National Council of Societies for the Prevention of Cruelty to Animals v Openshaw (462/07) [2008] ZASCA 78; [2008] 4 All SA 225 (SCA); 2008 (5) SA 339 (SCA) (30 May 2008)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2008
>>
[2008] ZASCA 78
|

|

National Council of Societies for the Prevention of Cruelty to Animals v Openshaw (462/07) [2008] ZASCA 78; [2008] 4 All SA 225 (SCA); 2008 (5) SA 339 (SCA) (30 May 2008)

Links to summary

REPUBLIC OF SOUTH AFRICA
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case No: 462/07
In the
matter between:
NATIONAL
COUNCIL OF SOCIETIES FOR THE PREVENTION OF CRUELTY TO ANIMALS
...
APPELLANT
and
PETER
OPENSHAW
...
RESPONDENT
CORAM
: FARLAM JA, CAMERON JA, HEHER JA, HURT AJA and
MHLANTLA AJA
HEARD
:
16 MAY 2008
DELIVERED
: 30 MAY 2008
SUMMARY
:
Interim
relief - refusal of – delay by appellant in instituting principal
action – right to interim relief forfeited – reasonable
apprehension of irreparable harm not established - Order in para
[31].
NEUTRAL CITATION:
This judgment may be referred to as
NCSPCA v Openshaw (462/07)
[2008] ZASCA 78
(RSA)
JUDGMENT
MHLANTLA AJA
MHLANTLA AJA:
[1] The appellant appeals against a decision of Van der
Merwe J (sitting in the Bloemfontein High Court) in which its
application
for an interim interdict restraining the respondent from
presenting live prey to tigers in contravention of the Animal
Protection
Act 71 of 1962 (the Act) was dismissed with costs. The
appeal is with leave of this court.
[2] The issue is whether an inference can be drawn from
a statement by the respondent in video footage, that he committed an
offence
in terms of section 2(1)(g) of the Act, and if so, whether
one can infer that this would be an ongoing practice so as to
constitute
the apprehension of harm required for an interdict.
[3] First, however, it is necessary to consider the
respondent’s contention that the appeal has become moot. On 8 May
2008, a week
before the hearing of the appeal, the respondent filed a
notice of motion for the admission of his affidavit as evidence in
the appeal.
In this affidavit he informed the court that he had
resigned as manager at the tiger sanctuary (which employed him at the
time the
interdict was sought against him) and had accepted a
contract of employment at the Abu Dhabi Tourism Development and
Investment Company
from 14 May until 31 December 2008 with a prospect
of being offered a further contract. He explained that his decision
to seek other
employment was based solely on financial
considerations. He further stated that there was no prospect of him
returning to the tiger
sanctuary after 31 December because the job
did not offer him the financial security he and his family required.
[4] It is common cause that the respondent left the
Republic of South Africa on 14 May 2008 to assume his duties in Abu
Dhabi. It
was contended on his behalf that the appeal was moot and
that the court should accordingly dismiss the appeal in terms of
section
21A of the Supreme Court Act 59 of 1959.
1
[5] When the appeal was heard, submissions were advanced
both on the question of mootness and the merits. In view of the fact
that
I have come to the firm conclusion that the appeal must fail on
the merits, it is unnecessary for me to deal with the mootness
argument.
I am prepared to assume without deciding that, even if the
matter is moot, this is not a case in which a court should exercise
its
discretion in terms of section 21A of the Supreme Court Act.
[6] I accordingly proceed to deal with the merits. The
appellant is a statutory body established in terms of the Societies
for the
Prevention of Cruelty to Animals Act 169 of 1993. Its objects
are set out in section 3
2
.
These inter alia, include the prevention of ill-treatment of animals
by promoting their good treatment by man. The respondent was
the
manager of the Laohu Valley Reserve in the Philippolis district. He
was employed on a conservation project of the Chinese Tigers
South
Africa Trust. The aim of the project is to save from extinction an
endangered sub-species of tiger known as the South China
Tiger or
Chinese Tiger.
[7] The respondent attempted to train captive-born
Chinese Tiger cubs to function in the wild. The project planned to
bring the tiger
cubs born in China to South Africa and place them in
a sanctuary, the Laohu Valley Reserve, where they would be taught to
survive
by hunting. These tigers would eventually be returned to a
reserve to be created in China. At the time of the institution of the
proceedings, three tigers, named Tiger Woods, Madonna and Cathay,
were under the control of the respondent for the purposes of the
project.
[8] The appellant initially sought an order for a final
interdict preventing the respondent from presenting live prey such as
blesbok
to the tigers. The appellant founded its application on
section 2(1)(g) of the Act which states the following:
'(1) Any person who-
save for the purpose of training hounds maintained by a duly
established and registered vermin club in the destruction of vermin,
liberates
any animal in such manner or place as to expose it
to immediate attack or danger of attack by other animals or by wild
animals,
or baits or provokes any animal or incites any animal to
attack another animal
shall, subject to the provisions of this Act and any other law, be
guilty of an offence and liable on conviction to a fine or to
imprisonment for a period not exceeding twelve months or to such
imprisonment without the option of a fine.' (Emphasis added.)
[9] The application was launched after the appellant's
officials were alerted to video footage of a documentary on a
television programme
called 50/50 which was broadcast on SABC 2.
3
The footage depicted blesbok being caught in a net,
followed immediately by a statement by the respondent. The appellant
contended
that the respondent had demonstrated an intention to
contravene the provisions of s 2(1)(g) of the Act when he made the
following
statement:
'What we are going to do, we are going to present one of them live to
Tiger Woods and Madonna and the others we will put into the
enclosure
that Cathay and Hope normally stay in.'
[10] The respondent in his answering affidavit stated
that the footage had been taken on different occasions over the
period June
to August 2005 and spliced together to give the
appearance of a single episode. He admitted making the statement but
did not explain
what he meant nor what happened to the blesbok. He
elected to remain silent and not respond to what he termed conjecture
on the appellant’s
part. He further denied contravening s 2(1)(g)
or any provisions of the Act.
[11] The respondent thereafter set out the
modus
operandi
of the programme since 2005. He
stated that there are a series of different-sized enclosures fenced
with appropriate predator-proof
fencing as follows:
(a) A small enclosure which serves as a quarantine camp
for newly arrived cubs;
(b) Enclosures of 4ha and 9ha respectively, in which the
young cubs are exposed to the vegetation and terrain, and where they
might
encounter smaller prey such as guinea-fowl and rodents. This
camp has sometimes, in the absence of tigers, been used to hold
antelope
before they were introduced to the larger enclosures. The
respondent stated that he had no plans or intentions of allowing
tigers
and blesbok to be present simultaneously in future in the 9ha
enclosure.
(c) A 40ha enclosure, with a river running through it,
in which sub-adult and adult tigers roam together with a limited
number of
antelope. According to the respondent, the river and the
size of the camp make hunting very difficult and the prey are highly
attuned
to the behaviour of the tigers. He further stated that the
best way to introduce the blesbok into this enclosure would be to
first
remove the tigers. This would allow the blesbok a period of
time to acclimatise themselves to the area and consequently much
harder
to hunt when the tigers were eventually re-introduced to this
enclosure.
(d) A 600ha enclosure of which the predator-proof
fencing was nearing completion. Large numbers of several species of
prey, including
blesbok, springbok, ostrich, mountain reedbuck and
wildebeest were already situated in this enclosure.
(e) A 6000ha enclosure in which larger numbers of prey
referred to in (d) above were located.
[12] The respondent thereafter proceeded to set out the
current status and future plans of the re-wilding programme:
(a) Tiger Woods and Madonna, both 2 ½ years old, were
located in the 40ha camp. Thirteen blesbok had been introduced in
August 2005.
There were two adult blesbok remaining in August 2006
when he deposed to his answering affidavit. It has accordingly taken
the tigers
more than a year to hunt the herd of 13 blesbok down to
two. More blesbok would be released into the camp once the remaining
two
had been hunted. The respondent stated that he would not do so in
the immediate proximity of the tigers as this would be
counter-productive
to the aims of the project. He outlined the
process to be adopted, ie, the tigers would first be removed to allow
the blesbok time
to acclimatise properly. This had to be done to
ensure that the tigers were exposed to situations which were akin to
those which
the tigers would encounter in the wild. He indicated that
the tigers were nearing the point in their development where they
could
fend entirely for themselves in the 600ha camp.
(b) On 26 May 2006 Cathay was separated from the other
tigers and kept in a 14ha camp, as a result of territorial and
aggressive behaviour
towards the other female. Apart from the guinea
fowl and rodents which creep in through the fence, no live prey has
been introduced
in this camp. She has been sustained on carcasses
which were provided by the respondent every five to seven days.
(c) Once Tiger Woods and Madonna were released into the
600ha enclosure, Cathay would be released into the 40ha camp. She
would however
be kept in the 14ha camp when the blesbok were released
into the 40ha camp.
[13] The appellant in its replying affidavit did not
challenge the respondent's averments in regard to the
modus
operandi
and current status of the re-wilding
project. It abandoned its claim for final relief on the papers and
sought an interim interdict
pending the determination of what it
described as 'disputed' factual issues by means of a hearing of oral
evidence. It sought interim
relief pending the determination of an
action to be instituted within 30 days of the grant of the interim
order.
[14] The court below found that the respondent had not
furnished any specific explanation or interpretation of what he meant
when
he made the recorded statement. The learned judge stated that he
was inclined to agree with the appellant that the recording provided
prima facie evidence that s 2(1)(g) of the Act had been contravened
in respect of the two tigers in the enclosure. He however stated
that
as the interdict was not a remedy for past invasion of rights: the
appellant had a duty to show prima facie that there was a
reasonable
apprehension that, unless restrained by interdict, the respondent
would continue or in future contravene s 2(1)(g) of
the Act. The
court below found that, as none of the averments by the respondent
were disputed or contradicted, it had to accept that
the respondent
would not in the future expose prey such as blesbok to the tigers in
contravention of s 2(1)(g). He accordingly dismissed
the application
with costs.
[15] In this appeal the respondent’s counsel raised a
preliminary objection that the appellant had by its delay in
instituting the
action envisaged forfeited any right to interim
relief. Counsel for the appellant submitted that the action had not
been instituted
because the appellant was awaiting the outcome of the
appeal on this issue and that it intended to utilise the judgment to
prefer
criminal charges against the employers of the respondent.
[16] The argument on behalf of the appellant, in my
view, has no merit. First, the judgment cannot be used against the
employer who
is not a party to these proceedings. Second, in regard
to the long delays Van Wyk J stated the following
in
Juta & Co Ltd v Legal and Financial Publishing Co
(Pty) Ltd
4
:
'If one bears in mind the long delays for which no explanation has
been given, that as far back as December the applicant had numerous
clear cases of copying in its possession, according to the letter
written by the applicant, and that up to now no action has been
instituted, it seems that the applicant has erred in selecting this
method, namely, an application for an interdict
pendente lite
,
but even if it was the appropriate procedure at the time the
applicant has, by reason of the facts stated above, forfeited its
rights
to this temporary relief. Had it issued summons at the time
when the notice of motion proceedings were instituted, the
trial could already have taken place.
There is such a thing as the tyranny of litigation, and a Court of
law should not allow a party to drag out proceedings unduly. In
this
case we are considering an application for an interdict
pendente
lite
, which,
from its very nature,
requires the maximum expedition on the part of an applicant.'
[17] In my view these principles are applicable. The
application for final relief was launched on 11 July 2006. The
respondent filed
his answering affidavit on 28 August 2006. The
appellant filed its replying affidavit on 19 October 2006 wherein it
abandoned the
claim for final relief and sought interim relief
pending the determination of an action to be instituted by it within
30 days.
[18] It is now more than 19 months since the launch of
the application and the appellant has still not instituted the action
to which
its claimed interim relief is ancillary. There is no doubt
that if the appellant had acted promptly, the trial of this action
would
probably have preceded the determination of this appeal. Both
parties would have had the opportunity to present their cases in
court
and all the issues would have been properly ventilated. In my
view, the delays are highly prejudicial to the respondent. The appeal
accordingly falls to be dismissed on account of the appellant's delay
in instituting the principal action to which its claimed interdictory
relief is ancillary.
[19] In regard to the merits of the case, counsel for
the appellant contended that the appellant had established a clear
right in
terms of the Act and as such it was not necessary to
establish a reasonable apprehension of irreparable harm for an
interdict to
be granted. He further submitted that as the re-wilding
of the tigers was an ongoing programme and as no explanation was
furnished
for the events contained in the video recording, the only
reasonable inference that could be drawn was that s 2(1)(g) had been
contravened
and would be similarly contravened in future. He further
contended that the respondent had not averred that this was an
isolated
event and had only provided explanations for current and not
future practices.
[20] An interdict is not a remedy for past invasion of
rights but is concerned with present or future infringements. It is
appropriate
only when future injury is feared.
5
Where a wrongful act giving rise to the injury has
already occurred, it must be of a continuing nature or there must be
a reasonable
apprehension that it will be repeated. The requisites
for the right to claim an interim interdict are:
6
(a) A prima facie right. What is required is proof of
facts that establish the existence of a right in terms of substantive
law;
(b) A well-grounded apprehension of irreparable harm if
the interim relief is not granted and the ultimate relief is
eventually granted;
(c) The balance of convenience favours the granting of
an interim interdict;
(d) The applicant has no other satisfactory remedy
[21] The test in regard to the second requirement is
objective and the question is whether a reasonable man, confronted by
the facts,
would apprehend the probability of harm. The following
explanation of the meaning of 'reasonable apprehension' was quoted
with approval
in
Minister of Law and Order v
Nordien:
7
'A reasonable apprehension of injury has been held to be one which a
reasonable man might entertain on being faced with certain facts.
The
applicant for an interdict is not required to establish that, on a
balance of probabilities flowing from the undisputed facts,
injury
will follow: he has only to show that it is reasonable to apprehend
that injury will result. However the test for apprehension
is an
objective one. This means that, on the basis of the facts presented
to him, the Judge must decide whether there is any basis
for the
entertainment of a reasonable apprehension by the applicant.'
8
[22] If the infringement complained of is one that prima
facie appears to have occurred once and for all, and is finished and
done
with,
9
then the applicant should allege facts justifying a
reasonable apprehension that the harm is likely to be repeated.
[23] Applied to the facts of this case and in so far as
the statement by the respondent in the video footage is concerned, it
does
not reveal what actually happened to the blesbok, but only that
the respondent expressed an intention to do something. Having regard
to the facts, a fair inference can be drawn that the respondent would
in August 2005 commit one offence in contravention of s 2(1)(g)
of
the Act. In my view, the court below correctly found the recording of
the programme coupled with the respondent’s failure to
explain his
statement indicated only a single contravention of s 2(1)(g) of the
Act.
[24] The next issue is whether an inference can be drawn
that this would be an ongoing practice. In this regard the argument
on behalf
of the appellant that it was unnecessary to show an
apprehension of irreparable harm is ill-conceived. In my view, the
appellant
still had a duty to show objectively that, when faced with
the facts a reasonable person would find an apprehension of harm,
that
the respondent is likely in future to contravene s 2(1)(g) of
the Act by presenting live prey such as blesbok to tigers in
circumstances
which are prohibited by the section.
[25] It is common cause that the application was
launched in 2006, a year after the statement was made. In his
answering affidavit
the respondent gave a detailed description of his
modus operandi
and
what he intended to do in future. This included his intention to
release the tigers in a much bigger area where they will be totally
dependent on hunting for themselves. The respondent furthermore made
an expression of future intent not to release any live prey
in the
immediate proximity of the tigers. His intention was not put in issue
by the appellant. There is also no evidence indicating
anything to
the contrary. Nothing has happened since August 2005. It is
accordingly evident that this was an isolated incident.
[26] It is so that the expression of future intent is
not an express undertaking; however when regard is had to the facts
of this
matter, the respondent's intention is clear and unequivocal.
In my view, his expression of intention is sufficient. There is no
other
evidence that has been placed before the court by the appellant
that could objectively be viewed as showing a reasonable apprehension
of harm. In the result, I cannot say that the more plausible
inference to be drawn is a likelihood that the respondent will
contravene
s 2(1)(g) in the future.
[27] Counsel for the appellant further contended that an
interdict should, in any event, be granted as the respondent had
mentioned
that new cubs would be brought to the sanctuary and that
this was a clear indication that the section will be contravened in
future.
In this regard he relied on the agreements between the Trust
and the Chinese government to provide new tiger cubs for the reserve.
He contended that there was a risk that live blesbok would be
presented to the new cubs and that this would be in contravention of
s 2(1)(g) of the Act.
[28] There is no substance in this argument. This issue,
as correctly pointed out by counsel for the respondent, was never
raised
in the founding papers or during the hearing in the court
below. It was the respondent who in his answering affidavit raised
the
issue of the new cubs being supplied as and when they were born,
but this was denied by the appellant. At no stage did the appellant,
on the basis of the agreements or any evidence, seek to make out a
case that new cubs would have to pass through a phase where it
was
necessary for the respondent to feed them live prey. This issue
surfaced for the first time during the application for leave
to
appeal. This, in my view, is a new case that has been advanced on
appeal and the respondent has not had an opportunity to address
the
issues raised by the appellant.
[29] It is trite law that the applicant in motion
proceedings must make out a proper case in the founding papers.
10
Miller J in
Shakot Investments
(Pty) Ltd v Town Council of the Borough of Stanger,
11
puts the matter thus:
'In proceedings by way of motion the party seeking relief ought in
his founding affidavit to disclose such facts as would, if true,
justify the relief sought and which would, at the same time,
sufficiently inform the other party of the case he was required to
meet.'
[30] The applicant must set out the facts to justify the
relief sought and also to inform the respondent of the case he is
required
to meet. The appellant is precluded from making a case on
appeal that was not only not pleaded on the papers but was also
disavowed
by the appellant in reply. Accordingly the afterthought is
impermissible. In the circumstances I am satisfied that the appeal
must
fail.
[31] In the result, the following order is made:
'The appeal is dismissed with costs.'
N Z MHLANTLA
ACTING JUDGE OF APPEAL
CONCUR
FARLAM JA
HEHER JA
HURT AJA
CAMERON JA:
I have had the benefit of reading the judgment of my
colleague Mhlantla AJA but regret I cannot agree with her
conclusion. In my
view the respondent should have been interdicted
from any future conduct in violation of s 2(g) of the Animal
Protection Act 71
of 1962 (the Act), and ordered to pay the costs of
the applicant (the Council). The divergence stems essentially from
the fact
that I differ from my colleague’s approach on two issues:
the status and role of the Council;
the fact that the
respondent,
Mr Openshaw, in the face of evidence clearly indicating that he had
violated the Act, expressly declined to give any
undertaking that he
would not do so again.
Mootness
Shortly before the appeal, Openshaw submitted evidence
that he was leaving his employment (from which the Council said the
circumstances
requiring an interdict arose) and relocating to a
position abroad. He said this rendered the appeal moot. I do not
agree. Section
21A(1) of the Supreme Court Act 59 of 1959 (which my
colleague sets out in footnote 1 to her judgment) confers a
discretion on
this court to dismiss an appeal on the ground that it
‘will have no practical effect or result’. In my respectful
view, to
exercise that discretion would not be appropriate in this
case. The discretion exists to prevent appellants from presenting
issues
‘that are wholly academic, … exciting no interest but an
historical one’.
12
In this case, even though the danger that Openshaw
might in future violate the Act has largely (if not entirely)
receded because
of his job abroad, the issues that propelled the
Council’s intervention remain live.
Societies for the Prevention of Cruelty to Animals
(SPCAs) are registered under the Societies for the Prevention of
Cruelty to Animals
Act 169 of 1993 (the SPCA Act) (s 8). This
statute sets out the objects of the Council and creates a board to
achieve them (s 2).
The objects the statute entrusts to the Council
(s 3) include not only –
‘
(c) to prevent the ill-treatment of animals by
promoting their good treatment by man’,
but also –
‘
(e) to take cognizance of the application of
laws affecting animals and societies and to make representations in
connection therewith
to the appropriate authority’.
In recognising that the Council’s objects go beyond
preventing ill-treatment, but include the wider responsibility of
making representations
about laws affecting animals, the legislature
assigns the Council broader lobbying and advocacy functions. And
since making representations
on the application of laws entails
commenting on their sufficiency (or insufficiency), the objects
include also law revision and
law reform.
The Council’s pursuit of an interdict in the High
Court plainly involved ‘the application of laws affecting
animals’. The
court application concerned not only the prevention
of cruel treatment, but the broader question of the adequacy (or
inadequacy)
of the laws preventing such treatment. The Council thus
has a real and continuing interest in the proper disposal of the
interdict
application. This is particularly so if, as I respectfully
consider, the interdict was wrongly refused in the court below.
Should an interdict have been granted?
I turn now to why in my view the interdict should have
been granted. And we must start by identifying the role of the
Council in
the proceedings.
The Act and the SPCA Act are both animal welfare
legislation. Though not conferring rights on the animals they
protect, the statutes
are designed to promote their welfare.
13
The statutes recognise that animals are sentient beings
that are capable of suffering and of experiencing pain. And they
recognise
that, regrettably, humans are capable of inflicting
suffering on animals and causing them pain. The statutes thus
acknowledge the
need for animals to be protected from human
ill-treatment.
It is for this reason that the legislature created the
Council, invested it with statutory status, and conferred on it
powers and
duties. Implicit in this is the legislature’s
recognition that the Council has an important function. Though
animals are capable
of experiencing immense suffering, and though
humans are capable of inflicting immense cruelty on them, the
animals have no voice
of their own. Like slaves under Roman law,
they are the objects of the law, without being its subjects.
The statute thus constitutes the Council and its
associated SPCAs as their guardian and their voice. The Council was
thus rightly
impelled to action when its representatives became
aware of Openshaw’s claim in the documentary film that he proposed
to ‘present
one of [the captive blesbok] live’ to the tigers in
his care. That foretold a criminal infraction of s 2(1)(g) of the
Act, which
prohibits the liberation of ‘any animal in such manner
or place as to expose it to immediate attack or danger of attack by
other
animals or by wild animals’.
The prohibition in s 2(1)(g) does not of course attempt
to inhibit naturally predatory behaviour by animals in the wild. It
proscribes
cruel human interventions that supplant natural
conditions with unnatural confinement and expose live prey to the
danger of immediate
attack with no recourse. In argument before us,
Openshaw rightly did not dispute that feeding a live blesbok to a
tiger in a confined
space would constitute cruel maltreatment in
violation of the section.
When efforts to get the police to initiate a
prosecution in response to the broadcast failed, the Council
eventually launched these
proceedings. The founding affidavit simply
and exclusively relied on what Openshaw said in the documentary
film. Given its plain
import, the form of the challenge lent great
significance to Openshaw’s answering affidavit. But instead of
dealing directly
with the Council’s allegation that the ‘intention
and execution’ of his statement as captured on film entailed an
offence
under the Act, his deposition –
set out at length the foundation, operation and future
methodology of the tiger project (which he said entailed no
intention to
feed live prey to tigers, partly because this would be
counter-productive);
(ii) disputed the constitutionality of the Act;
(iii) claimed that the video evidence was hearsay and
inadmissible against him;
(iv) admitted nonetheless that he is the person on the
film who made the statement;
(v) denied that he committed any offence under the Act;
(vi) claimed that, because of his explanation of the
project’s future methodology, ‘the events covered in the video,
which was
filmed a year ago, are irrelevant to the relief claimed by
the applicant’;
(vii) recorded that because of the Council’s aim to
prosecute him, ‘and in view of the irrelevance of the contents of
the video
to the relief sought’, he had been advised ‘not to
respond further’.
What is signally missing from this is (a) any account
of what actually happened to the blesbok; and (b) any undertaking or
assurance
that what happened would not be repeated.
These two facts are in my view central to assessing the
Council’s claim for relief. Their significance must be weighed
together,
and separately. It is the refusal to explain what happened
to the blesbok that inclined Van der Merwe J in the High Court to
agree
with the Council that the film provided prima facie evidence
of a contravention of the Act, and which leads my colleague Mhlantla
AJA (rightly, in my respectful view) to infer that Openshaw
committed an offence (para 23).
Counsel sought to explain Openshaw’s reticence on the
basis that he wanted to avoid making admissions that might be used
against
him in a criminal prosecution. That may be so. But Openshaw
must carry the consequences of his choice to remain silent, and to

evade the plain implications of his conduct.
14
In these proceedings for the enforcement of a statute,
his reticence casts a shadow on his motives and conduct.
What is more, his failure to give any sort of
undertaking against future violations not only lacks any
explanation; in my view it
lacks any justification. Counsel for
Openshaw conceded during argument that his affidavit contained
nothing that would prevent
Openshaw in future, if so minded, from
feeding live prey to tigers. The fear of incriminating admissions
provides no inhibition
here. Openshaw could have proffered an
undertaking couched in a form that eluded any admission of past
wrongdoing (‘To the extent
that the Council claims or fears that I
may have violated the Act, I hereby undertake …).
It is his express and deliberate omission to do this
that in my view cried out for interdictory relief against him. I
accept, of
course, that an interdict is not a remedy for past
wrongs. The matter is different, however, when the past wrong does
not involve
merely commercial issues or financial interests,
15
but unacknowledged criminal conduct, where the
perpetrator is impenitent. The interdict application involved a
criminal prohibition
aimed at preventing ill-treatment of voiceless
beings, whose enforcement the legislature in important respects
entrusts to the
Council, a public body with wide and singular
responsibilities in the field.
In my respectful view, since the evidence establishes
that a criminal prohibition has been violated, it is wrong to accept
a mere
expression of future intention to abstain. The perpetrator’s
deliberate refusal to impose any self-limiting undertaking not to
do
so itself creates the need for judicial intervention. It is then for
the court to supply the omission by issuing an interdict.
The balance of convenience in my view clearly favoured
the grant of an interdict. If no offence had been committed, and
Openshaw
honoured his expressed intention not to feed live prey to
predators in future, the interdict would do no harm; on the other
hand,
given the glaring absence of any undertaking supplementing his
professed intentions, the interests of the animals required the

grant of an order. The analogy of interdict applications involving
alleged personal assaults is by no means far-fetched: except
that
animals have less voice than most apprehensive assault victims.
These considerations to my mind overshadow the
Council’s omission to institute action after the High Court’s
refusal of an interim
interdict, and in my respectful view the
appeal should be allowed with costs, and the High Court’s refusal
to grant an interim
order reversed.
E CAMERON
JUDGE OF
APPEAL
1
Section
21A reads:
'
(1)
When at the hearing of any civil appeal to the Appellate Division or
any Provincial or Local Division of the Supreme Court the
issues are
of such a nature that the judgment or order sought will have no
practical effect or result, the appeal may be dismissed
on this
ground alone.
(2)
(a)
If
at any time prior to the hearing of an appeal the Chief Justice or
the Judge President, as the case may be, is
prima
facie
of the view that it would be
appropriate to dismiss the appeal on the grounds set out in
subsection (1), he or she shall call for
written representations
from the respective parties as to why the appeal should not be so
dismissed.
(b)
Upon
receipt of the written representations or, failing which, at the
expiry of the time determined for their lodging, the matter
shall be
referred by the Chief Justice or by the Judge President, as the case
may be, to three judges of the Division concerned
for their
consideration.
(c)
The
judges considering the matter may order that the question whether
the appeal should be dismissed on the grounds set out in subsection
(1) be argued before them at a place and time appointed, and may,
whether or not they have so ordered-
order
that the appeal be dismissed, with or without an order as to the
costs incurred in any of the courts below or in respect
of the
costs of appeal, including the costs in respect of the preparation
and lodging of the written representations; or
order
that the appeal proceed in the ordinary course.
(3) Save under exceptional circumstances, the question
whether the judgment or order would have no practical effect or
result, is
to be determined without reference to consideration of
costs.
(4) The provisions of subsections (2) and (3) shall apply
with the necessary changes if a petition referred to in section 21
(3)
is considered.'
2
Section
3 reads:
'The objects of the Council are-
(a)
to determine, control
and co-ordinate the policies and standards of societies, in order to
promote uniformity;
(b) to promote co-operation among societies;
(c) to prevent the ill-treatment of animals by
promoting their good treatment by man;
(d
to promote the interests
of societies;
(e)
to take cognizance of
the application of laws affecting animals and societies and to make
representations in connection therewith
to the appropriate
authority;
(f)
to do all things
reasonably necessary for or incidental to the achievement of the
objects mentioned in paragraphs
(a)
to
(e).
'
3
A
recording of the programme as broadcast accompanied the founding
papers and formed part of the record of this appeal.
4
1969
(4) SA 443
(C) at 445C-E.
5
Phillip
Morris Inc v Marlboro Trust Co SA
1991
(2) SA 720
(A) at 735B.
6
Eriksen
Motors (Welkom) Ltd v Protea Motors Warrenton
1973
(3) SA 685
(A).
7
1987
(2) SA 894
(A) at 896. See also
Janit v Motor Industry Fund
Administrators (Pty) Ltd
[1994] ZASCA 110
;
1995 (4) SA 293
(A) at 304,
End
Conscription Campaign v Minister of Defence
1989 (2) SA 180
(C)
at 208I-209C
8
Nestor
v Minister of Police
1984 (4) SA 230
(SWA) at 244.
9
Performing
Right Society Ltd v Berman
1966 (2) SA 355
(R),
Francis v
Roberts
1973 (1) SA 507
(RA).
10
Port
Nolloth Municipality v Xhalisa; Ludwala v Port Nolloth Municipality
1991 (3) SA 98
(C) at 111E.
11
1976
(2) SA 70
(D) at 704G
12
JT
Publishing (Pty) Ltd v Minister of Safety and Security
[1996] ZACC 23
;
1997 (3) SA 514
(CC) para 17, a case where the
statutes challenged had already been repealed and where the court
observed that ‘Neither of the
applicants, nor for that matter
anyone else, stands to gain the slightest advantage today from an
order dealing with their moribund
and futureless provisions’ (para
16).
13
In
R v Moato
1947
(1) 490 (O), Van den Heever J (Fischer JP concurring) stated that
the object of the predecessor of the current Act, the Prevention
of
Cruelty to Animals Act 8 of 1914, ‘was not to elevate animals to
legal subjects and this prohibition is not meant to confer
protection on them. The object was plainly to prohibit one legal
subject behaving so cruelly to animals that he offends the finer
feelings and sensibilities of his fellow humans’ (my translation).
This was endorsed in part by Miller J (Harcourt J concurring)
in
S
v Edmunds
1968 (2) PH H398 (N), who
said that the object of the Act ‘was not to elevate animals to the
status of human beings but to prevent
people from treating animals
in a manner which would offend the finer sensibilities of society’,
adding that ‘While it was
not the purpose of the Protection of
Animals Act to confer human status on animals it was assuredly part
of its purpose to prevent
degeneration of the finer human values in
the sphere of treatment of animals’. The part Miller J left out
was Van den Heever
J’s erroneous statement that the ‘prohibition
is not meant to confer protection’ on animals.
OA
Karstaedt
‘
Vivisection and the Law’
(1982) 45
THRHR
349
at 351-352 makes a convincing case that the
Act’s purposes go beyond merely protecting the sensibilities of
the community, an
argument for which the approach of Miller J (‘part
of its purpose’) leaves room. (Contrast Kevin Hopkins ‘Some New
Thoughts
on Protecting Animals Against Cruelty: A Human Rights
Perspective’
2003
Obiter
431
, who appears to accept that ‘the animal
anti-cruelty laws in South Africa are … not designed to protect
animals – since animals
are not entitled to the protection of the
law’.)
14
Compare
Osman v Attorney-General, Transvaal
1998 (4) SA 1224
(CC) paras 22ff.
15
Performing
Right Society Ltd v Berman
1966 (2) SA
355
(R),
Juta & Co Ltd v Legal and
Financial Publishing Co (Pty) Ltd
1969
(4) SA 443
(C) (copyright);
Philip
Morris Inc v Marlboro Shirt Co SA Ltd
1991
(2) SA 720
(A) (trade mark).