1 BACKGROUND

South Africa has split the animal welfare mandate between the Department of Environment, Forestry and Fisheries (hereafter referred to as DEFF or the Department), and the Department of Agriculture, Land Reform and Rural Development (Agriculture). The key pieces of legislation are the Animal Protection Act (APA) No. 71 of 1962 and the Performing Animals Protection Act (PAPA) No 24 of 1935. These pieces of legislation have been amended a few times since enactment to meet the pressing needs of the times. The recently amended act is PAPA in 2016, mostly to correct sections that were found to be unconstitutional.1 The APA prohibits any form of cruelty to animals in captivity, irrespective whether they are wild or domestic animals. The PAPA regulates establishments that have animals for training, exhibition, performance, or security functions to be licensed and comply with associated regulations. The South African Bureau of Standards in partnership with the National Council of Societies for the Prevention of Cruelty to Animals (SPCA) have developed animal welfare standards that are available through purchasing. The livestock sector has codes and guidelines developed by industry organisations. The fragmented approaches to the handling and well-being of animals is further exacerbated by standards that are set at provincial levels.

The regulation of wild animal welfare is generally outdated and does not holistically address animal welfare within the context of biodiversity conservation. The two departments handle the issues relating to wild animals in captivity, irrespective of duration. With weak inter-departmental coordination, the current legislative provisions do not serve the best interest of captive wild animals and welfare. Another limitation is that the National Environmental Management: Biodiversity Act, 2004 (Act No. 10 of 2004) does not confer legislative mandate to the Department to regulate matters relating to the welfare of wildlife, as was confirmed by the Supreme Court of Appeal in 2010.2

2 CHALLENGES AND COMMITMENTS TO ANIMAL WELFARE

During the discussions, deliberations and amendment of the Performing Animals Protection Amendment Bill, the previous Portfolio Committee on Agriculture, Forestry and Fisheries, and stakeholders raised the concerns on animal welfare.3 The Committee was promised by the former Department that they are developing a consolidated Act to cover the animal welfare in more details than was covered under the Performing Animals Protection Amendment Bill and the Animal Protection Act. This promise was recorded in the amended version of the Bill4 [B 9B—2015].

The welfare of animals in captivity was not adequately covered under the PAPA amendments. The Department did not introduce the promised Animal Welfare Bill as was promised. In November 2017, Mrs C Dudley introduced a Private Members Bill, gazetted5 an Animals Protection Amendment Bill for public comments. The object of the Bill was to amend the Animals Protection Act No. 71 of 1962 and its associated amendments to:

•  prohibit the sale and manufacturing of cosmetics that were tested on an animal in the Republic;
• criminalise the testing of cosmetics on animals; and
• criminalise the failure to provide an animal with an appropriate environment.During March 2018, the Bill [B4-2018] by Mrs Dudley was introduced to the National Assembly and referred to the former Portfolio Committee on Agriculture, Forestry and Fisheries for consideration. The Bill was not scheduled for consideration in the Committee on the grounds of “tight Committee programme” and lapsed at the end of the parliamentary term in May 2019. As such, matters relating to animal welfare were yet to be adequately considered and covered through legislation. The then Portfolio Committee on Environment conducted a colloquium in August 2018 on captive lion breeding for hunting in South Africa. It is from this colloquium that the Committee recommended that the Department, as a matter of urgency, initiate a policy and legislative review with a view to putting an end to this practice. During the early days of the new parliamentary term, the Committee probed the animal welfare matter with the view to resuscitate the discussions on legislative development and the clarity of key issues such as custody of powers, the class of animals, and related matters.

3 INTERIM DEVELOPMENTS

The Agriculture Department is in a process of developing an Animal Welfare Bill and will apply to domestic animals and wild animals in general. So far, the consideration is broader than was proposed by Mrs Dudley. In the recent past (June 2021), both the Environment and Agriculture departments held views that the existing norms and standards would be adequate to address issues relating to animal welfare of wild and domestic animals. Furthermore, minor amendments to the National Environmental Management: Biodiversity Act (NEMBA) Act No. 10 of 2004 will be sufficient to cover the gaps relating to well-being or welfare of wild animals. The amendment of the norms and standards relating to wildlife could address concerns relating to the practical implementation of certain provisions, to add new provisions, and to bring them in line with the legislative mandate the Department of Environment.

Instead, during October 20196, Minister Creecy appointed an advisory committee to review policies, legislation and practices related to the management of elephant, lion, leopard and rhinoceros. The main responsibility of the Advisory Committee was to focus on finding a sustainable balance among the various diverging views on the management, hunting and husbandry of wild animals. These include the elephant management and culling, the management of ivory stockpile, trade in rhinoceros horn, captive breeding and lion bone trade. Society and the international community is divergent on matters of conservation, sustainable use and benefit sharing arising from the use of genetic and natural resources. The 25-member panel was composed of members with various backgrounds, from academia, practitioners, consultants, to traditional leaders with indigenous knowledge. It is not clear when the appointed Committee will conclude its work, particularly after there was a national lockdown.

A recent report7 by the Centre for Environmental Rights (CER) and the Endangered Wildlife Trust (EWT) shows that points that the existing regulatory environment is inadequate to manage all the proliferating private wildlife facilities that are for commercial purposes. In contrast, the capacity to enforce existing norms and standards has been dwindling while the need is on the increase. The key legislative shortcoming is that standards that are for domestic animals are applied across the wide range of wild animals, and the results are often dire. Highlighted examples include a case of a giraffe that was decapitated when the transporting vehicle drove under a low bridge; and neglected and starving lions in Limpopo and Free State provinces.

4 CONFLATED ISSUES

The heated debates around the welfare of wild animals in captivity revolves around the objectives of keeping them. The table below outlines the distinct and competing factors in the biodiversity industry.

Table 1. Comparisons between conservation breeding and intensive or selective breeding

5. MATTERS OF CONSIDERATION

•  Various reports are pointing to the inability of the Agriculture and Environment departments to work together to close the norms and standards gap as they relate to welfare of wildlife in captivity. The Department should inform the Committee on practical steps that will be taken to cover the gap of updating the norms and standards, their enforcement and general coordination among stakeholders.
•  In some instances, the existing norms and standards are not enforced. It has to take the NSPCA to take the Departments to court before action can be taken. The Departments should inform the Committee on whether they have a platform to engage interested parties and how it functions, if it exists. The number of court cases relating to animal welfare could indicate dysfunctional relations between the departments and the stakeholders.
•  Some industry bodies have developed their own sector codes that are not binding, and generally apply to members on voluntary basis. This form of self- regulation could be problematic because compliance is optional and may not attract corrective sanction if ignored.
• The Strategic Plan of the former Agriculture Department for the period that ended in the previous term mentioned developing a single Animal Welfare Act. The Committee should enquire about the whereabouts of the process for developing the Bill and when they envisage introducing it to Parliament.
• Stray wild animals or escapees are often euthanized, particularly when they are not easily traceable to the owners. There was once a proposal of either tagging or marking of animals to prevent them from being euthanized. A follow-up on progress with this regard may be needed.
•  South Africa is a member of the OIE. The country has committed to the alignment of national legislation to the OIE standards, on various aspects, including enacting, implementation and monitoring of legislation of animal welfare. The Department should thus be required to regularly publish reports on enforcing the “Five Freedoms” described by the OIE9.
• The NSPCA has been at the forefront in the fight against cruelty to animals despite having limited financial resources. On the same breath, the NSPCA is not

funded or budgeted for to enforce legislation, enhance its capacity and

facilities. The funding of the NSPCA may need to be formalised in legislation.

• The Departments should facilitate access to the animal welfare standards developed by the SABS or and make them legally binding, instead of expectingstakeholders to voluntarily purchase them.
• The publication of the Advisory Committee attracted mixed reactions fromvarious stakeholders. Concerns included lack of transparency of the selection process, particularly on how some successful candidates were selected without experience in areas such as ethical conservation management, biodiversity policies, wildlife trade, legislation, animal protection, economics and welfare species-specific expertise.
•  Another concern relating to the Advisory Committee is on the imbalance of interests between consumptive and non-consumption of wildlife. Furthermore, candidates were not required to disclose interests and involvement on wildlife that could have a bearing on their execution of responsibilities.
•  The major challenge had not been the absence of specific policy or legislation, but application and enforcement of existing laws. The Department should explain how the amendments of the NEMBA or enactment of the Animal Welfare Bill will change implementation or enforcement?
•  The implementation of the High-Level Panel Report involves engagements with various affected stakeholders to be conducted by the Minister and the Department. What is the feeling among captive lion breeders for hunting and lion bone trade?
•  Do we have a good understanding of the magnitude of rhino horn and ivory stockpiles both in the public and private hands in the whole country? If yes, what estimates are we talking about in each case?
• What are we actually doing about these stockpiles? Are we talking to CITES (the Convention on International Trade in Endangered Species of Wild Fauna and Flora)? And what is CITES thinking, especially on rhino horn and ivory stockpiles from South Africa or the southern African sub-region?
•  Is the ‘Implementation Plan Framework’ for the High-Level Panel developed, with timeframes and allocation of responsibilities? If so, why is it not part of this presentation?
•  South Africa is a well-renowned, pioneering conservation country, owing mainly to its well-known and established network of various and unique kinds of protected areas. What does it mean when the High-Level Panel Report recommends “Making state protected areas more effective and efficient as drivers for conservation and rural socio-economic development”? Or “Adopt a national strategy for recognising, enhancing, and incentivising, the contribution of private protected areas”? What does the Department envisage in these instances? And why are we not already doing those things?
• The High-Level Panel Report seeks to “Initiate a process for testing legislation under the mandate of DALRRD and where applicable other government departments for consistency with s24 of the Constitution.” What does the Department aim to achieve here, as different departments’ policies and legislation derive from their respective constitutional mandates, which may have no recourse to s24 that underpins the departmental mandate?