National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development (Corruption Watch Amicus Curiae)

• Jurisdiction: South Africa
• Judge: Nkabinde ADCJ and Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J and Mhlantla J and Musi AJ and Zondo J
• Judgment Date: 08 December 2016
• Docket Number: CCT 1/16
• Hearing Date: 23 August 2016
• Court: Constitutional Court

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

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Khampepe J (Nkabinde ADCJ, Cameron J, Froneman J, Jafta J, Madlanga J, Mhlantla J, Musi AJ and Zondo J concurring)

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.

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Khampepe J (Nkabinde ADCJ, Cameron J, Froneman J, Jafta J, Madlanga J, Mhlantla J, Musi AJ and Zondo J concurring)

[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

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Khampepe J (Nkabinde ADCJ, Cameron J, Froneman J, Jafta J, Madlanga J, Mhlantla J, Musi AJ and Zondo J concurring)

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]".

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Khampepe J (Nkabinde ADCJ, Cameron J, Froneman J, Jafta J, Madlanga J, Mhlantla J, Musi AJ and Zondo J concurring)

[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

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Khampepe J (Nkabinde ADCJ, Cameron J, Froneman J, Jafta J, Madlanga J, Mhlantla J, Musi AJ and Zondo J concurring)

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...