SA Predator Breeders Association and Others v Minister of Environmental Affairs and Tourism

The first appellant was a society representing breeders and hunters of predators bred in captivity, with 123 members nationwide. The second appellant bred lions in captivity at Bothaville with the intention of reproducing the Cape lion. The third appellant bred lions at Excelsior for sale and hunting, particularly by foreign visitors. On 23 February 2007, the Minister published the Threatened or Protected Species Regulations under section 97 of the National Environmental Management: Biodiversity Act 10 of 2004. The lion (panthera leo) was listed as a vulnerable species. Regulation 24(1) prohibited various activities including the hunting of 'put and take' listed large predators (defined as captive-bred animals released for hunting within 24 months). Regulation 24(2) uplifted the prohibition if the animal had been rehabilitated in an extensive wildlife system and had been fending for itself for at least 24 months. The appellants challenged the validity of these regulations, particularly regulation 24(2) and the composition of the scientific authority. After the application was launched, the Minister amended the regulations on 28 January 2008, temporarily removing lions from the definition of 'listed large predator', pending the court's decision.

• Whether regulation 24(2) bore a rational connection to the legislative purpose of the Biodiversity Act
• Whether the 24-month period in regulation 24(2) had any rational basis given the available scientific evidence
• Whether the Minister's decision-making process was rational, particularly in light of the panel of experts' recommendations
• Whether captive-bred lions could realistically be rehabilitated to become self-sustaining in the wild
• Whether the composition of the scientific authority under regulation 60 was invalid for failing to include representatives of the lion breeding and hunting industry
• Whether the Minister had properly followed consultative processes required by the Act

The appeal succeeded in part with costs, including costs of two counsel. The High Court order was set aside and replaced with: (a) A declaration that the inclusion of lions within the definition of 'listed large predator' would render regulation 24(2) invalid in its present form insofar as it applies to 'put and take' animals that are lions; (b) Refusal of relief claimed regarding the definition of 'put and take animal' and regulation 60; no order regarding regulation 71; (c) The respondent to pay costs of the application including costs of two counsel.

A regulation made under the Biodiversity Act that purports to uplift a prohibition on hunting threatened species must be rationally related to the statutory purpose of protecting species survival. Where a regulation imposes conditions for uplifting such a prohibition, those conditions must: (1) be supported by a rational factual and scientific foundation; (2) bear a rational connection to the information and expert advice available to the decision-maker; and (3) be practically achievable if the regulation's purpose is to permit the activity in question. A decision-maker cannot rationally impose conditions that are impossible or highly impracticable to fulfill, as this would frustrate the purported purpose of the regulation. Where expert advice is relied upon, it must be properly understood and applied - distorting or misinterpreting expert recommendations renders the resulting decision irrational. Arbitrary time periods imposed without scientific justification or expert support constitute irrational administrative action that exceeds statutory powers.

The court made several non-binding observations: (1) There appeared to be merit in the appellants' contentions regarding procedural shortcomings in the consultative process, particularly that the Minister did not meaningfully consider written representations before finalizing the regulations, and that the failure to include transitional provisions was grossly unreasonable given the industry's size, investment, and economic impact; (2) The court noted it would be loath to nullify regulations entirely after they had been in force for almost four years without notice to and opportunity for other affected parties to join proceedings; (3) The court observed that it was unclear how ethical hunting and 'fair chase' principles fit into a legislative structure designed to promote and conserve biodiversity in the wild, particularly regarding captive-bred predators not intended for release; (4) The court noted that if the breeding and hunting of captive-bred lions plays no role in conservation and survival of lions as a species (as the Minister's evidence suggested), then the prohibition on hunting such lions may not satisfy the requirement in section 57(2)(a), though this was not the appellants' case and the court assumed the prohibition was valid for purposes of the judgment.

This case establishes important principles regarding the rationality requirement in administrative decision-making in the environmental law context. It confirms that where regulations are made under statutory powers that require a specific condition to be met (such as negative impact on species survival under section 57(2)(a) of the Biodiversity Act), any upliftment of prohibitions must be rationally connected to evidence that the condition no longer applies. The judgment demonstrates that decision-makers cannot rely on expert panel recommendations without properly understanding and applying them, and cannot impose arbitrary waiting periods or conditions without a rational, evidence-based foundation. It also clarifies that while broad consultation is required in environmental governance, this does not necessarily mandate direct representation of all affected industries on advisory bodies, provided appropriate consultation mechanisms exist. The case is significant for limiting regulatory overreach in biodiversity management where scientific evidence does not support the regulatory approach adopted.