REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO.: 2024-146251
In the interlocutory application between:
THE NATIONAL COUNCIL OF THE SOCIETY
FOR THE PREVENTION OF CRUELTY TO
ANIMALS APPLICANT
and
THE SOUTH AFRICAN PREDATOR
ASSOCIATION FIRST RESPONDENT
TW VAN VUUREN SECOND RESPONDENT
PH LOOTS THIRD RESPONDENT
MJ ERWEE FOURTH RESPONDENT
FCDW SCHEEPERS FIFTH RESPONDENT
MPC BAMBERGER SIXTH RESPONDENT
JC DE KLERK SEVENTH RESPONDENT
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
Date: 9 April 2026 E van der Schyff
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GC FLETCHER EIGHTH RESPONDENT
DDV CROUS NINTH RESPONDENT
HC GOMES TENTH RESPONDENT
AH DU PLESSIS ELEVENTH RESPONDENT
AND
In the interlocutory application between:
BAN ANIMAL TRADING NPC APPLICANT
and
THE SOUTH AFRICAN PREDATOR
ASSOCIATION FIRST RESPONDENT
TW VAN VUUREN SECOND RESPONDENT
PH LOOTS THIRD RESPONDENT
MJ ERWEE FOURTH RESPONDENT
FCDW SCHEEPERS FIFTH RESPONDENT
MPC BAMBERGER SIXTH RESPONDENT
JC DE KLERK SEVENTH RESPONDENT
GC FLETCHER EIGHTH RESPONDENT
DDV CROUS NINTH RESPONDENT
HC GOMES TENTH RESPONDENT
AH DU PLESSIS ELEVENTH RESPONDENT
AND
In the interlocutory application between:
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THE TRUSTEES FOR THE TIME BEING
OF THE EMS FOUNDATION FIRST APPLICANT
R DESRAJ N.O. SECOND APPLICANT
LA STEYN N.O. THIRD APPLICANT
AJ FRANKS N.O. FOURTH APPLICANT
T STEYN N.O. FIFTH APPLICANT
M PICKOVER N.O. SIXTH APPLICANT
and
THE SOUTH AFRICAN PREDATOR
ASSOCIATION FIRST RESPONDENT
TW VAN VUUREN SECOND RESPONDENT
PH LOOTS THIRD RESPONDENT
MJ ERWEE FOURTH RESPONDENT
FCDW SCHEEPERS FIFTH RESPONDENT
MPC BAMBERGER SIXTH RESPONDENT
JC DE KLERK SEVENTH RESPONDENT
GC FLETCHER EIGHTH RESPONDENT
DDV CROUS NINTH RESPONDENT
HC GOMES TENTH RESPONDENT
AH DU PLESSIS ELEVENTH RESPONDENT
THE MINISTER OF FORESTRY,
FISHERIES AND THE ENVIRONMENT TWELFTH RESPONDENT
THE DIRECTOR-GENERAL
DEPARTMENT OF FORESTRY, FISHERIES
AND THE ENVIRONMENT THIRTEENTH RESPONDENT
THE SCIENTIFIC AUTHORITY FOURTEENTH RESPONDENT
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In re:
THE SOUTH AFRICAN PREDATOR
ASSOCIATION FIRST APPLICANT
TW VAN VUUREN SECOND APPLICANT
PH LOOTS THIRD APPLICANT
MJ ERWEE FOURTH APPLICANT
FCDW SCHEEPERS FIFTH APPLICANT
MPC BAMBERGER SIXTH APPLICANT
JC DE KLERK SEVENTH APPLICANT
GC FLETCHER EIGHTH APPLICANT
DDV CROUS NINTH APPLICANT
HC GOMES TENTH APPLICANT
AH DU PLESSIS ELEVENTH APPLICANT
and
THE MINISTER OF FORESTRY,
FISHERIES AND THE ENVIRONMENT FIRST RESPONDENT
THE DIRECTOR-GENERAL
DEPARTMENT OF FORESTRY, FISHERIES
AND THE ENVIRONMENT SECOND RESPONDENT
THE SCIENTIFIC AUTHORITY THIRD RESPONDENT
JUDGMENT:
Van der Schyff J
Context
[1] This judgment concerns applications by the National Council of the Society for the
Prevention of Cruelty to Animals (NSPCA), Ban Animal Trading NPC (BAT) and the
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Trustees for the Time Being of the EMS Foundation (EMS) to intervene in a legal
challenge brought by the South African Predator Association and ten others
(collectively referred to as SAPA), against the Minister of Forestry, Fisheries and the
Environment (the Minister). While the main application involves SAPA seeking to set
aside the Minister’s failure to establish commercial export quotas for lion bones and
derived products, the immediate focus here is on determining whether the NSPCA,
BAT, and EMS should be admitted as intervening respondents or amici curiae ,
respectively. Any reference to ‘applicants’ in this judgment is thus a reference to
NSPCA, BAT and/or EMS – depending on the context within which the reference is
made.
Legal principles underpinning applications for leave to intervene as a respondent
and for admission as amici curiae
Application to intervene as a respondent
[2] The principles governing applications for leave to intervene as a respondent are
rooted in the Constitution of the Republic of South Africa, 1996, relevant statutory
provisions, the Uniform Rules of Court, and the common law. Intervention serves as
a procedural mechanism to permit a party with a requisite legal interest in the subject
matter of ongoing litigation to join the proceedings, thereby ensuring the protection
of their rights and the comprehensive adjudication of the dispute . While the power
to grant leave to intervene resides within the judicial discretion of the Court ,1 such
discretion is not absolute and has resulted in a distinction between the concepts
‘joinder of necessity’ and ‘joinder of convenience’.
[3] The cornerstone of intervention is the requirement that an applicant must
demonstrate a ‘direct and substantial interest’ in the subject matter of the litigation.2
1 Cohen v Jacobs (Stand 675 Dowerglen (Pty) Ltd intervening) [1998] 2 All SA 433 (W) at para [11].
2 United Watch and Diamond Co (Pty) Ltd and Others v Disa Hotels Ltd and Another 1972 (4) SA
2 United Watch and Diamond Co (Pty) Ltd and Others v Disa Hotels Ltd and Another 1972 (4) SA
409 (C) at 415E. The principle was again entrenched by the Constitutional Court in, among others,
Minister of Public Works and Others v Kyalami Ridge Environmental Association and Others
(Mukgwecho Intervening) 2001 (3) SA 1151 (CC) at para [30], Independent Newspapers (Pty) Ltd
v Minister for Intelligence Services: In re Masetlha v President of the Republic of South Africa 2008
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This concept is judicially defined as a legal interest of such nature that it could be
prejudicially affected by any judgment or order the court may deliver. 3 It is well -
settled that the nature of the legal interest required , and the determination of when
a party possesses it, cannot be defined in the abstract. It is a fact -sensitive enquiry
that depends on the exigencies and circumstances of each case.4
[4] In Gory v Kolver NO and Others (Starke and Others Intervening)5 the Constitutional
Court elaborated on the requirements by introducing the overarching criterion of ‘the
interests of justice ’.6 The Court clarified that while a direct and substantial interest
remains a necessary condition for intervention as a party, it may not, in all
circumstances, constitute a sufficient ground for granting leave to intervene . The
ultimate test, the Constitutional Court held, is whether, in a particular case, it is in
the interest of justice to join as a party to pending litigation. It is, however, pertinent
to observe that the application in Gory v Kolver NO was brought before the apex
court and one must remain cognisant of the procedural distinctions between Rule
12 of the Uniform Rules of Court , applicable in the High Court, Rule 8 of the
Constitutional Court Rules.
[5] In exercising its discretion, this court must remain mindful of the fundamental
principle of natural justice highlighted by Fagan CJ in Amalgamated Engineering
Union v Minister of Labour ,7 namely that it cannot and should not make an order
which may prejudice the rights of parties not presently before it. This principle was
repeated by Plaskett AJ , as he then was, in Nelson Mandela Metropolitan
Municipality v Greyvenouw CC,8 where he held:
(5) SA 31 (CC) at para [17], and SA Riding for the Disabled Association v Regional Land Claims
Commissioner 2017 8 BCLR 1053 (CC) at para [9].
3 United Watch, supra, at 415H; SA Riding for the Disabled Association, supra, ar para [9].
3 United Watch, supra, at 415H; SA Riding for the Disabled Association, supra, ar para [9].
4 Cohen, supra, at para [16].
5 2007 (3) BCLR 249 (CC).
6 Gory, supra, at para [13].
7 1949 (3) SA 637 (A) at 651.
8 2004 (2) SA 81 (SE) at para [9].
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“[W]hen, as in this matter, the applicants base their claim to intervene on a
direct and substantial interest in the subject-matter of the dispute, the Court
has no discretion: it must allow them to intervene because it should not
proceed in the absence of parties having such legally recognised interests.”
[6] Furthermore, as affirmed in South African Riding for the Disabled Association, an
applicant for intervention is not required to satisfy the court at this interlocutory stage
that they will ultimately succeed in the main proceedings. It is sufficient if the
applicant makes allegations which, if subsequently proved, would entitle them to the
relief sought. The threshold at the intervention stage is thus focused on the existence
of the interest and the potential for prejudice, rather than a final determination of the
merits of the underlying dispute.9
Application for admission as an amicus curiae
[7] It is well-established that a court retains a broad discretion to admit an amicus curiae
where the interests of justice so require. To succeed, an applicant must demonstrate
that its submissions are relevant to the proceedings and will meaningfully assist the
court in determining the issues before it.10 Crucially, such submissions must offer a
new perspective or raise novel contentions that differ from those advanced by the
existing parties, without merely repeating what is already on record.11
[8] In determining whether to admit an amicus curiae, courts commonly consider a
range of non-exhaustive factors that are applied flexibly, and guided by the
overarching interests of justice. In addition to the factors listed above, these include
whether the proposed amicus possesses particular expertise or speciali sed
knowledge, whether its participation would serve the public interest, the stage at
9 South African Riding for the Disabled Association, supra, at para [9]. The principle was also stated
in Minister of Local Government and Land Tenure v Sizwe Development: In re Sizwe Development
v Flagstaff Municipality 1991 (1) SA 677 (Tk) (Sizwe Development) at 679A.
10 Minister of Health and Others v Treatment Action Campaign and Others 2002 (10) BCLR 1023
(CC) at para [5].
11 Ibid.
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which admission is sought, and whether the amicus would cause prejudice to any of
the parties.12 Any consideration must be based on fairness, equality of arms , and
most importantly, what is in the interests of justice.13
[9] While an amicus is not required to be neutral and may support a particular side ,14
its role remains distinct from that of an intervener.15 A prospective party is, however,
not disqualified from admission as an amicus.16 Subsequently, a party with a direct
interest in the outcome is not, for that reason alone, disqualified from admission as
an amicus. Furthermore, while it is ordinarily inappropriate for an amicus to introduce
new evidence or broaden the factual scope of the litigation,17 an amicus may present
evidence with leave of the court.18
[10] Courts have recognised that amici curiae frequently play an important role in matters
implicating constitutional rights or broad public interest considerations. In such
cases, a more lenient approach to admission of an amicus has been adopted,
particularly where the proposed amicus represents interests that might otherwise
not be adequately ventilated.19
The relief sought by SAPA in the main application
[11] When the applications were argued, the applicants all relied on the scope of the
relief sought by SAPA as one of, if not the primary, ground justifying their intervention
as respondents or admission as amici.
12 Institute for Security Studies in re: S v Basson 2006 (6) SA 195 (CC) at para [15].
13 Ibid.
14 Maughan v Zuma (Campaign for Free Expression and others as amici curiae and a related matter
[2023] 3 All SA 484 (KZP) at paras [143] and [147].
15 Hoffmann v South African Railways 2001 (1) SA 1 (CC) at para [63].
16 Maughan, supra, at para [146].
17 Treatment Action Campaign, supra, at para [5].
18 Children’s Institute v Presiding Officer of the Children’s Court, Krugersdorp 2013 (2) SA 620 (CC).
19 Ibid.
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[12] SAPA stated in the amended notice of motion that it intends to apply for an order in
primarily the following terms:
1. That the failure of the Minister to decide and to establish, an annual export
quota for 2024 and/or the 2025 calendar year/s for trade in lion bones, bone
pieces, bone products, claws, skeletons, skulls and teeth for commercial
purposes, derived from captive breeding operations in the Republic be
declared unlawful, invalid, and be reviewed and set aside;
2. That the Minister be ordered and directed to take all such steps necessary
to decide and to establish an annual export quota for the 2024 and/or 2025
calendar year/s (and yearly thereafter) for trade in lion bones, bone pieces,
bone products, claws, skeletons, skulls and teeth for commercial purposes,
derived from captive breeding operations in the Republic, and thereafter to
decide and to establish such annual export quota for the 2024 and/or 2025
calendar years (and yearly thereafter) and to report to the applicants on all
steps taken.
3. That in determining any annual export quota the Minister is ordered to
specifically consider:
3.1. That there is currently a large stockpile of lion bones, bone pieces, bone
products, claws, skeletons, skulls and teeth for commercial purposes
derived from captive breeding operations in South Africa because quotas
have not been established for a number of years;
3.2. That the value of the lion bones, bone pieces, bone products, claws,
skeletons, skulls and teeth for commercial purposes, derived from captive
breeding in South Africa decreases over time.
4. That in the event that the Minister fails to comply with an order herein or
fails to comply therewith timeously, the applicants are granted leave on
these same papers, duly supplemented to approach the court for further
and/or ancillary relief.
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[13] If analysed, the relief sought by SAPA is tripartite in nature. First, it seeks declaratory
relief coupled with a review, aimed at the Minister’s historical and ongoing failure to
establish quotas for the export of lion bone derivatives. Secondly, it seeks mandatory
relief in the form of a mandamus, directing the Minister to perform his statutory
functions and to report to SAPA on the progress thereof. Third ly, it seeks an order
compelling the Minister to take into account a specific relevant consideration, namely
the existing stockpile of lion bone derivatives, when exercising the discretion.
[14] The relief sought by SAPA is aimed at compelling a decision, not a particular
decision. In essence, the order requires (i) a decision to be taken, (ii) in a lawful
manner, (iii) considering, among others, a specific factor, (iv) subject to supervisory
oversight. It does not dictate the outcome, content or substance of the Minister’s
decision.
[15] In considering the intervention and admission applications, I had regard to the fact
that, properly construed, the relief sought is procedural and supervisory. It does not
seek to usurp the Minister’s decision -making powers regarding the substantive
outcome of the quota determination. The order sought does not pre-determine a
numerical value, nor does it exclude a “zero quota” determination , provided such a
decision is reached lawfully and rationally. The relief sought concerns quota
determination, not trade authorisation. Consequently, the relief sought does not in
itself oblige the Minister to facilitate or permit the commercial trade of the derivatives
in question.
[16] Furthermore, the relief does not seek to restrict the Minister’s discretion by elevating
the existence of a stockpile to a determinative factor. While the Minister would be
required to take the existence of the stockpile into account, the weight to be afforded
to it remains within the Minister’s discretion. The Minister retains a broad discretion
to it remains within the Minister’s discretion. The Minister retains a broad discretion
to balance this factor against all other vital considerations, including scientific input,
public consultation, conservation imperatives , and prevailing policy frameworks.
Critically, one of the relevant factors the Minister will ex lege be obliged to consider
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when setting an export quota, is the welfare of lions held in captivity. 20 The relief
sought does not mandate the prioritisation of commercial or economic interests over
the Minister’s broader environmental and regulatory obligations.
Discussion
[17] The applicants presented elaborate and voluminous arguments, much of which is
irrelevant to the issues at hand. I have extracted what I consider to be relevant for
the determination of the three applications.
[18] All three applicants base their request to participate in the review proceedings on
their established record of animal welfare protection and environmental
conservation. The evidence confirms that they act as advocates with a committed
duty to safeguard the environment, particularly regarding the welfare of captive-bred
lions and tigers . The question of whether any of the applicants’ rights may be
adversely affected by the relief sought in the main application needs to be
considered against this background in conjunction with section 24 of the Constitution
and the principle of state trusteeship of South Africa’s biodiversity.
[19] Simplified, the question is whether the NSPCA and EMS have a ‘direct and
substantial interest’ in (i) the review of the Minister’s failure to set quotas for the
export of lion bones and derivative products, and the subsequent mandamus to take
all steps necessary to set, and set quotas and/ or (ii) the prayer that the Minister be
compelled, when determining the quotas, to specifically consider the existence of a
large stockpile of lion bones, bone pieces, bone products, claws, skeletal parts and
derivatives resulting from the absence of quotas over several years , the value of
which allegedly decreases over time.
[20] If the Minister is statutorily obliged to set quotas for the export of lion bones and
derivative products, as SAPA contends, that obligation exists regardless of any
subjective party’s view on whether such a duty ought to exist.
subjective party’s view on whether such a duty ought to exist.
20 National Council of the Society for the Prevention of Cruelty to Animals v Minister of
Environmental Affairs and Others 2020 (1) SA 249 (GP). Section 2(a)(iiA) of t he National
Environmental Management Biodiversity Act 10 of 2004, as amended.
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[21] In terms of regulation 3(1) of t he Convention on International Trade in Endangered
Species (CITES) Regulations,21 the Minister is the National Management Authority
for CITES related activities. The specific duties of the National Management
Authority, as set out in regulation 3(2), include –
‘to consult with the Scientific Authority on the issuance and acceptance of
CITES documents, the nature and level of trade in CITES-listed species, the
setting and management of quotas , the registration of traders and
production operations, the establishment of Rescue Centres and the
preparation of proposals to amend the CITES Appendices;’22
‘to coordinate requirements and allocate annual quotas23 to provinces.’24
[22] The duties of the Provincial Management Authority include the management of the
utilisation of allocated CITES quotas.25
[23] EMS contends that although the Minister has the power to set an annual quota, there
is no legal duty or obligation in either international or domestic law to do so. EMS
submits that a purposive interpretation of Annotation A4 to Appendix II of CITES
does not support the proposition that the words “will be” impose a mandatory duty.
Read in the context with the rest of CITES, section 24 of the Constitution , and
NEMBA, EMS submits that the provision is merely permissive. Furthermore, EMS
contends that the Minister’s duty to consult with the Scientific Authority only arises if
trade in captive-bred lion bones and derivative products is intended to occur. EMS
emphasised that since the decision in National Council of the Society for Prevention
of Cruelty to Animals v Minister of Environmental Affairs, Director -General,
21 GNR. 173 of 5 March 2010, GG No. 33002.
22 Regulation 3(2)(f)
23 The term ‘quota’ is defined in regulation 1 means ‘the prescribed number or quantity of specimens
that can be harvested, exported or otherwise used over a specific period of time and is a total
national quota.’
24 Regulation 3(2)(k).
national quota.’
24 Regulation 3(2)(k).
25 Regulation 3(5)(c).
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Department of Environmental Affairs & South African Predators Association 26 (the
Lion Bone case ), the legal landscape has shifted towards a phase -out of the
industry.
[24] It was accepted by Kollapen J in the Lion Bone case that the Minister is required to
set an annual export quota ,27 subject to certain prescribed steps. EMS submitted ,
however, that the existence of the obligation itself was not specifically ventilated
before Kollapen J. It is regrettable that neither the Minister nor the Director-General
of the Department of Forestry, Fisheries and the Environment deemed it necessary
to participate in the review proceedings. The Court would have been assisted by
having the Department’s stance on record regarding the existence of a statutory
obligation to set annual quotas.
[25] EMS’s argument raises an issue dealt with in the well-known English Law case,
Julius v The Bishop of Oxford,28 referred to in South African judgments such as Levy
v Levy.29 This landmark decision in English law established principles for interpreting
permissive statutory language, and particularly the distinction between discretionary
powers and duties. In Levy v Levy the court cited Julius to emphasise that permissive
language does not automatically equate to an obligation unless the context and the
purpose of the legislation suggest otherwise.
[26] In deciding EMS’s application to intervene as a respondent , I need not be certain
that its argument will ultimately succeed. It is sufficient that EMS has raised a triable
point that is central to the review. Given EMS’s commitment to eliminating the
captive-bred lion bone trade and conserving wildlife, it has a direct and substantial
interest in the main application. It should accordingly be allowed to intervene as a
respondent.
26 (86515/2017) [2019] 4 All SA 193 (GP).
27 At para [23].
28 (1880) 5 AC 214.
29 [1991] 2 All SA 407 (A).
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[27] The NSPCA submitted that it should be joined as of a matter of necessity. It operates
within the animal welfare framework established by the SPCA Act 169 of 1993 and
the Animals Protection Act 71 of 1962. Its extensive powers to oversee and regulate
animal welfare throughout the Republic are judicially recognised.30 The NSPCA was
instrumental in the Lion Bone case, which led to the setting aside of previous quotas.
The existence of the current stockpile is directly attributable to the NSPCA’s previous
legal action. It follows that the NSPCA has a direct and substantial interest i n an
order seeking to compell the Minister to “specifically consider” the existence of that
stockpile in determining any annual export quota. While such an order might not
strictly speaking fetter the Minister’s discretion, it would place specific emphasis on
the interests of stockpile owners. The NSPCA is entitled to intervene to argue why
this factor should not, at this juncture, be afforded such judicial prominence.
[28] BAT seeks to be admitted as an amicus. Its primary concern is the nexus between
the lion and tiger bone trade and the potential for unlawful trade in tiger bones and
derivative products. While this is a factor the Minister may consider in his discretion,
BAT’s arguments are not directly relevant to the specific relief sought by SAPA.
Having regard to the arguments to be advanced by EMS and the NSPCA, I am not
persuaded that the review court would be further assisted by the admission of BAT
as an amicus. BAT’s application to be admitted as an amicus curiae stands to be
refused.
[29] Costs
[30] The issue of costs remains within the court’s discretion. Having regard to the nature
of the main application, and the successful intervention of the NSPCA and EMS, I
am of the view that the costs of these proceedings should follow the result of the
main application.
[31] In de termining an appropriate costs order following the dismissal of BAT’s
[31] In de termining an appropriate costs order following the dismissal of BAT’s
application to be submitted as an amicus, I am mindful of the interplay between
general costs principles and the unique role of an amicus curiae . It is well -
30 National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional
Development and Another 2017 (1) SACR 284 (CC).
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established that where such an application is dismissed, a court may decline to
award costs against the applicant if the application was brought in good faith and
was n either frivolous nor vexatious. 31 While BAT’s application may have been
misguided, it was brought in good faith. In the circumstances, it is fair and just that
BAT bears its own costs, and no order as to costs stands to be made against it.
ORDER
In the result, the following order is granted:
1. The National Council of the Society for the Prevention of Cruelty to Animals
(NSPCA), and the Trustees for the time being of the EMS Foundation (EMS)
are granted leave to intervene in the proceedings under case number 2024 -
146251;
2. The NSPCA is joined to the proceedings as the Fourth Respondent;
3. EMS is joined to the proceedings as the Fifth Respondent;
4. The NSPCA and EMS’s founding affidavits in the respective intervention
applications shall stand as their respective answering affidavits in the main
application.
5. The NSPCA and EMS are granted leave to file supplemented papers within 15
days of this order;
6. Costs of the applications to intervene as respondents are costs in the cause.
7. The application of Ban Animal Trading to intervene as an amicus curiae is
refused. Each party is to carry its own costs.
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E van der Schyff
Judge of the High Court
Delivered: This judgment is handed down electronically by uploading it to the electronic file of
this matter on CaseLines. In the event that there is a discrepancy between the date the judgment
31 Lekota and another v Speaker, National Assembly and another [2014] JOL 31610 (WCC) and
the caselaw referred to in para [51] thereof.
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is signed and the date it is uploaded to CaseLines, the date the judgment is uploaded to
CaseLines is deemed to be the date that the judgment is handed down.
For the NSPCA: Adv. Les Morison SC
With: Adv. Samantha Martin
Instructed by: Webber Wentzel Attorneys
For BAT: Adv. Samantha Martin
With: Adv. Courtney Jones
Instructed by: Norton Rose Fulbright South Africa Inc.
For EMS: Adv Carina du Toit
Instructed by: Cullinan & Associates
For the first respondent: Adv. Chris Woodrow SC
With: Adv. Johan Hamman
Instructed by: KWV Incorporated
Date of the hearing: 23 March 2026
Date of judgment: 9 April 2026