Brief Summary

Criminal Law — Environmental Offences — Appeal against convictions for contravening environmental legislation — Appellants convicted of transporting and keeping protected species without permits — Appellants argued necessity and impossibility as defences due to urgent medical needs of animals — Court held that the Appellants failed to comply with permit requirements, but the circumstances of the case warranted consideration of their actions — Convictions upheld, but sentences adjusted in light of the context and the Appellants' intentions to protect the animals.

Comprehensive Summary

Summary of Judgment

1. Introduction

These proceedings were an appeal to the High Court of South Africa, Free State Division, Bloemfontein, against convictions and sentences imposed in the Regional Court, Welkom. The appeal was directed at findings of criminal liability for environmental and nature conservation contraventions arising from the transportation and temporary keeping of threatened or protected species (cheetah and lion cubs) without the requisite permits, and an alleged failure to comply with permit conditions.

The parties were Thalita Susanna Cloete (Appellant 1), Francoais Stephanus Schutte (Appellant 2), and Francoais Benjamin Schutte (Appellant 3), as appellants, and the State as respondent. The appellants had pleaded not guilty at trial and had tendered a written plea explanation under section 115 of the Criminal Procedure Act 51 of 1977, raising the defences of impossibility and necessity. They appealed with leave granted by the court a quo.

The general subject-matter concerned the interaction between statutory permit requirements under the National Environmental Management: Biodiversity Act 10 of 2004 and the Free State Nature Conservation Ordinance 8 of 1969, on the one hand, and the claimed practical and medical exigencies surrounding neonatal predator cubs requiring urgent veterinary intervention and specialised nursing care, on the other. A central feature was whether non-compliance, though factually established, was nevertheless justified or excused in the circumstances.

2. Material Facts

It was common cause that Appellants 2 and 3 were farmers who held a permit to breed lions and cheetahs (listed protected species) on their farm Jachalskop in the district of Theunissen. During June 2016, multiple predator cubs were born on the farm during a period of extreme cold, and several died shortly after birth. In both the cheetah and lion litters, four surviving cubs were taken to Dr de Vries, a veterinary surgeon practising in Welkom who was permitted to treat TOPS (threatened or protected species).

The court relied heavily on the essentially undisputed medical narrative provided by Dr de Vries. In relation to the cheetah cubs, the evidence accepted was that the surviving cubs presented as hypothermic, weak, dehydrated, and unable to drink independently, requiring urgent intervention. Dr de Vries treated them with intravenous warm saline drips, antibiotics, and anti-inflammatory medication. He recommended that the cubs be cared for at the home of Appellant 1, situated two blocks from his clinic, because the cubs required two-hourly feeding, continuous monitoring, temperature control, and a hygienic environment away from potential pathogens associated with sick animals visiting the clinic.

Similarly, on 27 June 2016, four lion cubs (together with dead cubs from the litter) were brought to Dr de Vries. He stabilised and treated the surviving cubs and recommended, again, that they be kept under specialised nursing care at Appellant 1’s premises, including because of the incubation periods associated with potential viral or bacterial infections. It was also accepted that the clinic itself did not have the facilities or departmental approval (including spatial requirements) to keep and care for the cubs on site, and that the farm, at that time, likewise did not have the facilities to provide the necessary care for the sick cubs.

On 5 July 2016, environmental inspectors, acting on information that lions were being kept on a residential property, attended at Appellant 1’s home with a search warrant, accompanied by the SAPS. They found four cheetah cubs and four lion cubs housed indoors in playpens in separate rooms, with heating arrangements (including infrared lamps for the cheetahs) and with perimeter security measures on the property. Upon being told by Appellant 1 that she was “raising” the cubs, the inspectors confiscated all eight animals and transported them to a rehabilitation centre in Bloemfontein. One cheetah cub died two days later at the rehabilitation centre. Thereafter, the appellants obtained an urgent order for the return of the cubs, and three lion cubs died of stress within weeks of being transported back to the farm.

The contraventions underpinning the convictions flowed from three core features of the appellants’ conduct: first, the cubs were transported without transport permits; second, Appellant 1 did not have a permit to keep wild animals in captivity at her residential premises; and third, Appellants 2 and 3 were alleged to have breached permit conditions by not keeping the animals at the address specified in the permit and by failing to report births within five working days (together with a further allegation of failure to report deaths within that time frame).

On the record before the appeal court, a key factual premise advanced by the appellants, and accepted as materially supported by departmental witnesses, was that the provincial permitting practice required the animals to be identified by microchip (“tagged”) before permits would be issued. The cubs were at an age and in a condition where, on the evidence relied upon, tagging and identification could not practically be done. The departmental witnesses (Messrs Schlemmer, Geyer and Mosia) confirmed the practice that permits would not be issued without identification/tagging, notwithstanding that the court noted concessions that neither the Act nor regulations required microchipping at birth for such cubs.

3. Legal Issues

The appeal presented central questions concerned with the application of law to fact, specifically whether the appellants’ established non-compliance with statutory permit requirements nevertheless did not attract criminal liability due to recognised defences. The court framed the inquiry as not primarily whether the appellants had contravened the statutory and ordinance provisions, but whether their conduct was justified or excusable so as to exclude criminal liability.

The first central legal issue was whether the defence of objective impossibility was available to the appellants in respect of omissions or failures to comply with permit requirements, where the provincial administrative practice required microchipping/identification before permits would issue, and where such identification was not possible given the cubs’ age and medical condition.

The second central legal issue was whether the defence of necessity operated as a ground of justification excluding unlawfulness, in circumstances described as an ongoing emergency where urgent veterinary treatment and specialised nursing care were required to prevent suffering and death, and where compliance with permitting requirements was, in practice, unavailable or would compromise survival.

A further issue, more factual in nature but still governed by criminal-law standards of proof, concerned whether the conviction for failure to report births and deaths within the required period could be sustained on the evidence, given disputes about what was submitted, discussed, and communicated, and the applicable standard that the State must prove falsity of the accused’s version beyond reasonable doubt.

4. Court’s Reasoning

The court’s reasoning proceeded from the premise that statutory non-compliance had been established: the cubs were transported without permits; the animals were kept at a residential property not covered by the farm permit; and Appellant 1 did not hold a permit to keep wild animals in captivity. The decisive question, however, was whether criminal liability attached given the defences of impossibility and necessity raised in the section 115 plea explanation.

On impossibility, the court adopted the approach (with reference to Snyman) that an omission is punishable only where there is a legal duty to act and the omission is voluntary, which in turn depends on whether it was possible to perform the required positive act. The court characterised the relevant impossibility as objective: the evidence established that the provincial permitting practice required microchip identification before issuing permits; the cubs were too young and too sick to be microchipped/identified; therefore, in the circumstances, the appellants could not obtain permits even if they sought to comply.

In addressing suggestions by State witnesses that emergency permits could be arranged quickly, the court evaluated this against the administrative procedure described in evidence and concluded that the “within an hour” proposition could not realistically apply to the present cubs given the identification requirement. The court also noted evidence that exceptional “permission” from environmental inspectors, even if sought, would not equate to a permit, was not guaranteed, and had in at least one later incident been refused. The court further observed that the department’s administrative process was not demonstrated to be reliably accessible in an emergency situation.

On necessity, the court articulated the governing principles as requiring an emergency (harm commenced or imminent), no reasonable alternative means to avert harm, and a proportionality assessment weighing the interest protected against the interest infringed. Applying these principles, the court identified the interests protected as the cubs’ survival and welfare and the owners’ proprietary interest in valuable animals, while the interest infringed was compliance with permit rules aimed (on the inspectors’ evidence) at preventing smuggling and illegal trade.

The court’s application of necessity turned on the evidence of Dr de Vries, treated as pivotal. The court emphasised that Dr de Vries was the qualified medical expert authorised to treat TOPS animals and that the State called no countervailing expert evidence. His evidence supported that the cubs’ condition required ongoing intensive care and monitoring, including at the time of confiscation. The court treated the emergency as not merely historical (at the initial presentation) but continuing, highlighting the recent operation on a cheetah cub, the cubs’ fever and raised white cell counts on 5 July 2016, the scheduled follow-up treatment the same day, and subsequent deaths following the confiscation and transport sequence.

The court also evaluated the conduct of the inspectors as having been focused on strict enforcement rather than investigating the best interests of the cubs, particularly given the medical fragility described. In assessing proportionality, the court reasoned that it was difficult to accept that societal legal convictions would treat rigid compliance with a permit requirement—described as impossible to fulfil at the relevant age—as outweighing the survival of the cubs, especially where there was no suggestion the appellants were engaged in smuggling or unlawful trade.

A significant contextual consideration for the court was the disparity between the NDPP’s decision not to prosecute Dr de Vries on the basis that he acted in an emergency, and the prosecution and conviction of the appellants on the same overall facts. The court treated this as reinforcing that the matter should have been treated as emergency circumstances rather than ordinary regulatory non-compliance.

The court concluded that the State had not proved beyond reasonable doubt that the appellants did not act in an emergency situation, and that the necessity defence therefore succeeded. The court added that even if it were wrong on impossibility, necessity nonetheless justified the conduct in the particular circumstances, and it therefore did not consider it necessary to address the remaining grounds of appeal.

As to the remaining allegation relating to failure to report births and deaths, the court applied the evaluative approach that an accused’s version must be considered holistically and that an acquittal follows if the accused’s version is reasonably possibly true, even if the State’s evidence is not rejected. Given uncertainty on the evidence about what was submitted or communicated, and on what dates and to whom, the court held that sufficient doubt remained and that it could not find that Appellant 3’s version was false beyond reasonable doubt.

5. Outcome and Relief

The High Court upheld the appeal in full. It set aside the convictions and sentences imposed by the Regional Court on all counts.

The court ordered that the order of the court a quo be set aside with costs, stating that there was no reason why costs should not follow success.

Cases Cited

SA Predator Breeders Association and Others v Minister of Environmental Affairs and Tourism (29 November 2010) [2011] ZASCA 29.

R v M 1946 AD 1023 (at 1027).

Legislation Cited

National Environmental Management: Biodiversity Act 10 of 2004 (including section 57(1), section 101(1)(a), section 102, and Chapter 7, as referenced in the charge formulation).

Free State Nature Conservation Ordinance 8 of 1969 (including sections 14(1), 37, 38, 40(1)(b), 40, 41 and 42, as referenced in the charge formulation).

Criminal Procedure Act 51 of 1977 (including section 115, section 204, and section 250, as referenced).

Animal Diseases Act 35 of 1984 (section 11(1), as referenced in the plea explanation).

Animals Protection Act 71 of 1962 (referenced as “Animal Protection Act, 1962”).

National Environmental Laws Amendment Act 14 of 2009 (as referenced in the charge formulation).

Government Notice R151, Government Gazette No. 29657 of 23 February 2007 (listing of threatened or protected species), as referenced.

Government Notice R69, Government Gazette No. 30703 of 28 January 2008, as amended, as referenced.

Draft National Norms and Standards for the Sustainable Use of Large Predators (published 28 January 2008, as referenced).

Rules of Court Cited

No specific rules of court were referenced in the judgment.

Held

The court held that, although the appellants did not comply with statutory and ordinance permit requirements relating to the transport and temporary keeping of lion and cheetah cubs, their conduct was not criminally punishable in the particular circumstances because the defences of impossibility and, in any event, necessity applied on the evidence accepted by the court.

The court further held that the conviction for failing to report births and deaths within five working days could not be sustained because the evidence did not establish beyond reasonable doubt that the appellants’ version on reporting was false, leaving a reasonable possibility that it was substantially true.

Accordingly, all convictions and sentences were set aside, and costs were awarded in favour of the appellants.

LEGAL PRINCIPLES

Objective impossibility operates as a defence in respect of criminal liability for an omission where the law imposes a duty to perform positive conduct, but it is not possible (in objective terms) to comply. The judgment applied the principle that an omission can only ground liability if it is voluntary, and it cannot be voluntary where compliance is impossible in the circumstances as established by the evidence.

Necessity functions as a ground of justification excluding unlawfulness where an accused acts in an emergency to protect a legally recognised interest from harm that has commenced or is imminent, where the harm cannot be averted in another way, and where the protected interest is not out of proportion to the interest infringed. The judgment applied a balancing approach grounded in proportionality and “legal convictions of the community,” treating the preservation of life and welfare of vulnerable animals in a continuing emergency as outweighing rigid adherence to permit formalities in circumstances where the permitting system, as applied, was not practically available.

In criminal adjudication, an accused is entitled to an acquittal where the accused’s version is reasonably possibly true and has not been shown to be false beyond reasonable doubt, and the evidence must be assessed holistically rather than by piecemeal dissection, consistent with the approach stated in R v M 1946 AD 1023.

Cloete and Others v S (A106/2019) [2019] ZAFSHC 247; 2020 (1) SACR 317 (FB) (19 December 2019)