The recent publication of a general notice calling for submissions to the High-Level Advisory Panel (HLAP) provoked strong reaction and condemnation from, inter alia, animal welfare supporters.
Minister B Creesy, of the Department of Forestry, Fisheries and the Environment, established the HLAP to review existing policies, legislation and practices relating to the management and handling, breeding, hunting and trade of elephant, lion, leopard and rhinoceros. An article in The Daily Maverick of 15 July 2020 by Don Pinnock highlighted the 'lopsided composition' of the HLAP in favour of exponents of the consumptive use of wildlife and a possible foregone findings of the HLAP in favour of this approach. The Terms of Reference for the review by the HLAP indeed do not raise any of the welfare aspects of the breeding, hunting and trade of elephant, lion, leopard and rhinocerose.
A key issue in the debate about the consumptive use of wild animals concerns an understanding of the ‘sustainable use of natural resources’. The Convention on Biological Diversity of 1992 defines sustainable use as the ‘use of components of biological diversity in a way and at a rate that does not lead to the long-term decline of biological diversity, thereby maintaining its potential to meet the needs and aspirations of present and future generations’.
Sustainable use is recognised in law as a key principle that operationalises sustainable development. Sustainable development is the leitmotif of international and South African environmental law. Sustainable development is characterised by the integration and balancing of environmental, economic and social interests. Section 24 of the Constitution of the Republic of South Africa entrenches the importance of this concept through subsection (b).
Neither South African legislation (such as the National Environmental Biodiversity Act 10 of 2004), nor the constitutional provision contain an explicit reference to wildlife welfare. Does this imply that wildlife may be treated as a commodity that may be used by humans?
Recent progressive judgments of South African courts connected animal welfare with section 24 of the Constitution and found that welfare must be considered under the environmental component of sustainable development (see National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development and National Council of the Society for Prevention of Cruelty to Animals v Minister of Environmental Affairs and Others). This means that wildlife welfare is part and parcel of our law. It may not be ignored. As the learned judge stated in S v Lemthongthai, ‘constitutional values dictate a more caring attitude towards fellow humans, animals and the environment in general’. Our law follows a stare decisis approach, and as such these judgments require careful consideration.
The side-lining of the welfare component in the Terms of Reference of the HLAP displays an ignorance of the implications of South African case law. Our Constitution requires a more respectful attitude towards sentient beings, and sustainable use must pay heed to the recognition of the intrinsic value, and accordingly welfare, of individual animals.
Wild animals are not mere resources or commodities that may be hunted, killed, harvested, bred or incarcerated for human use. It is doubtful that frivolous activities, such as trophy hunting will meet the constitutional threshold of welfare embedded in section 24.
The progressive animal welfare judgments are ground-breaking worldwide and elevate South African environmental law to a leading position in its recognition of the importance of wildlife welfare. The global discourse on wildlife welfare is becoming increasingly important, and foreign jurisdictions and international law may draw lessons from the welfare judgments in South Africa.
Minister Creesy and the HLAP must recognise the importance of wildlife welfare in terms of section 24 of the Constitution. The courts have spoken and it is now time to respond to the clarion call to reject the commodification of sentient beings.
About the author: Werner Scholtz is a Senior Professor of Law and Head of Department in the Department of Public Law and Jurisprudence at UWC, as well as a Visiting Professor at Lincoln Law School in the United Kingdom. Read more