WIN FOR WILDLIFE: Hunters lose Constitutional Court challenge to animal wellbeing protections

The Constitutional Court has rejected a demand by the South African Hunters and Game Conservation Association to remove wellbeing provisions from South Africa’s biodiversity legislation. This follows a legal battle involving the National Council of Societies for the Prevention of Cruelty to Animals (NSPCA) and the EMS Foundation.

The foundation, together with the NSPCA, had intervened to oppose the association’s attempt to have the word wellbeing removed from the National Environmental Management: Biodiversity Act 10 of 2004, or Nemba.

In a statement issued after the judgment on Friday, the foundation said the decision was unanimous and that the court had awarded costs in its favour.

The outcome brings relief to conservation and animal protection organisations that have worked for years to secure explicit recognition of animal wellbeing.

“Today is a profound victory for wild animals and for everyone working towards a more compassionate and just relationship with the living world,” the foundation said.

The NSPCA welcomed the judgment: “Its effect is that decisions about how wild animals are managed, conserved and used in South Africa must continue to take their wellbeing into account.”

The dispute concerned amendments introduced through the National Environmental Management Laws Amendment Act of 2022 which brought wellbeing into biodiversity legislation, strengthening the connection between conservation and the treatment of individual animals.

It defined wellbeing 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”.

For the EMS Foundation, retaining those provisions provides a basis for assessing human activities affecting wildlife before harm occurs.

“Conservation must now consider how animals live and what they experience,” it said. “Wild animals are sentient beings with intrinsic value. Their suffering cannot be rendered invisible by describing them as biological resources, commercial assets or populations to be managed.”

Wilderness Foundation Africa’s CEO, Dr Andrew Muir, welcomed the finding but said the outcome was not surprising. “These provisions are the product of a long and comprehensive consultation process, running from the High-Level Panel review through the White Paper and the Policy Position.

“The judgment affirms that animal wellbeing is a legitimate and important consideration in South Africa’s biodiversity policy and legislation. This is consistent with global standards such as the One Health approach, which recognises that the health of people, animals and ecosystems is interconnected.

“Most importantly, the judgment supports an approach to conservation and ecologically sustainable use which is grounded in science, constitutional values and the long-term interests of both nature and people. South Africa has long been a global leader in conservation. This judgment reinforces that position.”  

The hunters’ challenge

The application by the Hunters and Game Conservation Association centred on whether Parliament had allowed adequate public participation before adopting the amendments. It argued that changes had been introduced during the legislative process without giving interested and affected parties an opportunity to debate them.

“These material amendments were effected behind closed doors,” it alleged in the application, when the challenge emerged in 2024.

The association sought to have the disputed provisions declared unconstitutional and invalid, or suspended to allow further public discussion. Respondents included the President, parliamentary office bearers, the environment minister and provincial legislature speakers.

It also argued that the definition could threaten sustainable use practices, including responsible hunting. The association represents interests including sport hunting, game farming, nature conservation and professional hunting.

Its objections extended beyond hunting. It contended that applying the definition could prohibit keeping predators and prey in the same reserve, ploughing fields because of the effects on insects, using pesticides against locusts and reducing animal numbers for conservation purposes.

Other activities it identified included tagging and tracking wildlife, slaughtering animals for food or customary practices, using game-viewing vehicles and keeping animals in aquariums.

When approached about these interpretations in 2024, the association’s chief executive, Fred Camphor, declined to discuss the application’s contents.

“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,” he said at the time.

A longer legal campaign

The fight to retain the provisions follows earlier litigation linking animal welfare with conservation and constitutional environmental protections.

A significant decision came in December 2016, when the Constitutional Court confirmed the NSPCA’s power to institute private prosecutions for animal cruelty.

That case arose after inspectors witnessed alleged cruelty during the slaughter of two camels. When the National Prosecuting Authority declined to prosecute, the NSPCA sought to pursue the matter itself. Its authority to do so became the subject of litigation that reached the Constitutional Court.

In a unanimous judgment written by Justice Sisi Khampepe at the time, the court found that the NSPCA’s statutory power to institute legal proceedings included private prosecutions under the relevant provisions of the Criminal Procedure Act.

The court’s official media summary explained that the decision was reinforced by the increasingly robust protection that courts had afforded animal welfare. It noted a shift from protecting animals merely to safeguard human morality towards recognising their intrinsic value.

The court also highlighted the connection between animal welfare and conservation, supported by constitutionally enshrined environmental rights.

Later parliamentary deliberations on captive lions and the High-Level Panel’s work helped advance the inclusion of wellbeing in conservation policy. The 2022 amendments gave that concept an express place in Nemba.

In opposing the hunters’ challenge, the EMS Foundation argued that removing the provisions would undermine animal protection and conservation. It also questioned the time taken to bring the application.

The NSPCA separately sought an urgent high court interdict to prevent the dispute being settled without its participation. The interdict was granted, and the organisation proceeded to oppose the hunters’ application.

From protection to practice

With the challenge rejected, the EMS Foundation is calling for implementation. It wants the minister of forestry, fisheries and the environment to urgently reconvene the Wildlife Wellbeing Forum and advance the provisions through regulations, policy, permitting and accountable decision-making.

“The task now is to turn legal protection into meaningful practice,” it said.

EMS thanked its legal team, advocate Ian Learmonth and Cullinan and Associates, and acknowledged the NSPCA’s work in defending the protections.

For the organisations involved, the ruling safeguards years of work to ensure that conservation decisions take account of individual animals’ lives. The next stage is to establish how those protections operate in practice.

“Today’s victory protects an essential foundation,” the EMS Foundation said. “Our work continues to ensure that it makes a meaningful difference to the lives of wild animals.” DM