By Adam Cruise – Daily Maverick
At the heart of the case is the claim that keeping elephants in the zoo violates South Africa’s Constitution, particularly the environmental rights provision, as well as existing animal welfare legislation.
A landmark legal bid to free three elephants from captivity in the Johannesburg Zoo has gained international traction, with heavyweight legal scholars from Harvard Law School stepping forward in support of the case. The application – brought by Animal Law Reform South Africa, the EMS Foundation and Chief Stephen Fritz – is currently before the High Court in Pretoria.
Professor Kristen Stilt, the faculty director of the Brooks McCormick Jr Animal Law and Policy Program, and Dr Macarena Montes Franceschini, a visiting researcher at the Max Planck Institute, have formally applied to join the case as amici curiae (friends of the court), offering their expertise in animal law and public policy. Their participation is intended to help the court understand the broader societal and ethical implications of the case, especially given the elephants’ complex cognitive and emotional capacities.
Constitutional rights
The applicants argue that the three elephants – Lammie, Mopane and Ramadiba – are confined in conditions that compromise their mental, emotional and physical well being, amounting to a state of significant distress.
Elephant experts argue that confinement in any urban zoo fails to meet the physical, mental and emotional needs of these highly intelligent and social creatures.
At the heart of the case is the claim that keeping elephants in the zoo violates South Africa’s Constitution, particularly the environmental rights provision, as well as existing animal welfare legislation. Section 24 states that everyone has the right to an environment that is not harmful to their health or wellbeing and to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures.
The measures prevent pollution and ecological degradation, promote conservation and secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.
In addition, the organisations and Fritz said animals in captivity constitute biodiversity for the purposes of the National Environmental Management: Biodiversity Act.
“The applicants (Animal Law Reform SA, EMS Foundation and Fritz) contend that, on proper interpretation of section 24 of the Constitution, and the legislation enacted to give effect to section 24, the right enjoyed by everyone to have the environment protected requires that the welfare and wellbeing of individual animals be considered and promoted.”
Pushback
The Johannesburg Zoo, however, has pushed back, asserting that the elephants receive adequate care and attention. The zoo claims that the groups behind the legal effort are driven by ideology rather than concern for the animals’ actual welfare.
However, public sentiment appears to be turning against the zoo’s legal resistance. South Africans have voiced their anger on social media, particularly given the City of Johannesburg’s broader financial and infrastructural crises. The Auditor-General recently reported more than R1-billion in wasteful expenditure, raising concerns about the cost of the ongoing litigation.
Critics have pointed to Johannesburg City Parks and Zoo’s own Integrated Annual Report (2023/24), which emphasises avoiding prolonged legal battles in favour of settlements that save public funds.
Despite this, the City continues to defend the elephants’ captivity in court, a move seen by many as both fiscally irresponsible and ethically indefensible.
The case of Charlie the elephant
Still, pressure continues to build, especially following the recent relocation of Charlie – the last elephant at the National Zoological Gardens in Pretoria – to a sanctuary. That move is being hailed as a progressive step in aligning elephant care with contemporary animal welfare standards.
That historic event was the result of years of negotiation between the zoo, the EMS Foundation and the Pro Elephant Network.
Charlie had witnessed three of his friends die prematurely. He also lost his daughter when she was less than a month old. He was captured in Hwange, Zimbabwe, 44 years ago and was trained in the Boswell Wilkie Circus. When it closed down he was transferred to the Natal Lion Park and then, in 2001, to the Pretoria Zoo where he languished before his eventual release in 2024.
As they did with Charlie (now named Duma), the EMS Foundation has offered the same alternative: relocating the three elephants to the secure, protected sanctuary at Shambala Game Reserve in the Waterberg where they can gradually reintegrate into a natural habitat. The plan, as it has with Charlie, includes a comprehensive rehabilitation process under the guidance of wildlife veterinarians, welfare experts and logistical teams.
The Johannesburg case is being watched closely, since it feeds into a larger and ongoing debate: should elephants be kept in captivity at all, especially in urban zoos? The involvement of respected legal scholars from Harvard is a significant development. Their support underscores the global relevance of the case and the shifting legal and moral paradigm around the rights of non-human animals.Deputy Judge President Ledwaba will hear arguments on the amicus application on 2 September. His decision could shape the outcome of one of the most significant animal rights cases this country has seen.
