The camel at the cutting edge: Animal welfare, environmental law, private prosecution and the three judgments in NSPCA v Minister of Justice

• Date: 20 December 2019
• Author: Couzens, E.
• Citation: (2018) 24 SAJELP 44
• Pages: 44-86
• Published date: 20 December 2019

44

THE CAMEL AT THE CUTTING EDGE:

ANIMAL WELFARE, ENVIRONMENTAL

LAW, PRIVATE PROSECUTION AND THE

THREE JUDGMENTS IN NSPCA v MINISTER

OF JUSTICE

Adrian Bellengère* and Ed Couzens†

Abstract

This analysis explains how an incident of attempted slaughter of two camels

for religious purposes set off a chain of events and judgments that has the

potential significantly to enlighten our understanding of the position of animal

welfare-related law in South Africa, and the overlap between animal welfare

and environmental law. Three judgments are recounted and then commented

upon – in the High Court, the Supreme Court and the Constitutional Court. It

is explained that a number of misunderstandings of the legal position, by legal

authorities and courts, have prevented the National Society for the Prevention

of Cruelty to Animals – a juristic person mandated to take legal steps to prevent

animals from being cruelly treated – from employing the full range of legal tools

that ought to be available to it, including the right to prosecute privately when

the National Prosecuting Authority declines to prosecute. The Constitutional

Court has ultimately decided that the NSPCA does have this right; but it is

explained that the judgment does not show as much understanding of the

legal position as would have been desirable. In particular, it appears that the

nexus between animal welfare law and environmental law has not been well

understood; and it is suggested that the National Environmental Management

Act of 1998 provides for a right of private prosecution that could, and should,

be employed in circumstances such as these.

* BA LLB (Natal) LLM (Aberdeen); Attorney and Conveyancer, RSA;

Senior Lecturer, School of Law, University of KwaZulu-Natal, Durban�

† BA Hons LLB (Wits) LLM Environmental Law (Natal & Nottingham)

PhD (KZN); Attorney, RSA; Associate Professor of Environmental Law, The

University of Sydney Law School, Sydney�

(2018) 24 SAJELP 44

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45

THE CAMEL AT THE CUTTING EDGE: ANIMAL WELFARE,

ENVIRONMENTAL LAW, PRIVATE PROSECUTION AND THE THREE

JUDGMENTS IN NSPCA v MINISTER OF JUSTICE

1 INTRODUCTION: SMOTE A CAMEL, FEEL

DISSATISFIED

In November of 2010 some men set out, in Lenasia, Johannesburg,

with the intention of killing two camels as a sacrifice within the

Islamic religion� They were not entirely successful in giving effect

to their intention, the camels being shot by an inspector from

the National Society for the Prevention of Cruelty to Animals

(NSPCA)1 in order to hasten their deaths and relieve them of their

suffering;2 but the men’s inability to kill with efficiency resulted

in a protracted path of litigation with judgements by the High

Court (HC) in 2014, the Supreme Court of Appeal (SCA) in 2015,

and the Constitutional Court (CC) in 2016�

This article analyses how these extraordinary events unfolded;

whether the judgments can be impugned or not; the place of the

judgments in South African environmental law; and potential

impacts that the judgements may have on the protection of animals

and the enhancement of animal welfare� Finally, it is considered

whether there might have been a different course available to the

appellant/applicant; and, if so, what can be learned from its failure

to take such a course�

2 THE LEGAL CONTEXT

2.1 The Animals Protection Act

The legal regime for the protection of animals in South Africa

rests largely on the Animals Protection Act (the APA)�3 The

purpose of the Act, according to its long title, is to consolidate and

amend South Africa’s laws relating to the prevention of cruelty

to animals� The APA’s definition of ‘animal’ does not include all

wild animals, but only those that are in captivity or under the

control of a person� The Act creates various cruelty offences,

empowers police officers and veterinarians to destroy animals

in certain circumstances, and empowers officers of societies for

1 A juristic person, created in terms of s 2 of the Societies for the Prevention

of Cruelty to Animals Act 169 of 1993�

2 National Society for the Prevention of Cruelty to Animals v Minister

of Justice and Constitutional Development and Another 2016 (1) SACR 308

(SCA) at para [7]�

3 Act 71 of 1962�

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46

(2018) 24 SA JOURNAL OF ENVIRONMENTAL LAW AND POLICY

the prevention of cruelty to animals to take various measures

necessary for the enforcement of its provisions�

The Act creates offences in respect of a wide range of

activities� Examples include torture, methods of confinement or

conveyance that cause unnecessary suffering, failure to provide

sufficient food and water, poisoning, liberation of an animal in

a manner that exposes it to immediate attack, and trapping� The

penalty carried by most cruelty offences is a fine or imprisonment

for a maximum period of one year� In addition to being fined

or imprisoned, a person convicted of a cruelty offence may be

deprived of ownership of the animal to which the offence relates,

and/or declared unfit to own or be in charge of any animal, or of

an animal of a particular type, for a specific period� A maximum

amount of R5 000 may further be awarded to any person that has

suffered loss or incurred expenses as a result of the commission

of an offence�

The Minister of Justice (at the time of the events described in this

article the Minister of Justice and Constitutional Development)4

is empowered to make regulations relating to methods and

forms of confinement and accommodation of animals; any other

reasonable requirements which may be necessary to prevent

cruelty to or suffering of any animal; the seizure, impounding,

custody or confining of any animal due to its condition, and the

disposal or destruction of such animal and recovery of expenses

in connection therewith; and any other matters that are required

for the better carrying out of the Act� Regulations have been made

relating to the seizure of animals by an officer of a society for the

prevention of cruelty to animals�

2.2 Other animal protection related statutes

The Performing Animals Protection Act5 (PAPA) uses an almost

identical definition of ‘animal’ to that found in the APA, with the

only difference being that PAPA does not apply to reptiles� The

Act regulates licensing and the powers of courts, police officers

and officers of societies for the prevention of cruelty to animals

in relation to the exhibition and training of performing animals

4 Subsequently, from May 2019, the Minister of Justice and Correctional

Services�

5 Act 24 of 1935�

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