The Constitutional Court has dismissed a challenge by the South African Hunters and Game Conservation Association to animal well-being provisions in environmental legislation, finding that the association unreasonably delayed bringing its case.
In a unanimous judgment written by Justice Owen Rogers, the court found that SA Hunters had failed to satisfactorily explain why it waited more than 25 months after presidential assent to the National Environmental Management Laws Amendment Act (Nemla) to launch its application.
The Act received presidential assent on 21 June 2022 and the provisions at the centre of the case came into force on 30 June 2023.
The case concerned amendments to the National Environmental Management: Biodiversity Act, which required animal well-being to be considered in the management, conservation and sustainable use of animals.
The judgment notes that the concept recognises animals as “sentient beings … capable of suffering and experiencing pain” and reflects a growing understanding of the relationship between biodiversity and animal welfare. It links animal welfare and suffering to the constitutional protection of the environment under section 24 of the Bill of Rights.
SA Hunters argued that changes to the definition of well-being during the legislative process were significant enough to require further public participation. The second version of the Bill defined well-being as “a state where the living conditions of a faunal biological resource are conducive to its health”.
The final definition refers to “the holistic circumstances and conditions of an animal” conducive to its physical, physiological and mental health and quality of life, including its ability to cope with its environment.
SA Hunters sought to have the definition and related provisions declared invalid. The NSPCA and the EMS Foundation Trust intervened to oppose the application. Parliament and the environment minister did not oppose it, but the court said their position was not decisive.
The court found that SA Hunters had participated in parliamentary and provincial consultation processes and had raised concerns about well-being. It had also commented on the revised definition in submissions on draft biodiversity policy papers in 2022.
The association launched its application in July 2024, after pursuing policy discussions with the department of forestry, fisheries and the environment.
The court rejected its reliance on those discussions, saying they could neither undo legislation passed nor justify refraining from bringing a challenge.
“The delay was slightly more than 25 months. On the face of it, this is unreasonable. The delay has not been satisfactorily explained,” Rogers wrote.
The court said the delay had to be calculated from the date of presidential assent, rather than when the provisions came into force. It rejected the argument that ongoing policy discussions justified waiting to challenge legislation that had been passed.
The court considered the prospects of SA Hunters’ challenge only insofar as they were relevant to whether the delay should be overlooked. It stressed that it was not finally deciding the constitutional challenge on its merits.
On public participation, Rogers wrote: “The legislative process would be paralysed and never-ending if every change made in response to public input and going beyond the merely ‘semantic or technical’, triggered a fresh round of public participation. It is a matter of degree, having regard to what is objectively reasonable.”
The court considered the changes to the definition arguably modest and found that SA Hunters’ prospects of success were doubtful. It also noted that the provisions were not self-executing and that future ministerial decisions and regulations could be challenged under administrative law.
The court considered the potential disruption that setting aside the provisions could cause, given that they had informed government policy and regulatory work and featured in wildlife-related litigation since coming into force.
“The delay has not caused any evidential prejudice. However, the cumulative effect of all the other factors I have considered leads me to conclude that the Court should not in its discretion overlook the unreasonable delay,” Rogers wrote.
The NSPCA welcomed the judgment, saying it left intact the principle that animal well-being must be considered when decisions are made about wild animals.
“Wild animals experience pain, fear and distress and South African law requires that this be considered when decisions are made about their lives. The Court has left that principle intact,” said Esté Kotzé, the NSPCA’s chief executive.
The EMS Foundation also welcomed the ruling, saying conservation must consider how animals live and what they experience.
“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,” the foundation said, noting that the task now was to turn legal protection into meaningful practice.
SA Hunters was ordered to pay the costs of the NSPCA and the EMS Foundation, including the costs of two counsel for the NSPCA.