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[2019] ZAGPPHC 337
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National Council of the Society for Prevention of Cruelty to Animals v Minister of Environmental Affairs and Others (86515/2017) [2019] ZAGPPHC 337; 2020 (1) SA 249 (GP) (6 August 2019)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 86515/2017
In the matter
between -
NATIONAL COUNCIL OF
THE SOCIETY FOR
PREVENTION OF
CRUELTY TO
ANIMALS APPLICANT
and
MINISTER OF
ENVIRONMENTAL
AFFAIRS FIRST
RESPONDENT
DIRECTOR-GENERAL,
DEPARTMENT
OF ENVIRONMENTAL
AFFAIRS SECOND
RESPONDENT
SOUTH AFRICAN
PREDATORS ASSOCIATION THIRD
RESPONDENT
JUDGMENT
Kollapen, J:
Introduction
[1] These
proceedings relate to the process by which South Africa sets annual
export quotas for trade in lion bone, bone pieces,
bone products,
claws skeletons, skulls and the like for commercial purposes which
are derived from captive breeding operations
in South Africa. This
application is not about the captive lion breeding industry as a
whole and the debates that have emerged
at both the national as well
as at an international level concerning its existence and
continuance.
[2] The Applicant
seeks to review and have declared unlawful and constitutionally
invalid the decisions of the First Respondent
of the 28 June 2017 and
7 June 2018 in which the quotas for the exportation of lion bone were
determined at 800 and 1500 lion skeletons
respectively. All the
Respondents oppose the relief sought.
The parties
[3] The Applicant ,
the National Council of Societies for the Prevention of Cruelty to
Animals ("NSCPA") is a statutory
body created under Section
2 of the Societies for the Prevention of Cruelty to Animals Act No
169 of 1993 ("the SPCA Act")
and has as its main objectives
the prevention of ill-treatment of animals by promoting their good
treatment; taking cognisance
of laws that affect animals and making
representations in connection therewith to the relevant authority and
doing all things necessary
to achieve these objectives.
[1]
[4] The First
Respondent is the member of the National Executive responsible for
national environmental management and in addition
for the management
and implementation of the National Environmental Management:
Biodiversity Act 10 of 2004 ("NEMBA")
while the Second
Respondent is the head of the department of Environmental Affairs and
who is responsible for the day to day operations
of the department.
The Third Respondent is a voluntary association that in the main
represents the owners and/or operators of captive
lion breeding
operations in South Africa and whose constitution lists as amongst
their objectives the promotion and marketing of
a positive image of
the predator breeding and hunting industries and to represent,
safeguard and advance the interests of breeders
in South Africa.
Background Facts
The African Lion
and CITES
[5] It is estimated
that there is an excess of 9000 lions in South Africa with some 6000
of them in captivity and the remaining
3000 or so in the wild. The
2015 Report of the International Union for Conservation of Nature and
Natural Resources (IUCN) describes
lions in the following terms: -
"Lions are the most social of the cats, with related females
remaining together in prides, and related and unrelated males forming
coalitions competing for tenure over prides. Average pride size is
four to six adults; prides generally break into smaller groups
when
hunting"
[6] In the
Biodiversity Management Plan ("the Plan") for the Lion
published by the First Respondent in December 2015 it
is recorded
that
"Lions have been an iconic species for humans for
thousands of years, appearing in cultures across Europe, Asia and
Africa.
The lion is a powerful and omnipresent symbol, and its
disappearance would represent a great loss for the traditional
culture of
Africa"
[7] The same plan in
dealing with captive lions offers the observation that
'captive
lions are bred exclusively to generate money'
and it does appear
that while on the one hand a distinction is made between wild and
captive lions populations, the Plan also seeks
to deal with what it
describes as a
'well managed captive lion population that has
minimal negative conservation impacts'
and in the details setting
out the Objectives and Actions that the Plan seeks to achieve it
commits itself to
'develop national standards for the captive
keeping and breeding of lions'.
[8] The captive lion
industry is said to generate about
R
500 million annually and
is an industry that exists mainly in South Africa. There are close to
200 breeding facilities in the country.
In the background information
to the proposed resolution that was presented at Cop 17 which I deal
with later and which was ultimately
not successful, it was pointed
out that South Africa was by far the highest exporter of lion items
in the period 2005 - 2014 with
some 19 666 items, the next highest
exporter on the list being Tanzania with 1390 items.
[9] In the report
'Bones of Contention'
prepared by Wildcru and Traffic the
observation is made that the prevailing view is that captive bred
lions do not contribute to
the conservation of the species. However,
the report also states that lion breeding is regarded by many as a
controversial conservation
tool that purports to reduce consumptive
effects in wild lions through the targeting of captive bred lions in
the trophy hunting
industry. The controversy will no doubt rage on.
[10] The trade in
lion bone, at an international level, is governed by the Convention
on International Trade in Endangered Species
of Wild Fauna and Flora
("CITES") of which South Africa is a party. The CITES
website describes its aim is to ensure
that international trade in
specimens of wild animals and plants does not threaten their
survival.
[11] The CITES
process provides for the categorisation of all species broadly into
two categories, Appendix I and Appendix I. Appendix
I would include
all species threatened with extinction and trade in them would be the
subject of particularly strict regulation
and be authorised only in
exceptional circumstances. Appendix II includes all species which
although not threatened with extinction
may become so unless trade in
them was subject to strict regulation to prevent utilisation
incompatible with their survival.
[12] Prior to 2016
there was no legal restriction in place that sought to limit the
quantity of lion bone to be exported from South
Africa, the issue
being regulated by Provincial Management Authorities who issued
export permits for the export of lion bone and
skeletons.
[13] At the 17th
meeting of the Conference of the Parties to CITES ("Cop 17")
held in Johannesburg in October 2016, a
proposal was submitted by a
number of African countries that all populations of the African Lion
be transferred to Appendix I (which
would have limited trade in them
in only exceptional circumstances). The proposal was not approved and
the meeting instead resolved
that the African Lion would remain on
Appendix II, subject to the following annotation: -
'A
zero annual export quota is established for specimens of bones, bone
pieces, bone products, claws, skeletons, skull and teeth
removed from
the wild and traded for commercial purposes.
Annual
export quotas for trade in of bones, bone pieces, bone products,
claws, skeletons, skulls and teeth for commercial purposes
derived
from captive breeding operations in South Africa will be established
and communicated annually to the CITIES Secretariat".
[14] The consequence
of this was that if South Africa wished to trade in lion bone sourced
from lions in captivity it was required
to establish annual export
quotas for lion bone and communicate them to the CITES Secretariat.
The legislative
and regulatory framework
[15] South Africa,
in order to give effect to its obligations as a party to CITES and to
facilitate and implement that international
agreement, has enacted
NEMBA and the regulations promulgated under it. In the context of
these proceedings the following sections
of NEMBA and the regulations
promulgated under it have relevance: -
[16] Section 2
(Objectives of the Act) recognises the need to protect the ecosystem
as a whole, including species which are not
targeted for exploitation
as well as to give effect to international agreements relating to
biodiversity of which South Africa
has ratified and are binding on
it. CITES is such an agreement.
[17] Section 3 of
NEMBA makes the linkage between NEMBA and the constitutional
commitment to the protection of the environment for
this and future
generations and enjoins the State to manage, conserve and sustain
South Africa's biodiversity.
[18] The NEMBA
framework deals with how quotas are to be determined and provides in
section 60 for the establishment of a scientific
authority that must
assist in regulating and restricting trade in threatened or protected
species to which an international agreement
applies.
[19] Section 61
provides inter alia that the scientific authority must monitor the
legal and illegal trade in specimens of listed,
threatened or
protected species; advise the Minister on whether an operation or
facility meets the criteria for producing species
considered to be
bred in captivity.
[20] In
doing its work the scientific authority is required in terms of
section 61 (2) to
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 finding or recommendation or giving any advice.
[21] Section 62 of
NEMBA obliges the Minister to publish in the Gazette any
non-detriment findings ("NDF") made by the
scientific
authority in respect of specimens of species subject to an
international agreement for their protection and to invite
the public
to submit scientific information to the scientific authority relating
to such non-detriment findings. CITES prohibits
the issue of an
export permit without a finding by a designated authority that such
export will not be detrimental to the survival
of that species.
[22] Section 59 of
NEMBA read with Regulation 3 thereof obliges the Minister to consult
with the scientific authority on issues
relating to trade in
specimens of endangered species, denotes the Minister as the National
Management Authority for CITES and provides
that the Minister shall
consult with the Scientific Authority on amongst other things the
nature and level of trade in CITES listed
species, as well as the
setting and management of quotas.
[23] Thus in broad
terms the Minster is required to set an annual export quota but
before doing so must consult with the scientific
authority who in tum
must both, make a non - detriment finding as required by NEMBA as
well as base its findings, advice or recommendations
on a broad level
of public consultation as well as a scientific and professional
review of available information.
The process
followed in setting the 2017 and 2018 quotas in lion bone
[24] Following the
Cop 17 meeting in October 2016 to which reference has already been
made
[2]
,
the Second Respondent issued an invitation to stakeholders to attend
a 'Consultative Meeting relating to the Establishment of
an annual
Lion Bones Export Quota for South Africa.' That meeting was held in
Pretoria on the 17 and 18 January 2017 and was attended
by
representatives of the Applicant who raised their concerns about the
welfare of lions held in captivity and contending that
it should be
taken into account in the determination of the export quota.
[25] On the 25
January 2017, the Second Respondent issued an invitation to the
public at large inviting them 'to make written submissions
on
proposed lion export quota to the department in line with CITES
requirements'. The Applicant, on 2 February 2017 and in response
to
this invitation, wrote to the Second Respondent in which letter it
recorded both its stance on the trade in lion bones as well
as its
concerns with the process followed and the information that was being
considered. The Applicant in that letter records that:
-
a) In the meeting of the 18 January 2017 the stance of the Second
Respondent was that only concerns of a scientific nature would
be
considered.
b) That there were 'endless records of lions in captivity being
underfed, malnourished, neglected, bred repeatedly and confined
in
overcrowded and cruel manners'.
c) That the Second Respondent's attempts to dissociate themselves
from the welfare considerations of lions in captivity was implausible
and that the Second Respondent could not continue to transfer
responsibility for animal welfare.
d) That the Second Respondent reconsider the proposal to allow an
export quota for the trade of lion bones. It records the Applicant's
stance as being opposed to the quota in its entirety.
[26] The position of
the State Respondents in these proceedings is that the scientific
authority as well as the Minister was required
to consider scientific
information only in the process of determining an annual export quota
and that the information submitted
by the Applicant was not
scientific in nature. In addition, it contends that to the extent
that the information submitted by the
Applicant relates to welfare
considerations of lions in captivity, the Minister and the Department
did not have the responsibility
in law for regulating and enforcing
welfare standards for wild animals and that accordingly the welfare
of lions bred in captive
was not a factor regarded as relevant in
determining the annual CITES quota. They point out that the
responsibility for the administration
of the Animals Protection Act
No 71 of 1962 falls within the legislative mandate of the Department
of Agriculture, Forestry and
Fisheries ("DAFF").
[27] They also argue
that the Applicant has the power and the authority in terms of the
Animals Protection Act to investigate conditions
under which wild
animals are kept, carry out arrests if necessary and make regulations
for the manner in which lions should be
kept. To this end they
contend that welfare considerations of lions in captivity falls
within the remit -of the DAFF and the Applicant.
[28] Following the
receipt of various submissions which the scientific authority
describes as 83 scientific articles on the biology
and conservation
status of lion, it then submitted the NDF to the Minister who on the
28 June 2017 published her determination
that export permits for 800
African lions would be made available in 2017.
[29] The
determination of the 2018 export quota was also preceded by a NDF by
the scientific authority which concluded that trade
in lion skeletons
from captive breeding operations was not detrimental to the survival
of the lion in the wild. On the 29 January
2018 the scientific
authority recommended a quota of 1500 for 2018 and in June 2018 the
Minister announced the quota for 2018 at
1500.
[30] However in
December 2018 and in line with the recommendation of the
Parliamentary Portfolio Committee that the quota be reconsidered,
the
quota for 2018 was amended from 1500 skeletons to 800 skeletons. It
is not in dispute that at the time of the hearing of this
application, all export permits in respect of the 2017 and 2018
quotas have been issued and in all likelihood the number of skeletons
provided for in the quotas for 2017 and 2018 have already been
exported out of South Africa.
The basis upon
which the relief is sought
[31] The Applicant's
case is that the determination of the 2017 and 2018 quotas falls to
be reviewed and declared unlawful in terms
of the Promotion of
Administrative Justice Act, 3 of 2000 ("PAJA'') on the basis
that relevant considerations such as animal
welfare were not taken
into account in reaching the decision and on account of the exclusion
of the Applicant from the decision
making process which the Applicant
contends was irrational and that such decision stands to be set aside
on the ground that it
is irrational.
[32] In the
alternative it contends that the decisions be reviewed in terms of
the principle of legality located in Section l(c)
of the Constitution
of the Republic of South Africa,1996.
The opposition to
the relief
[33] The State
Respondents raise 2 points in limine, namely; that the application is
moot and should be dismissed on account of
that and further that the
Applicant has not made out a case for relief in its founding
affidavit as it is required to do but rather
has sought to make out a
new case (the one it now advances) largely in reply.
[34] On the merits
it contends that the determination of the export quotas did not
constitute administrative action, that the Applicant
was not excluded
from the process as evidenced by its involvement in the January 2017
workshop and its subsequent written submission
but that the input it
made was deemed to lack scientific value and therefore not taken into
account. The Third Respondent took
the view that while welfare
considerations were relevant in the determination of the annual
export quotas, no case has been advanced
to review the setting aside
of the 2017 and 2018 quotas and in their view the decision was lawful
given the information that was
before the Minister when the decision
was taken.
The issues to be
determined
[35] The
following issues accordingly arise for determination: -
a) Mootness
b) Not making out a case in the Founding Affidavit;
c) Do the decisions fall to be reviewed constitute administrative
action?
d) If they do, was the Applicant excluded from the process leading to
the decisions rendering the decisions arrived at irrational?
e) Was information with regard to the welfare considerations relevant
to the decisions and if they were and not considered do the
decisions
fall to be reviewed.
f) If review grounds have been established, the appropriate remedy.
Mootness
[36] The 2017 and
2018 export quotas have been given effect to and have been
operationalised to the extent that permits in respects
of those
quotas have already been issued and the process of exporting the lion
bones that are the subject of such permits has been
completed. The
Respondents thus contend that the matter is moot as the relief sought
will not have any practical effect.
[37] While
ordinarily Courts are reluctant to deal with issues where a judgment
will have no practical effect, the question of mootness
does not
always operate as a bar to justiciability.
[38] In
Minister
of Mineral Resources v Sishen Iron Ore Company Limited
2014
(2) SA 603
(CC), the Constitutional Court, emphasized that the
interests of justice would remain a significant factor in the
determination
of whether a Court remained seized with such a matter.
It held the following; -
"This Court has made it clear that, when it is in the
interests of justice to do so, it may hear and determine a dispute
that
has become moot. It may be so, if the parties agree that a court
must resolve the dispute although it may not have a practical effect;
or when the resolution of the dispute is in the public interest; or
when the failure to decide the matter may spawn further prolonged
and
costly litigation..."
[39] And so even
accepting that the setting of the 2017 and 2018 export quotas are
largely a matter of history and incapable of
being revisited in a
practical sense, what remains however is that the setting of quotas
will continue. In these proceedings the
Court was advised that the
Minister is in the process of determining the 2019 quota.
[40] The dispute
that has resulted in this litigation is to that extent still alive
and in particular that part of it that relates
to: -
a) Whether the setting of the annual export quota constitutes
administrative action and
b) Whether welfare considerations relating to lions in captivity are
relevant and fall to be considered in setting the annual export
quota. The parties have diametrically different positions on both
those matters which is likely, if not resolved, to lead to future
litigation
[41]
In addition and from an environmental perspective the treatment of
lions in captivity as an environmental issue and its relationship
with the commercial activities that arise from the operations of lion
breeders (in this case the export of lion bone) is inextricably
linked to the constitutional issue of what may constitute the
elements of the right to an environment and the right to have it
protected for the benefit of this and future generations that Section
24 of the Constitution articulates.
[42] These are
important issues that activate the public interest principle and 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 in them require that the Court deal with the
dispute.
Not making out a
case in the Founding Affidavit
[43] The relief
sought has changed over time from the launch of the application as
developments on the ground to some extent overtook
the legal process.
In this regard it is also so that the main arguments relative to
animal welfare considerations, advanced in
support of the relief were
not advanced in the founding affidavit but in the Replying affidavit
which is not in keeping with the
spirit of the rules of Court. The
concerns of the Applicant with regard to animal welfare were raised
with the State Respondents
in their letter of 2 February 2017 to
which reference has already been made. However given that the relief
sought has not substantially
changed but the reasons advanced in
support of it has; that the Respondents have not been prejudiced as a
result of it and have
been able to deal comprehensively with the case
based on animal welfare considerations; that the issues have a
significant public
and constitutional interest I take the view that
even though the replying affidavit introduced a new matter, the Court
in exercising
the discretion it has, will allow the introduction of
such new matter, subject to it remaining relevant in the
determination of
costs however. In D E Van Loggerenberg Erasmus
Superior Court Practice 2 ed vol 2 at RS 9 2019 Al -65-66, the
authors summarise
the position as follows:
"All the necessary
allegations upon which the applicant relies must appear in his
founding affidavit, as he will not generally
be allowed to supplement
the affidavit by adducing supporting facts in a replying
affidavit.
[3]
This is, however, not an absolute rule for the court has a
discretion to allow new matter in a replying affidavit, giving the
respondent
the opportunity to deal with it in a second set of
answering affidavits.
[4]
"
Do the decisions
in setting the annual quotas constitute administrative action?
[44] The State
Respondents have argued that the annual setting of the export quota
constitutes executive action and not administrative
action and is
therefore not subject to PAJA review and in addition and in the
context of the definition of administrative action
deny that the
decision adversely affects rights or has a direct, external legal
effect.
[45] PAJA
defines administrative action as follows: -
"(a) an organ of state, when-
(i)
exercising a power in terms of the Constitution
or a provincial constitution; or
(ii)
exercising a public power or performing a
public function in terms of any legislation; or
(b) a natural or juristic person, other than an organ of state,
when exercising a public power or performing a public function in
terms of an empowering provision, which adversely affects the rights
of any person and which has a direct, external legal effect,
but does
not include-
(aa)
the executive powers or functions of the National Executive,
including the powers or functions referred to in sections 79 (1)
and
(4), 84 (2) (a), (b), (c), (d), (f), (g), ,(h), (i) and (k), 85 (2)
(b), (c), (d) and (e), 91 (2), (3), (4) and (5), 92 (3),
93, 97, 98,
99 and 100 of the Constitution ..."
[46] The power of
the Minister, while it may have its political and international
genesis in CITES and Cop 17, is expressly provided
for in Regulation
3(2)(f) of the CITES Regulations promulgated under NEMBA .That
regulation affirms that amongst the duties of
the Management
Authority (the Minister in terms of the Regulations) is
"to
consult with the scientific authority on the issuance and acceptance
of CITES documents
,
the nature and level of trade in CITES
listed species
;
the setting and management of quotas".
There can be little dispute that when the Minister set the quotas
she acted in terms of the provisions of NEMBA and the Regulations
promulgated thereunder.
Does the setting
of the quota adversely affect rights and does it have a direct,
external legal effect?
[47] In
Grey's Marine Hout Bay and others v Minister of Public Works
and others
[2005] ZASCA 43
;
2005
(6) SA
313
SCA at para 23. the Court after analysing the definition of
administrative action and in particular that portion of it that
relates
to it adversely affecting rights and having a direct external
effect said the following: -
" While PAJA's definition purports to restrict administrative
action to decisions that, as a fact, 'adversely affect the rights
of
any person', I do not think that literal meaning could have been
intended. For administrative action to be characterised by
its effect
in particular cases (either beneficial or adverse) seems to me to be
paradoxical and also finds no support from the
construction that has
until now been placed on
s
33 of the Constitution. Moreover,
that literal construction would be inconsonant with
s
3(1),
which envisages that administrative action might or might not affect
rights adversely. The qualification, particularly when
seen in
conjunction with the requirement that it must have a 'direct and
external legal effect', was probably intended rather to
convey that
administrative action is action that has the capacity to affect legal
rights, the two qualifications in tandem serving
to emphasise that
administrative action impacts directly and immediately on
individuals.
"
[48] The direct
result of the determination of an annual quota for the export of lion
bone is that it sets the outer limit for the
quantity of lion bone
that may be exported in any given year. This has implications for the
captive lion breeding industry in that
in the years prior to 2017
there was no annual limit set and the determination of a quota
circumscribes the commercial trade in
lion bone to the limits of the
quota. In this regard the Third Respondent had in fact requested that
the quota for 2017 be set
at 3700 skeletons and it must follow
therefore that the setting of the quota at 800 skeletons would have
at the very least have
the capacity to affect the legal rights of the
industry in the export of lion bone sourced from lions in captivity.
[49] To that end it
also had direct and external legal effect in that the quotas set and
the permits that were subsequently issued,
which permits are in all
respects inextricably linked to the quotas set, were externally
manifested in the trade that was then
permissible for the given year.
The setting of the quota was final in all respects and the
requirement in PAJA that the decisions
has
'direct, external legal
effect'
is compellingly met. There could be no permits issued in
excess of the quota and the quota was in every respect the
controlling
and determinative factor in the quantity of trade that
would be permissible. Its direct and external legal effect for
breeders,
exporters, purchasers and the public that has an interest
in conservation is obvious and self evident.
[50] I am
accordingly satisfied that the determinations of the Minister in
terms of Regulation 3(2)(f) of the CITES Regulations
constitute
administrative action as contemplated in PAJA.
Was the Applicant
excluded from the process leading to the decisions taken rendering
them irrational
[51] The Applicant's
case in respect of this ground of review is that the Minister
excluded it from the process of determining the
quotas for lion bone
exports for 2017 and 2018 and that such exclusion rendered the
decisions taken irrational. It argues that
the special status of the
NSPCA as set out in the NSPCA Act would have activated a heightened
duty on the part of the Minister
and the scientific authority to
engage and consult with the Applicant in relation to welfare issues
which they failed and or neglected
to do. In this regard what
requires consideration is the complaint of the exclusion of the
Applicant from the process as opposed
to the alleged failure to
consider what the Applicant advanced as being relevant
considerations, although they are inter-related.
[52] The facts not
in dispute are that the Applicant was indeed invited to the
stakeholder consultation convened by the Second Respondent
on the 18
January 2017, attended the consultation and at the very least was
afforded the opportunity to make its position known
in respect of the
welfare concerns it had concerning lions in captivity. In addition to
this and on the 25 January 2017 an invitation
to the public at large
to make written submissions in relation to the proposed lion export
quota was received by the Applicant
to which a response was prepared
and submitted to the Second Respondent. I have dealt with the
contents of that response in para
25 above.
[53] That being the
case it can hardly be then said that the Applicant was procedurally
excluded from the determination process.
Its complaint that its
submissions were not properly considered is another matter but cannot
support the conclusion that it contends
for that it was excluded from
the process, thus rendering the decision irrational.
[54] The Applicant
in support of its submission that there was a heightened duty on the
part of the State Respondents to consult
and engage with it relies on
the dicta in
South African Veterinary Association v Speaker of
the National Assembly
2019 (2) BCLR 273
(CC) at para 43 to
the following effect: -
"The more
discrete and identifiable the potentially
affected section of the population, and the more intense the possible
effect on their
interests, the more reasonable it would be to expect
the Legislature to be astute to ensure that the potentially affected
section
of the population is given a reasonable opportunity to have a
say."
[55] Even if that
holds true, in the context of the facts underpinning this application
I am not convinced that the level of consultation
that did occur and
which I have described would fall short of the standard described. In
any event it appears that the thrust of
the Applicant's
dissatisfaction is not that it did not have the opportunity to make
its concerns known but rather that those concerns
were not regarded
as being relevant to the determination the Minister was required to
make.
[56] On this aspect
I would therefore conclude that the Applicant was not excluded from
the determination process and that accordingly
the conclusion of
irrationality that the Applicant seeks the Court to draw is not
sustainable.
Are welfare
considerations relating to lions in captivity relevant in the
determination of the annual export quotas for lion bone?
[57] The position of
the State Respondents appears clear and unequivocal on this matter.
In her answering affidavit, the Minister
says the following in regard
to the information she is obliged to consider: -
"The decision of the Minister as the National Management
Authority to determine and set the annual quota is informed by any
interim findings of the Scientific Authority, the NDF, the
recommendation of the Scientific Authority of the annual export quota
that is has determined is sustainable, (and not to the detriment of
the survival of the specific species involved) and any other
relevant
information.
"
[58] She also then
deals with various environmental management principles that are
relevant to the determination of the annual CITES
export quota
including the sustainable development principle which the National
Environmental Management Act ("NEMA")
provides
'must be
socially, environmentally and economically sustainable and all
relevant factors should be considered.'
[59] Arising out of
this she contends that what is required is to find and achieve a
balance between social, economic and environmental
facts and suggests
that the Applicant has under the guise of environmental concerns
over-emphasized the welfare factor to the exclusion
of social and
economic factors.
[60] She also points
out in her rebutting affidavit that the Second Respondent has no
legislative mandate in terms of NEMBA to regulate
welfare matters and
that the Applicant's submissions on issues of animal welfare should
have been made to DAFF.
[61] Finally she
states that the Applicant's submission of 2 February 2017 was
considered but not accepted as it did not add any
value and it was
not relevant for the purpose of determining the number of skeletons
that could be exported. In brief the State
Respondents contend that
the information the Applicant placed before it relating to its
concerns about the welfare of lions in
captivity was excluded from
consideration because firstly, it was not information of a scientific
nature and secondly, the information
regarding welfare considerations
of lions in captivity was not regarded as being relevant to the
determination of the annual quota.
[62] What also
emerges strongly is that the State Respondents in setting a quota
were largely guided by the NDF and that the primary
consideration was
whether the trade in lion bone would impact negatively on the wild
lion population. All of the experts appear
agreed on that issue,
namely that for now, export trade in lion bone will not impact
negatively on the wild lion population. While
this conclusion appears
to be unassailable there appears to be some controversy as to whether
the means used to achieve such an
outcome - the targeting of captive
lions - is beyond reproach.
[63] In determining
the place, if any, of the welfare considerations of captive lions in
the determination of an export quota, it
would be useful to start the
enquiry in recalling the constitutional injunction set out in Section
24 of the Constitution. It provides
that: -
"Everyone has the right-
(a)
to an environment that is not harmful to their
health or wellbeing; and
(b)
to have the environment protected, for the
benefit of present and future generations, through reasonable
legislative and other measures
that-
(i)
prevent pollution and ecological degradation;
(ii)
promote conservation; and
(iii)
secure ecologically sustainable development
and use of natural resources while promoting justifiable economic and
social development."
[64] The
Constitutional Court in
National Society for Prevention of
Cruelty to Animals v Minister of Justice and Constitutional
Development and Another
2017 (4) BCLR 517
(CC) at para 56 in
dealing with the powers of the NSPCA in instituting a private
prosecution had the opportunity to consider the
matter of cruelty to
animals within the broader context of the constitutional values that
stood at the doorway of our society as
well as the connection between
animal welfare and the right to have the environment protected. Its
views are located in the recognition
that animal cruelty was
prohibited both because of the intrinsic values we place on animals
as individuals but also to safeguard
and prevent the degeneration of
the moral status of humans. The Court reasoned: -
"More recently, Cameron JA's minority judgment in Openshaw
recognised that animals are worthy of protection not only because
of
the reflection that this has on human values, but because animals
"are sentient beings that are capable of suffering and
of
experiencing pain". The High Court in South African Predator
Breeders Association championed this view. A unanimous Full
Bench
found that canned hunting of lions is "abhorrent and repulsive"
due to the animals' suffering. On appeal, the Supreme
Court of Appeal
did not dispute this finding.
The Supreme Court of Appeal in Lemthongthai explained in the
context of rhino poaching, that
"
[constitutional values
dictate a more caring attitude towards fellow humans, animals and the
environment in general". The Court
concluded further that this
obligation was especially pertinent because of our history.
Therefore, the rationale behind protecting
animal welfare has
shifted.from merely safeguarding the moral status of humans to
placing intrinsic value on animals as individuals.
Lemthongthai is also notable because it relates animal welfare to
questions of biodiversity. Animal welfare is connected with the
constitutional right to have the "environment protected through
legislative and other means". This integrative approach
correctly links the suffering of individual animals to conservation,
and illustrates the extent to which showing respect and concern
for
individual animals reinforces broader environmental protection
efforts. Animal welfare and animal conservation together reflect
two
intertwined values.
"
[65] These
unambiguous and compelling sentiments require careful consideration
in that not only do they provide guidance in terms
of the legal
conduct that is expected of us but rather that it also speaks to the
kind of custodial care we are enjoined to show
to the environment for
the benefit of this and future generations.
[66] In this regard
the substantial focus of the State Respondents in determining the
quotas appears to be located in the understanding
that provided the
setting of a quota posed no threat to the wild lion population, it
was acceptable to do so. The welfare considerations
of lions in
captivity was not regarded as being relevant on two scores, firstly,
that the Minister did not have a welfare mandate
and secondly, that
the welfare considerations were not relevant to the setting of a
quota. I proceed to deal with these issues.
[67] While it may be
correct that the welfare mandate for lions in captivity may
substantially reside with DAFF there is a difference
in law in having
responsibility for the welfare mandate and taking welfare
considerations into account. The latter does not depend
on the legal
responsibility to set and enforce standards but rather on an
understanding that even if the mandate does not reside
with the
decision maker, this does not preclude the decision maker from
considering them if indeed they are relevant. Relevance
cannot be a
matter of formalism determined by the rigid application of the law.
Rather whether something is relevant falls to be
determined by the
relationship and connection between it and the decision that is to be
made. My view is that the Minister erred
in concluding that since she
was not seized with the welfare mandate for lions in captivity, she
was not obliged to give consideration
to welfare issues relating to
lions in captivity (if they were relevant) when determining the
quota.
[68] In any event
there must be some doubt as to whether the assertion that the welfare
mandate for lions in captivity resides exclusively
in DAFF is
correct. I have already made reference to the National Biodiversity
Plan which locates within the Second Respondent
together with DAFF
and other agencies the duty to set standards for the keeping and
breeding of lions in captivity with the indicators
stating that
'by
2019 all permit holders have to comply with minimum standards or be
closed down permanently.'
It is difficult to then understand how
the setting of standards for lions in captivity can be interpreted to
exclude the welfare
considerations that must invariably contribute to
such standards. The contents of the Plan casts doubt over the State
Respondents
assertions that the welfare mandate for lions in
captivity fall completely outside their remit.
[69] The second
issue and arising from the above is whether welfare considerations of
lions in captivity are relevant to the determination
of the annual
export quota. Hoexter in Administrative Law in South Africa (2°d
Edition 2012 -Juta) comments that it is
'open to the legislature
to exercise the structure of discretionary power by stipulating the
factors or considerations which a decision
maker must take into
account before deciding a matter.'
However, she goes on to point
out that where the lawmaker is silent on the matter the Court will
ultimately have to decide which
considerations are relevant. This is
such a matter.
[70] As a matter of
principle and regard being had to the
dicta
in
NSPCA v
Minister of Justice and Constitutional Development and another,
welfare considerations and animal conservation together
reflect intertwined values. Mindful that there is some debate as to
whether
lions in captivity impacts on conservation, it must be so
that lions in captivity are part of the biodiversity challenge - the
Plan affirms that in no uncertain terms.
[71] It would then
be artificial and hierarchical to argue that while we should share a
collective concern about lions in the wild
our concern for the
well-being of lions in captivity must rest on a different footing.
Even if they are ultimately bred for trophy
hunting and for
commercial purposes, their suffering, the conditions under which they
are kept and the like remain a matter of
public concern and are
inextricably linked to how we instil respect for animals and the
environment of which lions in captivity
are an integral part of.
Certainly in South Africa their numbers are double those of lions in
the wild and it would constitute
a contradiction if we are to suggest
that different standards and considerations should apply to our
treatment of lions (depending
on whether they were in the wild or in
captivity).
[72] The Applicant
argues that welfare considerations of lions in captivity are relevant
in the determination of the annual export
quota. Section 3 of NEMBA,
obliges the State in fulfilling the rights contained in Section 24 of
the Constitution, through its
organs that implement legislation
applicable to biodiversity, to manage, conserve and sustain South
Africa's biodiversity and that
the captive lion sector and in
particular lions in captivity are part of the biodiversity thereby
activating the State duty to
manage that sector. The definition of
the biodiversity sector in NEMBA is reflected as 'any sector or sub
sector that carries out
restricted activities involving indigenous
biological resources whether for commercial or for conservation
purposes.
[73] Reading NEMBA
as a whole together with the National Biodiversity Plan there is
little doubt that lions in captivity are part
of the biodiversity
sector that at the very least there is a duty to manage that sector
and the set standards for it appear clearly
from the legislative and
policy framework that is encapsulated in NEMBA and the Plan.
[74] When one then
has regard to the connection between welfare interests of animals and
conservation as reflected in the judgments
of both the Supreme Court
of Appeal and the Constitutional Court
in Lenthongthai and
NSPCA
respectively, then it is inconceivable that the State
Respondents could have ignored welfare considerations of lions in
captivity
in setting the annual export quota. What in essence occurs
is that the quota is a signalling to the world at large and the
captive
lion industry in particular that the state will allow exports
in a determined quantity of lion bone. It cannot be correct to assert
that such signalling can occur at the same time as indicating to the
world at large and to the same industry that the manner in
which
lions in captivity are kept will remain an irrelevant consideration
in how the quota is set. It is illogical, irrational
and against the
spirit of Section 24 and how our courts have included animal welfare
concerns in the interpretation of Section
24. Simply put if as a
country we have decided to engage in trade in lion bone, which
appears to be the case for now, then at the
very least our
constitutional and legal obligations that arise from Section 24,
NEMBA and the Plan require the consideration of
animal welfare issues
.
[75] In the context
of the decision under review, those concerns were raised and brought
to the attention of the State Respondents
who for the reasons already
given did not give them consideration either on the basis that they
were not scientific alternatively
were not relevant. The exclusion of
those considerations which I have demonstrated were relevant lends
the decisions of 2017 and
2018 susceptible to review on the basis
that in terms of Section 6)(e)(iii) relevant considerations were not
taken into account.
Remedy
[76] The original
and to some extent amended Notice of Motion sought relief that would
have had the decisions under review set aside.
However, during the
hearing of the matter and largely on account of the reality the trade
export has been completed in lion bone
arising out of the 2017 and
2018 quota determinations, it would be impossible to reverse those
processes. Accordingly, the relief
sought was only an order that the
decisions under review were unlawful and unconstitutional.
[77] In
Bengwenyama
Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd
2011 (4) SA
113
(CC) the Constitutional Court stressed that the fundamental
importance of the principle of legality which required that invalid
administrative action be declared as such. This is such a case and
satisfied that a proper case for the invalidation of the
administrative
action in question has been made out the declaration
sought is both competent but also necessary.
Costs
[78] The question of
costs remains within the discretion of the Court and while the
Applicant has achieved success there are a number
of factors that
require consideration. While the Applicant has successfully asserted
an important constitutional right, it has
also conducted the
litigation in this matter in a manner that has resulted in
considerable duplication, prolonged the final determination
of the
matter, caused the Respondents prejudice in the preparation of
various additional affidavits and other legal costs associated
therewith in particular in relation to the new matter raised and the
aborted urgent proceedings. My view therefore is that a just
and
equitable order with regard to costs would be to direct that each of
the parties bear their own costs.
[79] In
the result the following order is made: -
1.
It
is declared that the First Respondent's
decision to set the quota for the exportation of lion bon
(
of
800 lion skeletons) which was established by notice on 28 June 2017
is unlawful and constitutionally invalid.
2.
It
is declared that the First Respondent's
decision to set the quota for the exportation of lion bone (of 1500
lion skeletons) which
was determined on
7
June 2018 and
publicly announced on 16 July 2018 is unlawful and constitutionally
invalid.
3.
Each party is to bear their own costs of the
application including the urgent application.
_______________________
N
KOLLAPEN
JUDGE
OF THE HIGH COURT,
GAUTENG
DIVISION, PRETORIA
Heard on
: 26 June 2019
Judgment
delivered
: 06 August 2019
APPEARANCES
For the Applicant:
Adv L J Morison & Adv T Scott &
Adv A C Mckenzie
Instructed by
Marston & Taljaard Attorneys
For the First and
Second
Respondent: Adv J
Rust & Adv N Fourie
Instructed by State
Attorney
For the Third Respondent: Adv F W Botes SC & Adv J
Ferreira
Instructed by L Smit Attorneys
[1]
Section 3 of The SPCA Act
[2]
Supra at para 14.
[3]
Mauerberger v Mauerberger
1948 (3) SA 731
(C) at 732 and Schreuder v
Viljoen 1965 (2) SA 88 (O).
[4]
Shakot Investments (Pty) Ltd v Town Council of the Borough of
Stanger
1976 (2) SA 701
(D) at 704G- H.