The South African Predator Breeders Association and Others v The Minister of Environmental Affairs and Tourism

The first applicant is an association representing breeders and hunters of captive-bred predators, with approximately 123 members, of which about 65 are in the Free State Province and breed lions in captivity and/or operate hunting operations for captive-bred lions. The second and third applicants are individual farmers who breed lions in captivity for hunting purposes. The respondent is the Minister of Environmental Affairs and Tourism who made regulations under the National Environmental Management: Biodiversity Act, No. 10 of 2004 ("the Act"). The regulations, published in Government Notice No. R152 of 23 February 2007 (as amended by Government Notice No. R69 of 28 January 2008), introduced a 24-month self-sustaining provision requiring that captive-bred lions could only be hunted after they had been fending for themselves in an extensive wildlife system for at least 24 months. The regulations also prohibited "canned hunting" and "put and take" hunting practices. The definition of "put and take animal" included a captive-bred listed large predator released for hunting within 24 months. The respondent initially excluded lions from the regulations pending the outcome of this application, but indicated an intention to reapply the regulations to lions if the application failed. The applicants challenged the validity of the 24-month self-sustaining provision, the definition of "put and take animal", regulation 24, regulation 60 (composition of the scientific authority), and the absence of a transitional provision in regulation 71.

• Whether the regulations were procedurally unfair in their making, particularly whether the respondent gave due consideration to the applicants' representations
• Whether relevant considerations were not considered, specifically the contribution of captive breeding of lions to biodiversity
• Whether the 24-month self-sustaining provision was irrational and not rationally connected to the purpose for which it was taken
• Whether the 24-month self-sustaining provision was so unreasonable that no reasonable decision-maker could have made it
• Whether the absence of a transitional measure in regulation 71 was reviewable
• Whether the composition of the scientific authority in regulation 60, which excluded industry representatives, was irrational or unreasonable

Application dismissed with costs, including costs of two counsel.

The binding legal principles established are: (1) Where an empowering provision prescribes a fair procedure for consultation (such as sections 99 and 100 of the Biodiversity Act), an administrator may follow that procedure rather than the general provisions of PAJA (sections 3(5) and 4(1)(d) of PAJA apply). (2) Procedural fairness does not require a further opportunity to make representations where the applicant has already made representations and has not indicated acceptance of proposed amendments, but continues to object. (3) For administrative action to be rational under PAJA section 6(1)(f)(ii), there must be a rational objective basis justifying the connection between the material available and the conclusion reached. The test is whether there is a rational basis for the decision in all the circumstances. (4) For administrative action to be unreasonable under PAJA section 6(2)(h), it must be shown that the decision is one that no reasonable decision-maker could reach in the circumstances. Substantive unreasonableness per se is not a ground for review. (5) Economic considerations and the financial viability of an industry cannot override constitutional imperatives of environmental protection, biodiversity conservation, and ethical treatment of animals where the economic development is not "justifiable" within the meaning of section 24(b)(iii) of the Constitution. (6) Regulations designed to prevent practices that compromise biodiversity, undermine humane treatment of animals, and damage the country's international reputation (such as "canned hunting") are rationally and reasonably connected to the objectives of environmental legislation, even if they have significant economic impact on affected industries. (7) The principle of "fair chase" in hunting and the requirement that hunted animals not be completely dependent on humans are legitimate objectives of wildlife management regulations.

The court made several non-binding observations: (1) The court expressed the view (without deciding) that PAJA is applicable to the making of regulations in this case, noting that the question of PAJA's applicability to subordinate legislation remains unsettled after the New Clicks case, where the Constitutional Court was divided on the issue. (2) The court observed that the practice of hunting captive-bred lions, particularly in the circumstances described by applicants (where a lion is darted, transported, and released shortly before being hunted), is "objectively reasonable and justifiable" to find abhorrent and repulsive, even if described as humane by the industry. (3) The court noted that conversion of livestock production units to wildlife production units may have resulted in a decline of permanent jobs in some cases, suggesting the employment benefits of the hunting industry may be overstated. (4) The court suggested that when the regulations are made applicable to lions in the future, the question of phasing-in could be considered at that time. (5) The court observed that the scientific authority may co-opt expert advisors from outside the public service, suggesting this mechanism could allow for industry input without formal representation on the authority. (6) The court expressed skepticism about the applicants' claim that most members had accepted the 6-month self-sustaining provision, noting this was inconsistent with their subsequent conduct and communications with the Minister.

This case is significant in South African environmental and administrative law for several reasons: (1) It affirms the constitutional imperative of environmental protection under section 24 of the Constitution, particularly the principle that economic considerations cannot override ecological and ethical imperatives in wildlife management. (2) It demonstrates the application of PAJA's rationality and reasonableness tests in the context of environmental regulations, particularly those affecting commercial interests. (3) It establishes that compliance with the specific consultative procedures prescribed in enabling legislation (sections 99 and 100 of the Biodiversity Act) satisfies the requirements of procedural fairness, even if different from PAJA's general provisions. (4) It confirms that economic viability of an industry is not a sufficient ground to overturn regulations designed to protect biodiversity and promote ethical hunting practices. (5) It addresses the balance between sustainable use of natural resources and justifiable economic development under section 24(b)(iii) of the Constitution. (6) It provides guidance on when a further opportunity to make representations is required in administrative processes. (7) It clarifies the test for irrationality and unreasonableness in administrative decisions affecting economic interests. The case is a leading authority on the regulation of hunting practices and captive breeding of wildlife in South Africa, particularly in relation to the controversial practice of "canned hunting" of lions.