as a whole. Subreg (1) proclaims a series of
prohibited activities including the hunting
of listed large predators
which are ‘put and take’ animals. Subreg (2) uplifts the
prohibition created in reg 24(1)(a)
under specified circumstances.
What legislative purpose does the prohibition on the hunting of ‘put
and take’ lions
serve? The two principal purposes of the Act
are the management and conservation of South Africa’s
biodiversity and the protection
of species and ecosystems. More
specifically, s 57(2) of the Act, in empowering the Minister to
prohibit the carrying out of any
activity involving a listed
threatened or protected species provides that he or she may only do
so if that activity ‘is of
a nature that may negatively impact
on the survival’ of that species. The specific condition for
the exercise of a prohibiting
power is thus one which serves for the
protection of that species. Although s 57(2) contemplates publication
of a prohibitory notice
on an ad hoc basis in the Gazette, it is
clear that in so far as the Minister chooses to include an equivalent
prohibition in regulations
made under his powers under s 97(b) of the
Act the exercise of his power must be read as subject to s 57(2)(a)
since it is s 57
which creates the bar on carrying out restricted
activities and
empowers
the Minister to licence them.
25
One may therefore
accept that the Minister in making reg 24(1)(a) considered that the
hunting of put and take lions with or without
a permit constituted a
threat to the survival of the lion as a species. Where a power to
impose a prohibition can only be exercised
if it will achieve or tend
to a particular result – as is the case with s 57(2)(a) –
and the functionary decides to
terminate the prohibition such a
decision will be irrational unless he or she first considers whether
the reason for the prohibition
has ceased to apply. It follows that,
in arriving at his decision to include provision for the uplifting of
the prohibition the
Minister should have considered whether there was
evidence available that, if the prohibition were to be lifted, the
potential
negative impact on the survival of the species would not
persist. Only if he was so satisfied could he rationally have made s
24(2).
[31] The Minister did not
however suggest that he had had such a justification in mind or been
influenced by it in formulating or
approving the formulation of the
regulation. His reasons were entirely different. He did not
distinguish between rehabilitation
and the subsequent two year freeze
on hunting. Rather he elided the two regulations by suggesting that
two years was warranted
in order to ensure that a captive-bred lion
would become
in fact
self-sustaining. That justification is
however in conflict with the plain wording of reg 24(2), as I shall
attempt to show.
The structure of
regulation 24(2)
[32] The prohibition on
hunting put and take animals does not operate once such an animal
(i) has been
rehabilitated in an extensive wildlife system, and
(ii) has been fending for
itself for 24 months in such a system.
As to the first
requirement, neither the Act nor the regulations defines
‘rehabilitation’. Counsel were unable to suggest
a clear
meaning in relation to a ‘put and take animal’ or a
captive animal. The legislation does not specify who is
to determine
when rehabilitation has been achieved and by what standard such a
judgment is to be made. Reading the two requirements
together it
appears to me that the first must embrace (at least) the
transformation of the animal from human dependency to
self-sustainability
in the wild, while the second requires that a
period of 24 months must elapse
after
the animal has achieved
such self-sustainability. ‘Fending for itself’ and
self-sustainability seem to me to convey
the same degree of viability
– the animal must effectively be left to its own natural
devices with minimal human input. It
is clear from the respondent’s
affidavit that the Minister considered that a captive-bred lion could
be rendered self-sustainable.
The Minister’s
justification of s 24(2)
[33] The Minister’s
explanation and justification for his conditional upliftment of the
prohibition in reg 24(1) is set out
in the answering affidavit as
follows:
‘
45.1
Dit is korrek dat daar geen wetenskaplike dokument bestaan waarvan ek
en die lede van die Paneel bewus is wat aandui dat die
24 maande
selfversorgingsperiode aanduidend is van die feit dat ‘n groot
roofdier wat so lank in ‘n extensiewe wildproduksiestelsel
losgelaat was al die nadelige effekte van die feit dat hy in
aanhouding geteel is oorkom het nie.
45.2
Olver bevestig dat die Paneel die kwessie van die tyd wat ‘n
groot roofdier soos voormeld selfversorgend moet wees (“die
selfversorgingsperiode”) indringend bespreek het. Olver
bevestig voorts dat al die insette wat tot die Paneel se beskikking
gestel is, behoorlik oorweeg is.
45.3
Bothma bevestig dat die Paneel die insette van alle persone gebruik
het om oor beginsels te debatteer. Die Paneel het dit nie
nodig
gevind om elke inset individueel uit te lig om sodoende argumente vir
en daarteen in hulle verslag te vervat nie. Hy bevestig
voorts waar
sekere voorstelle nie in die Paneel se verslag gereflekteer word nie,
dit bloot beteken dat daar nie oor daardie voorstel
konsensus by die
lede van die Paneel was nie, of dat die Paneel dit nie as geldige of
relevante kommentaar beskou het nie. Bothma
wys verder daarop dat die
lede van Paneel soms wyd uiteenlopende standpunte gehad het en dat
sommige insette wat die Paneel ontvang
het totaal onaanvaarbaar was
vir sekere lede van die Paneel. Derhalwe was die Paneel genoodsaak om
kompromieë te vind.
45.4
Olver bevestig voorts dat die Paneel na deeglike oorweging konsensus
bereik het dat ‘n selfversorgingsperiode van 24
maande in die
omstandighede billik sal wees.
45.5
Olver bevestig verder ook dat die Paneel die 24 maande
selfversorgingsperiode beskou het as ‘n kompromie tussen ‘n
totale verbod op die jag van groot roofdiere wat in aanhouding geteel
is aan die een kant en ‘n situasie waar die jag van
sulke diere
glad nie verbied word nie. Die kompromie laat ruimte vir sulke diere
om inderdaad selfversorgend te word, en tot die
mate waartoe dit wel
moontlik is, die nadelige effek van die feit dat hulle in aanhouding
geteel is, te oorkom. Die 24 maande selfversorgingsperiode
bevredig
voorts ook tot ‘n mate die gevoel van die algemene publiek dat
dit totaal verkeerd is om ‘n groot roofdier
wat in aanhouding
geteel is, dadelik na loslating te jag.
45.6
Ek, in my hoedanigheid as funksionaris belas met die toepassing van
die Wet en die maak van regulasies daarkragtens, was aanvanklik
van
oordeel dat die “geblikte jag” van groot roofdiere, sowel
as die jag van groot roofdiere wat in aanhouding geteel
is, totaal
verbied moet word . . . [The Minister furnished evidence of his
public espousal of such a prohibition.]
45.7
Na deeglike oorweging van die aangeleentheid het ek egter ingesien
dat die Paneel se kompromisvoorstel die beter oplossing
vir die
probleem is, en het toe dienooreenkomstig besluit.’
[34] It appears from
these and other passages in the answering papers that the Minister
was motivated by the following considerations:
1. The recommendation of
the panel of experts appointed in 2005 to advise him on the
compilation of norms and standards for the
hunting industry.
2. Public opinion in so
far as it was strongly opposed to the hunting of captive-bred lions.
3. The ethical practices
of hunting including ‘fair chase’.
[35] To the extent that
the Minister was influenced by the report of the panel in reaching
his final conclusion on the form that
reg 24(2)(b) should take, he
was the decision-maker and was entitled and indeed under a duty to
take into account all relevant
evidence including the views of
experts such as the Panel. But in this instance:
i) the panel met, heard
representations formulated and submitted its report and was disbanded
a year before the draft regulations
were published for comment;
ii) the modus operandi in
formulating its report was to reach consensus on disputed issues and
to reflect that agreement in the
report that it submitted to the
Minister, without detailing the conflicting views or the motivations
for them. The Minister was
not therefore in a position to consider or
judge for himself concerning the substance or merit of such views but
was entirely reliant
on what the Panel had regarded as an acceptable
compromise;
iii) what Olver and
Bothma deposed to in their affidavits in the court proceedings
concerning the substance of the panel’s
consideration of any
matter, its thoroughness or fairness in evaluating conflicts and its
reasons for arriving at its recommendations
is hearsay and moreover
irrelevant to the decision of the Minister unless there is evidence
that it was reflected in the report
of the experts and was present to
his mind in making his decision.
[36] The Minister
explained that he himself had been strongly in favour of imposing an
outright ban on the hunting of captive-bred
lions. His opposition
seems to have stemmed from ethical reasons, the prevalence of
malpractices in relation to such hunting and
the adverse effects on
South Africa’s reputation particularly in relation to tourism.
The Minister deposed that he was persuaded
to adopt the lesser step
involved in the formulation of reg 24(2), ‘as recommended by
the panel’ with the intention
of permitting continued hunting
of captive-bred animals subject to its terms. He described this (as
the panel had done) as a compromise
between those who would tolerate
no hunting and those who would allow it. The Minister and his expert
witnesses conceded that there
was no scientific basis for the
assumption that a captive-bred lion could be rendered self-sufficient
within any certain period
or indeed at all. Such examples of apparent
self-sustainability as he offered were shown by the respondent in
reply to be in the
highest degree unreliable. Nor was the Minister
able to put forward any ground that might justify the 24 month
freeze. As I have
said I understand his reasoning to be that he
thought that that would be a sufficient period within which an animal
could prove
its self-reliance and would afford it opportunity to
develop its ‘natural’ skills for use in avoiding those
who sought
to hunt it, this last apparently regarded by him as
humane, ethical and favouring the fair chase principle.
[37] It is by no means
clear to me how either ethical hunting (whatever its limits may be)
and fair chase fit into a legislative
structure which is designed to
promote and conserve biodiversity in the wild, and, more especially
in relation to captive-bred
predators that are not bred or intended
for release into the wild. But the Minister’s reliance on the
recommendation of the
panel is in any event misplaced and represents
a distortion of its view. The panel said in its Final Report:
‘
For
the purposes of protecting the integrity of the hunting profession,
and the reputation of the country in this regard, hunting
should not
be permitted within intensive production systems. Where animals that
have been intensively bred but not genetically
manipulated become
self-sustaining on extensive wildlife production systems,
their
hunting can be allowed once they are self-sustaining
.
. . . The principle of fair chase is not compatible with the hunting
of captive-bred animals
unless
they have become self-sustaining
on
extensive wildlife production units.’ (My emphasis)
[38]
The panel of experts submitted its final written report to the
Minister in September 2005. The report contained no recommendation
for the observance of any period between ‘rehabilitation’
and hunting. On the contrary, it stated that hunting could
be allowed
once the animals were self-sustaining in an extensive wildlife
system. The only logical interpretation of its key recommendations
is
that the panel was of the consensus opinion that no hunting should be
permitted
until
a captive-bred
large predator had become self-sustaining. The panel did not draw the
distinction which the Minister enunciates on
several occasions
between self-sufficiency and ‘becoming more self-sufficient’
(over 24 months). That distinction is
also inconsistent with the
formulation of reg 24(2) which presupposes an ascertainable point in
time when self-sufficiency is attained
and from which the 24 month
period may be accurately determined. All this leads to the inevitable
inference that the period laid
down in reg 24(2)(b) derived either
from a misunderstanding of the panel’s report or a distortion
on the part of the Minister.
A further possibility, supported by
information communicated to him by Olver, Dorrington
26
and others, is that
the Minister elected to follow not the content of the report but
rather the version of its views communicated
to him at second-hand,
which neither represented the consensus nor had the benefit of
motivation. The line drawn by the Minister
at 24 months appears to be
an arbitrary attempt to cut the gordian knot which linked the two
irreconcilable protagonists, without
a justifiable basis in fact or
expert opinion for choosing that cut-off point. It was both misguided
(in its interpretation of
the panel’s recommendations) and
irrational (in possessing no foundation in fact). Nor as I have
pointed out was it related
to the statutory powers conferred on him.
[39] The panel advised
that hunting should be permitted once an animal became
self-sustaining. It did not suggest any delay period
thereafter or
suggest any reasons to impose such a restriction. Nor did it
investigate the question of whether a large predator
such as a lion
could successfully be rehabilitated or make any finding to that
effect. The Minister was unable to place any evidence
before the
court in the application to establish a probability of such success.
His leading expert Prof Bothma (Emeritus Professor
of Nature
Conservation Management at the University of Pretoria, and a member
of the panel) said in answer to the averments of
the appellants’
experts Dr Keet and Prof de Waal that he was unaware that any
rehabilitation had ever been successfully undertaken.
Can a lion bred in
captivity fend for itself in the wild?
[40] This is the fulcrum
on which the logic of reg 24(2) depends. The Minister’s
intention as expressed in that sub-regulation
was to allow hunting of
captive-bred lions to be pursued under the specified circumstances
and not to make such hunting impossible
or even impracticable. But if
there can be no real prospect that such lions will be able to look
after themselves then there will
be as little prospect of hunting
being permitted and the purported upliftment of the ban in reg
24(1)(a) will be meaningless and
reg 24(2), in its present form,
irrational. In this regard it should be borne in mind that ‘fending
for itself’ means
becoming substantially independent of human
beings. That inference is consistent with the requirement of
‘rehabilitation
in an extensive wildlife system’ ie a
system suitable for the management of self-sustaining populations
which requires minimal
human intervention, inter alia, in the form of
provision of water and supplementation of food.
[41] The appellants,
having adopted the stance that a captive-bred lion could not
successfully be rehabilitated at all, objected
that the 24 month
delay was arbitrary and unsupported by any scientific evidence. As
will be seen I am of the view that closer
examination of the
Minister’s reasons bears out their objections.
[42] The evidence placed
before the court in the application on this issue may be summarised
as follows:
1. The panel of experts
does not appear to have investigated the feasibility of
rehabilitating lions from a captive environment.
It assumed that a
captive-bred lion could be rendered self-sustainable by appropriate
rehabilitation.
2. Dr Bothma stated as
follows:
’
29.1
Daar bestaan geen wetenskaplike rekord wat daarop dui dat leeus wat
in aanhouding geteel is al ooit suksesvol in the natuur
in die
Republiek van Suid-Afrika vrygelaat is, en weer in hulle wilde staat
aangepas het nie.
29.2
Sou sodanige leeus wel in die natuur vrygelaat word, bestaan die
risiko dat ‘n vermenging van twyfelagtige genetiese
materiaal
kan plaasvind. Daarbenewens is dit te betwyfel of sulke leeus oor die
vermoë sou beskik om in die natuur te oorleef.’
He also said:
’
42.2
Die meeste herbivore pas geredelik maklik aan by loslating en word
selfversorgend terwyl dit nie met leeus gebeur nie.’
And:
‘
Dit
is alom bekend dat geen leeupopulasie selfonderhoudend kan wees op
normale grootte wildplase sonder dat die prooibasis van tyd
tot tyd
aangevul word nie. Sodanige populasie sal altyd intensief bestuur
moet word. . .
Self-sustaining
lion prides on extensive but fenced wildlife production units have a
massive impact on prey species. This needs
to be considered before
the decision to have free-ranging lions is made. In fact, the only
systems that can allow for such a luxury
are the more extensive
conservancies, immediately neighbouring vast conservation areas or
national parks. Fenced areas smaller
than 60 000 hectare would need
to replenish certain of the more popular prey species like Blue
Wildebeest at regular intervals
or practise lion population control.’
3. The Minister deposed
as follows:
’
72.2
Bothma bevestig weer eens dat daar nog geen wetenskaplike rekord
bestaan dat leeus wat in aanhouding geteel is al suksesvol
in die
natuur van die Republiek van Suid-Afrika vrygelaat is nie. Van der
Merwe bevestig dat selfs die leeus wat die onderwerp
was van
wêreldwye aandag en wat deur Joy en George Adamson geteel is en
later vereer is as die “
BORN
FREE
”
leeus
ten spyte van die Adamson-egpaar se onvermoeide aandag wanaangepas
gebly het en dat daar later van hulle uiteindelik doodgeskiet
moes
word omdat hulle mensvreters geword het.
72.3
Olver bevestig dat die Paneel geen wetenskaplike getuienis ontvang
het wat daarop dui dat enige leeu wat in die natuur, onder
andere, in
die Republiek van Suid-Afrika gebore is se voortbestaan verseker is
deur die feit dat leeus in aanhouding geteel en
gejag word nie.
Boonop bevestig Bothma en Van der Merwe dat die vrylating in die
natuur van leeus wat in aanhouding geteel is,
ongewens is, en wel
aangesien die genetiese waarde daarvan twyfelagtig is vanweë
menslike ingryping in die teelprogramme,
en dat die beskermde wyse
waarop sodanige leeus grootgemaak word, twyfel laat ontstaan oor
hulle vermoë om in die natuur te
oorleef en jagters te vermy.’
4. Dr Keet, the Chief
State Veterinarian in the Kruger Park, whose views were made
available to the Minister in a report submitted
in response to the
draft regulations, deposed in the application on behalf of the
appellants:
’
54.1
Prof Bothma is tereg skepties oor die twee beweerde voorbeelde van
die suksesvolle hervestiging en selfversorgend-wording van
die
“
vrygelate
”
leeus
van twee leeuboere in die Vrystaat.
.
. .
54.3
Soos prof Bothma tereg opmerk is sodanige leeus nie selfversorgend
nie, selfs al word hulle slegs van tyd tot tyd van kos deur
die mens
voorsien. Sy pleidooi vir streng wetenskaplike toetse weens die
belangrike implikasies wat dit inhou, bevestig bloot die
Applikant se
standpunt dat die 24 maande vrylatingstydperk op geen wetenskaplike
basis berus nie.’
In his representations on
behalf of the appellants he said:
‘
a.
It is our conviction that it is impossible for a pride of lions to
qualify as a managed wild population because of the fact that
these
lions need to be constantly supplied with prey animals that are easy
to capture. Furthermore it is impossible to meet all
the social
requirements of a lion population. For this reason such a group can
merely be described as glorified captive lions.
b.
To re-establish lions and wait for six months during which they are
fed expensive wild natural prey animals (that are not predator
wise)
must be considered futile. During this period a variety of
unfortunate events can take place – mostly related to the
complex social behaviour patterns of lions. Once a decision is made
to have a lion hunted it would be best to have it executed
over a
more realistic period of time. We fail to understand how and why a
period of six months is required. On what scientific
grounds was this
decided on?’
5. Dr H O de Waal deposed
on behalf of the appellants. He is an Associate Professor in the
Department of Animal Science at the University
of the Free State, a
founder researcher of the African Large Predator Unit and an
executive member of the African Lion Working
Group. In reply to a
Departmental query in September 2006 in which he was specifically
asked to motivate his views regarding an
appropriate ‘wilding
period’ before hunting should take place, he responded as
follows:
‘
It
is doubtful whether the term “rehabilitated after being
released” should be used in the context of captive-bred lions.
The human imprint on these animals is very strong. Once released they
may adapt to free ranging conditions and learn to stalk and
catch
live prey (given time and opportunity). However, they do not regard
humans as “danger” or something to be avoided,
as wild
animals would tend to do unless cornered or in dire need of food
(e.g. predating on livestock).
Therefore,
if the objective is to hunt a lion (provided the necessary permits
have been issued) it is unnecessarily cruel to allow
a single lion to
be on its own in unknown territory for a prolonged period. Lions are
gregarious (living in prides), thus only
nomads will live solitary
lives in the wild at the fringes of established prides. These nomads
have to evade other lions on a continuous
basis (in the wild) which
is a stressful ordeal. It is immaterial how long the captive bred
lion is allowed to run free before
it is hunted, it can never be
regarded as being rehabilitated – therefore, preferably the
shorter, the better the period
between release and being hunted to
prevent unnecessary stress.
If
a second lion is added to the fenced area where another lion is
already running free and depending on the size of the fenced
area,
the lions may cause undue stress to each other because of their mere
presence or more likely might even start fighting.’
He suggested that a
seven-day time frame between release from captivity and hunting was
appropriate for reasons which he explained.
[43] Thus there was no
material disagreement between the experts on the question of the
prospect of rehabilitating a captive-bred
lion. At worst a successful
outcome was speculative, at best, very unlikely. This foundation
provided no sufficient reason for
the Minister to lay a premise of
self-sustainability before hunting could be allowed. To do so was not
a rational exercise of his
power.
[44] No doubt the
Minister was entitled to take account of the strong opposition and
even revulsion expressed by a substantial body
of public opinion to
the hunting of captive-bred lions. But in providing an alternative he
was bound to rely on a rational basis.
The evidence proves that he
did not do so.
[45] Taken singly or
cumulatively the Minister’s reasons for formulating rule 24(2)
as he did
(i) do not rationally
conduce to the objectives of the Act;
(ii) given his intention
that hunting should not be the subject of a total prohibition, tend
to the opposite effect;
(iii) cannot be justified
according to the facts and opinions available to him.
The composition of the
Scientific Council
[46] The appellants’
case is, as I understand it, that although s 60 of the Act appears to
vest the Minister with an unfettered
discretion as to the size and
membership of the scientific authority, no exercise of his power to
make appointments can be rational
without representation of the
interests of the lion breeding and hunting industry. That this is so
the appellants derive from the
great emphasis which the Act is said
to place on participatory governance in the promotion of its
objectives. Reference is made
to the fair and equitable sharing among
stakeholders of benefits arising from biological resources, the
integration of social,
economic and environmental factors in the
planning, implementation and evaluation of decisions in the interest
of sustainable development,
the ensuring of access to biodiversity by
previously disadvantaged persons, and the requirement that decisions
must take into account
the interests, needs and values of all
interested and affected parties including the recognition of all
forms of knowledge including
traditional knowledge (s 2(4)(i) of the
Act).
[47] No doubt the
elements referred to by the appellants are matters which the Minister
should have in mind when taking decisions
in furtherance of the Act
and its objectives. To the extent that the breeding and hunting of
lions plays some role in promoting
and managing biodiversity it also
influences economic and social consequences over a wide geographical
range. The subjects on which
the authority must advise the Minister
are such as may materially affect the breeding and hunting industry
(s 61(1) of the Act).
It is also clear that although the authority is
called a ‘scientific authority’ its functions are not
directed to the
sciences as such but rather to a wide body of
knowledge concerning biodiversity. Does the proper exercise of these
wide-ranging
functions necessarily require the representation of the
industry on the authority?
[48] The Minister may in
his own discretion determine the number of members on the authority.
It is inconceivable and clearly impracticable
that all interested
parties should be represented. Nor can it be the case that its
members should possess experience or expertise
in all matters falling
within their purview. Section 61 requires that
‘
(2)
In performing its duties, the scientific authority must-
(a)
base its findings, recommendations and advice on a scientific and
professional review of available information; and
(b)
consult, when necessary, organs of state, the private sector,
non-governmental organisations, local communities and other
stakeholders
before making any findings or recommendations or giving
any advice.’
[49] It is by no means
clear to what extent the affairs and interests of the industry will
be scrutinised or considered by the authority.
Many of its activities
may have no interest for or bearing upon it. To the extent that they
do the industry will be entitled to
the benefit of consultation. The
Minister is fully entitled, it seems to me, in deciding upon
representation on the authority,
to appoint persons whom he deems to
possess a range of knowledge or a breadth of interest either in a
particular field which the
Minister regards as relevant to the likely
activities of the authority or in a broad range of knowledge or
interest. The fact that
he may favour one interest above another
cannot of itself render his decision unreasonable or irrational. The
persons whom he appoints
will be required to exercise the functions
assigned to the authority with due regard to the objectives of the
Act and the social
and economic implications of their findings,
recommendations and advice. None of the considerations I have
mentioned leads me to
conclude that the role of the industry in the
promotion and management of biodiversity is so essential to the
functions of the
scientific authority that it can only properly be
constituted by direct representation of the industry on it. I am
unpersuaded
that the Minister has acted outside his powers in
limiting membership to the persons and bodies named in reg 60.
Conclusion
[50] The regulations have
been (temporarily) amended to remove lions from the ambit of reg
24(1). My conclusion as to the presumptive
invalidity of reg 24(2)
relates only to ‘put and take’ animals that are lions. It
does not affect white and black rhinoceros
or predators kept in
captivity that are not put and take lions.
[51] On the agreed
premise upon which the application and the appeal were argued, the
appellants have achieved substantial success
in the appeal.
[52] The following order
is made:
1. The appeal succeeds,
in part, with costs, including the costs of two counsel.
2. The order of the court
a quo is set aside and replaced with an order in the following terms:
‘
(a)
It is declared that the inclusion of the lion (
panthera
leo
)
within the definition of ‘listed large predator’ in the
definition in regulation 1 of the Threatened or Protected
Species
Regulations published on 23 February 2007 as amended, would have the
effect of rendering regulation 24(2), in its present
form, invalid in
so far as it applies to a ‘put and take’ animal that is a
lion.
(b) The relief claimed in
respect of the definition of ‘put and take animal’ and
regulation 60 is refused. No order
is made in respect of regulation
71.
(c) The respondent is to
pay the costs of the application including the costs of two counsel.’
____________________
J A Heher
Judge of Appeal
APPEARANCES
APPELLANTS: F W A
Danzfuss SC with him H Murray
Rossouws Attorneys,
Bloemfontein
RESPONDENT: B Knoetze SC
with him G T Langenhoven
State Attorney,
Bloemfontein
1
Certain
of these regulations are fully quoted below.
2
Both
of which will be dealt with below.
3
In
s 2.
4
‘
Biological
diversity’ is defined in s 1.
5
Section
51(b).
6
Section
59(f).
7
Section
60(1).
8
Section
61(1)(a).
9
Section
61(1)(b).
10
Section
61(c).
11
Section
61(1)(e)(i).
12
Section
61(1)(h). The delegation is said to be one under
s 47D
of the
National Environmental Management Act but
this should probably be a
reference to
s 42(1)(d)
since the amendments effected by Act 46 of
2003.
13
Section
61(2)(b).
14
Section
97(1)(b)(iii).
15
Section
97(1)(b)(ii).
16
Section
97(1)(b)(vii).
17
Section
99(2).
18
Section
97(3).
19
In
reg 1.
20
Paragraph
2(n) of the notice.
21
Although
the first appellant was not in existence at the time no connection
with such abuses was alleged against those who became
its members or
the first appellant’s provincial and regional predecessors. In
their affidavits in the application the appellants
decried such
practices and their bona fides in that regard was not challenged.
22
New
National Party of South Africa v Government of the Republic of South
Africa
[1999] ZACC 5
;
1999 (3) SA 191
(CC) at para 19.
23
Pharmaceutical
Manufacturers Association of SA and Another: In re Ex parte
President of the Republic of South Africa
[2000] ZACC 1
;
2000 (2) SA 674
(CC)
at para 85;
Albutt v Centre for the Study of Violence and
Reconciliation
2010 (3) SA 293
(CC) at paras 49-51.
24
Trinity
Broadcasting (Ciskei) v Independent Communications Authority of
South Africa
2004 (3) SA 346
(SCA) at para 21.
25
The
evidence produced by the Minister appears to establish that:
(1) the breeding of
lions in captivity plays no role in the conservation and survival of
lions as a species;
(2) the destruction of
captive-bred lions has no bearing on the survival of lions as a
species;
(3) the breeding and
hunting of captive-bred lions does not contribute to biodiversity.
That would mean that the
prohibition on the hunting of such lions does not satisfy the
requirement in s 57(2)(a). But that was
not the appellant’s
case and the Minister’s ‘concessions’ are to that
extent gratuitous and irrelevant.
I shall assume for the purposes of
this judgment that reg 24(1)(a) is valid and that, therefore, such
hunting does constitute
a threat to the survival of lions in the
wild.
26
A
professional hunter who served on the panel of experts.