National Council of Societies for the Prevention of Cruelty to Animals v Al Mawashi (Pty) Ltd and Others

The NSPCA, a statutory body established under the Societies for the Prevention of Cruelty to Animals Act 169 of 1993, brought an urgent application seeking an interim interdict (Part A) to prevent the First and Second Respondents from transporting live sheep by sea from East London Harbour to areas north of the Equator, pending a final application (Part B) seeking a total ban on such transportation. The NSPCA alleged numerous instances of cruelty to animals in 2019 at the Castledale Feedlot and during loading operations, including: excessive rubble causing injuries, lack of sick pens, inadequate water, untreated sick and injured sheep, overcrowding, inadequate protection from elements, contaminated drinking water, high ammonia concentrations, rough handling (dragging, kicking, beating), improper dipping procedures causing eye and skin irritation, and loading of compromised animals onto unsuitable trucks. The NSPCA also raised concerns about heat stress, constant noise, and bright lights during the sea voyage across the Equator. The First and Second Respondents opposed the application, arguing that the alleged incidents occurred in 2019, that two successful voyages had occurred in February and March 2020 without regulatory complaints, that they complied with OIE (World Organisation for Animal Health) Terrestrial Animal Health Code standards for animal transport by sea, and that modern technology could mitigate heat stress concerns.

• Whether the NSPCA established a prima facie right to an interim interdict based on alleged contraventions of the Animals Protection Act 71 of 1962
• Whether there was a reasonable apprehension of irreparable harm if the interim relief was not granted
• Whether the balance of convenience favoured the granting of an interim interdict
• The relevance and weight to be given to the OIE (World Organisation for Animal Health) standards for transport of animals by sea
• Whether past incidents of alleged cruelty established a reasonable apprehension that such harm would be repeated

The court refused the interim interdict sought in Part A and granted permission to the First and Second Respondents to transport sheep by sea from East London Harbour to north of the Equator. Order was granted on 25 August 2020 with reasons delivered on 15 October 2020. Part B (seeking a total ban) remained pending for future determination.

To establish a reasonable apprehension of irreparable harm for purposes of an interim interdict, where the alleged wrongful acts occurred in the past, an applicant must establish facts justifying a reasonable apprehension that the harm is likely to be repeated; past incidents alone, particularly where subsequent operations have occurred without regulatory objection and in compliance with applicable international standards, are insufficient. In applications for interim interdicts involving animal welfare and international transport, South African courts will consider and give weight to international standards (such as OIE standards) to which South Africa is bound as a member state, even where not formally incorporated into domestic legislation. The balance of convenience in interim interdict applications must account for the financial capacity of the applicant to meet potential damages claims and the substantial financial prejudice to respondents, particularly where the applicant is a non-profit organization unlikely to be able to meet substantial damages claims.

The court noted that the issue of separation of powers harm raised by the parties was not relevant to Part A and would be more appropriately canvassed in Part B of the proceedings. The court observed that the South African government, as the 'Competent Authority' under OIE standards, has a duty to ensure compliance with OIE standards for animal transport, though the government chose not to participate in Part A (indicating intention to participate in Part B). The court noted without deciding that disputes regarding heat stress mitigation through modern technology and concerns about constant noise and bright lights during sea voyages would be more appropriately dealt with in Part B. The court's reference to Cronshaw v Fidelity Guards Holdings suggests sympathy for the practice of requiring undertakings as to damages as a condition for granting interim interdicts, particularly where the applicant's financial capacity to meet damages is questionable, though the court did not need to impose such a condition as the application was refused.

This case is significant in South African animal welfare law as it addresses the intersection between domestic animal protection legislation (the Animals Protection Act 71 of 1962 and the Societies for the Prevention of Cruelty to Animals Act 169 of 1993) and international standards for animal welfare, specifically the OIE (World Organisation for Animal Health) Terrestrial Animal Health Code. The judgment establishes that South African courts will consider and give weight to international standards to which South Africa is bound as an OIE member, even where not formally incorporated into domestic legislation by section 231 of the Constitution. The case clarifies that allegations of past cruelty, without evidence of reasonable apprehension of repetition, are insufficient to ground an interim interdict, particularly where subsequent operations have occurred without regulatory objection. It also emphasizes that in granting interim interdicts, courts must carefully weigh the balance of convenience, including financial prejudice to respondents and the applicant's ability to meet potential damages claims. The judgment is important for animal welfare organizations in understanding the evidentiary threshold required for interim relief and the relevance of international regulatory standards in animal transport cases.