Elephants cooperate in rearing their young and have strong family bonds. (Photo: Francis-Garrard)
By Don Pinnock | 23 Jan 2025
The struggle to ensure kindness and fair treatment of animals – or deny it – will take centre stage this year as hunters, conservationists and government lawmakers face off on welfare, wellbeing and mammal sentience issues.
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We kill many kinds of creatures and eat them. In South Africa each year around a billion are produced and killed for food. We also shoot them and call it sport.
From the point of view of the creatures involved, this is an extreme violation of their most fundamental interests – to continue living, to be free from arbitrary suffering and to have agency to pursue normal behaviours. However, like lions, leopards or hyenas, we’re carnivores and that will not change anytime soon.
A rhino mother and calf. (Photo: Conservation Action Trust)
What has increasingly become a major global issue, however, is the lives they lead up to the point of death. It’s about their welfare and well-being; under those headings in South Africa, turbulent legal battles are mounting.
Well-being
According to changes to the National Environmental Management Laws Amendment (Nemla) Act signed into law in 2022, wellbeing is defined as: “the holistic circumstances and conditions of an animal, which are conducive to its physical, physiological and mental health and quality of life, including the ability to cope with its environment.”
This has been a long-fought-for definition with roots in an NSPCA private prosecution judgment handed down by the Constitutional Court in 2016, followed in 2018 by a Parliamentary Colloquium challenging the canned hunting of lions.
A lion awaiting death in a hunting facility. (Photo: Ian Michler)
The 2020 High-Level Panel on lions, rhinos, elephants and leopards which followed, declared the wellbeing of individual animals to be a constitutional imperative and recognised animals as sentient individuals. This was gazetted in the Nemla legislation two years later.
A White Paper on Conservation and Sustainable Use of South Africa’s Biodiversity (2023) followed, defining sustainable use for the first time and underlining the intrinsic value of all living organisms and the necessity of their wellbeing.
The protective bond between an elephant mother and baby is no different to that of humans. (Photo: Francis Garrard)
These shifts have seen South Africa moving from a purely conservation-focused approach to one that integrates ethical considerations and animal welfare into the management of biodiversity.
Hunters fight back
However, nearly two years after Nemla was passed, the SA Hunters and Game Conservation Association (SAHGCA) suddenly woke up to its implications and applied to the Constitutional Court to have the legislation struck down. It claimed the state failed to facilitate sufficient public engagement in the crafting of the Act and wanted certain provisions declared invalid and unconstitutional or suspended for a year pending more public discussion.
Applying the idea of wellbeing, it claimed, would, among other things, prohibit:
- the co-habitation of predators and prey in the same reserve or park,
- the ploughing of fields for crops in order to protect the insect life,
- the use of pesticides on swarms of locusts that threaten crops,
- the slaughter of animals for consumption in abattoirs or as part of customary practices,
- the keeping of fish or other animals in an aquarium.
It says its objectives are to promote the interests of sport shooters, game farmers, nature conservationists and professional hunters in South Africa and that the definition poses a threat to hunting.
The NSPCA responded with an urgent interdict from the high court in Johannesburg to prevent the SAHGCA from settling the matter before the animal protection association could oppose the Constitutional Court matter. It claimed the SAHGCA failed to inform it of the court challenge, serve the application on the NSPCA or afford it the opportunity to participate in the litigation.
“They were attempting to settle the matter without our knowledge,” says the organisation. And worse… When the NSPCA queried the issue with the hunters’ association, its legal representative said the matter had already been settled, which turned out to be false. The interdict was awarded and the NSPCA filed its opposition application before the Constitutional Court.
The EMS Foundation, a conservation NGO, also immediately filed a counter-challenge, questioning why it had taken the hunters nearly two years to file an objection and claiming there were no procedural grounds for the objection.
Wellbeing, it said in its submission to the Constitutional Court, was critical for animal welfare and setting it aside would impact on the goal of animal conservation.
The case is yet to be heard. If the hunters win, it will be back to the drawing board. Watch this space.
Welfare
The struggle to secure a legal framework for animal welfare, on the other hand, is not about what’s been legislated, but about what has failed to be. The first moves to shift the needle came from court judgements.
In 2008, Judge Edwin Cameron’s minority judgement in the case of NSPCA vs Openshaw recognised that animals are worthy of protection as individuals, not only because of the reflection this has on human values, but because animals “are sentient beings that are capable of suffering and of experiencing pain” (Sentience was defined as a conscious entity’s ability to experience both positive and negative states of being).
Animals are deemed sentient with emotional lives. (Photo: Colin Bell)
In a case brought by the NSPCA against the Minister of Justice in 2016, the Constitutional Court not only elevated the welfare and protection of non-human animals to a constitutional concern, but also significantly related their welfare and protection to biodiversity and the constitutional right to have the environment protected through legislative and other means in Section 24 of the Constitution. It set down that:
- The rationale for protecting non-human animal welfare has shifted from merely safeguarding the moral status of humans to placing intrinsic value on animals as individuals.
- Non-human animals are sentient beings capable of suffering and experiencing pain.
- Non-human animals are worthy of protection.
- Guardianship of the interests of non-human animals reflects constitutional values and the interests of society at large.
However, nailing down legislation on the basis of these judgements has proved difficult because of divided jurisdictions and persistent ideas that animals are property, not sentient beings. The wheels of justice on this appear to move painfully slowly.
Departments at odds
Roughly speaking, wild animal legislation is deemed to be the business of the Department of the Forestry, Fisheries and Environment (DFFE) and domestic animals the purview of the Department of Agriculture, Land Reform and Rural Development (DALRRD).
Both deal with animals, but under different circumstances and, as departments, this is reflected in limited coordination and cooperation. They claim collaboration, but the Keep Out signs remain. DFFE has in the past insisted it has no mandate for welfare since this was devolved in its entirety to DALRRD.
Who‘s who in animal welfare. (Image: Animal Law report)
The departments also appear to stamp on each others’ toes and, in terms of government priorities, farming usually tops conservation. In 2019, DALRRD sought to list 32 wild species – including lions, giraffes, white and black rhinos and cheetahs – under the Animal Improvement Act. This classification would effectively redefine them as farm animals, permitting their breeding, genetic manipulation and use for consumption.
The purpose, it said, was to “provide for the breeding, identification and utilisation of genetically superior animals in order to improve the [food] production and performance of animals in the interest of the Republic.”
The following year an additional 98 wild species, including rhinos, hippos, elephants and crocodiles were proposed for listing under the Meat Safety Act. This would allow for them to be “slaughtered for food for human and animal consumption.” The amendments were never gazetted, but could make a comeback.
Guiding principles for animal welfare. (Image: Animal Law report)
Under these circumstances, drafting an Animal Welfare Bill is an urgent necessity. But who got the job? The fox in the hen coop: DALRRD. And to say it’s dragging its feet is an understatement.
The Bill is being written glacially slowly by a bunch of DALRRD vets comprising the Animal Welfare Working group who have little or no qualifications in legal rights and apparently think that tinkering with out-of-date, apartheid-era legislation will do the job. It includes no representatives from the animal protection sector.
The conflict of interest is glaring. A department steeped in promoting intensive animal production, wildlife ranching and commercial slaughter cannot be expected to prioritise the wellbeing of animals in general. Their allegiance to the agricultural sector frequently results in policies that commodify animals rather than recognising their sentience and intrinsic value.
Keep Out signs
Despite recommendations from experts and civil society organisations, including the High-Level Panel, DALRRD continues to operate in isolation, relegating to a spectator role crucial stakeholders like the NSPCA and DFFE. The NSPCA, a key player in animal welfare, has been denied access to draft documents, undermining transparency and collaborative policymaking.
In 2021, Parliament’s portfolio committee on the environment highlighted the lack of timelines and accountability in its drafting process. By the time public consultations are held, it could be too late to address flaws in the legislation. As one exasperated parliamentarian aptly described it, the process was nothing short of ‘spookasem’ (ghost breath).
In a comprehensive manifesto, Animal Protection in South Africa: A Constitutional Imperative, drafted by a coalition of NGOs initiated by Animal Law Reform South Africa, Humane Society International/Africa and the South African Institute for Advanced Constitutional, Public, Human Rights and International Law – has challenged both the basis and glacial speed of the process.
It pinpoints the beginnings of DALRRD’s understanding of what it’s supposed to be doing to a 2018 report by the Department of Planning. This frames animal welfare in terms of only productivity, food security and ability to access international markets – exclusively human interests – without recognising the intrinsic value of animals as individuals.
The outcome, says the manifesto, is predictable.
“Cruel practices such as close confinement, mutilation, forced pregnancies, unnatural diet, genetics-favouring production metrics and the separation of family groups are routine. Hens are forced to lay an unnatural number of eggs in wire cages; sows, rabbits and other intensively farmed species are unable to even move naturally and most animals are forced to live out their short lives confined in factory-like settings surrounded by their own excrement. New harms such as long-distance transport by sea are increasing.”
To this is added animals forced to perform in circuses, confined in zoos, used to entertain tourists, for scientific testing and shot in canned hunts.
“Despite having one of the most robust constitutions in the world,” it continues, “South Africa has been internationally recognised as having a deficient and problematic animal protection regime. The unfettered harmful use of animals cannot be said to be aligned with a democratic society based on human dignity, equality and freedom, nor with one aimed at eliminating all forms of violence and protecting the interests of its vulnerable members.”
Taking stock
So what’s the state of animal welfare as the new year begins?
One of the DALRRD’s primary mandates is the promotion of intensive animal production, which is arguably in direct conflict with the duty to protect animal welfare. It’s the wrong department to be drafting laws on animal welfare.
DALRRD’s reliance on voluntary guidelines, often shaped by industry bodies, has resulted in a regulatory framework that lacks enforceable protections. For instance, regulations fail to address harmful practices like the close confinement of animals, painful procedures without anaesthesia, or live export for slaughter. The outdated 1962 Animals Protection Act, upon which DALRRD’s work is anchored, remains inadequate in addressing modern challenges.
Wildlife ranching, often claimed as a conservation success story, is problematic when it entrenches the economic exploitation of selected animals. Wild animals are ill-suited to captivity.
Wild animals should not be held in captivity. (Photo: Audrey Delsink)
State and commercial entities which recognise animals for only their economic value fail to acknowledge their intrinsic value and interests as individuals.
Funding of the NSPCA depends on donations, which may not be reliable and does not adequately allow for long-term planning or investment. It was created by statute, receives no state funding yet is tasked with animal protection. It’s not represented on the Livestock Welfare Coordinating Committee, or the Animal Welfare Working Group.
So as the new year begins, the domestic regulatory and governance regime intended to protect the interests of animals, including preventing cruelty towards them, remains woefully inadequate, deficient and outdated.
Some solutions
Here are some solutions from a roadmap suggested by the Animal Law Project manifesto:
- Transfer the drafting process to the Department of Justice.
- Repeal a range of legislation such as the Animal Protection Act, the SPCA Act and the Performing Animals Protection Act and incorporate them into an umbrella Animals Act which deals with animal welfare.
- The process should be overseen by a newly created Animal Protection Office. This should create subordinate enabling legislation with teeth, to prosecute and be transparent and accountable.
- Schedules 4B and 5B of the Constitution should be amended to make explicit the animal welfare competencies of national, provincial and local government.
- An understanding of animals, their needs, capacities and interests, and how these intersect with human interests should be promoted through education, training and sensitisation initiatives in the public and private sectors as well as in schools.
- Animals should, as far as possible, be seen as stakeholders in this process through a scientific and emotional understanding of their needs. DM
but I kind of agree with his battle in favour of the wild animals.