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Pursuing a Just and Inclusive Society for All Animals in South Africa: A Constitutional Imperative

Amy P Wilson, Michaela Tafani-Du Preez, and Cheslyn Cheslyn

Summary

  • Animal regulation in South Africa includes outdated laws, Animals Protection Act and Performing Animals Protection Act, enforced by the under-resourced NSPCA with funding from major poultry producers.
  • The government aims to reform animal protection laws with a new Animal Welfare Bill, presenting potential improvements.
  • The Constitutional Court has begun recognizing animal welfare which affirms animals as sentient beings with intrinsic value and offfers opportunities for new legal avenues for animal protection.
Pursuing a Just and Inclusive Society for All Animals in South Africa: A Constitutional Imperative
Simon Skafar via Getty Images

South Africa, often referred to as the ‘Rainbow Nation’ – is one of the most biodiverse countries in the world, boasts an exceptional and varied environment and is home to some of the most awe-inspiring animals on Earth. The importance of animals to the country and its people cannot be overstated, yet the lived realities for many animals is one of exploitation and/or suffering from a plethora of harmful activities and circumstances, which have knock on implications for some of the most vulnerable members of our society.

Consistently voted as one of the most unequal countries in the world, the nation also has some of the highest rates of violence (particularly gender-based violence); unemployment and extremely high crime rates. With so much suffering facing the over 60 million human inhabitants, many question how we can even begin to seek greater protection for animals, yet it is only through the recognition that human rights are enriched, and not impoverished by including animals in the notion of justice that we can begin to seek a truly just and inclusive society. This article will briefly explore selected aspects of animal regulation in South Africa, including recent developments and opportunities for animal law reform.

South Africa is ranked the highest meat consumer in Africa and has some of the highest global per capita rates for poultry consumption. Approximately one billion chickens alone are killed every year, and hundreds of thousands of other farmed animals are slaughtered for food and other purposes. In addition to traditionally farmed animals (such as pigs, cows, chickens and sheep), the country also participates in the farming of wild animals – from rhinos and lions to ostriches, bucks and crocodiles. The primary departments tasked with animal welfare and animal well-being (the Department of Agriculture, Land Reform and Rural Development (DALRRD) and the Department of Forestry, Fisheries and Environment (DFFE), respectively) promote laws and policies which seek to expand and increase the consumption and use of all animals – including through initiatives such as the Poultry Sector Master Plan, the Game Meat Strategy and the Aquaculture Development Bill (as part of the ‘Biodiversity Economy’), among others. These initiatives are often justified as means to achieve anthropocentric aims including food security, job creation and the alleviation of poverty, without properly considering the harmful implications and externalities. They further deepen existing inequalities and contribute to converging socio- ecological crises – including the climate crisis.

The Constitution of the Republic of South Africa, 1996 (the “Constitution”),is the supreme law of the country, often referred to as its birth certificate following the abhorrent system of apartheid. While the Constitution’s Bill of Rights does not explicitly mention animals, there have been several promising and notable recent developments which offer a glimmer of hope and will be expanded on further below. Outside of the Constitution, animal regulation may be broadly categorised in three ways – animal-centric, enviro-centric and human-centric governance.

In the first category, antiquated legislation such as the over 60-year-old Animals Protection Act and nearly 90-year-old Performing Animals Protection Act fail to provide the most basic of protections and are not aligned with the country’s constitutional dispensation. Enforcement of these laws is largely left to a statutory and non-profit organisation, the National Council of Societies for the Prevention of Cruelty to Animals (NSPCA) and its individual Societies for the Prevention of Cruelty to Animals (SPCAs). These entities are overworked, under-resourced and generally receive no government funding. Problematically, the NSPCA, tasked with preventing cruelty to animals, receives large amounts of funding from one of the nation’s (and continent’s) largest poultry producers, creating an inherent conflict of interest. There is a broad consensus across the animal protection sector that these arrangements are entirely inadequate and due to the fact that the NSPCA claim that “justice was achieved for animals” with nine successful prosecutions in 2021/22; eight successful prosecutions in 2020/21; eight successful prosecutions in 2020/19; and 18 successful prosecutions in 2018/19. The South African Government, through DALRRD has expressed the intention to overhaul the current regulatory regime for the protection of animals through the drafting of a new “Animal Welfare Bill” (the “Bill”), which presents opportunities to reform the current inadequacies, if properly done.

Historically, South African environmental and animal protection legislation has been anthropocentric, prioritising human interests over those of animals and the broader environment. A large focus on the term ‘sustainable use’ has allowed harmful industries such as trophy hunting and the canned lion industry to flourish. Despite this dire picture, there is some hope and some potential for progressive reforms for animals – grounded in South Africa’s robust Constitution. Four factors in particular present far-reaching constitutional opportunities to protect animals: the inclusion of robust constitutonal rights; the generous interpretation of the Constitution and Bill of Rights by the courts; the Constitution’s horizontal and vertical application; and progressive enabling legislation.

For example - the environmental right enshrined in the Constitution guarantees the right to an environment that is not harmful to health and well-being. In 2016, the Constiutional Court made a ground-breaking pronouncement that this (human) right to a healthy environment includes animal welfare. The court explicitly stated that animals are sentient beings with intrinsic value as individuals and that: “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.”

These statements represent a fundamental shift away from protecting animals purely to protect human interests, to one which recognises the need to protect individual animals for themselves. While the court’s statements are yet to be fully realised, since then, there is a growing body of case law further expanding human rights to include animal interests and emphasising this shift. Such rights include the right to freedom of expression, and the right to access to information. In the case relating to the former right, the court further confirmed the rights of activists in the country to expose and the rights of the public to be informed about the cruel and inhumane treatment of animals, and emphasized that freedom of choice can only be exercised if activities happening on farms are laid bare for the public.

These developments present animal advocates in the country, including individuals and organizations such as Animal Law Reform South Africa with opportunites to pursue social justce and seek the highest level of protection for ALL animals in the country (human and nonhuman alike) utilizing the Constitution. While there are many challenges and barriers, following this interconnected approach allows for the building of a more holistc and sustainable animal protection movement in the country.

For example, over the past few years, ALRSA has been working on a collaborative project to transform South Africa’s animal protection regime to align it with our country’s new constitutional dispensation (the Animal Law Project). Shortly, we will be releasing a detailed manifesto which will be presented to the South African government with a vision as to what the animal protec�on sector would like to see in a new animal law.

Together with a leader of a South African indigenous community and another NGO, we have launched a first of its kind lawsuit to release three elephants who are being kept at the Johannesburg Zoo.Strategic litgation challenging the keeping of wild animals and promoting their well-being and flourishing has the potential to push law reform in the country and challenge existing practices.

In August 2023, we released a detailed Report, funded in part by the Open Wing Alliance (of which we are a member), titled “Laying Down the Facts – the Animal Welfare Standards of the Companies Providing Your Favourite Foods.”To our knowledge, this was the first �me that a comprehensive benchmarking exercise focusing on the welfare of farmed animals— more specifically egg-laying hens and male chicks implicated in the egg supply chain—was undertaken on the African con�nent. We further released a dedicated website for our project. Our work was reported in mainstream media across the country and was the topic of public discussions, par�cularly in light of the major avian flu outbreak in South Africa. We will shortly be releasing a supplemental report, focusing on environmental and consumer protec�on aspects of the egg industry.

In 2020, we successfully assisted members of the public with a complaint to the Advertising Regulatory Board Appeals Commitee (ARBAC) in South Africa, which ultimately ruled that a massive dairy company in the country may no longer use the hashtag "#Happycow'' or the word "humane" in any of their advertising. Reducing misleading advertising and marketing on farmed animal products and successful cases leads to public awareness, mitigates humane and greenwashing, and promotes animal welfare and corporate accountability.

In 2022, we published first of its kind research on food systems regulation and transformation in South Africa through an extensive Working Paperand abridged White Paper focusing on a transi�on away from industrialised animal agriculture towards alterna�ves including plant-based foods.

Over the past seven years, we have made dozens of detailed submissions to different departments within the South African government to ensure greater protection for animals, the environment and human rights across various subject areas. These include most recently on the labeling of food products (including vegan food products in South Africa); efforts to shut down the captive lion industry in South Africa; efforts in relation to the Government’s Game Meat Strategy and various others. Comments from our first submission on the Aquaculture Development Bill in 2022 were incorporated into a new draft bill released in December 2023, to include aspects relating to animal welfare. Our submissions have also been referenced in amicus briefs filed in U.S. courts, including Justice Camron’s amicus brief in the Nonhuman Rights Project’s Happy the Elephant Case in New York.

Unlike other jurisdictions, animal law is still a burgeoning field and legal area in South Africa with a dearth of expertise, and very few who understand the regulatory landscape (from an animal protection perspective). Therefore, one of our key focus areas at present is to build capacity to educate key stakeholders and empower them with knowledge on the topic. Capacity building will ensure more work and efforts and sustainability of the field of an animal law and is therefore an essential component of decreasing animal suffering in countries such as South Africa. In 2022, together with a partner university (the University of Johannesburg), we successfully established the first university level foundational animal law course on the African continent, which will commence again this August. Over the past 3 years, through our efforts and in collaboration with our partner universities, over 50 students have now been taught animal law at a university level. Learners have included government officials, veterinarians, lawyers, law students, activists, and others. One of our courses has been recognised for Continuing Professional Development (CPD) points with the South African Veterinary Counsel. In 2024 animal law has been brought into the curriculum at a master’s Level - for the first time in South Africa and possibly Africa (at the University of the Western Cape’s Global Environmental Law Centre) and we are working on bringing a dedicated Animal Law LLM (Masters) into South Africa. Courses such as these, which we have co-developed increase the number of persons empowered on animal law issues to work on systemic change for animals. Our directors are also involved with supervising students on animal law related topics at master’s and doctoral level (including in relation to ostrich farming, chicken farming, aquatic animals, animal rights, and other topics ).

Through ALRSA’s support and efforts, directors of ALRSA have successfully contracted the first animal law book on the continent of Africa for publication (with Taylor & Francis/CRC Press). The creation of consolidated, peer-reviewed materials on animal law issues increases the opportunities for animal legal education. As an interdisciplinary text including chapters from lawyers, scientists, veterinarians, conservationists and others makes animal law accessible to a broader number of fields and increases the possibilities for dedicated classes and courses. The book will be published in 2025.

Our organization is only seven years old, and in that time, we have undertaken pioneering work in the field of animal law in South Africa, and the African region more broadly. Undoubtedly, we still have a long way to go, filled with many challenges, however we remain hopeful that this area will continue to grow and gain support as it has in other jurisdictions, and we will see more efforts and wins to ensure the protection for all animals – non-human and human alike.

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