Animal welfare is governed by legislation in South Africa. However, while our animal welfare laws make frequent mention of cruelty, they do not define what the word means. This is doubtless because opinions of what amounts to cruelty differ widely between communities and cultures in South Africa. This makes it very difficult to make any definitive pronouncement on the subject.
It has consequently been left to the courts to decide on whether conduct is cruel within the context of the applicable legislation. They have done so previously based upon the facts of the case and the prevailing norms within the community where the incident took place. This sensible approach has allowed the court to adopt a wider, more nuanced perspective of what is cruel than those that are informed by the beliefs of a particular community.
This nuanced approach, in turn, advances the constitutional ideal of a multicultural and divided country that seeks to find unity in its diversity.
Recent judgement
It seems that this will no longer be the case given the recent judgement of the Supreme Court of Appeal in the case between the animal rights activist, Dr Bool Smuts, and part-time cattle farmer, Herman Botha.
The case was about the protection of privacy rights, but the cause that gave rise to this was Smuts’s strong objection to Botha trapping a baboon and a porcupine on his farm. The High Court found in favour of Botha. However, its judgement was recently overturned by the Supreme Court of Appeal which in simple terms ruled that Botha’s right to privacy was trumped by his detractors’ sense of outrage at his conduct.
The court’s assumption that Botha’s conduct was cruel and inhumane was a key factor in this. This was even though his conduct did not amount to cruelty in terms of the Animal Protection Act. The fact that the court shared Smuts’s sense of outrage was sufficient, in the presiding judge’s mind, to make Mr. Botha guilty of inhumane conduct.
This is not how the law or courts are meant to work. Courts are meant to decide cases based on the law rather than any sense of outrage they may share with one of the litigants. The court only achieved this situation by replacing the law as legislated with its own law. This is what the court said:
‘It is axiomatic that animals are worthy of protection not because of the reflection that this has on human values but because, as Cameron JA held in National Council of Societies for the Prevention of Cruelty to Animals v Openshaw, “Animals are sentient beings that are capable of suffering and of experiencing pain”, and unfortunately, humans are capable of inflicting suffering on animals and causing them pain. What Mr Louw, the cyclist, observed at Mr. Botha’s farm must have left him with a sense of revulsion, hence he took it upon himself to take the photographs of the dead animals and send them to Mr Smuts for his intervention as an activist and conservationist. It seems to me clear that Mr Smuts was rightly impelled to action when he noticed the condition of the dead animals.”
Cruelty
But there is no law to this effect. Cruelty must be determined legally in terms of the relevant legislation which in this case is the Animal Protection Act. A person might regard legitimate behaviour under that Act as cruel, and many do. However, a court cannot accord that opinion force of law unless the conduct does amount to cruelty in terms of the applicable legislation.
Our courts must either set legislation aside or they must apply it. They cannot do what was done in this case which was to ignore the legislation because the court had a different idea of what is cruel or inhumane.
Moreover, changes to our statutory regime require an extensive consultation process that considers views other than the animal rights movement or the urban community to which most judges belong. That is not possible in a court case, especially such as this one that only tangentially deals with the issue and where differing views are not represented.
One must also bear in mind in mind that Botha was not found guilty of breaking any law or committing any crime. Yet according to the SCA, this counted for nothing against what the court said was his critics’ rightful and justified sense of outrage at his actions. It could not have lawfully reached this conclusion but for its rewriting of the law.
Sentience
The belief that animals are worthy of protection because they are sentient is a recent one that has taken hold in Europe and to a lesser extent in the USA, because of the efforts of a well-resourced and very wealthy western-based animal rights movement. The beliefs and aims of this movement are championed in South Africa by several organisations. Principal amongst them is the statutory body and organ of state that is the National Council of Societies for the Prevention of Cruelty to Animals. (NSPCA)
The NSPCA and other animal rights organisations have actively promoted their cause in recent years. The result is a well-oiled, capable, and well-resourced machine that is well versed in the business of advancing its views in academia, social and formal media, and even the courts.
Their efforts in this regard are aided in that many of their views find favour in the urban world of pets and supermarkets where power resides. The result is that the contrary views of less well-resourced and less organized communities are massively under-represented and even discouraged in the public space.
But South Africans are entitled as a matter of constitutional right to expect our judges to factor these disparities into their decision-making and decide based upon the law interpreted in the light of the Constitution and its values. This is central to the judicial oath of office.
It is perhaps a testament to the power of an urban cultural bias and the persuasive abilities of the animal rights movement that the Supreme Court of Appeal seems to have overlooked this.
The views of the writer are not necessarily the views of the Daily Friend or the IRR
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