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[2016] ZACC 46
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National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development and Another (CCT1/16) [2016] ZACC 46; 2017 (1) SACR 284 (CC); 2017 (4) BCLR 517 (CC) (8 December 2016)
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Heads of arguments
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT 1/16
In the matter
between:
NATIONAL SOCIETY FOR THE
PREVENTION
OF CRUELTY TO
ANIMALS
Applicant
and
MINISTER OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
First Respondent
NATIONAL DIRECTOR
OF PUBLIC PROSECUTIONS
Second Respondent
and
CORRUPTION
WATCH
Amicus Curiae
Neutral
citation:
National
Society for the Prevention of Cruelty to Animals v Minister of
Justice and Constitutional Development and Another
[2016]
ZACC 46
Coram:
Nkabinde
ADCJ, Cameron
J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Musi AJ
and Zondo J
Judgment:
Khampepe J (unanimous)
Heard on:
23 August 2016
Decided on:
8 December 2016
Summary:
animal welfare — private
prosecution — juristic persons — NSPCA
Societies for the
Prevention of Cruelty to Animals Act — Animals Protection Act —
Criminal Procedure Act — National
Prosecuting Authority Act
ORDER
On appeal from the Supreme
Court of Appeal (hearing an appeal from the High Court of South
Africa, Gauteng Division, Pretoria):
The following order is made:
1.
Leave to appeal is granted and the appeal
is upheld.
2.
Condonation is granted.
3.
The orders of the High Court and Supreme
Court of Appeal are set aside and replaced with the following:
“
(a)
It is declared that the National Society for the Prevention
of
Cruelty to Animals has the statutory power of private prosecution
conferred upon it by section 6(2)(e) of the Societies for
the
Prevention of Cruelty to Animals Act 169 of 1993 read with
section 8
of the
Criminal Procedure Act 51 of 1977
.
(b)
The respondents must pay the applicant’s costs,
including the
costs of two counsel.”
4.
The respondents must pay the applicant’s
costs in this Court, including the costs of two counsel.
JUDGMENT
KHAMPEPE J (Nkabinde
ADCJ, Cameron J, Froneman J, Jafta J, Madlanga J,
Mhlantla J, Musi AJ and Zondo J concurring):
[1]
From the ancient Khoisan reverence
of the eland to the contemporary conception of the dog as “man’s
best friend”,
humans and animals have a storied relationship,
one that is a part of the fabric of our society, homes and lives.
Animals
have shifted from being “
mere
brutes or beasts” to “fellow beasts, fellow mortals or
fellow creatures” and finally to “companions,
friends and
brothers.”
[1]
To protect these voiceless companions,
individuals
have
time and again
stepped
in when animals are mistreated. Around the world, societies
similar to the
National Society for the
Prevention of Cruelty to Animals (NSPCA) zealously defend their
welfare.
[2]
These organisations champion the norm that we do
not accept acts of cruelty against those who cannot defend
themselves, a norm finding
its origins in 1635.
[3]
The question before us is whether the NSPCA is entitled to privately
prosecute crimes of animal cruelty connected with its
mandate.
[2]
The NSPCA brings a constitutional
challenge to
section 7(1)(a)
of the
Criminal Procedure Act (CPA
).
[4]
This challenge failed in both the High Court and Supreme Court
of Appeal.
[5]
In this Court, the NSPCA has widened the basis upon which it
seeks relief. During oral submissions, the argument was
advanced that the NSPCA is already empowered to institute private
prosecutions in terms of
section 8
of the CPA, read with
section 6(2)(e)
of the Societies for the Prevention of Cruelty
to Animals Act (SPCA Act).
[6]
It now seeks a declaration to that effect.
Parties
[3]
The applicant is the NSPCA, a body
empowered to prevent animal cruelty and promote animal welfare.
[7]
It is established in terms of section 2(1)
of the SPCA Act. The first respondent is the Minister of
Justice and Constitutional
Development (Minister),
[8]
cited in his official capacity as the minister
responsible for administering the
CPA.
[9]
The second respondent is the National
Director of Public Prosecutions (National Director), cited in
his representative capacity
as the head of the National Prosecuting
Authority (NPA). The
amicus curiae
is Corruption Watch, an independent, non-profit civil society
organisation with no political or business affiliation.
Background
[4]
During
November
2010, the NSPCA became aware of a religious sacrificial slaughter of
two camels in front of a crowd of people. A
number of NSPCA
inspectors visited the site and witnessed alleged cruel and inhumane
treatment. The sacrifice involved eight
attempts to “slice
open” one of the camel’s throats until the slit was deep
enough for the animal to bleed out;
the other’s throat was slit
three times. In an act of compassion, an inspector shot both
camels to relieve them of
their misery.
[5]
The NSPCA was of the opinion that
animal cruelty offences had been committed under the Animals
Protection Act (APA).
[10]
Accordingly, it referred the matter to the NPA for prosecution. The
NSPCA contends that it furnished overwhelming evidence
to the
prosecutors, but the NPA nevertheless declined to prosecute.
[6]
Subsequently, the NSPCA sought to
institute a private prosecution. To do so, it applied for a
certificate
nolle prosequi
(refusal to prosecute) in terms of section 7(1)(a) of the CPA.
This certificate is required for a “private person”
to
institute a private prosecution.
[7]
In a letter dated 7 June 2012,
the NPA refused to issue the certificate. The letter stated
that the NSPCA could
not prosecute under section 7(1)(a) of the CPA
as it is a juristic person and not a natural person, as required by
the section.
It asserted that neither section 6(2)(e) nor
section 9(2)(i) of the SPCA Act confers the right to privately
prosecute,
and even if the SPCA Act
did
confer the right to privately prosecute on the NSPCA, this would be
in terms of section 8 and not section 7(1)(a) of
the CPA.
[8]
On 21 June 2012, the NSPCA
requested an internal review of that decision. On
6 November 2012, the NPA
responded by stating that it
remained unconvinced that there were any reasonable prospects of a
successful prosecution. The
letter also reiterated that, in the
NPA’s opinion, the NSPCA does not meet the requirements for a
section 7(1)(a) private
prosecution.
[9]
Feeling its work was “hamstrung”
by this position, the NSPCA instituted proceedings in the High Court
in May 2013, challenging
its exclusion from the power to privately
prosecute in terms of section 7(1)(a) of the CPA.
In
its founding papers, the NSPCA explained that the inability to
privately prosecute renders it unable to fulfil its statutory
mandate. Unsuccessful in the High Court, the NSPCA subsequently
appealed to the Supreme Court of Appeal. That challenge
was
likewise unsuccessful, leading to the present application for leave
to appeal.
Litigation history
High Court
[10]
In the High Court, the NSPCA
challenged the constitutionality of section 7(1)(a) of the CPA.
The NSPCA contended that
there is no rational basis for treating
juristic persons differently to natural persons.
[11]
The Court summarised the NSPCA’s argument as follows:
“
The
constitutional challenge to this section is premised on the lack of
any apparent basis for treating juristic persons differently
to
natural persons with the consequent result that juristic persons do
not, for all intents and purposes, enjoy the equal protection
of the
law, nor do juristic persons get the equal benefit of the law. The
differentiation consequently fails to serve a legitimate
government
purpose and is therefore irrational and unconstitutional.”
[12]
[11]
The Minister and National Director
did not oppose the application; they instead filed explanatory
affidavits. Both contended
that the NPSCA lacked sufficient
legal standing. This, because the NSPCA is not directly
affected by the impugned provision
as it operates in the public
interest rather than a private interest. In the Minister’s
explanatory affidavit to the
High Court, he submitted that the
objects of the NSPCA operate for the benefit of the public, and that
the NSPCA should therefore
look to section 8 of the CPA for the power
to privately prosecute. In a corresponding affidavit, the
National Director similarly
argued that
“[t]he relevant section for [the NSPCA’s] purposes is
section 8 of [the CPA]”.
[12]
In reply, the NSPCA stated that it
did not consider itself to have the power to institute private
prosecutions and therefore could
not rely on section 8 to assist its
cause in seeking to prosecute animal cruelty offences.
[13]
The High Court found that in terms
of sections 7 and 8 of the CPA, only natural persons and public
bodies have the power to privately
prosecute.
[13]
It concluded that the exclusion of juristic persons amounts to
discrimination.
[14]
However, it concluded that this discrimination is not unfair because
it serves a legitimate government purpose, underpinned
by a “rational
relationship between this purpose and the differentiation.”
[15]
The Court therefore, upheld the validity of the provision.
[14]
The High Court briefly considered
the applicability of section 8 of the CPA. It postulated that
the legal policy behind the
provision was to allow public bodies to
prosecute in the public interest.
[16]
Therefore, the NSPCA could be classified as a section 8 body.
However, it found that section 6(2)(e) of the
SPCA Act
does not confer the right of private prosecution on the NSPCA.
The Court added that “[i]f such a right
were to be conferred
upon the applicant, it would enable the applicant to more effectively
execute its functions”.
[17]
Supreme
Court of Appeal
[15]
The Supreme Court of Appeal
summarised the NSPCA’s argument on appeal as follows:
“
There
is no good reason for differentiating between [natural persons and
juristic persons in context of section 7(1)(a)]. As
a result,
the differentiation fails to serve a legitimate government purpose
and is therefore irrational and non-compliant with
the rule of law as
an articulated standard in section 1(c) of the Constitution. [It
also] fails to render both natural and
juristic persons equal before
the law and specifically denies juristic persons equal benefit of the
law rendering the impugned
provision non compliant with the
articulated standard in section 9(1) of the Constitution.”
[18]
[16]
The Supreme Court of Appeal applied
the test in
Prinsloo
[19]
to assess the constitutionality of section 7(1)(a).
[20]
The Court came to the same conclusion as the High Court.
[21]
However, it did so on different reasoning. After finding
that differentiation exists,
[22]
the Court considered whether the impugned provision is rationally
connected to regulating private prosecutions, and whether there
is an
acceptable reason for limiting access to private prosecutions.
[23]
The Court concluded that the policy of limiting private prosecutions
to certain kinds of cases “cannot be faulted”
and upheld
the constitutional validity of section 7(1)(a).
[24]
[17]
Like the High Court, the Supreme
Court of Appeal also considered the applicability of section 8.
[25]
On this occasion, it was again the Minister who contended that the
NSPCA should draw its power to privately prosecute through
section 8
rather than section 7(1)(a). After reading section 8
of the CPA and section 6(2)(e) of the SPCA Act
together,
the Court concluded that the NSPCA does not have the right of private
prosecution.
[26]
In this Court
Applicant’s
submissions
[18]
The NSPCA seeks leave to appeal the
decision of the Supreme Court of Appeal. It does so on the
basis that the impugned provision
creates an “arbitrary
distinction” between juristic persons and natural persons,
which violates the rule of law and
the right to equality.
[19]
Clutching onto an argument raised by
the respondents, which I deal with below, the NSPCA advances an
alternative argument based
on section 8 of the CPA read with section
6(2)(e) of the SPCA Act. This it did during oral submissions.
Respondents’
submissions
[20]
In their papers, the Minister and
National Director reject the NSPCA’s contention that
section 7(1)(a) of the CPA is
unconstitutional. They
accept that the section differentiates between natural persons and
juristic persons, but submit that
the differentiation is rational as
it is connected to a legitimate government purpose. To this
end, the respondents endorse
the Supreme Court of Appeal’s
reasoning and findings on this issue.
[21]
The respondents also argue in their
papers that redress for the NSPCA lies not in section 7, but in
section 8 of the CPA.
They contend that section 8 confers a
right to conduct private prosecutions “to statutory bodies
under a statutory right”,
and state that the NSPCA is a
“statutory body performing a statutory public interest
function”. Therefore, the
power to “institute legal
proceedings” arising from section 6(2)(e) of the SPCA Act
“include[s] the power
to institute criminal proceedings”.
This is the argument that the NSPCA adopted as an alternative
argument. Consequently,
the NSPCA sought leave to amend its
notice of motion from the bar, concordant with this argument.
Counsel requested the Court
to declare that the NSPCA has the
statutory authority to privately prosecute. Neither the
respondents nor the
amicus curiae
opposed this application.
Amicus curiae’s
submissions
[22]
Corruption Watch argues that section
7(1)(a) of the CPA can be interpreted in line with the Bill of Rights
to allow juristic persons
to institute private prosecutions. It
contends that the three constituent elements of section 7(1)(a)
– being
“private person”, “some substantial
and peculiar interest” and “individually suffered”
–
are reasonably capable of a more flexible and generous
interpretation than that afforded in the lower courts. It
submits
that there is nothing in the language of the section which
precludes its application to juristic persons. Corruption Watch
also argues that the State has a constitutional obligation to take
reasonable measures to combat corruption, which must be infused
into
any reading of section 7(1)(a). Enabling juristic persons
to prosecute privately is consistent with that duty,
and the lower
courts’ interpretation of section 7(1)(a) as applying only
to natural persons undermines this duty.
[23]
In the alternative, Corruption Watch
endorses the NSPCA’s constitutional
challenge. It submits that, if section 7(1)(a) cannot be
interpreted more broadly,
then it must be declared unconstitutional
and invalid.
Jurisdiction and leave
to appeal
[24]
The NSPCA alleges that section
7(1)(a) of the CPA violates section 9(1) of the Constitution and the
rule of law. Where a legislative
provision is challenged on the
basis that it violates a right in the Bill of Rights,
[27]
or the rule of law,
[28]
this Court has jurisdiction. Determining whether
section 7(1)(a) can be interpreted in line with the Bill of
Rights
is accordingly a relevant consideration.
[29]
Leave to appeal should therefore be granted on the basis of section
167(3)(b)(i) of the Constitution.
[30]
Condonation
[25]
The Minister and National Director
filed their notice of opposition two days late, and their written
submissions nineteen days late.
The NSPCA filed their written
submissions two days late. The explanations given for the
NSPCA’s delay, and for
the respondents’ first lapse in
filing their notice of opposition late are satisfactory. The
explanation given for
the second lapse of the respondents in the late
filing of their written submissions is concerning. The delay of
the NSPCA
in providing their foreign case law (being four foreign
cases) to the respondents, and the necessity that senior counsel for
the
respondents be given time to review the papers after the date of
filing had lapsed is not an adequate reason for a delay of this
length. There has, however, been little prejudice to the
NSPCA. Therefore, in each of the three instances, condonation
is granted.
Relief sought
[26]
The NSPCA seeks redress for a
specific impediment: it contends that as a result of being unable to
privately prosecute, it cannot
fulfil its statutory mandate.
The NSPCA submits that this mandate requires that it be able to
prosecute the animal cruelty
offences set out in the APA.
The
2014 Supreme Court of Appeal decision in
Lemthongthai
situated the care and protection of
animals within the ambit of the Constitution.
[31]
This Court has repeatedly emphasised that,
within reason, “judicial officers must prefer interpretations
of legislation that
fall within constitutional bounds over those that
do not”.
[32]
This principle requires that a statute be read holistically as
constitutionally compliant where possible. To provide
appropriate relief, this Court must properly delineate private
prosecution in sections 7 and 8 of the CPA, and correctly
situate the NSPCA within that framework. Since the NSPCA is a
statutorily created public body, it is appropriate for
the Court
to locate its prosecutorial powers, if any, under section 8.
[27]
If section 6(2)(e) can be construed
in a constitutionally compliant manner that provides the NSPCA
with the remedy it seeks,
this is the preferable route. This
approach best gives effect to the constitutional imperative and also
ensures that appropriate
relief is provided. Consequently, the
Court is faced with three inquiries:
(a)
whether the SPCA Act expressly confers the
right of private prosecution on the NSPCA in terms of section 8
of the CPA (section 8
argument);
(b)
if not, whether section 7(1)(a) of the
CPA permits the NSPCA to privately prosecute (section 7 argument);
and
(c)
if not, whether section 7(1)(a) of the
CPA violates the Constitution (constitutional argument).
The section 8 argument
[28]
As the NSPCA sought to rely on the
section 8 argument only during oral argument in this Court, a
preliminary point concerns whether
it should be adjudicated at all.
In
CUSA
,
Ngcobo J explained that “[w]here a point of law is apparent on
the papers, but the common approach of the parties proceeds
on a
wrong perception of what the law is, a court is not only entitled,
but is in fact also obliged,
mero motu
[of its own volition], to raise the
point of law and require the parties to deal therewith”.
[33]
Here, it was the respondents who first raised the section 8
argument in their papers, accordant with earlier letters
sent from
the NPA to the NSPCA. The applicant adopted this argument
during the hearing in this Court.
[34]
Neither respondent, nor the
amicus
curiae,
raised opposition to the
advancement of the section 8 argument. Nor did they oppose the
applicant amending its notice of
motion to reflect this.
[29]
The Court posed numerous questions
to counsel during oral argument to further clarify the submission.
The High Court and Supreme
Court of Appeal both considered this
point. In my view, the argument has been sufficiently canvassed
before us. Considering
the section 8 argument in this context
does not appear to me to constitute unfairness to either party.
The overarching principle
remains that a court may only adjudicate on
issues properly put before it.
[35]
As Zondo J’s dissenting judgment in
KwaZulu-Natal
Joint Liaison Committee
forcefully
emphasises, “[t]his Court has repeatedly said that in motion
proceedings a party must make its case in its papers”.
[36]
In a separate dissenting judgment in the same case, Nkabinde J
reminds that the purpose of pleadings is to set out the issues
for
the other parties and the court.
[37]
Nevertheless, parties may be allowed to rely on a point of law
external to the pleadings when it has been explored at a hearing.
[38]
[30]
As I have indicated, the respondents
have always endorsed the section 8 argument. Both parties
have had the opportunity
to express and explore the legal question.
Therefore, there is no reason why this Court should not
adjudicate the section 8
argument. I now turn to its
merits and will first situate the issue within the overarching
framework of the prosecutorial
scheme.
The statutory scheme of
prosecutions
[31]
The power of prosecution takes three
forms in our current legal regime: State, statutory, and on
certificate
nolle prosequi
.
The legal framework for prosecution is established through the
Constitution, National Prosecuting Authority Act
[39]
(NPA Act) and the CPA. State prosecution, the first category of
prosecution, is governed by the Constitution and the NPA
Act –
section 179 of the Constitution provides for a “single national
prosecuting authority in the Republic, structured
in terms of an Act
of Parliament”
[40]
and empowers the prosecuting authority to “institute criminal
proceedings
on behalf of the
state
”.
[41]
The NPA Act gives effect to that power.
[42]
The NPA Act re-emphasises that proceedings are instituted and
conducted “on behalf of the State”,
[43]
and that the power is exercised “on behalf of the
Republic”.
[44]
[32]
The other two categories of
prosecutions are not instituted on behalf of the state; both are
legislatively titled “private
prosecutions”.
[45]
In complement to the NPA Act, the CPA governs prosecution on
certificate (section 7) and by statutory right (section 8).
These sections constitute two “carve-outs” from the
general principle that criminal prosecutions are for the public
interest and in the name of the state. Section 8 of the CPA
requires that the right to private prosecution be “expressly
conferred”.
“
Expressly
conferred” under the CPA
[33]
The text of a particular provision
is the starting point in the interpretive process, but textual
meaning is always informed by
context, even where the language is
clear.
[46]
The use of “expressly” in legislation does not always
entail a requirement that the thing be made verbally explicit.
Rather, it may indicate that the meaning of a provision must be clear
and incontrovertible, being conveyed with “reasonable
clearness” or “as a necessary consequence”.
[47]
“Express” is “stronger than implication” but
does not require the use of specific words.
[48]
Therefore, the words “private prosecution” need not be
explicitly used to confer the right, although it must
be sufficiently
clear that it has been conferred.
[34]
Whether the conferral is
sufficiently clear is established through a purposive
[49]
and contextual
[50]
reading of the empowering provision – in this case,
section 6(2)(e) of the SPCA Act. This holistic
interpretive
approach is generous and “gives expression to the
underlying values of the Constitution” within the bounds of
language
and context.
[51]
To determine whether section 6(2)(e) of the SPCA Act expressly
confers a right of private prosecution, we look to the
specific
statutory language; its textual, historical, and social context; and
the constitutional values which underpin it.
“
Institute
legal proceedings” connected with its functions
[35]
“
In order to perform its
functions and achieve [its] objects”, section 6(2)(e) of the
SPCA Act permits the NSPCA to—
“
institute
legal proceedings
connected
with its
functions
,
including such proceedings in an appropriate court of law or prohibit
the commission by any person of a particular kind of cruelty
to
animals, and assist a society in connection with such proceedings
against or by it.”
[52]
Both the High Court
and Supreme Court of Appeal found that the power to “institute
legal proceedings” does not constitute
a conferral of the power
of private prosecution.
[53]
Neither Court explained their reasoning for this conclusion,
nor did they undertake a contextual or purposive analysis of
the
provision, since this was not the focus of the NSPCA’s
argument.
[54]
[36]
On a plain textual reading, the term
“institute legal proceedings” can include the power to
privately prosecute. The
language used in the provision is
broad and permissive; it does not distinguish between civil and
criminal proceedings. There
is nothing in the text itself that
excludes that power. Section 6(2)(e) specifically allows
the NSPCA to “institute
legal proceedings
connected
with its
functions
”
.
Therefore, the NSPCA’s power to institute legal proceedings
cannot be divorced from its functions.
[37]
Numerous other statutory bodies are
similarly empowered using the term “institute legal
proceedings”; they serve as
a useful point of distinction to
understand the meaning given in context of the SPCA Act.
[55]
The power to “institute legal proceedings” changes in
every context it is used. The power is statutorily conferred
on various bodies, but these all implicate different types of causes
of action and different types of claims
.
Certain statutes connect
the term
“institute legal proceedings” to
specific
proceedings, such as the recovery of moneys,
[56]
or the addressing of particular environmental issues.
[57]
Therefore, the types of legal proceedings the NSPCA can institute is
intimately connected with its functions; whether or
not it can
prosecute is informed by the SPCA Act as a whole, as well as its
surrounding statutory scheme.
The SPCA Act and the APA
[38]
Interpreting the SPCA Act properly
requires that it be read in conjunction with the APA. The NSPCA
operates in the animal
welfare framework that the APA establishes.
The Act has a perspicuous purpose: to promote animal welfare and
prevent cruelty
to animals. The Act has three central
functions:
(a)
to set out an extensive list of offences
that constitute animal cruelty;
[58]
(b)
to establish a broad remedial scheme of
civil and criminal punishment;
[59]
and
(c)
to empower societies for the protection of
animals (of which the centralised NSPCA is the current
instantiation).
[60]
The APA also sets out
a wide range of orders that a court may make to minimise future
animal suffering if an offence has been established
under that
Act.
[61]
[39]
The SPCA Act gives effect to the
society envisaged by the APA. It sets out functions and
purposes of the NSPCA, which principally
have the objective of
protecting animal welfare as contemplated in the APA. The NSPCA
is also subject to ministerial oversight.
[62]
Together, these indicate the special and central role the NSPCA plays
in protecting animal welfare in our society.
[40]
Specific provisions of the
legislation reinforce the wide ambit of the Act. For example,
the NPSCA is empowered to investigate
and police acts of animal
cruelty. The objects of the NSPCA are broad and expansive, and
include “prevent[ing] the
ill treatment of animals”
[63]
and doing “all things reasonably necessary for or incidental to
the achievement of [its] objects”.
[64]
These are sweeping functions. More so when read in light
of the comprehensive list of offences in the APA. Further,
section 6(2)(r) of the SPCA Act compels the NSPCA to do
“everything which in its opinion is conducive to the
performance
of its functions or the achievement of [its] objects”.
By design, the NSPCA is uniquely placed to robustly and responsively
combat animal cruelty.
[41]
At the time of enactment of the SPCA
Act, Parliament recognised that—
“
the
responsibilities of animal welfare organisations are becoming greater
as urbanisation in South Africa accelerates and animals
in many
disadvantaged communities are in dire need of basic animal care.
The state is and will probably remain unable to
provide these
services . . . The [Act] gives [the NSPCA] a platform to face this
challenge.”
[65]
This depicts a shift
towards empowering the NSPCA to fulfil functions the state cannot:
functions increasingly considered as important
for our community.
It inherently recognises the limitations of the state in achieving
the national goal of animal protection.
[42]
For this reason, much of the SPCA
Act is dedicated to centralising the activities of the previously
disparate societies empowered
by the APA.
[66]
This structural shift changed the nature of these societies,
unifying them under a national body. Through the SPCA
Act, the
NSPCA became more accountable to the state and the community in
general. Ultimately, the SPCA Act elevates the potency
of the
APA, and bolsters the NSPCA’s efficacy in its role of combating
animal cruelty.
Associated Acts
[43]
The SPCA Act also provides that
societies must “co-operate with or permit the board to
institute legal proceedings where the
society
is
capable of instituting such proceedings
under this Act, the APA or the
associated
Acts
”.
[67]
The “associated Acts” refer to five statutes that form
part of the current statutory regime for protecting animal
welfare
and preventing animal cruelty. In its entirety, this spans
seven pieces of legislation (animal protection regime).
[68]
The APA lays the groundwork for the animal protection regime.
[44]
The other statutes fulfil different
roles in protecting animals and regulating their treatment. The
Performing Animals Protection
Act regulates how performing animals
and guard dogs are treated, trained and exhibited. The
Veterinary and Para Veterinary
Professions Act standardises
practice in the veterinary and para veterinary professions.
Part of the Medicine and Related
Substances Act controls the types of
medicines that may be prescribed for use on animals. The
Animal Diseases Act seeks
to promote animal health through
controlling animal diseases and parasites. The Abattoir Hygiene
Act maintains proper standards
of hygiene in animal slaughter for
consumption.
[45]
Together, these statutes set the
standard for how animals are to be cared for, treated and used.
Underscoring these is the
notion that the prevention of unnecessary
cruelty to animals – including those which we may use for
service or food –
is a goal of our society.
[46]
The NSPCA’s functions are
intrinsically connected to the protection of animals and frequently
with associated enumerated offences
set out in the animal protection
regime. Because the majority of the provisions in the APA
concern offences, the legal proceedings
stemming from it are most
likely to be criminal. The other statutes in the animal
protection regime also include a range
of offences related to the
mistreatment of animals. As the NSPCA is explicitly charged
with upholding these statutes and
preventing animal cruelty, the term
“institute legal proceedings connected with its functions”
in the SPCA Act must
be interpreted to encompass prosecutions of
animal cruelty.
[47]
Functionally, the NSPCA is best
placed to conduct a private prosecution and give effect to preventing
and enforcing the offences
set out in the animal protection regime.
To understand the SPCA Act as conferring the power of private
prosecution is to
give effect to the objects and purposes of the
regime. This construction harmonises the powers and purpose of
the NSPCA within
the legislation itself and the wider context.
Importantly, it gives effect to the NSPCA’s primary purpose: to
protect
animal welfare.
[48]
To read section 6(2)(e) as
excluding the right of private prosecution would render the regime a
toothless tiger. Legislation
should not be construed to create
futile provisions.
[69]
The term “institute legal proceedings” takes on a
specific and nuanced meaning in this context, capable of conferring
the power of initiating court proceedings, including the power to
institute private prosecutions.
[49]
The historical development of the
legislative scheme also supports this interpretation. The NSPCA
has a unique historical
and statutory role with respect to preventing
animal cruelty. The 1914 instantiation of the NSPCA expressly
had the right
of private prosecution conferred on it.
[70]
At that time, it fulfilled three functions
rarely conferred in tandem – policing, investigating and
prosecuting. The
1914 SPCA Act was repealed by the APA, which
was silent on the right of private prosecution.
[71]
This was a conscious decision and not an
inadvertent omission.
[72]
During the parliamentary debates in 1962, the
Minister of Justice specifically objected to a provision conferring
the power to privately
prosecute, grounded on the concern that there
was no safeguard of attorney general supervision.
[73]
[50]
The rationale for the deliberate
exclusion of the right in 1962 does not carry through to the current
Act. The iteration of
the CPA
[74]
effective at that time provided, as its
counterpart does today, for a dualistic
private
prosecution scheme on certificate and by statutory
conferral.
[75]
It, however, lacked the important safeguard
of oversight by the prosecutorial authority present in the current
CPA.
[76]
This lack of oversight was no longer a concern at
the time the SPCA Act was passed, as it was built in through section
8(2) and
8(3) of the current CPA.
[77]
[51]
There is no evidence that Parliament
deliberately denied the right of private prosecution to the NSPCA, as
it had done previously.
Further, the current SPCA Act, as
enacted in 1993, is not a direct heir to the APA. It does not
repeal the APA, as the APA
did for the 1914 SPCA Act. Rather,
the two operate in conjunction; the SPCA Act builds on the powers
conferred by the APA.
These factors all bear pertinently on the
proper meaning to be afforded to the term “
institute
legal proceedings” in the SPCA Act.
[78]
[52]
This term, when connected with the
functions of the NSPCA, takes on a specific meaning informed by the
unique legislative context
of the animal protection regime. It
is a meaning that confers the right of private prosecution with
sufficient clarity for
the purposes of section 8 of the CPA.
[53]
It is apposite here to distinguish
the use of the term “institute legal proceedings” in
other pieces of legislation.
The term takes on a precise
meaning in
this
context, because it is intrinsically tied to the offences
contemplated under the APA and the animal protection regime
generally.
The term “institute legal proceedings”
includes private prosecutions in light of the enumerated offences set
out in the animal protection regime and the NSPCA’s function in
enforcing them. The exceptional status afforded to the
NSPCA is
guided by changes in legislation which have made the NSPCA
structurally capable of private prosecutions. This power
is
also underpinned by the content of what this prosecutorial power
intends to sanction, namely, the prevention of animal cruelty.
Animal cruelty
[54]
The desirability of preventing
animal cruelty has been evident since the first South African SPCA
was established in the 1870s,
and was reinforced through the
promulgation of the 1914 SPCA Act.
[79]
In 1928, the Legislature (somewhat ironically) introduced an
amendment to the 1914 SPCA Act that prescribed whipping as punishment
for any wilful and aggravated act of cruelty to animals. In
Masow
, the
Court explained that this was an ethical decision on behalf of the
Legislature to entrench the need to protect animals against
cruel
treatment.
[80]
[55]
Our courts now afford increasingly
robust protection to animal welfare. The 1929 decision of
R
v
Smit
illustrates the emergence of this approach.
[81]
The offender, convicted of an animal cruelty offence, had beaten a
dog for half an hour with a pole and spade, before pelting
it with
stones, and finally shooting it in its kennel. The Court found
that, even if the dog had legal status as the man’s
property,
which he was entitled to destroy, the man was compelled to do so
“humanely” while causing “as little
suffering as
possible”.
[82]
Underscoring the conclusions in
Smit
and
Masow
, the
Court in
Moato
found that “[t]he object [of the APA] was plainly to prohibit
one legal subject behaving so cruelly to animals that he offends
the
finer feelings and sensibilities of his fellow humans”.
[83]
This approach was endorsed with increased fervour by Miller J in
Edmunds
,
who held that cruelty was prohibited so as to “prevent
degeneration of the finer human values in the sphere of treatment
of
animals”.
[84]
[56]
More recently, Cameron JA’s
minority judgment in
Openshaw
recognised that animals are worthy of protection not only because of
the reflection that this has on human values, but because
animals
“are sentient beings that are capable of suffering and of
experiencing pain”.
[85]
The High Court in
South African Predator
Breeders Association
championed this
view.
[86]
A unanimous Full Bench found that canned hunting of lions is
“abhorrent and repulsive” due to the animals’
suffering.
[87]
On appeal, the Supreme Court of Appeal did not dispute this
finding.
[88]
[57]
The Supreme Court of Appeal in
Lemthongthai
explained
in the context of rhino poaching, that “[c]onstitutional values
dictate a more caring attitude towards fellow humans,
animals and the
environment in general”.
[89]
The Court concluded further that this obligation was especially
pertinent because of our history.
[90]
Therefore, the rationale behind protecting animal welfare has shifted
from merely safeguarding the moral status of humans
to placing
intrinsic value on animals as individuals.
[58]
Lemthongthai
is
also notable because it relates animal welfare to questions of
biodiversity. Animal welfare is connected with the
constitutional
right to have the “environment protected . . .
through legislative and other means”.
[91]
This integrative approach correctly links the suffering of individual
animals to conservation, and illustrates the extent
to which showing
respect and concern for individual animals reinforces broader
environmental protection efforts. Animal welfare
and animal
conservation together reflect two intertwined values.
[59]
Parallel to the development of a
principle prizing animal welfare, the NSPCA (previously comprised of
discrete SPCAs) increasingly
came to be seen as the special guardians
of this laudable norm. In
Nel
,
the Court explained that the SPCAs have “over the years, become
well established and fully recognised as the authoritative
voice in
the protection against injury or cruelty to animals from whatever
source and under whatever circumstances, also acting
against owners
of the animals in question”.
[92]
As a result, “[i]t would be an anomalous situation if the law
required that the SPCA had to stand idly by” where
animal
cruelty was likely to occur.
[93]
[60]
The passage of the SPCA Act and the
advent of the constitutional era have entrenched this position.
During parliamentary debates,
it was acknowledged that the NSPCA “is
surely the most renowned organisation in this field [of animal
welfare]”.
[94]
Cameron JA emphasised in
Openshaw
that the NSPCA is “a public body with wide and singular
responsibilities in the field”.
[95]
The singularity of the NSPCA’s position is armoured by the fact
that it is tasked with “preventing ill-treatment
of voiceless
beings”.
[96]
[61]
The historical development of the
protection of animal welfare, and the role of the NSPCA in upholding
this mandate, illustrates
why the NSPCA plays a critical and unique
role in our polity. Its long history of guarding the interests
of animals reflects
constitutional values. It has taken on the
role of protecting animals in all of our interest. For this
reason, and
in the context of the statutory regime that now exists, a
contextual and purposive reading of the SPCA Act must be taken to
include
the right to prosecute. It is unusual, but not entirely
novel, for a body to have powers to police, investigate and
prosecute.
[97]
Taking into account its historical evolution, as well as the
context, nature and objectives of the legislative scheme it
is
situated in, the NSPCA is an unusual body. This exceptional
status demands a broader understanding of its powers.
Remedy
[62]
Section 172(1)(b) of the
Constitution states that this Court may make any order that is just
and equitable. In
Hoërskool
Ermelo
,
Moseneke DCJ explained that this remedy “may be made even in
instances where the outcome of a constitutional dispute does
not
hinge on constitutional invalidity of legislation or conduct”.
[98]
Section 172(1)(a) should be used to “forge an order that would
place substance above mere form by identifying the actual
underlying
dispute between the parties”.
[99]
In this case, it is just and equitable to both parties that the NSPCA
be granted the declaration that it seeks. This
will enable it
to continue with its important work free of legal impediment.
It also best resolves the underlying dispute
between the parties.
A declaration that the NSPCA is entitled to privately prosecute
further fits comfortably within the
constitutional and statutory
prosecutorial scheme.
[100]
The constitutional
challenge
[63]
It remains to be determined whether
the challenge to the constitutionality of section 7(1)(a) of the
CPA need be considered.
In
Transvaal
,
Skweyiya J held that a court’s core responsibility is to
adjudicate on “live disputes” and approved the
proposition of the Canadian Supreme Court in
Borowski
that it is “possibly an intrusion
into the role of the Legislature for a court to pronounce judgments
on constitutional issues
in the absence of a dispute affecting the
rights of the parties to the litigation”.
[101]
As the NSPCA already has the power to privately prosecute, the effect
of section 7(1)(a) on it is no longer a live dispute
that
implicates the NSPCA’s rights. In
Fose
,
the Court found that “it is prudent not to anticipate a
question of constitutional law in advance of the necessity of
deciding
it”.
[102]
Determining whether this same right is also proffered by section
7(1)(a) would provide the NSPCA with no further relief.
For
this reason, I do not think it judicious to consider the
constitutional argument any further.
[64]
Corruption Watch entered this
dispute as an
amicus curiae
,
arguing that section 7(1)(a) can be interpreted to allow
juristic persons to privately prosecute. Because it was never
joined as a party, the purpose of its submissions as a friend of the
Court was to assist in resolving the dispute between the NSPCA,
and
the Minister and National
Director
.
For this reason, its submissions are not a sufficient reason to
warrant diving into considering the meaning of section 7(1)(a).
Nevertheless,
nothing in this judgment
should be construed as barring a future challenge to that provision,
if the appropriate factual scenario
arises.
Order
[65]
The following order is made:
1.
Leave to appeal is granted and the appeal
is upheld.
2.
Condonation is granted.
3.
The orders of the High Court and Supreme
Court of Appeal are set aside and replaced with the following:
“
(a)
It is declared that the National Society for the Prevention
of
Cruelty to Animals has the statutory power of private prosecution
conferred upon it by section 6(2)(e) of the Societies for
the
Prevention of Cruelty to Animals Act 169 of 1993 read with section 8
of the Criminal Procedure Act 51 of 1977.
(b)
The respondents must pay the applicant’s costs,
including the
costs of two counsel.”
4.
The respondents must pay the applicant’s
costs in this Court, including the costs of two counsel.
For the
Applicant:
K Hopkins, S Freese and L Nkoana instructed by Marston & Taljaard
For the
Respondents:
L M Moloisane SC and D Mtsweni instructed by the State Attorney
For the Amicus
Curiae:
S Budlender and G Motaung instructed by Webber
Wentzel
[1]
Keith Thomas
Man and
the Natural World
(Penguin Books,
London 1984) at 172.
[2]
For example, the Royal Society for the Prevention of Cruelty to
Animals (RSPCA) describes itself as “the largest
non-governmental
law enforcement agency in England and Wales”
and is the de facto prosecutorial authority for many animal cruelty
cases
there. It was formed in 1824 and inspired the formation
of similar volunteer charitable societies in other countries.
Prosecutions of animal cruelty occurred in Zimbabwe from as early as
1832; the first SPCA was registered there in 1967.
In the late
nineteenth century, the RSPCA expanded across to Australia and New
Zealand. The first SPCA in South Africa
was established before
the city of Johannesburg, over 140 years ago.
[3]
The earliest recorded law against animal cruelty
dates back to 1635 in Ireland.
The
Act against Plowing by the Tayle, and Pulling the Wooll off Living
Sheep
(1635) (Ireland) prohibited
using horses’ tails to control them and pulling wool from
sheep that were still alive.
[4]
51 of
1977
.
[5]
National Society
for the Prevention of Cruelty to Animals v Minister of Justice and
Constitutional Development
[2014]
ZAGPPHC 763 (High Court judgment);
National
Society for the Prevention of Cruelty to Animals v Minister of
Justice and Constitutional Development
[2015]
ZASCA 206
;
2016 (1) SACR 308
(SCA) (Supreme Court of Appeal
judgment).
[6]
169 of 1993.
[7]
Papers filed in the High Court incorrectly cited
the name of the applicant as “NSPCA” rather than
“National
Council of Societies for the Prevention of Cruelty
to Animals”, which is the body’s correct name.
“NSPCA”
has been used in subsequent filings and
submissions in this and lower courts and is the name of record.
[8]
The Minister is now known as the “Minister
of Justice and Correctional Services”.
[9]
In terms of section 1 of the CPA.
[10]
71 of 1962.
[11]
High Court judgment above n 5 at para 4.
[12]
Id.
[13]
Id at para 15.
[14]
Id at paras 25 and 28
.
[15]
Id at para 28.
[16]
Id at para 29.
[17]
Id.
[18]
Supreme Court of Appeal judgment above n 5 at
para 6.
[19]
Prinsloo v Van der Linde
[1997] ZACC 5
;
1997 (3) SA 1012
(CC);
1997 (6) BCLR 759
(CC) at para
25.
[20]
Supreme Court of Appeal judgment above n 5
at paras 14-6.
[21]
Id at paras 26-7.
[22]
Id at paras 14-5,
citing
Prinsloo
above n 19 at para 25.
[23]
Id at para
19.
[24]
Id at paras
20-5.
[25]
Id at paras 10-2.
[26]
Id at para 12.
[27]
Fraser v ABSA Bank
Ltd
[2006] ZACC 24
;
2007 (3) SA 484
(CC);
2007 (3) BCLR 219
(CC) at para
43;
Daniels v Campbell NO
[2004] ZACC 14
;
2004 (5) SA 331
(CC);
2004 (7) BCLR 735
(CC) at
paras 43-4;
S v Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC);
2001 (1) BCLR 36
(CC) at para
14.
[28]
Pharmaceutical Manufacturers Association of
SA: In re ex parte President of the Republic of South Africa
[2000] ZACC 1
;
2000 (2) SA 674
(CC);
2001 (1) BCLR 36
(CC) at paras
46 and 51.
[29]
In
Mankayi v
AngloGold Ashanti Ltd
[2011] ZACC 3
;
2011 (3) SA 237
(CC);
2011 (5) BCLR 453
(CC) at para 120, Froneman
J, in a concurring judgment, found that “[w]hat is thus
required from an applicant who seeks
leave to appeal to this [C]ourt
is the plausible assertion of some constitutional value or right
which is implicated in the case”.
See also the majority
judgment at paras 13-9 (constitutional issue) and 20-3 (interests of
justice) which found jurisdiction
on a narrower ground, but did not
disavow the approach in the concurring judgment. See also
S
v Shaik
[2007] ZACC 19
;
2008 (2) SA
208
(CC);
2007 (12) BCLR 1360
(CC) at para 83.
[30]
Section 167(3)(b)(i) enables the Constitutional
Court to decide “constitutional matters”.
[31]
S v Lemthongthai
[2014] ZASCA 131
;
2015 (1) SACR 353
(SCA) (
Lemthongthai
)
at para 20.
[32]
Bertie van Zyl (Pty) Ltd v Minister for Safety
and Security
[2009] ZACC 11
;
2010 (2)
SA 181
(CC);
2009 (10) BCLR 978
(CC) at para 23;
Investigating
Directorate: Serious Economic Offences v Hyundai Motor Distributors
(Pty) Ltd: In re Hyundai Motor Distributors
(Pty) Ltd v Smit NO
[2000] ZACC 12
;
2001 (1) SA 545
(CC);
2000 (10) BCLR 1079
(CC) at
para 23.
[33]
CUSA v Tao Ying Metal Industries
[2008] ZACC 15
;
2009 (2) SA 204
(CC);
2009 (1) BCLR 1
(CC) at para
68.
See further Cameron J’s
majority judgment in
KwaZulu-Natal
Joint Liaison Committee v MEC for Education, KwaZulu-Natal
[2013] ZACC 10
;
2013 (4) SA 262
(CC);
2013 (6) BCLR 615
(CC).
The judgment at para 68 states:
“
[T]his
Court has previously adopted remedies for a situation where a claim
is apparent from the papers and the evidence, even
if it was not the
cause of action expressly advanced or argued.”
See also
Director
of Public Prosecutions, Transvaal v Minister of Constitutional
Development
[2009] ZACC 8
;
2009
(2) SACR 130
(CC);
2009 (7) BCLR 637
(CC) (
Transvaal
)
at para 35;
Matatiele Municipality v
President of the RSA
[2006] ZACC 12
;
2006 (5) SA 47
(CC);
2006 (5) BCLR 622
(CC) at para 67;
Alexkor
Ltd v The Richtersveld Community
[2003] ZACC 18
;
2004 (5) SA 460
(CC);
2003 (12) BCLR 1301
(CC) at
para 44.
[34]
From the written submissions filed in the High
Court, it is clear that the NSPCA did not consider that there was an
express conferral
of the power of private prosecution upon it.
[35]
Transvaal
above
n 33
at para 39, citing
Paddock
Motors (Pty) Ltd v Igesund
1976 (3) SA
16
(A);
[1976] 3 All SA 332
(A) at 23B-D.
[36]
KwaZulu-Natal Joint Liaison Committee
above n 33 at para 160. See further
Phillips v National Director of Public
Prosecutions
[2005] ZACC 15
;
2006 (1)
SA 505
(CC);
2006 (2) BCLR 274
(CC) at para 39;
Carmichele
v Minister of Safety and Security
[2001] ZACC 22
;
2001 (4) SA 938
(CC);
2001 (10) BCLR 995
(CC) at
para 31;
Prince v President, Cape Law
Society
[2000] ZACC 1
;
2001 (2) SA 388
(CC);
2001 (2) BCLR 133
(CC) at para 22.
[37]
KwaZulu-Natal Joint Liaison Committee
id at para 147. See also
Barkhuizen
v Napier
[2007] ZACC 5
;
2007 (5) SA
323
(CC);
2007 (7) BCLR 691
(CC) at para 39.
[38]
KwaZulu-Natal Joint Liaison Committee
id at para 147.
[39]
32 of 1998.
[40]
Section 179(1) of the Constitution.
[41]
Section 179(2) of the Constitution. My
emphasis.
[42]
Section 2 of the NPA Act provides for a “single
national prosecuting authority established in terms of section 179
of the Constitution”. Section 20 sets out the power of
the authority to “institute and conduct criminal proceedings”
as “contemplated in section 179(2) and all other relevant
sections of the Constitution”.
[43]
Section 20(a) of the NPA Act.
[44]
Section 20 of the NPA Act.
[45]
Both sections 7 and 8 of the CPA provide for
“private prosecution”.
[46]
Tshwane City v Link Africa
[2015] ZACC 29
;
2015 (6) SA 440
(CC);
2015 (11) BCLR 1265
(CC) at
para 33;
Bato Star Fishing (Pty) Ltd v
Minister of Environmental Affairs and Tourism
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR 687
(CC) (
Bato
Star
) at paras 90-1.
[47]
Premier, Limpopo Province v Speaker of the
Limpopo Provincial Government
[2011]
ZACC 25
;
2011 (6) SA 396
(CC);
2011 (11) BCLR 1181
(CC) at para 34,
citing
Commissioner of Inland Revenue v
Dunn
1928 EDL 184
at 195.
[48]
Id.
[49]
Moseneke DCJ, writing for the Court, in
Department of Land Affairs v
Goedgelegen Tropical Fruits (Pty) Ltd
[2007] ZACC 12
;
2007 (6) SA 199
(CC);
2007 (10) BCLR 1027
(CC) at
para 53 noted that:
“
In
searching for the purpose, it is legitimate to seek to identify the
mischief sought to be remedied. In part, that is
why it is
helpful, where appropriate, to pay due attention to the social and
historical background of the legislation. We
must understand
the provision within the context of the grid, if any, of related
provisions and of the statute as a whole including
its underlying
values. Although the text is often the starting point of any
statutory construction, the meaning it bears
must pay due regard to
context. This is so even when the ordinary meaning of the
provision to be construed is clear and
unambiguous.”
See also
Ferreira v
Levin NO
;
Vryenhoek v Powell NO
[1995] ZACC 13
;
1996 (1)
SA 984
(CC);
1996 (1) BCLR 1
(CC) at para 46;
S v Zuma
[1995]
ZACC 1
;
1995 (2) SA 642
(CC);
1995 (4) BCLR 401
(CC) at paras 15 and
17;
Bato Star
above n 46 at paras 90-1.
[50]
See
Mansingh v
General Council of the Bar
[2013] ZACC
40
;
2014 (2) SA 26
(CC);
2014 (1) BCLR 85
(CC) at para 9;
SATAWU
v Garvas
[2012] ZACC 13
;
2013 (1) SA
83
(CC);
2012 (8) BCLR 840
(CC) at para 37.
[51]
Mansingh
id at
para 16.
[52]
My emphasis. This power, which is conferred on the Council and
Board of the NSPCA, is extended to include the societies
of the
NSPCA by section 9(1)(i) of the same Act. The same provision
provides that the NSPCA may also “defend legal
proceedings
instituted against the Councils”.
[53]
Supreme Court of Appeal judgment
above
n 5 at para
12;
High
Court judgment above n 5 at para
29.
[54]
This is understandable, as the section 8
challenge was not the focus of the applicant’s submissions in
the lower courts.
The High Court at para 29 simply concluded:
“
It
is unfortunate that section 6(2)(e) of the Societies for the
Prevention of Cruelty to Animals Act, No 169 of 1963 does not
specifically confer the right of a public prosecution upon the
applicant”.
The Supreme Court of
Appeal at para 12 similarly found:
“
In
terms of section 6(2)(e) of the SPCA Act, the appellant has the
power to defend or institute legal proceedings connected with
its
functions, including such proceedings in an appropriate court of law
or prohibit the commission by any person of a particular
kind of
cruelty to animals, and assist a society in connection with such
proceedings against it or by it. Thus, it is clear
from the
provisions of the SPCA Act, that it does not confer on the council
or the society the right to privately prosecute any
offender”.
[55]
See
Premier, Limpopo
Province
above n 47 at para 35, noting
that while the meaning assigned to terms in other contexts “provides
a useful guide, the
meaning that a word has in the Constitution or
legislation is generally coloured by the context in which it
occurs”.
[56]
For example, section 4(t) of the Council for the
Built Environment Act 43 of 2000 permits the Council to “institute
legal
proceedings to recover all outstanding membership fees payable
under this Act”. Section 34(2) of the South African
Language Practitioners’ Council Act 8 of 2014 enables the
Council to institute legal proceedings in respect of a person
failing to pay the prescribed annual fee. Section 30(1) of the
South African National Roads Agency Limited and National
Roads Act 7
of 1998 enables the Agency to “institute legal proceedings to
recover toll moneys owing to it”.
[57]
For example, section 82(a) of the National
Environmental Management Act: Integrated Coastal Management Act 24
of 2008 enables
the Minister, an MEC or a relevant municipality to
institute legal proceedings to prevent damage to the coastal public
property
or the coastal environment.
[58]
Sections 2 and 2A together provide for 24 distinct offences
constituting cruelty to animals, in varying levels of specificity.
[59]
Section 3 (“Powers of court”) sets out orders that the
court may give, specifically relating to animal treatment.
Section 4 (“Power of court to award damages”) sets out a
civil punishment scheme enabling the court to award damages.
[60]
Section 8 of the APA.
The SPCA Act
specifically notes that the Council and societies are “for the
purposes of section 8 of the Animals Protection
Act . . . a society
for the prevention of cruelty to animals”. The purpose
of the APA is “[t]o consolidate
and amend the laws relating to
the prevention of cruelty to animals”.
[61]
For example, a court, under section 3 of the APA,
may order that—
(a)
an animal be destroyed if it would be
cruel to keep it alive;
(b)
the person convicted not be allowed to own
the animal harmed in the offence; or
(c)
the person convicted be declared unfit to
own or look after any animal in general, or a specific type of
animal, for a certain
period of time.
[62]
See s
ection 13. Further, section
2(3)(b) of the Act requires that the Minister nominate a director
for the board of the NSPCA,
further reinforcing ministerial
involvement.
[63]
Section 3(c) of the SPCA Act.
[64]
Section 3(f) of the SPCA Act.
[65]
Debates of the National Assembly (Hansard) 25
November 1993 at 14065 (Minister of Agriculture).
[66]
This
followed
recognition by the Legislature that these societies were responsible
for approximately 80 per cent of animal welfare
activities in
South Africa and consequently represent a “large and important
group”:
Debates of the National
Assembly (Hansard) 25 November 1993 at 14066 (Minister of
Agriculture).
[67]
Section 9(2)(i). My emphasis.
[68]
The SPCA Act refers to five “associated
Act[s]”, being:
Performing Animals
Protection Act
24 of 1935;
Medicines and
Related Substances Act
101 of 1965
;
Veterinary
and Para-Veterinary Professions Act
19 of 1982;
Animal
Diseases Act
35 of 1984 and
Abattoir
Hygiene Act
121 of 1992.
[69]
See
Dage Properties
(Pty) Ltd v General Chemical Corporation Ltd
1973 (1) SA 163
(A);
[1973] 1 All SA 299
(A) at 174B-D;
Youngleson
Investments
(Pty)
Ltd v South Coast Regional Rent Board; Graham Properties Ltd v South
Coast Regional Rent Board
1971 (1) SA
405
(A);
[1971] 1 All SA 509
(A) at 418G-H;
Ex
Parte the Minister of Justice: In re Rex v Jacobson & Levy
1931 AD 466
at 477.
[70]
See section 12 of the Prevention of Cruelty to
Animals Act 8 of 1914 (1914 SPCA Act).
[71]
When the Bill was reintroduced in Parliament
after initial debates, the section was omitted:
Debates
of the National Assembly (Hansard) 11 May 1962 at 5515-6 (Minister
of Justice).
[72]
Id at 5516.
[73]
The Minister of Justice stated:
“
The principle
that private individuals should be allowed to bring prosecutions in
the courts without restriction is not one which
I can accept . . .
The usual safety valve as far as private prosecutions are concerned
namely, that it is only when the Attorney-General
and the prosecutor
have refused to prosecute and have given a certificate to that
effect, that the private individual can go
to court, does not apply
here. The principle [of private prosecution] contained in this
section is not one which I can
accept.”
Debates of the National
Assembly (Hansard) 9 February 1962 at 929.
[74]
56 of 1955.
[75]
Section 11 of the 1955 CPA was titled “[p]rivate
prosecution where attorney-general declines to prosecute” and
section
12 was titled “[p]ublic bodies and certain other
persons have right of private prosecution”. These
provisions
mirror the 1977 CPA’s conferral of the power of
private prosecution through certificate
nolle
prosequi
in section 7, and through
statutory conferral in section 8, as discussed at [32].
[76]
Section 8(2) of the CPA requires that the
attorney-general has first right to prosecute any offence. It
provides:
“
A body which
or a person who intends exercising a right of prosecution under
subsection (1), shall exercise such right only after
consultation
with the attorney-general concerned and after the attorney-general
has withdrawn his right of prosecution in respect
of any specified
offence or any specified class or category of offences with
reference to which such body or person may by law
exercise such
right of prosecution.”
Section 8(3) further
reinforces the oversight. It states:
“
An
attorneygeneral may, under subsection (2), withdraw his right
of prosecution on such conditions as he may deem fit, including
a
condition that the appointment by such body or person of a
prosecutor to conduct the prosecution in question shall be subject
to the approval of the attorney-general, and that the
attorney-general may at any time exercise with reference to any such
prosecution any power which he might have exercised if he had not
withdrawn his right of prosecution.”
[77]
Id.
[78]
Debates of the National Assembly (Hansard) 25
November 1993 at 14080 provides:
“
Mr J A
JOOSTE: Mr Chairman, on a point of order: Is an honourable
member allowed to refer to other honourable members in
the Chamber
as reptiles?
Mr J H MOMBERG: Who
said I was a reptile? [Interjections.]
The DEPUTY CHAIRMAN OF
COMMITTEES (Assembly): Order! The honourable member probably
did not mean it like that. The
honourable member may proceed.
Mr J H MOMBERG: Mr
Chairman, I do not understand what the honourable member means.”
[79]
Debates of the National Assembly (Hansard) 25
November 1993 at 14063 (Minister of Agriculture).
[80]
Ex Parte: The Minister of Justice: In re Rex v
Masow
1940 AD 75
at 81 (
Masow
).
[81]
R v Smit
1929
TPD 397
(
Smit
).
[82]
Id at 401.
[83]
R v Moato
1947
(1) SA 490
(O) (
Moato
).
[84]
S v Edmunds
1968
(2) PH H398 (N) (
Edmunds
).
[85]
National Council of Societies for the
Prevention of Cruelty to Animals v Openshaw
[2008] ZASCA 78
;
2008 (5) SA 339
(SCA) (
Openshaw
)
at para 38.
[86]
South African Predator Breeders Association v
Minister of Environmental Affairs and Tourism
[2009] ZAFSHC 68.
In this case,
regulations
promulgated by the Government aimed at preventing the hunting and
killing of a lion raised in captivity were challenged
and held to be
rational.
[87]
Id at para 72.
[88]
South African Predator Breeders Association v
Minister of Environmental Affairs and Tourism
[2010] ZASCA 151; [2011] 2 All SA 529 (SCA).
[89]
Lemthongthai
above n 31 at para 20.
[90]
Id.
[91]
See section 24(b) of the Constitution.
[92]
Society for the Prevention of Cruelty to
Animals, Standerton v Nel
1988 (4) SA
42
(W) at 47C (
Nel
).
[93]
Id at 47D.
[94]
Debates of the National Assembly (Hansard) 25
November 1993 at 14070 (Mr G J Malherbe).
[95]
Openshaw
above n
85 at para 47. The majority found that the granting of the
interim interdict in question was inappropriate on procedural
grounds, and therefore did not consider the issue of animal cruelty
or the nature of the powers of the NSPCA more generally.
[96]
Id at paras 40 and 47.
[97]
For example, Environmental Management Inspectors
are empowered by
sections 31G
and
33
of the
National Environmental
Management Act 107 of 1998
to police, investigate and prosecute
certain offences.
As mentioned
earlier, the 1914 SPCA Act also conferred this power.
[98]
Head of Department: Mpumalanga Department of
Education v Hoërskool Ermelo
[2009] ZACC 32
;
2010 (2) SA 415
(CC);
2010 (3) BCLR 177
(CC)
(
Hoërskool Ermelo
)
at para 97. See also
Electoral
Commission v Mhlope
[2016] ZACC 15
;
2016 (5) SA 1
(CC);
2016 (8) BCLR 987
(CC) at para 83;
Minister
for Safety and Security v Van der Merwe
[2011] ZACC 19
;
2011 (5) SA 61
(CC);
2011 (9) BCLR 961
(CC) at para
59.
[99]
Hoërskool Ermelo
id.
[100]
Practically, the NPA still has the first bite of
the proverbial cherry where animal cruelty prosecutions are
considered.
The NPA retains the first right to prosecute under
section 8(2) of the CPA, which provides that any body or person with
a statutorily-conferred
right of private prosecution can do so only
after it consults with the NPA, and the NPA withdraws its intention
to prosecute
a particular offence or set of offences.
[101]
Transvaal
a
bove
n 33
at para 222, citing
Zantsi
v Council of State, Ciskei
[1995] ZACC 9
;
1995 (4) SA 615
(CC);
1995 (10) BCLR 1424
(CC) at fn
8, citing
Borowski v Canada (Attorney
General)
[1989] 1 SCR 342
at 358-62.
[102]
Fose v Minister of Safety and Security
[1997] ZACC 6
;
1997 (3) SA 786
(CC);
1997 (7) BCLR 851
(CC) at para
21, citing
Liverpool, New York and
Philadelphia Steamship Co v Commissioners of Emigration
[1885] USSC 11
;
113 US 33
(1885).