National Council of the Society for Prevention of Cruelty to Animals v Minister of Environmental Affairs and Others

Following the 2016 CITES Conference of Parties (Cop 17) held in Johannesburg, South Africa was required to establish annual export quotas for lion bone derived from captive breeding operations. Prior to 2016, no legal restrictions limited the quantity of lion bone exported. The Minister of Environmental Affairs set quotas of 800 lion skeletons in June 2017 and 1500 skeletons in June 2018 (later reduced to 800). The NSPCA, a statutory body created under the Societies for the Prevention of Cruelty to Animals Act, sought to review these decisions. South Africa has an estimated 9000 lions, with approximately 6000 in captivity and 3000 in the wild, with the captive lion industry generating approximately R500 million annually through close to 200 breeding facilities. The NSPCA attended stakeholder consultations in January 2017 and submitted written representations on 2 February 2017 raising concerns about the welfare of captive lions, including allegations of underfeeding, malnourishment, neglect, repeated breeding, and overcrowded, cruel conditions. The State Respondents took the position that only scientific information would be considered and that animal welfare fell outside their legislative mandate, being the responsibility of the Department of Agriculture, Forestry and Fisheries (DAFF).

• Whether the matter was moot given that the 2017 and 2018 export quotas had already been operationalized and permits issued
• Whether the decisions to set annual export quotas constituted administrative action subject to review under the Promotion of Administrative Justice Act (PAJA)
• Whether the NSPCA was excluded from the decision-making process, rendering the decisions irrational
• Whether animal welfare considerations relating to lions in captivity were relevant considerations that should have been taken into account in determining the annual export quotas
• Whether the Minister erred in law by excluding welfare considerations on the basis that she lacked a welfare mandate under NEMBA

1. It is declared that the First Respondent's decision to set the quota for exportation of lion bone (of 800 lion skeletons) established by notice on 28 June 2017 is unlawful and constitutionally invalid. 2. It is declared that the First Respondent's decision to set the quota for exportation of lion bone (of 1500 lion skeletons) determined on 7 June 2018 and publicly announced on 16 July 2018 is unlawful and constitutionally invalid. 3. Each party is to bear their own costs of the application including the urgent application.

Animal welfare considerations relating to lions in captivity are relevant considerations that must be taken into account when determining annual export quotas for lion bone under CITES and NEMBA. Lions in captivity form part of South Africa's biodiversity, and the constitutional right to environmental protection under Section 24 of the Constitution, read with NEMBA and the National Biodiversity Plan, imposes a duty on the State to consider animal welfare when making decisions affecting biodiversity. Animal welfare and conservation reflect intertwined constitutional values and cannot be artificially separated. A decision-maker's lack of direct regulatory responsibility for animal welfare does not preclude the obligation to consider welfare factors if they are relevant to the decision being made. The Minister's decisions to set the 2017 and 2018 export quotas without considering animal welfare considerations constituted a failure to take relevant considerations into account, rendering the decisions reviewable and invalid under Section 6(2)(e)(iii) of PAJA.

The Court made several notable observations: (1) While there is debate about whether captive lions contribute to conservation, the prevailing view is that they do not, though some regard lion breeding as a controversial conservation tool; (2) The Court noted that even if lions are bred for trophy hunting and commercial purposes, their suffering and conditions of captivity remain matters of public concern inextricably linked to how respect for animals and the environment is instilled; (3) The Court observed that it would be illogical and irrational to signal to the world and the captive lion industry that exports of a determined quantity of lion bone will be allowed while simultaneously indicating that the manner in which lions in captivity are kept is irrelevant; (4) The Court commented that if South Africa has decided to engage in trade in lion bone, constitutional and legal obligations require consideration of animal welfare issues; (5) Regarding costs, the Court noted that while the NSPCA achieved success on an important constitutional issue, it conducted litigation in a manner causing duplication, delay, and prejudice by raising new matter in reply and conducting aborted urgent proceedings, justifying a costs order that each party bear their own costs.

This case is significant in South African environmental and administrative law for several reasons: (1) It affirms the integrative approach between animal welfare and environmental conservation under Section 24 of the Constitution, confirming that these are intertwined constitutional values; (2) It establishes that animal welfare considerations are relevant factors that must be considered in administrative decisions affecting biodiversity, even where the decision-maker does not have direct regulatory responsibility for animal welfare; (3) It confirms that lions in captivity form part of South Africa's biodiversity and are subject to the State's constitutional duty to manage and conserve biodiversity under NEMBA; (4) It demonstrates the application of public interest considerations in determining mootness, particularly where constitutional and environmental issues are at stake; (5) It contributes to the jurisprudence on what constitutes administrative action under PAJA, particularly in relation to quota-setting decisions; (6) It advances constitutional environmental jurisprudence by rejecting formalistic, siloed approaches to environmental management in favor of holistic consideration of relevant factors; (7) It has important implications for the regulation of South Africa's controversial captive lion breeding industry and the international trade in lion parts.