A court challenge that could be of enormous benefit to wildlife conservation
Don Pinnock
17th January 2022

Dr Bool Smuts of the Landmark Foundation is known in the environmental field for his willingness to fight for ethical conduct towards wildlife, particularly leopards. He doesn’t shy away from vociferous and even litigious advocacy.

Access to information and freedom of expression are measures by which we judge countries. Just consider the differences between, say, China and the Netherlands or Myanmar and South Africa and under which government you’d prefer to live. 

What we may know and tell are the fluid boundaries of the kind of government we have and are of extreme importance to the media, because it’s generally the media in its many forms that push those limits and the law which defines them. It’s a battleground with a long history.

In the Napoleonic Wars, The Times of London enraged the government by publishing news of battles won and lost before the War Office even heard of them. But Whitehall had to accept defeat against a better information system and a newspaper that refused government subsidies and had huge popular support. 

The opposite happened to Pravda, the official organ of the Communist Party of the Soviet Union, which was prevented from publishing the massive defeats inflicted on Soviet Union forces in Afghanistan. What it might have known it could not tell.

South Africa has probably the most enlightened laws in Africa regarding press freedom, with a Constitution that ensures it and a Protection of Information Act that permits, on request, any information from any public entity.

Very often, however, this is lost on officials who think they own public information, or it is contested by people keen to hide what they do from public scrutiny.

While this may annoy you or me, it enrages Dr Bool Smuts of the Landmark Foundation. He’s known in the environmental field for his willingness to fight for ethical conduct towards wildlife, particularly leopards. He doesn’t shy away from vociferous and even litigious advocacy. 

A farmer named Herman Botha took him on and is now licking his legal wounds after the Supreme Court of Appeal slapped down with costs his attempt to shut down Smuts’ exposure. In the process, the finding has set a precedent for freedom of opinion.

The issue, to briefly recap the story in Daily Maverick, involved two lifeless animals. Cyclists crossing the farm Varsfontein near Alicedale discovered a dead baboon and a dead porcupine in cage traps without shade or water. 

They photographed them and sent the information to Smuts, who posted it on Facebook, with the farmer’s name, calling the trapping “utterly vile, ecologically ruinous, utterly unethical, cruel and barbaric”.

Readers reacted by posting the name of the farm with Botha’s business location and calling for a boycott. Botha filed an application in the Eastern Cape High Court and won an interim interdict preventing Smuts from publishing “defamatory statements”.

Smuts appealed against the interdict in the Supreme Court of Appeal, which overturned it and allocated costs to Botha. What’s interesting was the court’s reasoning.

Quoting a Constitutional Court ruling on the foundations of democracy, it said what was implicated in Smuts’ appeal was the tension between the right to privacy and the right to freedom of expression.

“What Mr Botha seeks to do is to unjustifiably limit Mr Smuts’ right to freedom of expression and his entitlement to make a fair comment on the facts that are true and related to matters of public interest. Mr Smuts had a right to expose what he considered to be the cruel and inhumane treatment of animals at Mr Botha’s farm.” 

It found the high court had erred, and here’s the clincher: “There is no suggestion in [Smuts’ Facebook] posts that Mr Botha is acting unlawfully. What the posts asserted is that he was acting unethically and thus the public have a right to know of such practices.

“The purpose of public debate is to say things that others find different and difficult. Public debate does not require politeness. 

“What Mr Botha seeks to do is unjustifiably limit Mr Smuts’ right to freedom of expression and his entitlement to make fair comment on the facts that are true and related to matters of public interests.” 

As things go, that’s a legal line in the sand. Commercial business practices are now open to fair comment and criticism without hindrance. 

But Smuts, it seems, is not finished with challenging limitations to freedom. His next targets are public bodies that control the issuing of Threatened or Protected Species and other wildlife permits.

In South Africa, wild animals have no rights and are treated as res nullius – belonging to no one until they belong to someone through a permit or a permit exemption. They then become property.

But when permits are issued, the public is being denied access to know to whom, why, on what justification and conditions such allocations have been made. According to Smuts, in this way the allocation of permits has been weaponised against activists and researchers who have become critical of the state permitting actions, resulting in a culture of silence. 

His challenge is based on his reading of the Constitution. If the environment is a “commons” for all our benefit, he believes there’s a fundamental constitutional conflict between the common law of property in the way it treats animals, biodiversity and wildlife in particular, on the one hand, and the constitutional provisions of a healthy environment on the other.

He insists that when state officials warp protection of the wildlife commons through secret permits to private interests without due governance and transparency, the Constitution is being eroded. These permits include the killing of “damage-causing” animals (essentially considered vermin) and trophy hunting.

Withholding — or threatening to withhold — information from dissenting voices or conservation advocacy groups, he insists, is a weapon against the right of the public to know. It’s open to abuse for nefarious purposes and not in the best interests of the public good or wildlife.

So with the first challenge hopefully behind him on the matter of the right to expose cruelty in the case of a porcupine and a baboon, the next challenge will be the secrecy of wildlife permit allocations and the weaponising of permit allocations against those who question them.

The Landmark Foundation will do this by challenging the way the Eastern Cape government conceals from the public the issuing of destruction and other permits for leopards and to whom they allocate them. Officials are essentially showing a finger to requests for the sort of information that should be public property.

The Landmark Foundation insists it requires this information to mitigate leopard conflict and is being refused by the Eastern Cape. It considers this an act of victimisation against the advocacy work of the foundation and it’s holding the government to account. 

Bureaucratic secrecy, as you can see, is another issue that enrages Dr Bool Smuts. 

If his last Supreme Court of Appeal challenge is anything to go by, the next one on permits will be worth watching. A win could be of enormous benefit to wildlife conservation. It will enable environmental activists and the media to hold to account state bureaucrats and those who benefit from permit secrecy in their use of wild creatures. DM/OBP

Original article: https://www.dailymaverick.co.za/article/2022-01-17-a-court-challenge-that-could-be-of-enormous-benefit-to-wildlife-conservation/