Constitutional Court Breakthrough for Animal Welfare
Melissa Reitz
19 January 2017

A new Concourt ruling recognises the intrinsic value of animals and allows NSPCA to prosecute. 


Melissa Reitz

In a land mark move for animal welfare in South Africa the Constitutional Court recently declared that the National Society for the Prevention of Cruelty to Animals (NSPCA) has the statutory power to institute private prosecutions – a right which was previously unrecognised.

Thanks to this Court ruling the NSPCA may institute private prosecutions in the event that the National Prosecuting Authority (NPA) fails to proceed with a prosecution, meaning its mandate in combating animal welfare offences can be carried out more effectively with a higher chance of offenders being brought to justice.

Legal processes will be sped up as the NSPCA will no longer have to wait for a Public Prosecutor to be appointed after a completed docket and evidence has been submitted, but instead can go ahead and prosecute if the State declines to proceed.

The Court highlighted that with this new ruling “the rationale behind protecting animal welfare has shifted from merely safeguarding the moral status of humans to recognising the intrinsic value of animals.”

In November 2010 NSPCA inspectors attended a sacrificial slaughter of camels, which they witnessed as inhumane and cruel, referring the case to the NPA who failed to find reason to prosecute.

“This was not the only case where the NPA had declined to prosecute our cases, it is an all too frequent occurrence,” says the NSPCA who said in court that it is “unable to carry out its ‘policing function’ effectively if the State refuses to prosecute.”

The NSPCA subsequently sought to privately prosecute the camel case but was denied the relevant certification on the grounds that “juristic persons” cannot issue private prosecutions.

Both Pretoria’s High Court and the Supreme Court of Appeal dismissed the NSPCA’s case to fight this. But refusing to accept this decision the organisation took the case to the Constitutional Court, legally challenging the Criminal Procedure Act.

The NSPCA pointed out that in terms of Section 6 of SPCA Act, if read with Section 8 of the Criminal Procedure Act, it has in fact the right to prosecute privately.

The Court agreed, setting aside the judgments of the High Court and the SCA and ruling that the NSPCA may proceed with cases which the NPA has dropped. It recognised that misinterpreting the law would “render the animal protection regime toothless” and it cannot remove the NSPCA’s power to institute legal proceedings from its function of protecting animals.

Legal experts say that the ConCourt decision is an “excellent ruling” that has created certainty where previously it was assumed and accepted that the NSPCA could not prosecute.

Although the NSPCA says that although no decisions have been made yet, cruelty cases which the State has declined to prosecute in the past are under discussion to be reopened.

“Of great significance is the recognition of the sentience of animals and the importance of animal protection and welfare. We feel vindicated and consider this a notable victory for the welfare of animals in South Africa,” says NSPCA.

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