Christopher Lance Mercer v The State

The applicant operated the Kalahari Raptor Centre with his partner and harboured three caracals. He was convicted in the Kuruman Magistrates' Court in September 2001 of contravening sections 31(1) and 44(1)(a) of the Nature and Environmental Conservation Ordinance 19 of 1974 (Cape), which prohibit harbouring certain animals without a permit. On several occasions prior to conviction, the applicant had been denied permits to harbour the caracals because they were earmarked as potential problem animals to farmers in the region in terms of the Problem Animal Control Ordinance 26 of 1957 (Cape). The applicant appealed to the Northern Cape High Court against both conviction and sentence and challenged the constitutionality of the 1974 Ordinance. The High Court dismissed the appeal but set aside the substantial fine and replaced it with a caution and discharge, noting the applicant's community service and dedication. The applicant then unsuccessfully applied to the Supreme Court of Appeal for leave to appeal and now seeks leave to appeal from the Constitutional Court.

• Whether the 1957 Problem Animal Control Ordinance is unconstitutional
• Whether the 1974 Nature and Environmental Conservation Ordinance is unconstitutional for not providing an exemption for wildlife sanctuaries
• Whether the decision to deny the applicant a permit was unlawful and should be set aside
• Whether the applicant received a fair trial and whether the prosecution under the 1974 Ordinance was unconstitutional or unfair
• Whether condonation should be granted for the late filing of the appeal

The application for condonation of the late filing and for leave to appeal was dismissed.

An applicant cannot challenge the constitutionality of legislation under which he or she was not convicted by way of an appeal from a conviction under different legislation. This would constitute seeking direct access to the Constitutional Court under the guise of an appeal, which is not permitted. Administrative decisions, such as the refusal of permits, must be challenged through proper review proceedings in the High Court and cannot be raised as grounds for appeal in criminal proceedings. Condonation for late filing will not be granted where there are no reasonable prospects of success on the merits of the proposed appeal.

The Court expressed no opinion on whether a conviction otherwise properly obtained could ever be set aside on the grounds that the institution of the prosecution was unconstitutional, unlawful or unfair. The Court noted with approval the High Court's observations regarding the applicant's dedication and community service in operating the Kalahari Raptor Centre, spending large sums of money and working for no reward but for the love of animals. The Court also observed that the days of the biblical Garden of Eden where inhabitants could pick and choose from fauna and flora are no more, and that statutory permit systems for environmental conservation are necessary and justified in a modern democratic society.

This case is significant for establishing important procedural principles in constitutional litigation. It clarifies that: (1) an applicant cannot use an appeal as a means to obtain direct access to challenge legislation under which they were not convicted; (2) criminal appeals are not the appropriate vehicle for seeking review of administrative decisions such as permit refusals - the proper remedy is judicial review in the High Court; (3) the Court will consider public interest factors in condonation applications, including whether pending legislation will address the issues raised; and (4) environmental conservation legislation requiring permits for keeping certain species constitutes a justified limitation of rights in a democratic society. The case also demonstrates the Court's approach to condonation applications where there are no prospects of success on the merits.