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PROHIBITING CERTAIN ACTIVITIES INVOLVING AFRICAN LION: IMPORTANT UPDATE FOR SOUTH AFRICA’S CAPTIVE LION INDUSTRY

The EMS Foundation is pleased that the Minister and the Department of Forestry, Fisheries and the Environment are finally initiating concrete steps against this distasteful industry. We thank them for it and encourage them to do more.

The EMS Foundation is a South African social justice NGO. Our key purpose is to alleviate and end suffering, raise public awareness, empower, provide dignity and promote the interests of vulnerable groups, including wild animals. The Foundation is committed to the promotion of inclusive justice, showing compassion across species and working to build a better future for all through campaigns, research, analysis, advocacy and holding government to account.  The EMS Foundation sees access to information, openness, accountability and transparency as the ‘oxygen of democracy’.

Background

Five years ago the EMS Foundation and Ban Animal Trading produced a report on South Africa’s Lion Bone Trade entitled:  
https://emsfoundation.org.za/wp-content/uploads/THE-EXTINCTION-BUSINESS-South-Africas-lion-bone-trade.pdf

As a consequence, on the 21 and 22 August 2018, the Parliamentary Committee on Environmental Affairs held the “Colloquium on Captive Lion Breeding for Hunting in South Africa: harming or promoting the conservation image of the country” – see: https://pmg.org.za/tabled-committee-report/3595/.

The question remained about whether South Africa could immediately close practices that are in violation of the Constitution. This raised issues about 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. 

Important Implications of the Changes to the National Environmental Management Act 10 of 2004

In 2023 there was a breakthrough, the EMS Foundation obtained a legal opinion in relation to the implication of the changes to NEM:BA effected by the National Environmental Management Laws Amendment Act.  In brief, a summary of the relevant changes to the NEM:BA are as follows:

  1. the insertion of a new definition of “well-being” in s1 as follows: 

“wellbeing means 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”

2. the insertion of a new object to the Act in s2 as follows: 

“2. Objectives of Act.—The objectives of this Act are—
…within the framework of the National Environmental Management Act, to provide for—

the consideration of the well-being of animals in the management, conservation and sustainable use thereof” 

3. an entirely new section 9A empowering the DFFE Minister to prohibit certain activities:

 “9A. Prohibition of certain activities. _ The minister may, by notice in the          Gazette and subject to such conditions as the Minister may specify in the notice, prohibit any activity that may negatively impact on the well-being of an animal.”

4. an amendment to section 97 allowing the Minister to make regulations relating to “(aA) the well-being of an animal” 

5. the creation of a new offence relating to non-compliance with a section 9A prohibition notice: 

101. Offences.-(1) A person is guilty of an offence if that person contravenes or fails to comply with a provision of-

…a notice published in terms of section 9A; and

6. additional technical changes giving MEC’s the same powers as the national Minister in some cases (including relating to public participation processes)

Therefore, it is clear that wellbeing now falls within DFFE and the Minister’s legal mandate. It also reflects the approach taken by the Gauteng High Court in the second NSPCA case (2019) where it was held that the welfare of captive lions was a relevant factor which the Minister ought to have considered in setting the lion bone quota. The Court said in paragraph 74 of its judgment that “at the very least our constitutional and legal obligations that arise from Section 24, NEMBA and the [Biodiversity Management Plan for Lion] require the consideration of animal welfare issues.” 

The amendment to section 2 makes it necessary for wellbeing to be specifically considered when biodiversity policy and laws are made. Wellbeing is now clearly a relevant factor to consider when decisions are taken which affect biodiversity, for example, the decision to grant permits for keeping of, killing, hunting or trade in wild animals or to set quotas for hunting, export, etc. These are decisions that constitute “management, conservation and sustainable use” of animals. 

Section 9A is widely drafted and is not limited to indigenous animals or wild animals or listed TOPS animals, applies to any animal and bans activities that are defined as “restricted activities” – catching, hunting, keeping, breeding, killing, trading, moving, exporting and importing – as well as any other activities not so defined, provided there was reasonable evidence of a potential negative impact on wellbeing. Section 9A also uses the wording “that may have a negative impact” which means that the Minister is not required to provide absolute proof of a negative impact before making a prohibition. The Minister is also empowered to use a precautionary approach, in line with the NEMA principles. The prohibition is given some teeth by making contravention of a section 9A notice a criminal offence carrying a maximum penalty of a fine of R10 000 000.00 or ten-years’ imprisonment or both. 

Given these changes to NEM:BA, the EMS Foundation and Ban Animal Trading were of the opinion that it is competent for the Honourable Minister to address the captive lion industry in South Africa and they published these details in an open letter on World Lion Day 2023.

The following suggestions were included in the letter:

  1. prohibit specific activities involving animals under section 9A on the basis that there is already evidence that the activities impact negatively on wellbeing; and or
  1. publish a notice under section 9A prohibiting specific activities if there is reasonable evidence to support the view that this may have a negative effect on well-being;

3. make regulations relating to wellbeing of animals under section 97; and/or 

4. challenge decisions of conservation officials which constitute administrative action (such as permitting decisions or the setting of quotas) on the basis that wellbeing is a relevant factor and has not been considered or on the basis that the decision would have a negative impact on wellbeing of an animal or animals. 

With the above changes to NEM:BA now relevant and operational well-being needs will be taken into consideration relevant decision-making processes – this was also recognised in the Minister’s reply to a Parliamentary Question on 09 June 2023. 

In addition, in another reply to a Parliamentary Question on 8 March 2021 the Minister said that ‘The department further recognises that wildlife management and animal welfare are within the mandates of the Department of Environment, Fisheries, Forestry as well as the Department of Rural Development, Agriculture and Land Reform.

The Publication of the Draft Notice Prohibiting Certain Activities Involving the African Lion for Public Comment

On Friday, 29th of September 2023, Barbara Creecy, Minister of Forestry, Fisheries and the Environment, in terms of section 9A of the National Environmental Management: Biodiversity Act, 2004 published a Draft Notice Prohibiting Certain Activities Involving African Lion.

https://www.gov.za/documents/national-environmental-management-biodiversity-act-publication-draft-notice-prohibiting

It is according to this notice, Minister Barbara Creecy’s intention to prohibit the establishment or registration of new captive breeding facilities, commercial exhibition facilities, rehabilitation facilities or sanctuaries in respect of live specimens of African lion and the keeping of live specimens of African lion in any other new controlled environment, as set out in the Schedule hereto. 

Members of the public are invited to submit within 30 days from the date of publication of this notice in the Government Gazette or in the newspaper, whichever date is the later date of publication, written comments.

Image: Lions in South Africa circa 2015

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