Thalita Susanna Cloete and Others v The State

The three appellants were convicted in the Regional Court Welkom on 17 July 2018 of environmental and nature conservation offences. Appellants 2 and 3 are farmers with a permit to breed lions and cheetahs on their farm Jachalskop in the Theunissen district. On 15 June 2016, nine cheetah cubs were born during a night of extreme cold (-4 to -8 degrees); five died and the surviving four were in distress. Appellant 2 took them to Dr de Vries, a veterinary surgeon in Welkom with a permit to treat TOPS species. The veterinarian treated them with drips, antibiotics and anti-inflammatory medication and recommended they be cared for by Appellant 1, an experienced breeder with the necessary equipment and skills, who lived two blocks from the clinic. On 27 June 2016, nine lion cubs approximately two weeks old were born; several died and the surviving four plus the deceased were taken to Dr de Vries for treatment and diagnosis. He similarly recommended they be placed with Appellant 1 for specialized care and monitoring, as the clinic lacked facilities and space. On 5 July 2016, Environmental Management Inspectors, acting on an anonymous tip, searched Appellant 1's residence with a warrant and found the cubs being cared for in playpens with infrared lamps. They confiscated all eight cubs and transported them to a rehabilitation centre in Bloemfontein. One cheetah cub died two days later; three lion cubs died within three weeks after being returned to the farm. The problems were: no transport permits were obtained before transporting the cubs; Appellant 1 had no permit to keep wild animals; and Appellants 2 and 3 failed to keep the cubs at the designated farm address and allegedly failed to report births and deaths within five working days.

• Whether the defence of impossibility applied to the failure to obtain transport permits for cubs too young to be microchipped, when microchipping was a departmental prerequisite for issuing permits
• Whether the defence of necessity applied to justify transporting protected species without permits in an emergency medical situation
• Whether the defence of necessity applied to keeping the cubs at Appellant 1's residence instead of the permitted farm location
• Whether the emergency medical situation was ongoing at the time of confiscation
• Whether failure to report births and deaths within five working days was proven beyond reasonable doubt
• Whether the Appellants' actions were justified and lawful given the competing interests between compliance with permit requirements and the survival of endangered species

The appeal against the convictions and sentences succeeded. The order of the court a quo was set aside with costs in favor of the Appellants.

The binding legal principles established are: (1) The defence of impossibility applies when a legal duty cannot be performed due to objective impossibility - specifically, a permit requirement cannot form the basis of criminal liability when the administrative prerequisites for obtaining the permit cannot be satisfied. (2) The defence of necessity excludes unlawfulness when a person in an emergency situation must choose between two conflicting interests and infringes the lesser interest to protect the greater, according to the legal convictions of the community. (3) For necessity to succeed: there must be an emergency situation commenced or imminent; the person must be protecting a legally recognized interest; the harm cannot be averted in another way; and the interest protected must not be disproportionate to the interest infringed. (4) When departmental policy creates an impossible compliance scenario (requiring microchipping before permits can be issued, but cubs are too young to microchip), criminal liability cannot attach to failure to comply. (5) The purpose of environmental legislation (species protection) must be considered when evaluating whether technical breaches constitute criminal offences - actions that further the legislative purpose while technically breaching procedural requirements may be justified. (6) Expert veterinary evidence regarding the necessity of emergency medical treatment is determinative absent contrary evidence, and establishes the existence and duration of an emergency situation.

The court made several notable non-binding observations: (1) The administrative efficiency of DESTEA was criticized as being far from user-friendly, with the realistic timeframes for obtaining emergency permits being much longer than officials suggested. (2) The court noted the stark inconsistency between the NDPP's decision not to prosecute the veterinarian because he acted in an emergency, while prosecuting the Appellants in identical circumstances with the same animals under the same legislation. (3) The court commented that Environmental Management Inspectors should exercise their discretion with common sense and investigate properly to determine what is in animals' best interests before acting, rather than being "more interested in enforcing adherence to the letter of the law" and "making an example" of otherwise law-abiding farmers. (4) The court noted it was "astonishing" that farmers known to officials as law-abiding and wanting to "do the right thing" would be charged with criminal offences in an evident emergency situation. (5) The court observed that the regulatory system requiring microchipping before permits for young cubs could be issued would result in many infant lions and cheetahs dying due to "red tape." (6) The court suggested Mr Schlemmer's inability to recognize that a dying cheetah cub was sick, and his decision to transport hypothermic cubs 160+ km in winter cold, demonstrated lack of proper judgment regarding the animals' welfare.

This case establishes important principles regarding the interaction between environmental protection legislation and common law defences in South African law. It confirms that the defences of impossibility and necessity can operate to excuse non-compliance with environmental permit requirements in genuine emergency situations. The judgment emphasizes that regulatory compliance cannot be demanded when it is objectively impossible to fulfill prerequisites for obtaining permits. It also clarifies that necessity as a ground of justification applies when protecting a greater legal interest (survival of endangered species) requires infringing a lesser interest (permit compliance), particularly when the very purpose of the legislation (species protection) aligns with the accused's actions. The case highlights the importance of proportionality and reasonableness in enforcing environmental regulations, and confirms that administrative policies creating impossible compliance scenarios cannot form the basis of criminal liability. It serves as authority that emergency medical treatment of protected species can justify technical breaches of wildlife legislation where no alternative exists and the actions further the conservation objectives of the legislation itself.