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[2009] ZAKZPHC 38
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Natal Zoological Gardens (Pty) Ltd and Others v Ezemvelo KZN Wildlife and Others (5945/09) [2009] ZAKZPHC 38 (13 August 2009)
IN THE KWAZULU-NATAL
HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH
AFRICA
CASE NO. 5945/09
In the matter between:
NATAL ZOOLOGICAL
GARDENS (PTY) LTD
FIRST
APPLICANT
NATAL LION PARK
CC
SECOND
APPLICANT
BRIAN BOSWELL CIRCUS
(PTY) LTD
. THIRD
APPLICANT
BRIAN BOSWELL
FOURTH
APPLICANT
and
EZEMVELO KZN
WILDLIFE
FIRST
RESPONDENT
ANDREW
BLACKMORE
SECOND
RESPONDENT
DR JEAN HARRIS
THIRD
RESPONDENT
MEMBER OF THE
EXECUTIVE COUNCIL
FOR AGRICULTURE &
ENVIRONMENTAL
AFFAIRS OF THE
PROVINCE OF
KWAZULU-NATAL
FOURTH
RESPONDENT
JUDGMENT
Delivered
on 13 August 2009
_____________________________________________________
SWAIN J
[1] I have to decide
where the burden of paying the legal costs of this application rests.
The relief sought by the applicants
against the respondents, was
rendered redundant by the outcome of the appeal, made by the
applicants to the MEC for Agriculture,
Environmental Affairs and
Rural Development (the MEC), delivered on the eve of the hearing of
this application.
[2] The applicant sought
an interim interdict against the respondents, pending the outcome of
the appeal, restraining the respondents
from enforcing certain
conditions attached to permits and licences, issued to the
applicants, by the first respondent. The appeal
succeeded and the
permits, with the contested conditions issued by the first
respondent, were set aside.
[3] It is therefore clear
that the applicants, for the purposes of the present enquiry, must be
regarded as substantially successful.
This is because the
enforcement of these conditions, which the applicants sought to
restrain in the interim, was conditional upon
the first respondent
having lawfully imposed them in the first place, being the subject of
the applicantsâ successful challenge
on appeal. In other words,
the respondentsâ opposition to the relief sought was predicated
upon the lawful imposition of these
conditions by the first
respondent in the first place.
[4] It is trite that as
a general rule the party who succeeds should be awarded its costs.
This rule should not be departed from
except on good grounds
Pretoria Garrison
Institutes v Danish Variety Products (Pty) Ltd.
48 (1) SA 839
(A)
The determination of this
issue is wholly within my discretion. It is however a judicial
discretion, which I have to exercise on
grounds upon which a
reasonable man could have come to the conclusion arrived at.
Herbstein & van
Winsen
The Civil Practice
of the Supreme Court of South Africa
4
th
Edition pages 703 â 704
Moral and ethical
considerations may enter into the exercise of the discretion of the
Court.
Berkowitz v
Berkowitz
1956 (3) SA 522
(SR)
Mahomed v Nagdee
1952 (1) SA 410
(A) at 420 H
[5] Mr. Pammenter, S.C.,
who together with Mr. Mossop, appeared for the respondents, submitted
that this was a case where the general
rule should be departed from
and the applicants ordered to pay the respondentsâ costs. His
argument was that it was clear on
the papers that the applicants were
unable to establish any reasonable apprehension of injury, as a
consequence of the refusal
by the first respondent to furnish an
undertaking, that it would not enforce the conditions, pending the
outcome of the appeal.
[6] In other words, the
present litigation was not only misconceived, but unnecessary,
because any of the steps the first respondent
could take to enforce
the conditions, such as the confiscation of animals, were themselves
subject to rights of appeal on the part
of the applicants.
A recognised basis for
depriving a successful party of their costs is where the proceedings
instituted were unnecessary.
Pretoria City
Council v Lombard N.O.
1949 (1) SA 166
(T)
As I understood the
argument of Mr. Pammenter, S.C., these proceedings were consequently
unnecessary, as no interdict was needed
in the absence of a well
grounded apprehension of harm on the part of the applicants.
[7] The test of whether
there is a well-grounded apprehension of irreparable harm is
objective. The question is whether a reasonable
man, confronted by
the facts, would apprehend the probability of harm.
National Council of
SPCA v Openshaw
[2008] ZASCA 78
;
2008 (5) SA 339
(SCA) at 347 C
[8] The applicants do not
have to show injury would have followed, they only have to show that
it was reasonable for them to apprehend
injury. However, I have to
decide whether there was any basis for the entertainment of a
reasonable apprehension, by the applicants
Openshawâs case
supra at 347 D - E
[9] The debate between
Counsel was consequently focused on two main areas, to resolve the
issue of whether it was reasonable for
the applicants to apprehend
injury:
[9.1] An examination of
the correspondence that passed between the parties before these
proceedings were launched, to determine
how the first respondent
responded to several requests by the applicants for such an
undertaking and
[9.2] The legal remedies
available to the applicants, in the relevant legislation, to resist
any attempts by the first respondent
to enforce the disputed
conditions.
[10] Several requests
were made by the applicantsâ attorneys for an undertaking, which
was not forthcoming. The responses of
the first respondent may be
summarised as follows:
[10.1] The terms and
conditions of any permits had to be timeously fulfilled.
[10.2] A threat was made
to withdraw the registration of the Zoo and not issue any further
permits for the keeping of animals in
captivity, if the desired
improvements to the Zoo and Lion Park were not effected.
[10.3] An inspection of
the premises would have as its objective the noting and recording of
any non-compliance of permit conditions
and any contraventions. This
would have a bearing on decisions regarding the registration of the
applicantsâ facilities as well
as the issuing of any further
permits.
[10.4] During the
inspection of the applicantsâ facilities officials of the first
respondent made it clear that they would ensure
compliance with the
disputed conditions, even prior to finalisation of the appeal. Any
decisions to be taken by these officials
it was asserted
âcannot
be pre-emptedâ.
[10.5] Thereafter, the
second respondent advised the applicantsâ attorney that a report
would be furnished to the applicants
âsetting
out the findings of the inspection as regards non-compliance and
actions required of your clientâ
in terms of the Ordinance. As regards non-compliance in terms of
National Legislation these would also be reported to the applicants
for their
âimmediate
actionâ.
The
issuing of a compliance notice, because of an issue of non-compliance
of
âsuch gravityâ
would be preceded
by notice in writing of the intention to issue such compliance
notice. The applicants would then be afforded
a reasonable
opportunity to make representations in writing as to why the
compliance notice should not be issued. Having considered
the
representations, the first respondent
âmay
or may not proceed to issue the compliance noticeâ
.
[10.6] In response to a
further request for such an undertaking, the attorneys for the first
respondent replied re-iterating that
âmy
client has provided you with the actions it will take in the short
term resultant from the inspectionâ.
[10.7] The applicants
were advised, after the present proceedings had been launched, that
the applicantsâ permits and licence
expired on 31 July 2009.
[11] The respondents
stated that the interaction with the applicants was always governed
by its concern for the welfare of the animals
in the applicantsâ
possession and control. It was this concern which rendered the
respondents unable to agree not to enforce
any of the conditions
attached to the permits and licence in question.
[12] It is therefore
clear that although the first respondent indicated it would enforce
the disputed conditions, the immediate
action it intended to take
would be the issue of a compliance notice, which would be preceded by
an opportunity afforded to the
applicants to make representations.
In addition, there was no indication that the first respondent
intended to act otherwise than
in accordance with the provisions of
the relevant legislation.
[13] This then leads to
the second aspect debated by Counsel before me, namely, what remedies
were available to the applicants to
challenge any withdrawal of the
Zoo registration, licenses and permits, as well as the confiscation
of any animals in terms of
the relevant legislation? It was such
conduct the applicants say they reasonably apprehended, resulting in
irreparable harm, which
could only be prevented by obtaining the
requisite interdict.
[14.1] An appeal lies in
terms of Section 89 of the Ordinance to the MEC in respect of a
refusal to grant a permit to keep indigenous,
or exotic animals, in
captivity, or the attachment of conditions to the grant of any such
permit (Section 80). An appeal also
lies in respect of a refusal to
grant a permit to sell, purchase or exchange an indigenous or exotic
mammal, or the attachment
of conditions to the grant of any such
permit (Section 81).
[14.2] The refusal to
grant a licence in respect of a zoo (Section 85) or register a zoo
(Section 83) or the attachment of conditions
to any registration or
licence, is not subject to appeal in terms of the Ordinance.
[15.1] As regards the
cancellation of permits or licences issued in respect of mammals,
this may only occur after the holder has
been convicted of a criminal
offence (Section 91 read with Section 215 B of the Ordinance).
[15.2] As regards the
cancellation of permits issued in respect of amphibians,
invertebrates and reptiles, these likewise may only
occur after the
holder has been convicted of a criminal offence (Section 109A of the
Ordinance).
[15.3] A registration
certificate issued in terms of Regulation 27 read with Regulation 30
of the Threatened or Protected Species
Regulations 52 of 207,
promulgated in terms of the National Environmental Management
Bio-diversity Act 10 of 2004, to operate a
captive breeding
operation, commercial exhibition facility, or a sanctuary for
threatened or protected species, can only be cancelled
after the
holder has been advised that cancellation of registration is being
considered and the reasons therefor. The holder then
has an
opportunity to make representations. Any decision to cancel a
registration certificate is subject to appeal to the Minister.
Any
non-compliance with the provisions of a permit issued in terms of the
National Environmental Management Act 107 of 1998
, requires
compliance with a similar procedure before a permit maybe revoked.
[16.1] As regards the
confiscation of indigenous mammals or exotic mammals, this is subject
to an appeal to the MEC in terms of
Section 89
(C) of the Ordinance.
[16.2] The confiscation
of any indigenous amphibian, invertebrate or reptile in terms of
Section 110
of the Ordinance is not subject to any appeal.
[16.3] Mr. Roberts, S.C.
submitted that in terms of Regulation 18 of the Zoos Control
Regulations, which are promulgated in terms
of Section 92 of the
Ordinance, an officer of the Board of the first respondent may seize
and confiscate any indigenous or exotic
mammal kept in
contravention of Chapter 5 of the Ordinance, to be disposed of in the
manner suggested by the Board, against which
conduct there is no
right of appeal. The answer of Mr. Pammenter, S.C. to this
submission, which in my view is correct, is that
Section 92 (i) of
the Ordinance provides for the making of regulations
ânot
inconsistent with this Chapter â
in
respect of the confiscation of exotic or indigenous mammals.
Consequently Regulation 18 would have to be read subject to the
right
of appeal provided for in Section 89 (C) of the Ordinance.
[17] It is therefore
apparent that no appeal lies in respect of a refusal to grant, or the
attachment of conditions to, the grant
of a licence, or to register a
zoo. In this regard it is clear that a zoo licence was issued by the
first respondent on 04 June
2009, which did not include certain
animals which had previously been included on the licence and
contained additional conditions
not previously imposed. By letter
dated 26 June 2009, the second respondent indicated than an amended
licence would not be issued.
The zoo licence was due to expire on 31
July 2009. By letter dated 30 July 2009 the first respondentâs
attorney stated that
the first respondent was willing in the interim
to issue an amended zoo licence, which combined the permissions
relevant for all
reptiles, mammals and game species, upon written
application by the applicants.
[18] As regards the
confiscation of any animals, it is only in respect of indigenous
amphibians, invertebrates or reptiles that
no appeal lies. However,
it is clear that the attitude of the first respondent as to the
effect of any appeal lodged, as conveyed
in its letter dated 10 June
2009, was that this would not suspend the permits, or any conditions
attached thereto. Whether this
view is correct or not, need not be
determined here. What it does however indicate is that the lodging
of an appeal by the applicants,
would not deter the respondents (as
in the present case) from seeking to enforce any conditions attached
to the permits in question.
[19] It is therefore
clear that the first respondent intended to enforce the conditions
attached to the permits or licences issued
regardless of the appeal
lodged, or any appeals which may be lodged by the applicants, in
respect of any future conduct on the
part of the first respondent.
However, this attitude could only cause an appreciation of
irreparable harm on the part of the applicants,
if it had as a
reasonable consequence confiscation of animals or a criminal
prosecution, instituted as a consequence of a failure
to comply with
the disputed conditions. Either eventuality could be legally
challenged on an urgent interim basis before this
Court, on the basis
that the enforceability of the contravened condition was subject to
appeal.
[20] In regard to the
issue of the zoo licence and registration, and the confiscation of
indigenous amphibians, invertebrates or
reptiles, where no right of
appeal lies, any attempt to institute a criminal prosecution or
confiscate animals, could likewise
be legally challenged on an
interim urgent basis before this Court by invoking the provisions of
the Promotion of Administrative
Justice Act No. 3 of 2007 in respect
of the zoo licence and registration, or review proceedings in respect
of the conditions imposed
in respect of the specified amphibians,
invertebrates and reptiles.
[21] What is also of
importance is whether the applicants had any reasonable apprehension
that the first respondent would act to
confiscate animals, or
institute a criminal prosecution without warning, before the appeal
or review proceedings were finalised.
What is clearly conveyed by
the papers before me is a desire on the part of the first respondent,
to improve the conditions under
which the animals are housed, both in
the Lion Park and the Zoo. The only action taken by the first
respondent to achieve this
objective before the institution of the
present proceedings, was the issue of a compliance notice, preceded
by an opportunity on
the part of the applicants to make
representations. Consequently, in my view, the applicants have not
established that they entertained
a reasonable apprehension of
irreparable injury if the interdict was not granted.
[22] However, weighed
against this is the fact that the applicants were faced with a
refusal by the first respondent, to furnish
any undertaking, as well
as an insistence by the first respondent on enforcing the conditions
in the interim, albeit that the motivation
was the welfare of the
animals.
[23] Considering all of
the above, and in the exercise of my discretion, I am of the view
that this is a case where neither of the
parties should be ordered to
pay the others costs. Although the applicants did not possess a
reasonable apprehension of irreparable
injury, this is not a case
where they should be ordered to pay the respondentsâ costs, due
regard being had to the fact that
they were substantially successful,
in the sense set out above. Likewise, this is not a case where the
respondents should be ordered
to pay the applicantsâ costs,
particularly as it is clear that the refusal to furnish an
undertaking, was dictated by concern
for the welfare of the animals
housed in the Zoo and Lion Park.
[24] Whether the
conditions imposed by the first respondent for the welfare of the
animals, are reasonable or necessary, is not
the issue to be decided
by me in these proceedings. There are a number of hotly disputed
issues between the parties in this regard.
I can say however, that I
am left with a deep and abiding concern for the welfare of these
animals. As aptly put by Cameron J
A in the case of
National Council of
SPCA v Openshaw
[2008] ZASCA 78
;
2008 (5) SA 339
(SCA) at 351 B â C
â
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 subjectsâ.
[25] The order I
therefore make is the following:
Each of the parties are
ordered to pay their own costs.
____________
SWAIN J.
Appearances:
/
Appearances:
For the Appellant
:
Adv.
M.G. Roberts, S.C. with
Adv. G.G. van der
Walt
Instructed by : J.
Leslie Smith & Company
Pietermaritzburg
For 1
st
,
2
nd
& 3
rd
Respondents: Adv. C.J. Pammenter, S.C. with Adv. R.G. Mossop
Instructed
by : Kevin Pretorious & Associates
Pinetown
C/o
Udesh Ramesar Attorneys
Pietermaritzburg
Date of Hearing : 07
August 2009
Date of Filing of
Judgment : 13 August 2009