South African Predator Breeders Association and Others v Minister of Environmental Affairs and Tourism (1900/2007) [2009] ZAFSHC 68 (11 June 2009)

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[2009] ZAFSHC 68
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South African Predator Breeders Association and Others v Minister of Environmental Affairs and Tourism (1900/2007) [2009] ZAFSHC 68 (11 June 2009)

FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 1900/2007
In the case between:
THE SOUTH AFRICAN
PREDATOR BREEDERS
ASSOCIATION
First
Applicant
MATTHYS CHRISTIAAN
MOSTERT
Second Applicant
DEON CILLIERS
Third Applicant
and
THE MINISTER OF
ENVIRONMENTAL
AFFAIRS AND TOURISM
Respondent
CORAM:
RAMPAI, J
et
VAN DER
MERWE, J
_____________________________________________________
JUDGMENT:
VAN DER MERWE, J
_____________________________________________________
HEARD ON:
1 & 2 DESEMBER 2008
_____________________________________________________
DELIVERED ON:
11 JUNE 2009
_____________________________________________________
INTRODUCTION
[1] This application is
about the validity of regulations designed to regulate the hunting of
lions that were bred in captivity.
[2] The first applicant
is an association with legal personality in terms of a constitution.
A number of similar associations which
previously functioned
independently were consolidated in the first applicant. One of these
is the North West Lion Breeders and
Hunting Association. The main
objective of the first applicant is to co-ordinate and promote the
interest of the breeders and
hunters of captive bred predators and to
represent their interests at national and international level. The
first applicant has
123 members of which approximately 65 are
domiciled and resident in the Free State Province and where they
breed lions in captivity
and/or have hunting operations in respect of
lions bred in captivity. Virtually all hunting of captive bred lions
in South Africa
is controlled by members of the first applicant. The
second applicant is a farmer at Bothaville in the Free State who
breeds lions
in captivity and also sells some lions so bred to
hunting operations for purposes of hunting such lions. The third
applicant is
a farmer at Excelsior in the Free State. He breeds
lions on his farm for the purposes of having those captive bred lions
hunted
on his farm or nearby land controlled by him, mainly by
hunters from abroad. The respondent is the national Minister of
Environmental
Affairs and Tourism.
LEGISLATIVE CONTEXT
[3] Section 24 of the
Constitution, 1996 provides as follows:
“Everyone
has the right -
to an environment that is not harmful
to their health or well-being; and
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.”
[4] The National
Environmental Management: Biodiversity Act, No. 10 of 2004 (“the
Act”) took effect as far as is relevant in
this case, on 1
September 2004. The following provisions of the Act are relevant in
this matter. Section 1 of the Act contains
the following definitions
that are presently relevant.
4.1
'Listed
threatened or protected species'
is
defined as any species listed in terms of section 56 (1) of the Act.
4.2
‘Prescribe’
means prescribe by regulation in terms of section 97 of the Act.
4.3 The definition of
‘restricted
activity’
includes
in relation to a specimen of a listed threatened or protected species
the following:
“
(i) hunting, catching, capturing or
killing any living specimen of a listed threatened or protected
species by any means, method
or device whatsoever, including
searching, pursuing, driving, lying in wait, luring, alluring,
discharging a missile or injuring
with intent to hunt, catch, capture
or kill any such specimen;
…
having in possession or exercising
physical control over any specimen of a listed threatened or
protected species;
growing, breeding or in any other way
propagating any specimen of a listed threatened or protected
species, or causing it to multiply;
conveying, moving or otherwise
translocating any specimen of a listed threatened or protected
specimen;
selling or otherwise trading in,
buying, receiving, giving, donating or accepting as a gift, or in
any way acquiring or disposing
of any specimen of a listed
threatened or protected species; or
any other prescribed activity which
involves a specimen of a listed threatened or protected species.”
4.4
‘
Minister
’
means the Cabinet member responsible for national environmental
management i.e. the respondent and “Department” means the

National Department of Environmental Affairs and Tourism (“the
respondent’s department”).
[5] The objectives of the
Act set out in section 2 thereof are
inter
alia
to
within the framework of the National Environmental Management Act
provide for the management and conservation of biological
diversity
within the Republic of South Africa and of the components of such
biological diversity, the use of indigenous biological
resources in a
sustainable manner, as well as to provide for co-operative governance
in biodiversity management and conservation.
In terms of section 9
the Minister may, by notice in the Government Gazette, issue norms
and standards for the achievement of
any of the objectives of the
Act, after following a consultative process in accordance with
sections 99 and 100 of the Act.
[6] Section 56(1)
provides that the Minister may, by notice in the Gazette, publish a
list of critically endangered species, endangered
species, vulnerable
species, and protected species. Critically endangered species are
any indigenous species facing an extremely
high risk of extinction in
the wild in the immediate future. Endangered species are indigenous
species facing a high risk of
extinction in the wild in the near
future. Vulnerable species are any indigenous species facing an
extremely high risk of extinction
in the wild in the medium-term
future. Protected species are any species which are of such high
conservation value or national
importance that they require national
protection although they are not listed in any of the abovementioned
three categories. Section
57(1) provides that a person may not carry
out a restricted activity without a permit issued in terms of Chapter
7 of the Act.
Section 57(2) provides that the Minister may, by
notice in the Gazette, prohibit the carrying out of any activity
which is of
a nature that may negatively impact on the survival of a
listed threatened or protected species and which is specified in the
notice
or the Minister may prohibit the carrying out of such activity
without a permit issued in terms of Chapter 7 of the Act.
[7] In terms of section
60 of the Act the Minister must establish a scientific authority for
purposes of assisting in regulating
and restricting the trade in
specimens of listed threatened or protected species. The functions
of the scientific authority to
be established, are set out in section
61. In terms hereof the scientific authority must
inter
alia
monitor in the Republic the legal and illegal trade in specimens of a
listed threatened or protected species and advise the Minister
on the
matters that it monitors as well as on
inter
alia
the registration of ranching operations, captive breeding operations
and other facilities and whether such operation or facility
meets the
criteria for producing species considered to be bred in captivity.
In terms of this section the scientific authority
must also make
recommendations to an issuing authority on applications for permits
referred to in section 57(1) and 57(2).
[8] The matters in
respect of which the Minister is authorised to make regulations are
set out in section 97 of the Act. In terms
of section 97(1)(b)(ii)
the Minister may make regulations relating to the facilitation of the
implementation and enforcement of
section 57(1) or a notice published
in terms of section 57(2). Regulations are also authorised in
section 97(1)(b)(iii), in respect
of the carrying out of a restricted
activity involving a specimen of a listed threatened or protected
species, in section 97(1)(g),
any other matter that may be prescribed
in terms of the Act and in section 97(1)(h), in respect of any matter
that may be necessary
to facilitate the implementation of the Act.
Section 97(1)(b)(vii) provides for regulations in respect of the
composition and
operating procedures of the scientific authority.
[9] Section 97(3)
provides that before publishing any regulations in terms of
subsection (1) or any amendment to the regulations,
the Minister must
follow a consultative process in accordance with sections 99 and 100.
These sections provide as follows:
“
99 Consultation
(1) Before exercising a power which,
in terms of a provision of this Act, must be exercised in accordance
with this section and
section 100, the Minister must follow an
appropriate consultative process in the circumstances.
(2) The Minister must, in terms of
subsection (1)-
(a) consult all Cabinet members
whose areas of responsibility may be affected by the exercise of the
power;
(b) in accordance with the
principles of co-operative governance set out in Chapter 3 of the
Constitution, consult the MEC for
Environmental Affairs of each
province that may be affected by the exercise of the power; and
(c) allow public participation in
the process in accordance with section 100.
100 Public participation
(1) The Minister must give notice of
the proposed exercise of the power referred to in section 99-
(a) in the Gazette; and
(b) in at least one newspaper
distributed nationally, or if the exercise of the power may affect
only a specific area, in at least
one newspaper distributed in that
area.
(2) The notice must-
(a) invite members of the public to
submit to the Minister, within 30 days of publication of the notice
in the Gazette, written
representations on, or objections to, the
proposed exercise of the power; and
(b) contain sufficient information
to enable members of the public to submit meaningful representations
or objections.
(3) The Minister may in appropriate
circumstances allow any interested person or community to present
oral representations or objections
to the Minister or a person
designated by the Minister.
(4) The Minister must give due
consideration to all representations or objections received or
presented before exercising the power.”
[10] In Government Notice
No. R151 published in Government Gazette No 29657 of 23 February
2007, the respondent, by virtue of the
powers vested in him under
section 56(1) of the Act published a list of critically endangered,
endangered, vulnerable and protected
species. Included under
mammalia
in the list of endangered species were the black rhinoceros and the
African wild dog. The list of vulnerable species include the

cheetah, leopard and lion (“
panthera
leo”)
.
The white rhinoceros, spotted hyaena and brown hyaena were included
in the list of protected species.
[11] In the same
Government Gazette, Government Notice No R152 was published in which
the respondent made regulations in terms of
section 97 of the Act
relating to listed threatened and protected species. These
regulations deal with a wide variety of matters.
The following
provisions are relevant to the present application.
11.1 ‘
Bred
in captivity’
or
‘captive
bred’
is defined in regulation 1 in relation to a specimen of a listed
threatened or protected animal species, as that the specimen was
bred
in a controlled environment.
11.2 A ‘
controlled
environment’,
in terms of regulation 1, means an enclosure designed to hold
specimens of listed threatened or protected species in a way that
–
“
(a) prevents them from escaping;
(b) facilitates intensive human
intervention or manipulation in the form of the provision of –
food or water;
artificial housing; or
healthcare; and
(c) facilitates intensive breeding or
propagation of a listed, threatened or protected species,
but excludes fenced land on which
self-sustaining wild life populations of that species are managed in
an extensive wild life system.”
11.3 A
‘captive
breeding operation’
means a facility where specimens of a listed threatened or protected
animal species are bred in a controlled environment for conservation

purposes or commercial purposes.
11.4 An
‘extensive
wildlife system’
in turn means a system that is large enough, and suitable for the
management of self-sustaining wildlife populations in a natural

environment which requires minimal human intervention in the form of
the provision of water, the supplementation of food, except
in times
of drought, the control of parasites, or the provision of health
care.
[12] These regulations
define “
listed
large predator”
as
a specimen of any of the following listed threatened or protected
species, namely cheetah, spotted hyaena, brown hyaena, wild
dog, lion
or leopard. It should be noted that lions are the only captive bred
predators that are hunted in large numbers. A definition
in the
regulations that forms a central part of the case is that of
“put
and take animal”.
As
will be seen later, this definition was amended and is therefore not
reproduced here in full. It is sufficient to say for present

purposes that the definition includes a captive bred listed large
predator that is released for the purpose of being hunted within
a
period of 24 months. It is however necessary to fully quote
regulation 24, which provides as follows:
“
24(1) The following are prohibited
activities involving a listed large predator,
Ceratotherium
simum
(White rhinoceros) or
Diceros bicornis
(Black rhinoceros):
the hunting of a listed large
predator,
Ceratotherium
simum (
White rhinoceros)
or
Diceros bicornis
(Black rhinoceros) that is a put and take animal;
the hunting of a listed large
predator,
Ceratotherium
simum (
White rhinoceros)
or
Diceros bicornis
(Black rhinoceros) in a controlled environment;
the hunting of a listed large
predator,
Ceratotherium
simum (
White rhinoceros)
or
Diceros bicornis
(Black rhinoceros) under the influence of any tranquilising,
narcotic, immobilising or similar agent; and
the hunting of a listed large
predator released in an area adjacent to a holding facility for
listed large predators; and
the hunting of a listed large
predator,
Ceratotherium
simum (
White rhinoceros)
or
Diceros bicornis
(Black rhinoceros) by making use of a gin trap;
the hunting of a listed large
predator,
Ceratotherium
simum (
White rhinoceros)
or
Diceros bicornis
(Black rhinoceros), unless the owner of the land on which the animal
is to be hunted provides an affidavit or other written proof

indicating –
(i) the period for which the species
to be hunted has been on that property, if that species was not born
on that property; and
(ii) that the species to be hunted is
not a put and take animal;
(g) the breeding in captivity of a
listed large predator, unless the prospective breeder provides a
written undertaking that no
predator of that species will be bred,
sold, supplied or exported for hunting activities that are considered
prohibited activities
in terms of paragraphs (a) to (e) of this
subregulation;
(h) the sale, supply or export of a
live specimen of a listed large predator,
Ceratotherium
simum
(White rhinoceros) or
Diceros bicornis
(Black rhinoceros) bred or kept in captivity unless the person
selling, supplying or exporting the animal provides an affidavit
or
other written proof indicating –
(i) the purpose for which the species
is to be sold, supplied or exported; and
(ii) that the species is not sold,
supplied or exported for hunting activities that are considered
prohibited activities in terms
of paragraphs (a) to (e) of this
subregulation;
(iii) the purchase or acquisition of a
live specimen of a listed large predator species,
Ceratotherium
simum
(White rhinoceros) or
Diceros bicornis
(Black rhinoceros) bred or kept in captivity unless the person
purchasing or acquiring the species provides an affidavit or other

written proof indicating –
the purpose for which the species is
to be purchased or acquired; and
that the species is not purchased or
acquired for hunting activities that are considered prohibited
activities in terms of paragraphs
(a) to (e) of this subregulation.
(2) Subregulation (1) does not apply
to a listed large predator,
Ceratotherium
simum
(White rhinoceros) or
Diceros bicornis
(Black rhinoceros) bred or kept in captivity which -
(a) has been rehabilitated in an
extensive wildlife system; and
(b) has been fending for itself in an
extensive wildlife system for at least twenty four months.”
[13] Chapter 7 of these
regulations deals with the scientific authority referred to in the
Act. Regulation 59 states that a scientific
authority is thereby
established. In terms of regulation 60 the Minister must appoint the
members of the scientific authority.
The scientific authority
consists of
13.1 two representatives
of the respondent’s department;
13.2 one representative
for each provincial department responsible for the conservation of
biodiversity in that province;
13.3 a representative of
the South African National Parks;
13.4 one representative
of the South African National Biodiversity Institute established in
terms of section 10 of the Act;
13.5 one representative
of the natural history museums; and
13.6 one representative
of the National Zoological Gardens.
In terms of regulation
66 the scientific authority may co-opt expert advisors from within or
outside the public service to be present
and to speak at meetings of
the scientific authority.
[14] Regulation 71
provides a transitional provision in respect of existing captive
breeding operations, commercial exhibition facilities,
game farms,
nurseries, scientific institutions, sanctuaries, rehabilitation
facilities or wildlife traders. It is necessary to
first refer to
regulations 27(1) and 28(1). Regulation 27(1) provides that no
person may conduct a captive breeding operation
etc. referred to
above involving listed threatened or protected species, unless that
operation etc. is registered by the relevant
issuing authority as set
out in regulation 3. Regulation 28(1) provides that the landowner of
a game farm may only apply for a
standing permit or for game farm
hunting permits if the game farm is registered in terms of the
regulations. Regulation 71 then
provides that any person, who
immediately before the commencement of these regulations conducted a
captive breeding operation etc.
referred to in regulations 27(1) and
28(1), must within three months of commencement of the regulations
apply for registration
of that operation in terms of the regulations.
It is also provides that if the application is refused because the
applicant does
not meet the requirements for a captive breeding
operation etc. the issuing authority must notify the applicant of the
refusal
and afford the applicant an opportunity to comply with such
requirements and to re-apply within nine months after the refusal.
[15] In Government Notice
No. R1188 published in Government Gazette No. 30568 of 14 December
2007, the respondent published certain
amendments to the regulations
published in Government Notice No. R152 of 23 February 2007.
However, by way of Government Notice
No. R70 published in Government
Gazette No. 30703 of 28 January 2008 the respondent repealed the
whole of Government Notice No.
R1188 of 14 Desember 2007. By
Government Notice No. R69 published in the same Government Gazette,
the respondent published amendments
to the regulations published in
Government Notice No. R152 of 23 February 2007. The amendments that
are relevant for present purposes
are the following. In regulation 1
a definition of
“fair
chase principle”
was introduced, namely a set of hunting conditions in which the
individual decision-maker judges the taking of prey as acceptably

uncertain and difficult for the hunter. Importantly, the definition
of
“put
and take
animal
”
was substituted with the
following,
namely that it means a live specimen of a captive bred listed large
predator, or a live specimen of a captive bred
Ceratotherium
simum
(White rhinoceros) or
Diceros
bicornis
(Black rhinoceros) that is released for the purpose of hunting that
animal within a period of 24 months after its release from
a captive
environment. For the reason that will appear shortly, however, lion
(
Panthera
leo)
was removed from the definition of
“listed
large predator”
.
It should further be noted that regulation 26(1)(b) was amended to,
in effect, provide that a lion may not be hunted by luring
it by
means of dead bait. This amendment removed an argument much relied
upon by the applicants in the application as originally
presented to
the effect that it does not make sense to allow hunting of a lion by
luring it by means of dead bait but to prohibit
the hunting of a lion
that is a put and take animal as defined. Regulations 27 and 71 were
amended in a manner that is not relevant
here.
[16] I will hereinafter
refer to the regulations contained in Government Notice No. R152 of
23 February 2007 as amended by Government
Notice No. R69 of 28
January 2008, as
“the
regulations”
.
The regulations eventually came into effect from 1 February 2008.
THE RELIEF
PRESENTLY CLAIMED BY THE APPLICANTS
[17] The applicants
launched the application on 4 May 2007. The relief claimed in the
notice of motion that remains relevant was
essentially twofold namely
firstly, that the definition of
“put
and take animal”
in regulation 1, the whole of regulation 24 and the whole of
regulation 60 of the regulations published in Government Notice No.

R152 of 23 February 2007 be reviewed, corrected or set aside and
secondly, that the decision of the respondent not to provide in

regulation 71 of these regulations for a transitional measure in
respect of the hunting of lions bred in captivity, be reviewed,

corrected and set aside.
[18] It will be
remembered however that the amendment of the regulations brought
about by Government Notice No. R69 of 28 January
2008, rendered the
regulations inapplicable to lions. The aforesaid relief claimed in
the notice of motion as it stands is therefore
inappropriate. The
respondent made it clear, however, that the removal of lions from the
listed large predators in the regulations
was done only in order to
allow the regulations to be put in operation whilst this application
is pending. The express intention
of the respondent is that should
this application not succeed, the regulations would forthwith be
amended to again include lions
as listed large predators so as to
make the regulations applicable to lions. In these circumstances all
the parties requested
this court to determine the validity of the
regulations challenged by the applicants as if they are applicable to
lions and to
issue a suitable declaratory order in the event of the
applicants being successful. We regard it in the interest of justice
to
accede to this request.
[19] As appears from what
is stated above, the applicants challenge the validity of the
definition of
“put
and take animal”
,
regulation 24, regulation 60 and regulation 71 of the regulations.
The real complaint of the applicants in respect of the definition
of
“put
and take animal”
and regulation 24 is in respect of the period of 24 months in these
provisions for which the animal must have been fending for
itself in
an extensive wildlife system before it may be hunted. For the sake
of convenience I will refer to these and other similar
provisions
that require that an animal must have fended for itself in an
extensive wildlife system for a period of time as a “self-sustaining

provision”. The applicants believe that there should be no such
self-sustaining provision.
[20] The complaint in
respect of regulation 71 must be an alternative one, namely that if a
twenty four month self-sustaining provision
is enforced, there should
be a transitional measure that provides for a grace period in respect
of the hunting of lions bred in
captivity. Regulation 60 deals with
the scientific authority and here the complaint of the applicants is
that the business or
industry of breeding lions in captivity and of
hunting such lions (for convenience sake referred to as “the
industry”) should
be represented on the scientific authority by a
representative of the industry being a member thereof.
[21] What is essentially
claimed by the applicants therefore are declaratory orders that the
twenty four month self-sustaining provision
or regulation 71 and
regulation 60 of the regulations would be invalid if applicable or
made applicable to lions.
JURISDICTION
[22] The parties are
ad
idem
that this court has jurisdiction to entertain the matter. The
applicants say that the regulations would have a particularly great

impact on the industry in the Free State, with adverse effects on the
operations of the second and the third applicants. This
is not
disputed by the respondent. On this basis this court would be
clothed with jurisdiction in terms of the common law on the
basis
that orders
ad
factum praestandum
are not sought but the inhibitory effect of the regulations on the
industry and the trade or business of the second and third applicants

takes place in the Free State. See
ESTATE
AGENTS BOARD v LEK
1979 (3) SA 1048
(AD) at 1065F – 1067D and
SAFCOR
FORWARDING (JOHANNESBURG) (PTY) LTD v NATIONAL TRANSPORT COMMISSION
1982 (3) SA 654
(AD) at 677A – C. Also, accepting that the
Promotion of Administrative Justice Act, No. 3 of 2000 (PAJA) is
applicable, at least
the adverse effect of the regulations will be
experienced within the Free State as envisaged in the definition of
“court” in
PAJA.
FACTUAL BACKGROUND
[23] Prior to the
commencement of the regulations, all hunting was regulated by
provincial legislation. By reason of the aforegoing,
these
provisions are presently still applicable to the hunting of lions.
Although in all provinces permits are required for hunting
of lions,
there are material differences between the provisions and measures
applicable in the provinces. In Mpumalanga, for instance,
it is a
requirement that the size of the area in which a lion may be hunted
must be no less than 1000 hectares. Such provision
is also applied
in the North West province. In Gauteng this minimum area is 400
hectares, but that may be deviated from by permit.
In the Free State
only a minimum of 100 hectares is required. The rest of the
provinces have no legislation in respect of minimum
size of areas in
which the hunt may take place. Only the Free State and North West
provinces, where by far the greater portion
of the industry is
situated and operated, have self-sustaining provisions. In the Free
State it is required that a lion must be
free ranging for a period of
three months before it may be hunted, whereas in the North West
province this period is only 96 hours.
It is clear therefore that
there is no uniformity in this regard and that in some provinces it
would be possible to hunt a lion
bred in captivity virtually
immediately after it had been released into whatever area is allowed
by the permit.
[24] As a result the
industry works more or less as follows. Some members thereof only
breed lions for the hunting market and sell
the lions to the
operators of hunting farms. Others breed lions for their own hunting
operations, whilst others operate hunting
farms where lions are
hunted that were bought from breeders. Lions, of course, have to be
kept in special camps. The cost of
fencing a camp of 1 hectare and
the provision of water and shelter would amount to approximately R58
000,00. In some cases cubs
are hand-raised from the age of three
days to the age of eight weeks, when the cubs are sold. It is
estimated that the cost of
surrogate milk for such cubs for such
period is approximately R2 000,00 per cub. An adult lion devours
between 30 and 40 kilogram
of meat per week. This meat is obtained
from a variety of sources such as dead chickens from chicken farms
and donkeys bought
from local communities. A lion is normally only
suitable to make a trophy when reaching the age of approximately 48
months. The
cost of feeding a lion up to the age of 48 months in
these operations varies, of course, in accordance with the source of
feed.
In some cases the average cost of the feed is around R4,00 per
kilogram. The biggest lion breeders buy donkeys for feed and in
one
case the feed account for 250 lions of all ages amounts to R30 000,00
per week. In another case the average feeding cost for
a lion from
birth to the age of 48 months is R500,00 per month, that is R24
000,00 for four years. The lions, of course, have
to be transported
to the hunting farms or camps where they will be hunted. Very often
the lions will be tranquilised for the purpose
of transportation.
[25] A typical lion
hunter is wealthy and requires high standards and therefore the
average cost of establishing such facilities
in camps and on farms
for the purposes of hunting of lions, is very high. By far the
majority of these hunters are trophy hunter,
from abroad and payments
in respect of transactions are made in foreign currency. Most of
these hunters also require trophies
of other animals and many hunt
these lions as part of a package of the so-called “Big Five”.
The average trophy price for
a lion is approximately 22 000 US dollar
for the farmer or hunting operator. An average additional 18 000 US
dollar is also spent
in South Africa in respect of such hunt,
excluding taxidermic services. This amount is made up of the fees
for the professional
hunter, air fare and accommodation fees paid to
the farmer or hunting operator. If taxidermic services are also
rendered in South
Africa, this figure is usually significantly
higher. It is clear that the nett income per hectare in respect of
farms where lions
are hunted, by far outstrips the income derived
from cattle farming in the same area. Additional job opportunities
are in this
manner created in respect of, for instance the provision
of feed for the lions, the provision of accommodation and meals, the
provision
of taxidermic services, if required and also the hunting of
other species.
[26] On 28 January 2005
the respondent published for public information and comment, draft
national norms and standards for the
sustainable use of large
predators and draft regulations relating to the keeping and hunting
of large predators, in the Government
Gazette. These documents
inter
alia
provided that a period of six months should pass after a lion has
been released before the grant of a permit for the hunting of
that
lion may be considered. On 6 April 2005, in his budget speech in
Parliament, the respondent however announced that he has
appointed a
panel of experts (“the panel”) to advise and report on both
hunting in buffer zones and canned hunting of large
predators.
Individuals were appointed on the panel on the basis of their
expertise in a range of areas that affect the hunting
industry,
including wildlife management, community involvement, transformation,
biodiversity conservation and sustainable use.
It is undisputed that
the term “canned hunting” was coined by the international media
to express disdain of the practice of
hunting of lions that were bred
and raised in captivity and are therefore dependent on humans for
their livelihood and survival,
shortly after they had been
“released”, often in small enclosures. On 31 May 2005 the
mandate of the panel was extended to
investigate professional and
recreational hunting in South Africa as a whole. It will therefore
be noted that the mandate of the
panel was extended to topics much
wider than the industry.
[27] On 11 and 12 Augusts
2005 the panel held public hearings. Some 28 oral and 41 written
representations were received from a
wide variety of interested
persons or institutions and stakeholders. The first applicant was
not yet in existence at that time.
A written and oral representation
was however made to the panel on behalf of the North West Lion
Breeders and Hunting Association
by Dr. D. F. Keet, the chief state
veterinarian in the Kruger National Park. Dr Keet has many years
experience of lion management
in the Kruger National Park and
surrounding parks and buffer zones. The essence of these
representations was that the hunting
of captive bred lions should be
allowed shortly after a lion has been released in an enclosure of at
least 2 000 hectares. The
main aspects put forward as justification
for this stance were the earning of foreign revenue by the industry,
the creation of
job opportunities by it as well as the idea that
captive breeding and hunting of lions is a conservation tool that
relieves pressure
on the selective hunting of wild lions.
[28] The panel
commissioned four scientific reports that were received on 5 October
2005. These were the following papers, namely
International and
Regional Best Practice and Lessons Applicable to Sport and
Recreational Hunting in Southern Africa, by Vernon
Booth; S
tatus
Quo
report
on the Policy, Legislative and Regulatory Environment Applicable to
Commercial and Recreational Hunting in South Africa,
by Markus
Bürgener, Anique Greyling and Alison Rumsey; A S
tatus
Quo
Study on the Professional and Recreational Hunting Industry in South
Africa, by Claire Patterson and Patson Khosa and A
Status
Quo
of
the Conservation Impacts from the Professional and Recreational
Hunting Industry, compiled by Conrad Steenkamp, Daniel Marnewick
and
Kelly Marnewick.
[29] During November 2005
the panel presented its report to the respondent. In its report the
panel referred to its mandate to
review existing professional and
recreational hunting activities in South Africa and to recommend
guiding principles. The panel
said that it made its recommendations
within the context of the principles and framework set out in the
South African Constitution,
the body of laws regulating biodiversity
in South African and international agreements to which South Africa
is a signatory. It
was also said that the panel has been guided in
its assessment of each issue placed before it by three broad sets of
principles.
The first set of principles relates to the sustainable
use of wildlife, which seeks to ensure that any practices associated
with
hunting do not compromise the long-term survival and viability
of a particular species or ecosystem. The second principle relates

to the humane treatment of animals, as set out in the Animal
Protection Act, and whether the outcome of any practice that affects

a wild animal, planned or not, is considered an offence in terms of
the Animal Protection Act. The third principle relates to
ethical
hunting and in particular the principle of fair chase which is the
foundation of the professional hunting industry.
[30] Turning to the
contents of the report of the panel that are directly relevant to the
present application, the panel gave descriptions
of what is regarded
as canned hunting, the fair chase principle and “put and take
hunting”. Canned hunting was described as
the hunting of species
that are not self-sustaining, that is unable to feed themselves and
produce healthy offspring naturally
or are not able to exercise their
natural escape mechanisms as reflected in the fair chase principle.
The report states that the
principle of fair chase is a determinant
of ethical hunting. It is understood as the pursuit of an animal
where it is in its own
habitat and has a fair chance of evading the
hunter through its natural vigilances, escape behaviour and physical
capabilities
and where the hunter uses a weapon that is able to drop
and kill the animal with a single shot without causing unnecessary
pain
or discomfort to the animal. “Put and take” is described as
the practice of releasing an animal onto a property, irrespective
of
the size of the property, for the sole purpose of shooting it as soon
as possible after release.
[31] The panel took
cognisance of and reported on both the economic and social benefits
of the hunting industry. The panel noted
estimates of the economic
value of hunting including that the economic value of trophy hunting
only is estimated as between R153
million and R832 million,
presumably per year. It was apparent to the panel that the
contribution that hunting makes to the wildlife
industry outstrips
all the other sources of revenue such as wildlife sales and
non-consumptive tourism. Although many foreign
hunters contribute
significantly to the tourism industry it was clear that the value of
biltong hunting for instance by far exceeds
that of trophy hunting.
The panel said that the financial benefits of the hunting industry
comprised direct financial benefits
such as salaries and tips for
employees, revenue for provincial conservation authorities and
conservation levies and indirect financial
benefits such as meat
given to communities from a trophy hunt. The hunting industry also
supports a host of associated industries
such as retail sales of
vehicles and fire-arms, taxidermists and construction, to name but a
few. The panel however noted that
while wildlife production units
offer many jobs it has not been established whether these jobs are
permanent or seasonal and that
there was an impression that the
conversion of livestock production units to wildlife production units
may have resulted in a decline
of permanent jobs in some cases.
[32] The panel stated
that whilst every effort was made to ensure that its recommendations
on the regulation of the hunting industry
strike a balance between
the economic contributions that hunting makes to the wildlife and
tourism industry and the economy of
South Africa and the ecological
and ethical imperatives that will ensure the sustainability of the
hunting industry, economic considerations
may never be used to
condone or ignore practices that either compromise the country’s
biodiversity, undermine the humane treatment
of hunted animals, or
that may taint the reputation of the hunting industry in the long
run.
[33] The panel also
discussed the social benefits derived from the hunting industry which
was highlighted by a particular case study
where the handsome
financial awards accrued through trophy hunting concessions had been
largely directed towards community upliftment
projects such as the
electrification of two villages and financial support to the schools.
The panel found that on the whole quantification
of social benefits
is not possible due to the absence of details. It found however that
it would be fair to say that there is
no consistency in the ways in
which social benefits are distributed or accounted for and that that
is an area that needs greater
attention in the future.
[34] The panel drew a
distinction between intensive and extensive wildlife production
systems. The panel found that there is little
evidence to
demonstrate that much of the breeding of wildlife in intensive
wildlife systems is motivated by conservation objectives.
The panel
did recognise the potential contribution to biodiversity conservation
that is made by some intensive wildlife production
units where
threatened or protected species are being bred to be introduced into
extensive production systems. The panel accepted
the potential of
hunting as a source of income in the context of extensive wildlife
production units. It found however that hunting
could not contribute
to biodiversity conservation objectives in an intensive wildlife
production context and that that furthermore
also compromises the
principle of fair chase which is fundamental to any ethical,
professional and recreational hunting industry.
The panel found that
there is overwhelming evidence that selective breeding of animals for
trophy hunting, genetic manipulation,
import of alien species and
introduction of animals outside their natural ranges, amongst others,
is having a profoundly negative
impact on the long-term integrity of
South Africa’s biodiversity and the viability of ecosystems. The
panel therefore recommended
that the transfer of animals from
intensive to extensive wildlife production systems should only be
permitted for conservation
purposes, on the basis of proper
scientific research and only if certain risks such as disease or
parasite transmission, genetic
mixing and release of alien or
inferiors specimens are not present and if the released animals can
establish self-sustaining populations.
[35] Regarding hunting
practices the panel found that the practices of “put and take”
hunting and canned hunting are unethical
practices that both the
relevant industry associations and the animal welfare groups are
concerned about. The panel found that
both practices are in
contravention of the principles of humane treatment of animals and
fair chase. “Put and take” was also
found to be a threat to
diversity conservation due to the risks posed when a wild animal from
an intensive wildlife production
unit is introduced to an extensive
wildlife production unit. On these grounds the panel recommended
that both these practices
be prohibited and that mechanisms to
enforce these prohibitions be identified.
[36] In respect of
captive breeding the panel then concluded as follows:
“
The Panel recognises the role of
captive breeding as a method to support the rehabilitation of species
for conservation purposes,
especially if free-roaming animals have to
be captured or rehabilitated for whatever reason. However, captive
breeding for the
sole purpose of hunting has led to the abuse of the
primary intention of captive breeding since the original intention
was to conserve
species rather than to hunt.
The principle of fair chase is not
compatible with the hunting of captive bred animals unless they have
become self-sustaining on
extensive wildlife production units. In
general, the practice of hunting captive bred animals should be
disallowed. The Panel
therefore recommends that strict and clear
criteria and standards be developed in permitting the continuation or
establishment
of captive breeding facilities that purport to support
biodiversity conservation through the provision of scientific
services and
endangered species support. Moreover, the panel
advocates that these facilities be required to establish and improve
their recordkeeping
by way of nationally uniform minimum standards
studbooks and DNA fingerprinting.
These recommendations will have
serious implications for the many captive breeding facilities that
currently service the hunting
industry. Some captive breeding
facilities may be able to remain commercially viable as intensive
systems servicing other wildlife
products markets provided that they
comply with the requirements of the Meat Safety Act and other
relevant Acts. A phasing out
of captive breeding facilities that do
not meet the criteria of the new national norms and standards should
be discussed with the
relevant affected parties.”
[37] The panel was
required by the respondent to reach consensus on all matters. In
this regard the panel had to find a balance
between the view that
captive bred predators should never be hunted and the view of those
that believe that there should be no
self-sustaining provision. In
the result the panel recommended the 24 month self-sustaining
provision as a compromise. This recommendation
was not contained in
the panel’s aforesaid written report but appears from the answering
affidavit of the respondent as well
as the affidavits of the
chairperson and other members of the panel.
[38] On 5 May 2006 the
respondent published draft norms and standards for the regulation of
the hunting industry in South Africa
and draft regulations relating
to threatened or protected species. The public were invited,
inter
alia
by
advertisements in the press, to make representations in this regard
on or before 19 June 2006. It is not necessary to further
refer
separately to the draft norms and standards in respect of the hunting
industry, as these were subsequently incorporated into
the draft
regulations. A reference to the draft regulations herein must
therefor be understood as a reference to the draft regulations

including the draft norms and standards. The draft regulations
contained provisions to the effect that a listed large predator,

including a lion, may only be hunted after it has been rehabilitated
into an extensive wildlife system and has been fending for
itself in
the wild for at least two years.
[39] On 19 June 2006 the
first applicant submitted its representations in this regard. The
first applicant’s representations
consisted of comment on the draft
regulations to which a report by Dr DF Keet as well as counsels’
opinion were attached. The
report of Dr Keet was similar to his
submission to the panel on behalf the North West Lion Breeders and
Hunting Association. It
is not necessary to refer to the contents of
the opinion by senior and junior counsel on behalf of the first
applicant as those
matters raised therein and were persisted with
before us, are dealt with below. In the comment on behalf of the
first applicant
it was stated that the 24 month self-sustaining
provision will close down the industry on the basis that it would be
rendered no
more financially viable. The first applicant therefore
recommended that “… a period of four days to a maximum two (2)
weeks
should be the norm for the predator to be located in a hunting
area before it could be hunted.” It was also proposed that the

scientific authority should include a representative of the industry.
[40] By 28 August 2006
officials in the respondent’s department compiled a document that
was referred to as the “Composite Document”.
In the Composite
Document the draft regulations were reproduced but after each
definition, phrase or subsection thereof that elicited
response as
the result of the aforesaid invitation, the comments and
representations received were inserted, with the indication
of the
person or instance that made them. In this manner the comments
received by the first applicant were reproduced. The Composite

Document was clearly compiled in order to facilitate further
discussion, particularly at the workshops referred to below. The

respondent’s department firstly organised a workshop on the outcome
of the public participation process in respect of the draft

regulations with the relevant provincial authorities that will be
responsible for the implementation and enforcement of the
regulations.
This workshop was held on 14 and 15 September 2006,
with the objective of evaluating the comments received and to propose
possible
amendments to the draft regulations. On 21 and 22 September
2006 a similar workshop was held with representatives from the
hunting
industry in South Africa. The first applicant was invited to
this workshop but did not attend.
[41] On 5 October 2006
the officials in the respondent’s department produced two
documents, referred to as “Amendment Document”
and “Clean
Document” respectively. Both these documents, compiled for
internal purposes, have the same content. Both documents
reflect
amendments to the draft regulations as a result of discussions and
proposals made at the aforesaid workshops. The Amendment
Document
indicates amendments to the draft regulations much in the same manner
as would be done by an amendment Act. The Clean
Document is what it
says, namely the draft regulations as amended according to what was
proposed. It is important to note that
in these documents the
self-sustaining provision of 24 months was amended to 6 months.
These proposed amendments to the draft
regulations were discussed at
a so-called follow-up workshop with provincial authorities held on
the 11 and 12 October 2006. This
eventually led to a version of the
draft regulations dated 24 November 2006 entitled “Final
Amendments”. In the Final Amendments
the self-sustaining provision
of 6 months was retained in the relevant provisions such as the
definition of “put and take animal”
and regulation 14 in the
Final Amendments, being the precursor to regulation 24 of the
regulations. On 7 December 2006 a so-called
MinMec meeting was held.
This is a meeting of the national Minister with the relevant MEC’s
of the provinces. The meeting was
chaired by the respondent. At
this meeting the draft regulations as reflected in the Final
Amendments of 24 November 2006 were
approved for final promulgation
in the Government Gazette.
[42] On 12 December 2006,
at a press conference held by
inter
alia
the director general and a deputy director general in the respondents
department, the draft regulations as per the aforesaid “Final

Amendments” were “preliminarily unveiled to the media”. It was
stated at the press conference that these regulations that
would come
into operation during March 2007 and it was specifically pointed out
that in terms of these provisions the hunting of
an animal that is a
“put and take animal”, that is a captive bred listed large
predator that is released for the purposes of
hunting of the animal
within a period of 6 months, is prohibited. These statements were
repeated in a media statement issued by
the director general of the
respondent’s department on the following day, namely 13 December
2006. In this manner it was made
known that there would be a
self-sustaining provision of 6 months and not a 24 month
self-sustaining provision as envisaged by
the original draft
regulations of 5 May 2006.
[43] On 31 January 2007,
however, the MEC for Agriculture, Conservation and Environment of the
North West Province sent the aforesaid
representations of the first
applicant of 19 June 2006, to the respondent under cover of the
following note:
“
Our telephonic discussion regarding
the above matter refers. Please receive the document on proposed
draft regulations relating
to the hunting of predators from myself.
This is in line with the interactions I had with various associations
and lion breeders
in the North West Province. Please peruse the
document and the suitable time we can arrange a meeting between
ourselves to take
this matter further.”
This note and the
accompanying representations were received in the office of the
respondent on 2 February 2007.
[44] On 5 February 2007
the chairperson of the first applicant wrote to the respondent in the
following terms:
“
The Public Notice of the Department
of Environment and Tourism of
13
Desember 2006
, titled
‘
Government Reaffirms
Prohibition of Canned Hunting’,
refers.
According to the Notice, the
Regulations on Threatened and/or Endangered Species are to be
promulgated and come into affect (sic)
in March 2007.
The South African Predator Breeders
Association’s interests stand to be extremely seriously impacted by
the proposed regulations
should they be promulgated in the form
“unveiled to the press”
on
12 December 2006
.
We have been told, however, that the current version of the
regulations is not the final one. As a prime stakeholder, we would

therefore appreciate your providing us with the following
information:
When the amendments or final version
of the proposed Regulations are to be made available;
Whether the Association will be
granted an opportunity to discuss the amendments and/or the final
version with the Minister before
promulgation of the Regulations or
not;
When feedback from the state legal
advisors can be expected on our written submission of
18
June
2006
.
Reasons, in terms of
Section 5(1)
of
the
Promotion of Administrative Justice Act, Act
3 of 2000, why our
previous request for a meeting with the Minister or his
representatives have been ignored.
In view of the severe practical impact
of the proposed Regulations on the interests of our Association, we
urgently repeat our request
for a
meeting
with the Minister of Environmental Affairs and Tourism and/or his
representatives,
before
the Regulations are promulgated, to enable us to make a vital oral
representation, to raise and/or discuss our objections to the

proposed Regulations, and to address the Minister on:
The practical impact of said
Regulations, and
The serious concerns re-raised by the
Director General for Environment and Tourism’s pronouncement on
12
December 2006 the Department ‘shall never condone ….. the so
called canned hunting or purely economic activities disguised
as
industry contributions to wild life management strategies.’
We trust to hear from you as soon as
possible.”
[45] On 8 February 2007 a
further MinMec meeting was held, again chaired by the respondent.
The respondent then requested and obtained
the consent of the meeting
to place on the agenda the issue of the 6 months self-sustaining
provision approved at the previous
meeting of 7 December 2006. The
respondent then requested that this decision be corrected by amending
the 6 months self-sustaining
provision to 24 months and this was
approved. It is clear therefore that by 8 February 2007 at least the
respondent had decided
that there should be a 24 month
self-sustaining provision.
[46] On 20 February 2007,
in a speech given at Table Mountain, the respondent announced the
imminent promulgation of the regulations.
This, as we know, took
place on 23 February 2007.
[47] On 20 February 2007
the chairperson of the first applicant again addressed a letter to
the respondent. The contents of this
letter are the following:
“
Our letters dated 15 January 2007
and 3 February 2007 to the Minister of Environmental Affair and
Tourism refers. Copies of said
letters are annexed hereto for you
convenience.
In the abovementioned letters we
requested vital information from your department. As a prime
stakeholder whose interests stand
to be seriously affected by the
implementation of the Draft Regulations which differ in material
respects from the previous draft
regulations, we repeat our request
for an urgent meeting with the Minister and/or his representatives to
discuss with them the
practical effect of the implementation of the
Draft Regulations “unveiled to the press on 12 December 2006”.
We place on record
that the discussion will be limited to the
following three issues:
The rationality, viability and wisdom
of the ‘six months period’ Prescribed by the current Draft
Regulations.
The feasibility and/or need for the
size on the enclosure into which the lion is to be released after
the waiting period to be
prescribed by the “Licensing Authorities”
issuing the permits in the various provinces based on the
environmental factors,
topography, habitat, etc., of their specific
area.
The transitional provision, more in
particular the need for a transitional period with reference to
other aspects of the regulations
besides the registrations of
captive breeding operations.”
In the letter of 15
January 2007 referred to above, the applicant requested a meeting
with the respondent. The reference to a
letter of 3 February 2007 is
probably a mistake and should refer to the aforesaid letter of 5
February 2007. It is not known when
this letter was received by the
respondent. It is reasonable to accept that it was received only
after the respondent’s speech
given at Table Mountain on 20
February 2007.
REVIEW GENERALLY
[48] For the contention
that the aforesaid provisions of the regulations could be
successfully challenged, the applicants rely on
procedural unfairness
in the making of the regulations, that relevant considerations were
not considered and that the provisions
are irrational and/or are
unreasonable. The case of the applicants in this regard is squarely
based on the provisions of the PAJA.
It was not disputed on behalf
of the respondent that the provisions of PAJA are applicable and
available to the applicants. Whether
PAJA is applicable to the
making of the regulations is however far from settled. In
MINISTER
OF HEALTH AND ANOTHER NO v NEW CLICKS SOUTH AFRICA (PTY) LTD AND
OTHERS
2006 (2) SA 311
(CC), five members of the Court held that it was not
necessary to decide whether PAJA is applicable to the making of the
regulations
involved in that case, namely regulations promulgated in
terms of section 22G of the Medicines and Related Substances Act, and
assumed that it does apply. One member of the Court (Sachs J) held
that PAJA is not generally applicable to the making of regulations.

Five members of the Court held that the making of the regulations in
question in that case constituted a “decision” and therefor

“administrative action” in terms of PAJA. Of these five
lastmentioned members of the Court however only two members held that

PAJA is applicable to the making of regulations in general.
[49] What is settled
however is that if PAJA is applicable, a litigant cannot avoid the
provisions of PAJA by going behind it and
seeking to rely on section
33 of the Constitution or the common law. When PAJA is not
applicable to the exercise of public power,
the principle of legality
“provides a much needed safety net”. See the
NEW
CLICKS
-case
supra
at 364 to 365 paras 26 and 27 at 444 to 447 paras 431 – 438, and at
496 para 586.
[50] In the circumstances
I accept, without deciding, in favour of the applicants, that the
provisions of PAJA are applicable to
the making of the regulations in
this case.
PROCEDURAL
UNFAIRNESS
[51] Ours is a
participatory democracy. The right to procedurally fair
administrative action entrenched in section 33(1) of the
Constitution
is therefore a right of participation. This right of participation
means that a meaningful opportunity must be given
to a person to make
presentations in relation to an administrative decision that may
affect that person. In order for such opportunity
to be meaningful,
it must be an opportunity to influence the result of the decision.
In this manner the fundamental common law
rules of natural justice of
the right to be heard (
audi
alteram partem)
and
the rule against bias (
nemo
index in sua causa)
were constitutionally entrenched. PAJA is of course informed by all
this and gives effect thereto. What constitutes procedural
fairness
depends on the circumstances of each case, as is also made clear in
section 3(2)(a) of PAJA.
[52] The applicants
complain about the proceedings of the panel. It is
inter
alea
alleged that no sufficient opportunity was provided to make
representations to the panel and that adherence to fixed principles

as well as the obligation to find consensus caused the report of the
panel to be flawed. Apart from the fact that at least at
the time of
the public hearings held by the panel, the first applicant was not
yet in existence, I do not find it necessary to
further discuss these
complaints, as I find the reliance by the applicants on an unfair
procedure before or in respect of the panel
to be misplaced. In my
judgment the submission on behalf of the respondent is conclusive,
namely that sections 3(5) and 4(1)(d)
of PAJA apply. In terms of
these provisions, where an administrator is empowered by an
empowering provision to follow a procedure
which is fair but
different from the provisions of PAJA itself, the administrator may
act in accordance with that different procedure.
In the instant case
the respondent had to follow the specific procedure prescribed in
sections 99 and 100 of the Act. It is not
suggested that this
procedure is not fair. Whether the procedure was in fact followed,
in this case depends on whether the respondent
properly considered
the first applicant’s representations, which will be discussed
later.
[53] The first applicant
says that after the Final Amendments was made known on 12 and 13
December 2006 as aforesaid with a self-sustaining
provision of 6
months, most of the members of the first applicant accepted that
position, albeit grudgingly, and arranged their
affairs in respect of
hunting of lions accordingly. The first applicant further states
that it and its members were misled to
accept that the regulations
would also contain a 6 months self-sustaining provision and that
therefore the first applicant should
have been given a further
opportunity to make representations to the respondent before the
self-sustaining provision in the Final
Amendments could be changed.
[54] I accept that there
may be instances where procedural fairness requires that a further
opportunity to make representations
be provided. By analogy
reference could be made to the case of
EARTHLIFE
AFRICA (CAPE TOWN) v DIRECTOR-GENERAL: DEPARTMENT OF ENVIRONMENTAL
AFFAIRS AND TOURISM AND ANOTHER
[2005] ZAWCHC 7
;
2005 (3) SA 156
(C) where a party had opportunity to make
representations in respect of a draft report but not in respect of
the final report which
contained new matter not addressed in the
draft report. It was consequently held that the applicant in that
matter was entitled
to a reasonable opportunity to make further
submissions on the final report and that such opportunity was not
afforded, contrary
to section 3(4)(b)(ii) of PAJA. Again however,
whether such further opportunity is required by procedural fairness
must be decided
on the facts of the particular case.
[55] It is difficult not
to question the averment that the first applicant and the majority of
its membership accepted the 6 months
self-sustaining provision in the
Final Amendments in the sense that they decided to abide thereby.
Such a stance does not accord
with the subsequent conduct of the
first applicant as appears from what follows. Firstly, on 31 January
2007 the MEC responsible
for environmental affairs in the North West
Province sent the first applicant’s representation of 19 June 2006
to the respondent.
There can be little doubt that this happened at
least partly at the instigation of the first applicant. It will be
remembered
that in its representations the position taken by the
first applicant was that any substantial self-sustaining provision
would
effectively put an end to the industry and that there should
not be a waiting period between the release and the hunt of a lion
of
more than 2 weeks at the most. In the subsequent aforesaid letter of
5 February 2007 the first applicant, far from indicating
acceptance
of the 6 months self-sustaining provision, stated that regulations in
accordance with the Final Amendments would extremely
seriously impact
on it and requested a meeting with the respondent to discuss this as
well as other serious concerns raised in
the letter. Although the
letter of 20 February 2007 on behalf of the first applicant referred
to above was probably received after
the announcement of the
regulations, it does indicate the stance and attitude of the first
applicant even at that stage. Again
no mention was made thereof that
the six months period would be acceptable. In fact the first
applicant in the letter reiterated
that it would be seriously
affected by the implementation of the Final Amendments and
specifically requested opportunity for discussion
of the rationality,
viability and wisdom of the 6 months self-sustaining provision
contained therein.
[56] It is therefore
apparent that if the first applicant and its membership actually did
decide to abide by a six months self-sustaining
provision, the
respondent had no way of knowing that. As I have pointed out, the
first applicant in fact conveyed the contrary
to the respondent. In
these circumstances it was not in my judgment required by procedural
fairness that the first applicant be
given a further opportunity to
make representations as claimed by it.
[57] The next question is
whether the respondent gave due consideration to the representations
made by the first applicant that
was submitted on 19 June 2006 as a
result of the invitation to do so in respect of the draft regulations
of 5 May 2006. I agree
with the first applicant that it is required
that the respondent give personal consideration to the
representations. That is the
plain meaning of section 100(4) of the
Act and there is no provision that allows for delegation of this
power. This interpretation
is also indicated by section 100(3) of
the Act which specifically allows for oral representations or
objections to a person designated
by the Minister. This makes the
absence of a power of designation in section 100(4) conspicuous.
[58] In this regard the
applicants adopted an approach that can be likened to artillery fire.
It was submitted that the respondent
did not consider the first
applicant’s representations at all and that if he did so, he did
not do so properly, either because
he was biased in the sense that he
made up his mind to close down the industry beforehand or because he
acted under undue influence
or capriciously by changing his mind in
respect of the 6 months self-sustaining provision after the MinMec
meeting of 7 Desember
2006.
[59] In his answering
affidavit the respondent deals with all these averments and
accusations. It is clear that the respondent did
not consider the
first applicant’s representations before it was sent to him on 31
January 2007 by the MEC for Agriculture, Conservation
and Environment
of the North West Province. The respondent says that after receipt
thereof on 2 February 2007 he studied the representations
of the
first applicant and considered it. He also said that he discussed
the matter telephonically with the relevant MEC. The
respondent
further states that the Amendment Document and Clean Document did not
come to his notice. The final amendments were
brought to his notice
before the MinMec meeting of 7 December 2006. The amendment of the
24 month self-sustaining provision to
a 6 month self-sustaining
provision in these documents, was not brought to his attention and he
was unaware thereof. The respondent
states that this amendment was
brought about by officials in his department without his knowledge
and permission. In this regard
the respondent is supported by the
affidavits of Pieter Botha, Susanna Sophia Jacoba Meintjies and Thea
Carroll. The respondent
further says that the press statements of 12
December 2006 and 13 December 2006 were not cleared with him and that
he was unaware
of what the contents thereof would be. He only became
aware thereof whilst on official duty in Western Europe. The
respondent
says that he was upset by the fact that the draft
regulations contained in the Final Amendments with the aforesaid
amendment was
made public without his knowledge or at all, because it
was premature. He took the matter up with the director-general in
his
department and this led eventually to the amendment of the Final
Amendments in respect of the self-sustaining provision to 24 months

that was unanimously approved at the MinMec meeting of 8 February
2007. The respondent states that he was initially inclined to
the
view that hunting of captive bred large predators should be totally
prohibited. In this regard he refers to public statements
made by
him from which such stance or intention could be gathered. The
respondent says that he subsequently came to the conclusion
that the
hunting of captive bred large predators should be allowed in the
circumstances recommended by the panel and provided for
in the
regulations.
[60] It is trite that
where disputes of fact arise on affidavits in motion proceedings, a
court cannot decide the case on probabilities.
A final order can be
granted only if the facts averred in the applicant’s affidavits
which have been admitted by the respondent
together with the facts
alleged by the respondent, justify such order, unless the
respondent’s version is so farfetched, palpably
implausible or
clearly untenable that the court is justified in rejecting it out of
hand. This certainly cannot be said of the
respondent’s evidence
referred to above. It follows that the respondent’s aforesaid
evidence must be accepted for purposes
of decision of this
application. On the evidence on which the application must be
decided therefore, the first applicant did have
the opportunity to
influence the respondent’s decision in its favour. Therefore the
applicants did not succeed in establishing
that the respondent failed
to consider the first applicant’s representations at all or
properly as alleged. Therefor also, the
exercise of the discretion
not to grant an interview in terms of section 100 (3) of the Act,
cannot be faulted.
MISDIRECTION
[61] The respondent
concluded, as did the panel, that the captive breeding of lions makes
no contribution to natural biodiversity
in South Africa. On behalf
of the applicants it was submitted that this constitutes a
misdirection or, in the language of PAJA,
that a relevant
consideration, namely the contribution of captive breeding of lions
to biodiversity in South Africa, was not considered.
In his
affidavit in support of the founding affidavit, the second applicant
stated that the main aims of his breeding project
in respect of lions
include to rebreed or re-establish the extinct Cape lion and to
re-establish healthy lions in nature. He also
explained his breeding
programme and what progress, according to him, has been made with the
re-breeding of the Cape lion.
[62] In his affidavit in
support of the answering affidavit, Prof. Jacobus du Plessis Bothma
effectively demolished these matters
as possible arguments in respect
of contribution to biodiversity. Prof. Bothma was described as an
expert without equal in respect
of the ecology and management of
large predators. This was not denied by the applicants. Prof.
Bothma was also a member of the
panel. Prof. Bothma pointed out that
all sub-Saharan lions are regarded as one subspecies and are
therefore genetically the same.
He further pointed out that it would
be impossible to rebreed the extinct Cape lion, as the genetic
material thereof is extinct
and impossible to obtain. All that can
be done is to breed a specimen of the ordinary lion south of the
Sahara that looks or looks
somewhat like the Cape lion. It was
further pointed out that there is no evidence to the effect that a
captive bred lion has been
or could be successfully re-established in
nature, that is in the wild, and also that if this could be done, the
introduction of
doubtful genetic material emanating from the captive
bred and/or genetically manipulated lions would be detrimental to
natural
biodiversity. All of this was expressly admitted in the
replying affidavits in which it was also repeatedly stated that the
applicants
have no intention of re-establishing captive bred lions as
wild or free ranging lions in nature.
[63] What remains is the
argument that hunting of captive bred lions relieves the pressure on
lions in nature or wild lions, also
those in other African countries.
Incidentally, in a study referred to by both the first applicant and
the respondent, apparently
published in 2002, the sub Saharan lion
population was estimated as between 28 854 and 47 132, of which
approximately 50 persent
is to be found in Southern Africa. I find
the twofold answer of the respondent hereto convincing, namely that
the Act requires
the protection of biodiversity in the Republic of
South Africa and that hunting of lions in nature in the Republic of
South Africa
should and could be regulated by the permit system.
SELF-SUSTAINING
PROVISION IRRATIONAL
[64] Rationality, it is
said, is the archenemy of arbitrariness. It is for this reason that
in order for the exercise of public
power to pass constitutional
muster, it must be rationally related to the purpose for which the
power was given. In developing
this further PAJA provides in section
6(1)(f)(ii) that a court may review administrative action if the
action is not rationally
connected to the purpose for which it was
taken, the purpose of the empowering provision, the information
before the administrator
or the reasons given for it by the
administrator. In the application of this test the reviewing court
will ask whether there is
a rational objective basis justifying the
connection made by the administrative decision-maker between the
material available and
the conclusion arrived at. See
PHARMACEUTICAL
MANUFACTURERS ASSOCIATION OF SA AND ANOTHER, IN RE EX PARTE PRESIDENT
OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS
[2000] ZACC 1
;
2000 (2) SA 674
(CC) at 708 paras 85 and 86. See also
TRINITY
BROADCASTING (CISKEI) v INDEPENDENT COMMUNICATION AUTHORITY OF SOUTH
AFRICA
2004 (3) SA 346
(SCA) at 354 to 355 para 21. Simply put, the
question here is whether in all the circumstances of this case there
is a rational
basis for the 24 month self-sustaining provision in the
regulations in respect of the hunting of captive bred lions.
[65] The effect of the 24
month self-sustaining provision is that a captive bred lion may only
be hunted after it has been fending
for itself for at least 24 months
in a extensive wildlife production system as defined, that is a
system that is large enough and
suitable for the management of
self-sustaining wildlife populations in a natural environment which
requires minimal human intervention
in the form of
inter
alia
the provision of water, food and health care, except in times of
drought when more than minimal supplementation of food is allowed.
[66] It was argued on
behalf of the applicants that it is not practically possible to
comply with the regulations in this regard,
in the sense that it
would not be possible for lions to fend for themselves as required
for a period of 24 months or in fact any
substantial period. It was
therefore argued that the self-sustaining provision is irrational and
that it indicates that the provision
was introduced as a device to
close down the industry without saying so. I agree that if it is
factually correct that it is not
possible for a lion to fend for
itself as envisaged by the regulations, the self-sustaining provision
would make no sense and would
therefore be irrational. The question
therefore is what the facts are in this regard and to this I turn.
[67] It was not the case
of the applicants in the founding papers that it was not possible to
comply with regulations on the basis
that a lion could not fend for
itself for 24 months in terms of the self-sustaining provision, as
opposed to a lion released in
nature where for instance prey could
not be supplemented. What the case of the applicants was in this
regard is that the 24 month
self-sustaining provision would make the
industry not financially viable. I refer in this regard particularly
to the affidavit
of Leigh Fletcher. Ms Fletcher is a game breeder
associated with Sandhurst Safaris of Vryburg in the North West
province. She
is much experienced in captive breeding and caring for
lions. She says that she grew up with lions and have all her life
been
actively involved in breeding them, feeding them, caring for
them, doctoring them and working with them and that at Sandhurst
Safaris
they breed lions the way other people breed cattle. She did
not say that it would not be possible to comply with the regulations

but said that the 24 month self-sustaining provision would be
financially prohibitive, which carries with it the necessary
implication
that the regulations could practically be complied with,
as is for instance illustrated by the following statement of Ms
Fletcher,
namely:
“
If lions are to be released for 24
months one would have to stock the camp with sufficient other game so
as to minimise or exclude
the ‘human intervention’. Because of
the lions’ killing habits, within a year there they might be no
other animal left in
the area. The cost would therefore be
prohibitive.”
[68] For support of the
argument under consideration, the applicants latched onto what was
said in the answering affidavits, particularly
by Prof. Bothma, but
took that out of context. What was said by the respondent, Prof.
Bothma and others, in the context of a lack
of contribution of
captive breeding of lions to natural biodiversity, is that there is
no scientific evidence or record that captive
bred lions have
successfully been reintroduced into the wild or in nature. In this
regard reference was made to the so-called
“Born Free” lions bred
by Joy en George Adamson, which in spite of untiring efforts of this
couple could not adjust in nature,
so that some of these lions had to
be shot because they became man-eaters. A distinction was drawn in
the answering affidavits
between this situation, on the one hand, and
practical implementation of the regulations in this regard, on the
other hand. It
was clearly stated that it would be practically
possible to do so.
[69] The attempt in the
replying affidavit to deny that it is practically possible, as
opposed to financially viable, to comply
with these provisions of the
regulations, apart from what is stated above, was based on the
affidavits of Messrs M.J. Erwee and
M.P. Steyl of Boshof and Winburg
in the Free State respectively. This attempt is most unconvincing.
In an affidavit forming part
of the replying papers that reeks of
exaggeration, Mr. Erwee directly contradicted his affidavit that
formed part of the answering
papers, with no acceptable explanation
offered. On a proper analysis of Mr. Steyl’s evidence it does not
assist the applicants
in this regard. Mr. Steyl says that at that
time he had 12 lions that were bred in captivity and released in a
camp of approximately
1000 ha. He states that although these lions
do not have the hunting skills and instincts of lions that are free
ranging in nature
or those in the Kruger National Park, they are able
to hunt antelope. He says that he has to supplement the antelope in
the camp
from time to time and that as a result of losses suffered he
now only releases males that grew up together.
[70] In fact, on the
evidence as a whole, a finding must be made that it could not be said
that it would be practically and physically
impossible to comply with
the 24 month self-sustaining provision. As pointed out already, the
founding affidavits contain no evidence
that it would not be
practically possible as such to comply with the regulations in
respect of the hunting of captive bred lions.
On the contrary, the
founding affidavits contain considerable evidence that necessarily
implies that this could be done. I refer
in this regard to the
evidence of Dr. Keet also in his affidavit forming part of the
replying affidavits, Ms Leigh Fletcher, as
stated above, Prof. H.O.
de Waal, who pointed out that the African Large Predator Research
Unit of which he is a founding researcher
in its representations to
the respondent on the draft regulations of 5 May 2006 recommended
that there should be a waiting period
of two to four months. It goes
without saying that if a lion could fend for itself in accordance
with the self-sustaining provision
for two, four or six months, it
could also do so for twenty four months. This is also the effect of
the evidence of Aletta Charlotte
van der Vyver, an experienced
official who at the time was Regional manager in respect of
biodiversity and ecosystem management
of the department of
Agriculture, Conservation and Environment in the North West Province
and of Pieter Jacobus Johannes Stephanus
Potgieter, President of the
S A Hunters Association (“Suid-Afrikaanse Jagtersvereniging”).
The third applicant himself, in
his affidavit in support of the
application, explained that he had released at least 17 lions on his
farm (in a camp of 1000ha)
in apparent compliance with the Free State
legislation of a self-sustaining period of three months. And in his
replying affidavit
dated 22 January 2008 he did not deny the
respondents’ evidence in this regard, but confirmed that there was
a hunt on his farm
the week before in respect of lions that were
released in the camp on 14 August 2007. It will be remembered that
the periodical
supplementation of prey by releasing antelope into the
extensive wildlife system is not disallowed by the regulations. Also
the
regulations do not require the establishment of prides of lions
for the purpose of survival and reproduction such as is required
in
nature. It would be in accordance with the regulations, in order for
the industry to provide the mostly male adult lions for
trophy
hunting, that males only be rehabilitated into the extensive wildlife
production system for purposes of eventual hunting.
Finally on this
point, it will be remembered that it was belatedly indicated that
many of the members of the first applicant accepted
or were prepared
to accept the six months self-sustaining provision, which of course
indicates that they were of the opinion that
it could be complied
with.
[71] But the applicants
say that in any event there is no rational basis for a provision that
requires a self-sustaining period
in an extensive wildlife production
system. This is
inter
alia
illustrated by the recurrent rhetorical question in the applicants’
papers as to why a lion should have to fend for itself in
an
extensive wildlife production system for any period if it is
inevitably destined to be hunted.
[72] I believe that the
challenged provision clearly pass the rationality test. It is not
disputed that the hunting of lions bred
in captivity has damaged the
reputation of the Republic of South Africa immensely. It is clear on
the evidence and also not disputed
that very many people all over the
world find the notion of hunting a lion bred and raised in captivity,
often by hand, and totally
dependent on humans for its survival,
abhorrent and repulsive. I find this view to be objectively
reasonable and justifiable,
to say the least. This is so even, or
perhaps especially so, if the hunting of such animal takes place in
the circumstances put
forward on behalf of the applicants as the most
humane, namely the following:
“
Working back from the actual date
(day 0) of the hunt, the following time line is suggested:
* day -7: feed the lion a big meal
(lions are ‘feast-and-famine’ eaters – after gorging themselves
on a really big meal, they
can go without a next meal for several
days.).
* day -5 or -4: the lion is darted and
the immobilized animal put in a crate, transported to the property
where it will be hunted
and released. Make sure that several
adequate water points are available for the lion.
* day 0: the lion is hunted (four or
five days after being released and running free. It means that there
is no further contact
by the lion with humans since it does not
require to be fed. The lion may be lucky during this time and catch
something on its
own to eat).”
[73] It is also not
disputed that most hunters all over the world ascribe to the
principle of fair chase. This is put as follows
by John J Jackson
III, who it is not disputed can speak for hunting associations in
many parts of the world:
“
Today, the killing of captive-bred
African lion behind high fences as well as ‘put and take’ hunting
of lion are not considered
acceptable hunting practises by the
greater hunting community. Hunting behind high fences, however, can
offer the discerning hunter
a true ‘Fair Chase’ experience if the
hunted game animals are naturally interacting members of wild
sustainable game populations
within ecologically functional systems
that meet the spatial and temporal requirements of the species
populations, not habituated
to humans. It should be clear, however,
that adequate enclosures may be necessary to contain lion or other
species for their own
protection and for the protection of the public
as well as for the protection of agricultural activities. The
shooting of a lion
in too small an enclosure where the game animal
has no reasonable chance to escape or has recently been translocated
violates the
core principle of fair chase.”
[74] The aim of these
provisions is therefore to prevent both the hunting of lions that are
completely dependent on humans (by requiring
that they fend for
themselves for a period of 24 months) and the hunting of lions
without fair chase such as in a confined space
(by requiring that the
hunt must take place in an extensive wildlife production system). I
find therefor that there are objective
and rational grounds in the
circumstances of this case for the 24 month self-sustaining
provision.
SELF-SUSTAINING
PROVISION UNREASONABLE
[75] It is trite that the
substantive unreasonableness of an administrative decision
per
se
is
not a ground for review. Something more is required before a court is
entitled to interfere. Although in section 6(2)(h) of
PAJA it is
stated that what is required for the judicial review of an
administrative action is that the exercise of the power or
the
performance of the function authorised by the empowering provision,
in pursuance of which the administrative action was purportedly

taken, is so unreasonable that no reasonable person could have
exercised the power or performed the function, the true test is

whether the administrative decision in question is one that a
reasonable decision-maker could not reach and that also will depend

on the circumstances of each case. See
BATO
STAR FISHING (PTY) LTD v MINISTER OF ENVIRONMENTAL AFFAIRS AND OTHERS
[2004] ZACC 15
;
2004 (4) SA 490
(CC) at 512 – 513 paras [44] and [45]. The
question presented by the applicants for determination in this
regard, is whether
the decision to make the regulations that require
a self-sustaining period of 24 months as opposed to any other
self-sustaining
period, is a decision that a reasonable
decision-maker could not make in the circumstances.
[76] The main thrust of
the argument of the applicants is that the 24 months self-sustaining
provision will destroy the industry
with resultant negative economic
and social impact. The applicants point out that millions of rands
were spent on establishing
infrastructure and facilities in respect
of the industry. They also point out that millions of rands per
annum is earned by the
industry, much of it in foreign currency,
directly and indirectly, by the creation of job opportunities and
business opportunities
as a result of the industry. The applicants
say that the closing down of the industry will make the capital spent
on infrastructure
and facilities wasteful, will bring an end to the
earning derived from the industry, will cause many jobs to be lost
and also will
result therein that many lions will have to be put
down.
[77] The respondent
recognises the investments made and the direct and indirect benefits
of the industry. I am not convinced however
that the respondent is
wrong in saying that the 24 months self-sustaining provision will not
necessarily put an end to the industry
by making it financially not
viable. I have already pointed out that it must be accepted that the
24 months self-sustaining period
can be practically implemented. It
is common cause that a male lion is of acceptable trophy quality only
by the time that it reaches
the age of approximately four years. It
is difficult to understand why it would not be financially viable to
keep such a lion
for 24 months thereof in an extensive wildlife
production system. Even on the evidence of the chairperson of the
first applicant
that an adult male lion would require approximately
6000 kilogram of meat over a two year period and that that
requirement can
be met by providing blue wildebeest with the
effective cost of approximately R14,00 per kilogram, that cost would
amount to approximately
R85 000,00. Other evidence presented by the
applicants is that about 30kg to 40kg of meat per week is required,
which could on
this basis reduce the cost of prey hunted by half this
amount. The price obtained for that lion would however be 22 000 US
dollars
on average. Ms Fletcher says that their operation requires a
price of a minimum of 25 000 US dollars up to 60 000 US dollars.
One
can imagine also that in the light of the scarcity factor in respect
of available lions for hunting that I accept will be caused
by the
provision in question, these prices might rise.
[78] It cannot however be
gainsaid that the 24 months self-sustaining provision will have a
major impact on the industry, especially
in the short term. This is
recognised by both the respondent and the panel. The question is
whether in all the circumstances
of this case the decision to
nevertheless make the regulation providing for the 24 months
self-sustaining period, is one that a
reasonable decision-maker could
not reach. The applicants rely heavily thereon that the participants
in the workshops, including
Mr S P Dorrington who was a member of the
panel, came to the conclusion that there should be a 6 month
self-sustaining provision.
There is much to be said for such
provision, but the applicants must show that no reasonable
decision-maker could decide on a
24 month self-sustaining provision.
On consideration of all the circumstances of this case, especially
those pointed out in paras
72 to 74 above, I am not satisfied that
this is the case is. In the final analysis, in my judgment, it is
reasonable to say that
the economic and social development resulting
from the industry in its current form, is not justifiable within the
meaning of section
24(b)(iii) of the Constitution.
TRANSITIONAL
MEASURE:
[79] It was argued in the
alternative in the application as originally framed that the 24
months self-sustaining provision should
be phased in. The argument
was also based on economic considerations, specifically losses as a
result thereof that existing obligations
would not be met if the
regulations came into effect on 1 June 2007 as was then envisaged.
This matter has however since been
overtaken by events. At least on
23 February 2007 it was made known to the industry that there is a
resolve to have a 24 months
self-sustaining provision. Moreover, as
pointed out earlier, the regulations are not presently applicable to
lions. When the
regulations are made applicable to lions, as is
indicated by the respondent, the question of a phasing in could in
any event then
be considered.
SCIENTIFIC
AUTHORITY:
[80] The highwatermark of
the case for the applicants in this regard really is that it would be
a good thing to have the industry
represented on the scientific
authority. That may be so, but that of course is not a ground for
review. The main purpose of the
scientific authority is to assist in
regulating and restricting the trade in specimens of listed
threatened or protected species.
Lions are one species of many
mammalia
on
these lists, which also include many species of
pisces,
reptilia, aves, invertebrata, amphibia
and
flora
.
I agree with the respondent that it is simply not practical to have
everybody affected by the regulations represented on the
scientific
authority. It must further be noted that the regulations provide
that the scientific authority may co-opt expert advisors
from outside
the public service. In these circumstances it suffices, in my view,
to say that the decision not to include a representative
of the
industry on the scientific authority in making the regulations,
cannot be said to be irrational or to be a decision that
no
reasonable decision-maker could take.
CONCLUSION
[81] It follows that the
application cannot succeed. The employment of two counsel was
eminently justified.
[82] The application is
dismissed with costs, including the costs of two counsel.
________________________
C.H.G. VAN DER MERWE,
J
I concur.
______________
M.H. RAMPAI, J
On behalf of applicants:
Adv. F.W.A. Danzfuss SC
With him:
H. Murray
Instructed by:
Rossouws
Attorneys
BLOEMFONTEIN
On behalf of respondent:
Adv. B. Knoetze SC
With him:
G.T. Langenhoven
Instructed by:
The State Attorney
BLOEMFONTEIN
/em