Problematic Regulations & Legislation

There are numerous problems with the current regulation of captive bred lions and the activities and commercial exploitations in which they are utilized. It is important to note there is a growing body of evidence internationally that requires welfare to be included in environmental law.

A few such matters have been included in this section, which is non-exhaustive. References to legislation are as at the current date with the relevant amendments.

Jurisdictional issues

  • A number of jurisdictional issues exist with the current regulation of wild animals generally, and lions in particular. These include jurisdictional issues:
    • between DEFF and the Department of Agriculture, Rural Development and Land Reform (DARDLR);
    • between national government and provincial governments; and
    • between the provinces themselves.
  • Although the Constitution grants concurrent jurisdiction in relation to environmental matters to both the national and provincial governments, the status quo is ineffective and has led to uncertainty and lack of accountability and transparency.

Industry self-regulation

  • Due to the lack of explicit requirements specified in legislation, the industry has promulgated its own ‘norms and standards’. It is notable, however, that these are unenforceable, voluntary standards. They are insufficient in terms of both their content and enforcement.
  • It is unclear how SAPA enforces its own standards, whether this is done consistently, and what real value such standards have.
  • What is clear (for example, from the recent discovery on the farm of a SAPA member) is that the current situation is completely unacceptable.
  • There are other voluntary standards (that is, in addition to those of SAPA), but again, these do little to ensure the protection of the animals and instead effectively enshrine their use and abuse.

Enforcement

  • Aside from the purported industry enforcement, there is lack of enforcement by DEFF, DARDLR and provinces themselves (that is, where any protective provisions exist at all).
  • DEFF reported in March 2019 that nearly 40% of the 227 registered breeding facilities inspected in four of the Provinces were non-compliant with regulations and many were operating with expired permits. Yet the vast majority of the latter expired permits were subsequently renewed.
  • The South African Police Services (SAPS), while mandated to do so,rarely enforce these issues, and the NSPCA and local SPCAs are extremely under-resourced and do not have the capacity to monitor effectively the hundreds of breeding operations around the country.

Permitting requirements

  • Furthermore, the permitting system is flawed in various respects, including:
    • Incongruent and inconsistent interpretation, application and enforcement of national biodiversity conservation legislation inter- and intra-province. This leads to legal uncertainty and undermines mandatory conservation imperatives;
    • Lack of transparency and public participation enables exploitation of the national biodiversity conservation legislation.
  • At a minimum, there needs to be a standardised and transparent permitting system.

Lack of requirements to start a business

  • Aside from permitting requirements and specific requirements of the current regulation (among others NEMA, NEMBA, TOPS and provincial ordinances), there are no specific requirements to start a captive lion breeding or related business.
  • For example, there is no requirement that an operator should have the knowledge and qualifications necessary for the responsible management of wild animals. Given the many incidents of neglect and predator attacks alone, it is imperative that a set of standard requirements be enforced in all such commercial operations.

Court Judgements

  • In 2016, the Constitutional Court stated that the human right to environment was connected to animal welfare. It expressly recognized the integrative approach (Bilchitz, 2017) and stated: “correctly links the suffering of individual animals to conservation and illustrates the extent to which showing respect and concern for individual animals reinforces broader environmental protection efforts.  Animal welfare and animal conservation together reflect two intertwined values.”
  • Justice Edwin Cameron’s minority judgment in Openshaw[1] recognised that animals are worthy of protection not only because of the reflection that this has on human values, but because animals “are sentient beings that are capable of suffering and of experiencing pain”.
  • The High Court in South African Predator Breeders Association[2] championed this view.  A unanimous Full Bench found that canned hunting of lions is “abhorrent and repulsive” due to the animals’ suffering. On appeal, the Supreme Court of Appeal did not dispute this finding.
  • The Supreme Court of Appeal in Lemthongthai[3] explained in the context of rhino poaching, that “[c]onstitutional values dictate a more caring attitude towards fellow humans, animals and the environment in general”. The Court concluded further that this obligation was especially pertinent because of our history. Therefore, the rationale behind protecting animal welfare has shifted from merely safeguarding the moral status of humans to placing intrinsic value on animals as individuals.
  • Lemthongthai is also notable because it relates animal welfare to questions of biodiversity.  Animal welfare is connected with the constitutional right to have the “environment protected . . . through legislative and other means”.
  • These statements by the judiciary, particularly the country’s two highest courts, must be considered by the executive in these decisions, as well as the values contained in the supreme constitution and their interpretation. 

Constitutional Considerations

  • The right to “Environment” enshrined in Section 24 of South Africa’s Constitution, has been interpreted to focus on but one provision, which refers to the “ecologically sustainable use” of resources. This interpretation has protected, and even promoted, the commodification of wildlife and is utilized to justify abhorrent practices that do not benefit conservation.
  • The conclusions of the judiciary in any of the aforementioned cases have not been reflected meaningfully in subsequent policy or legislative amendments or decision-making.
  • The interpretation by DEFF of Section 24 is problematic and is not in line with the aforementioned Constitutional Court judgement. Besides, it is not in line with general public opinion and values. The industry benefits very few, whilst the consequences affect the entire current and future populations of the country.
  • Furthermore, there is an issue with the lack of consultation with interested and affected independent scientific experts, NGOs and with the public at large. In fact, there appears to have been consultation only with the captive lion industry and other beneficiaries.
  • DEFF engages with the Wildlife Forum, which is composed mostly of hunting organisations. DEFF has failed to include relevant NGOs despite numerous requests to do so. It has only been in the last couple of months that organisations, such as the Endangered Wildlife Trust and NSPCA, have become members.

DEFF High-Level Panel

  • In December 2018, the (then) Minister of Environmental Affairs announced her intention to appoint a High-Level Panel (HLP) relating to inter alia lions. The composition of the panel is seen by many as bias.
  • Of additional concern was the wording of the call for nominations to the HLP, which stated that nominees “must be persons who….are committed to and subscribe to the objectives and principles of conservation and sustainable use”.
  • In light of the above, as well as pending litigation in this regard, it is unclear how the quota may legitimately be determined until such time as the HLP has been implemented with experts represented from all relevant fields and stakeholders (including NGOs).

Failure by DEFF to comply with Parliamentary Portfolio Committee of Environmental Affairs report

  • In August 2018, a colloquium was held on the captive lion breeding industry by the Parliamentary Portfolio Committee of Environmental Affairs (PPCEA).where a wide variety of stakeholders made submissions. This resulted in a final Report published in November 2018.
  • This report resolved that the Department should, as a matter of urgency, initiate a policy and legislative review of captive breeding of lions for hunting and the lion bone trade with a view to putting an end to this practice.
  • This was subsequently adopted as a resolution of Parliament.
  • However, in March 2019, DEFF released a statement that it would rather see the continuation of this industry through the establishment of norms and protocols — in other words, better regulation.
  • It is noteworthy that during the above mentioned Colloquium the (then) Minister of Environmental Affairs stated that if the industry was shut down, the lions “would have no value”. It is clear that the value of lions is not limited to their use in commercialised breeding operations and this statement by a representative of the department tasked with protecting them is hugely problematic.

Workers and safety concerns

  • There are no specific legislated safety protocols for workers in the captive lion breeding industry. This has led to abuses of workers who are tasked with handling these animals with little or no protection. Such workers are generally persons of colour, who take on this risk (see also section on Zoonosis).
  • Thus, the law fails to protect not only lions but also the persons tasked with handling them.

Slaughter, Safety and Health Requirements

  • The Meat Safety Act, 40 of 2000, provides some protections for animals and the humans who consume them. It is pertinent that lions are not included in the ambit of the Act and are thus not subject to the mandatory welfare protocols (such as stunning prior to slaughter) that apply to farmed animals in abattoirs. This is in spite of the fact that not only the bones but the meat and other body parts of the slaughtered lions are destined for human consumption. It is evident from the most recent inspections, as well as other reports, that lions in captive bred facilities also suffer from diseases, including tuberculosis, which can be transferred to humans.
  • To date, there appears to have been little concern with, let alone any regulation pertaining to, the handling of zoonotic diseases in this industry.
  • We are aware of the so-called “eco-farm” that conducts lion slaughter.  What is unclear is the monitoring of this facility and other legal and regulatory requirements applicable thereto.

Historical Considerations

  • It should be noted that there have previously been attempts by the DEFF to better regulate this industry, but these have been thwarted for various reasons including the aforementioned Predator Breeders Case, administrative challenges, and the non-promulgation of draft regulations.

Mere property

  • In addition to the above concerns, there is the fundamental problem of the animals concerned being viewed and treated as mere property, with no value unless commercially exploited.
  • This has become the dominant view in spite of animals’ intrinsic value having been recognised and affirmed by the Constitutional Court. In addition, lions along with other wildlife bringing incalculable value to the nation and economy of South Africa, and all of its people.
  • South Africans have a fundamental interest in how these animals are treated and in the protection of our heritage, including wildlife, for future generations. These are therefore major matters of public concern.

[1] National Council of Societies for the Prevention of Cruelty to Animals v Openshaw [2008] ZASCA 78;  2008 (5) SA 339 (SCA) (Openshaw) at para 38. (http://www.saflii.org/za/cases/ZASCA/2008/78.html)

[2] South African Predator Breeders Association v Minister of Environmental Affairs and Tourism [2010] ZASCA 151; [2011] 2 All SA 529 (SCA). (http://www.saflii.org/za/cases/ZASCA/2010/151.html)

[3] S v Lemthongthai [2014] ZASCA 131;  2015 (1) SACR 353 (SCA) (Lemthongthai) (http://www.saflii.org/za/cases/ZASCA/2014/131.html)