National Society for the Prevention of Cruelty to Animals v Openshaw (2958/2006) [2006] ZAFSHC 127 (9 November 2006)

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[2006] ZAFSHC 127
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National Society for the Prevention of Cruelty to Animals v Openshaw (2958/2006) [2006] ZAFSHC 127 (9 November 2006)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Application No.:
2958/2006
In the matter between:
THE NATIONAL
SOCIETY FOR THE PREVENTION
Applicant
OF CRUELTY TO
ANIMALS
and
PETER OPENSHAW
Respondent
_______________________________________________________
JUDGMENT:
VAN DER MERWE, J
_______________________________________________________
HEARD ON:
26 OCTOBER 2006
_______________________________________________________
DELIVERED ON:
9 NOVEMBER 2006
_______________________________________________________
[1] Despite its own
citation herein, the applicant is the National Council of Societies
for the Prevention of Cruelty to Animals,
a juristic person
established in terms of section 2 of the Societies for the Prevention
of Cruelty to Animals Act, No. 169 of 1993.
The objects of the
applicant are set out in section 3 of this Act. These objects
include to prevent the ill-treatment of animals
by promoting their
good treatment by man (section 3(c)) and to do all things reasonably
necessary for or incidental to the achievement
of the other objects
mentioned (section 3(f)). In terms of the section 6(2)(e) of the Act
the applicant has the power to institute
legal proceedings connected
with its functions, including proceedings in an appropriate court of
law to prohibit the commission by
any person of a particular kind of
cruelty to animals.
[2] The respondent is the
manager of the Laohu Valley Reserve and resides in the district of
Phillippolis. As such the respondent
is employed on a conservation
project of the Chinese Tigers South African Trust. The aim of the
project is to save from extinction
an endangered subspecies of tiger
known as the South China Tiger or Chinese Tiger. For this purpose
the respondent is attempting
to train captive born Chinese Tiger cubs
to function in the wild. The plan of the project in essence is that
Chinese Tiger cubs
born in zoos in China will be brought to South
Africa and placed in a sanctuary, presently the Laohu Valley Reserve,
where the cubs
will be taught to survive by hunting. Eventually the
tigers will be returned to a reserve to be created in China. The
reserve is
intended to generate the revenue necessary in order to
make the project sustainable in the long term. At present three
tigers are
under the control of the respondent for purposes of the
project.
[3] In the notice of
motion the applicant moved for final relief in the following terms:
¡°
1. Interdicting
and restraining the Respondent from presenting live prey animals,
such as blesbuck to a predator such as a tiger or
tigers;”
In the replying
affidavit on behalf of the applicant it was stated that it appears
from the content of the answering affidavit that
there is a dispute
of fact which can only be resolved by means of a hearing of oral
evidence and that in the premises, the applicant
will persist in its
claim for interim relief only. At the hearing before me the
applicant moved for an amendment of the notice of
motion by inserting
the following paragraph 1 A after the paragraph quoted above:
¡°
1A That
such interdict operate as an interim interdict with immediate effect
pending the outcome of an action to be instituted by
the Applicant
within 30 (thirty) days of this order for relief substantially the
same as that set out in paragraph 1 above.”
[4] I am prepared, in
favour of the applicant, to consider the application on the basis of
an interdict
pendente
lite.
It
is therefore incumbent upon the applicant to establish, as one of the
requirements for the relief sought, a
prima
facie
right, even though open to some doubt. The test for a
prima
facie
right in this context is to take the facts averred by the applicant,
together with such facts set out by the respondent that are
not or
cannot be disputed and to consider whether, having regard to the
inherent probabilities, the applicant should on those facts
obtain
final relief at the trial. The facts set up in contradiction by the
respondent should then be considered and, if serious
doubt is thrown
upon the case of the applicant, it cannot succeed. See
SIMON
NO v AIR OPERATIONS OF EUROPE AB AND OTHERS
[1998] ZASCA 79
;
1999 (1) SA 217
(SCA) at 228 F – H.
[5] The case for the
applicant rests squarely on the provisions of section 2(1)(g) of the
Animals Protection Act, No. 71 of 1962.
This section provides that
any person who,
“(g)
save for the purpose of training hounds maintained by a duly
established and registered vermin club in the destruction of
vermin,
liberates any animal in such manner or place as to expose it to
immediate attack or danger of attack by other animals or
by wild
animals, or baits or provokes any animal or incites any animal to
attack another animal;”
shall
be guilty of an offence. The definition of
“animal”
in section 1 of this Act, includes any wild animal which is in
captivity or under the control of any person. The word
“immediate”
clearly relates to both
“attack”
and
“danger of
attack”
.
[6] The case of the
applicant is that the respondent has and will liberate prey in such
manner or place as to expose it to immediate
attack or danger of
attack by the tigers in the project. This, according to the
applicant, is evidenced by a recording of a part
of a television
program called 50/50 and which was broadcast on the television
channel SABC 3. This recording, in the form of a
compact disc or
digital video disc, forms part of the applicant’s papers. In the
recording, immediately after a scene where a
number of blesbok were
captured by the use of a net, the presenter of the television
programme asked the respondent
:
“What’s going to happen now?”
,
to which the respondent replied:
“What
we are going to do, we are going to present one of them live to Tiger
Woods and Madonna and the others we will put into the
enclosure that
Cathay and Hope normally stay in”.
The footage for the television programme was shot during June to
August 2005. Tiger Woods, Madonna, Cathay and Hope are names of
tigers in the project, one of which (Hope) died during August 2005.
[7] On behalf of the
respondent the admissibility of the recording was objected to on the
basis that it constituted hearsay evidence
and because of the absence
of evidence verifying the accuracy of the recording by people such as
cameramen. It is in this regard
only necessary to deal with that
portion of the recording relied upon by the applicant, described
above. This portion of the recording
certainly does not constitute
hearsay evidence. It basically consists of the capture scene, the
question by the presenter not intended
to show the truth of the
content thereof and a statement by a party to these proceedings,
namely by the respondent himself. Furthermore,
I respectfully agree
with the decisions in
S
v MPUMLO AND OTHERS
1986 (3) SA 485
(EC) and
S
v BALEKA AND OTHERS(1)
1986 (4) SA 192
(T) to the effect that video recordings are real
evidence, that the rules in respect of admissibility of documentary
evidence are
inapplicable thereto and that the authenticity of a
video recording is not a question of admissibility but of cogency and
weight.
See also
S
v NIEUWOUDT
[1990] ZASCA 74
;
1990 (4) SA 217
(A) at 231 to 232. Counsel were agreed, correctly
so in my view, that the recording in question should be dealt with on
the same
basis as a video recording. In my view therefore, the
portion of the recording on the disc relied on by the applicant, is
admissible
evidence.
[8] Although the
respondent objected to the admissibility of the recording, he
admitted, quite properly in my view, that he did make
the statement
referred to above. He also admitted that he is depicted in the
recording as presiding over the capture of the blesbok
in a net.
The respondent did not question the context in which he made the
statement according to the recording. There is therefore
no reason
to doubt the authenticity of the portion of the recording relied upon
by the applicant.
[9] The respondent did
not in his answering affidavit furnish any specific explanation or
interpretation of what he meant when he
made the statement. I am
inclined to agree with the applicant that the recording provides
prima
facie
evidence of a contravention of section 2(1)(g) of Act No. 71 of 1962
in respect of Tiger Woods and Madonna. A similar conclusion
can
however not in my view be reached in respect of the words
“...
the others we will put into the enclosure that Cathay and Hope
normally stay in”.
In the context of the statement there is no indication of what the
size is of the enclosure referred to and whether the two tigers
would
be present in this enclosure at the time when blesbok are placed
therein. However, an interdict is not a remedy for a past
invasion
of rights. The applicant has to show
prima
facie
,
although open to some doubt, that it will obtain a final interdict at
the trial. On the facts of this case this entails, on the
aforesaid
test,
prima
facie
proof thereof that objectively there is a reasonable apprehension
that, unless restrained, the respondent will contravene section
2(1)(g).
[10] The respondent gave
clear and comprehensive evidence in this regard. He said that he
make use of a series of enclosures of different
sizes which have been
or are being fenced with appropriate predator-proof fencing. There
is a small enclosure firstly, of less than
a hectare which serves as
a quarantine camp for newly arrived cubs. Secondly there is an
enclosure of four hectare in which young
cubs are exposed to the
vegetation and terrain and where they might encounter smaller prey
such as guinea-fowl and rodents. This
camp has sometimes been used
to hold antelope before they were introduced to the larger
enclosures. Then there is a nine hectare
enclosure in which the
young cubs may similarly encounter guinea-fowl and other small prey.
Like the four hectare camp, this camp
has also been used to hold
antelope before they were introduced to the larger enclosures. On
two separate occasions in 2005 the
younger cubs were given access to
the nine hectare enclosure when blesbok were already present in the
enclosure. Since August 2005
however, no blesbok have been present
in the nine hectare while tigers have been present in that enclosure
and the respondent does
not plan to allow tigers and blesbok to be
present simultaneously in the nine hectare enclosure in future.
There is also a forty
hectare enclosure, with a river running through
it, in which sub-adult and adult tigers roam together with limited
numbers of antelope.
According to the respondent experience
indicated that the best way to introduce blesbok into this enclosure
is to first remove the
tigers. This makes it far harder for tigers
to hunt when they are reintroduced into this enclosure. Finally
there is a six hundred
hectare enclosure of which the predator-proof
fencing is nearing completion and in which large numbers of several
species of prey,
including blesbok, springbok, ostrich, mountain
reedbuck and wildebeest are already situated.
[11] The
respondent then continued as follows:
“
28.1 Tiger Woods and Madonna, who
are both 2½ years old, are located in the 40Ha camp. Within that
camp, there are 2 adult blesbok.
These are the remaining members of
a larger group of 13 blesbok which had been introduced to the 40Ha
camp by 8 August 2005. Despite
many attempts to do so, the tigers
have been unable to hunt these blesbok successfully. Apart from the
release into the camp of
3 blesbok on 2 February 2006 to replace 3
blesbok that were removed from the camp a week earlier on 26 January
2006, no further blesbok
have been introduced to this enclosure since
8 August 2005. It has accordingly taken the tigers more than a year
to hunt the herd
of 13 blesbok down to 2.
Once the remaining two blesbok are
hunted by Tiger Woods and Madonna, and possibly sooner, I will
release more adult blesbok into
this enclosure. However, I will
not do so in immediate proximity to the tigers. Indeed, when that
happens the tigers will first
be removed from the 40Ha enclosure to
allow the new blesbok time to get used to their new surroundings
and acclimatise properly.
Quite apart from section 2(g)(sic) of
the Act, it would be counter-productive for me to release adult
blesbok into the immediate
proximity of the tigers – the object
of releasing adult blesbok into the 40Ha enclosure is to expose the
tigers to prey in
situations which are akin to those which the
tigers will encounter in the wild, not to feed live prey to the
tigers.
On 26 May 2006, Cathay was separated
from the other two tigers as a result of territorial and aggressive
behaviour between her
and Madonna, which appears to be related to
Tiger Woods’, approaching sexual maturity. Since 26 May 2006,
Cathay has been
located in the smaller camps (which lead into one
another by gates which are left open). This gives her
approximately 14Ha within
which to roam. Apart from the occasional
guinea fowl which flies into an enclosure and small prey like
rodents which can crawl
through the fences, there is, and has been,
no live prey introduced into these camps while she has been located
in them, and
she is sustained on carcasses which I provide every
five to seven days.
It is anticipated that, once Tiger
Woods and Madonna are released into the 600Ha enclosure, Cathay
will be released into the 40Ha
enclosure as well (ie she will be
able to move freely between all these camps, aggregating
approximately 54Ha). If this happens,
at some stage in the future
it may be necessary for me to release more adult blesbok into the
40Ha section of these aggregated
camps. However, for the reasons
set out in paragraph 28.2 above I will not do so in immediate
proximity to Cathay. In fact,
subject to issues of practicality
and as detailed above, I would return Cathay to the combined 14Ha
area before releasing the
blesbok into the 40Ha section and would
give Cathay access to the 40Ha section only once the blesbok have
acclimatised to the
area.
It is hoped that Tiger Woods and
Madonna will develop the competence to hunt the remaining blesbok
in the 40Ha camp successfully.
Perhaps, when they do so, they will
be ready for release into the 600Ha enclosure. Until then, and
while they continue to be
unsuccessful, I continue to provide them
with a carcass for their sustenance every five to seven days.
The size of the 40Ha enclosure, as
well as the river which runs through the middle of it, makes
hunting very difficult. In addition,
the prey are highly attuned
to the behaviour of the tigers. Coupled with the tigers’
relative inexperience as predators, they
are far less successful in
the hunt than they would need to be to survive entirely on their
own (ie without the supplementation
of carcasses from time to
time).”
[12] In the replying
affidavit not one of the averments by the respondent referred to or
quoted in the previous two paragraphs is
disputed or contradicted
nor, I think, could it have been disputed. It follows that I must
accept that in future the respondent
will not expose prey such as
blesbok to the tigers in circumstances other than those stated above.
[13] I do not believe
that the introduction of two or three tigers in a 40Ha enclosure of
the nature described by the respondent and
already containing a
number of antelope, constitutes exposure of the antelope to immediate
attack or danger of attack within the
meaning of section 2(1)(g).
This was fairly conceded by counsel for the applicant. Therefore on
the averments of the applicant
together with the facts set up by the
respondent that are not disputed, the appicant will not obtain a
final interdict at the trial.
At the very least the facts set up in
contradiction by the respondent throw serious doubt on the case of
the applicant. It follows
that in my judgment the applicant did not
establish the requisite
prima
facie
right to an interdict.
[14] On behalf of the
respondent a punitive costs order was asked in the event of the
dismissal of the application. I find no justification
for such
order.
[15] The application is
dismissed with costs.
________________________
C.H.G.
VAN DER MERWE, J
On
behalf of the applicant: Adv. L. G. Morison
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
On
behalf of the respondent: Adv. M. Chaskalson
Instructed
by:
Webbers BLOEMFONTEIN
/em