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CLOSING OF THE CAPTIVE LION BREEDING INDUSTRY AND THE PROVISION OF A BASIC FRAMEWORK FOR THE RESOLUTION OF ISSUES RELATING TO THE COMMERCIAL CAPTIVE BREEDING OF LIONS AND OTHER BIG CATS

Michele Pickover, Executive Director of the EMS Foundation addressed a letter to Mr Kamalasen Chetty, the Chairperson of the Ministerial Task Team tasked with identifying and recommending pathways for captive lion owners to exit the industry on the 29th of August 2023.

The question about whether South Africa can immediately close practices that are in violation of the Constitution raises the issue of transitioning from past exploitative practices, which as a country we have undertaken to do. Canned lion hunting and breeding of Big Cats is one such issue.

A few pertinent principles are relevant to this question:

  1. Government must make policy that is in line with the Constitution, constitutional values,Constitutional Court (and other High Court) judgements and Parliamentary instructions.
  2. Government should not perpetually allow practices in violation of the Constitution and otheraforementioned considerations.
  3. Government is entitled (and obliged) to regulate. Such regulation may impact on personal rights to property. Such regulation must be in line with the Constitution.
  4. Government is entitled to take policy decisions in relation to contentious and damaging practices.
  5. Government is entitled and should make policy decisions that are in the public interest.
  6. Government should not prioritise the economic benefits of a handful of people over the public good and public opinion.
  7. No rights in the Constitution are absolute. The right to property is not absolute. The right to property does not trump other constitutional rights, nor does it trump other laws and regulations. These rights are limited by various factors – reasonableness, law of general application, section 36 of the Constitution, and various other factors.
  8. Industries come and go all the time and often disappear due to government intervention.
  9. The decision to farm, breed and kill lions for profit is an inherently highly risky and highly controversial business decision.
  10. Why would a polluter be entitled to seek compensation? Why would a landmine manufacturer seek compensation when countries make the decision to no longer produce landmines? Will the captive big cat industry compensate the loss and potential economic and reputational harm caused to the country by their activity?
  11. Government is entitled to issue permits, decline permits or put conditions on permits. Government can phase out commercial lion farming in a constitutionally-compliant and lawful manner, without expropriation, and without paying any compensation. NEM:BA also allows for permits to be cancelled if the carrying out of the activities in question “has a detrimental impact on the species”. Sufficient evidence of detrimental impact exists to justify cancelling the permits immediately without paying compensation, and we are advised that doing so would not constitute an arbitrary deprivation, or expropriation, of private property.

Of significance is that the EMS Foundation obtained a legal opinion in relation to the implications of the changes to NEM:BA effected by the National Environmental Management Laws Amendment Act.

Image Credit: Brian Abrahamson

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