By Don Pinnock – Daily Maverick
It was only a matter of time before hunters challenged former environment minister Barbara Creecy’s new laws on the treatment of wild animals. The first salvo has just been fired in the Constitutional Court.
The motion by the SA Hunters and Game Conservation Association (SAHGCA) to strike down the legislation on the treatment of wild animals essentially employs 11,453 words to challenge a single word: wellbeing.
Cited as respondents to the Constitutional Court challenge are President Cyril Ramaphosa; the Speaker of the National Assembly, Thoko Didiza; the chairperson of the National Council of Provinces, Refilwe Mtsweni-Tsipane; Environment Minister Dion George; and the Speakers of all SA’s provincial legislatures.
The complaint hinges on what the SAHGCA claims is the state’s failure to facilitate sufficient public engagement in the crafting of the National Environmental Management Laws Amendment (Nemla) Act 2 of 2022. It wants certain provisions in the Act declared invalid and unconstitutional or suspended for a year pending more public discussion.
Wellbeing is defined in the legislation 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”.
The SAHGCA says its objectives are to promote the interests of sport shooters, game farmers, nature conservationists and professional hunters in South Africa, and the definition poses a threat to hunting and raises questions. It says the law could prohibit:
- The cohabitation of predators and prey in the same reserve or park;
- The ploughing of fields for crops to protect the insect life;
- The use of pesticides on swarms of locusts that threaten crops;
- The reduction of animal numbers for purposes of conservation;
- The tagging and/or tracking of wildlife for research and management;
- The slaughter of animals for consumption in abattoirs or as part of customary practices;
- The use of game-viewing motor vehicles in areas such as game reserves or farms, including cattle or sheep farms; and
- The keeping of fish or other animals in an aquarium.
Approached for clarity on these interpretations, SAHGCA CEO Fred Camphor said the association did not want to comment on the content of the Constitutional Court application.
“The application has just been served on the various respondents. It would be completely inappropriate to comment on the response from any of the respondents, hence we would also not do so.”
The association says the inclusion of “wellbeing” considerations could be used as an excuse to stop sustainable use practices, such as responsible hunting.
It claims that changes to legislation occurred along the way to promulgation “without any interested and affected parties being afforded any opportunity to debate such proposed amendments at provincial or any other level. These material amendments were effected behind closed doors.”
The Department of Forestry, Fisheries and the Environment, one of the respondents, said it was still considering the application and had not decided whether to oppose it.
“As the matter is sub judice, the department will not be providing any further comment at this stage,” it told Daily Maverick.
‘Alarming’ legal challenge
Seeking clarification on the challenge, we approached Dr Andrew Muir, the CEO of Wilderness Foundation Africa, who was a member of the high-level panel on lions, rhinos, elephants and leopards, and the extended panel that assisted the environment department in implementing the recommendations that these developed.
He said the legal challenge was alarming as it undermined significant progress made in aligning South Africa’s policy with its legal imperatives and international obligations.
He pointed out that in 2020, in a case between the NSPCA and the minister of environmental affairs, the need to consider animal welfare was emphasised, prompting revisions to Nemla to include a definition of wellbeing. He added that South Africa was a member of the World Organisation for Animal Health, which upholds welfare as the physical and mental state of animals.
The high-level panel in 2020 unanimously recommended integrating welfare and wellbeing into conservation and sustainable use policy. It recognised that good welfare practices, responsible conservation management and sustainable utilisation were not mutually exclusive nor incompatible.
This approach was further enshrined in the subsequent White Paper on the Conservation and Sustainable Use of South Africa’s Biodiversity (2023) and the Policy Position on the Conservation and Sustainable Use of Elephant, Lion, Leopard and Rhinoceros (2024).
“We should view the wellbeing clause in legislation,” said Muir, “as being reasonable and as providing clarity and consistency in the interpretation of wellbeing within policy and law. It should not be envisaged as a regulatory barrier to good practice conservation and sustainable use.”
Commenting on the SAHGCA’s list of claimed consequences of the wellbeing definition, he said the minister’s mandate was to make regulations concerning restricted activities and human interventions, but it would be unreasonable to expect that the minister intended to regulate natural processes like predation.
“South Africa cannot risk undoing this process and muddying the waters once again. We must look forward to positively advancing conservation efforts whilst fostering the holistic growth of the wildlife sector for people and nature.”
