The Trustees for the Time Being of the Humane Society International – Africa Trust and Others v The Minister of Forestry, Fisheries and the Environment and Another

HSI-Africa, an international organization dedicated to animal protection and wildlife conservation, challenged the Minister of Forestry, Fisheries and the Environment's decision made on 31 January 2022 to fix quotas for trophy hunting and export of leopard (10), black rhinoceros (10), and African elephant (150) for 2022. The Minister had published a notice on 8 October 2021 inviting public consultation on quotas for 2021, but after the consultation process, decided to "roll over" the quotas to 2022 due to time constraints. HSI-Africa participated in the consultation process and submitted detailed objections, arguing for zero quotas. The species concerned are all listed in Appendix I of CITES and are protected under NEMBA as endangered, vulnerable or protected species. HSI-Africa brought an urgent application for an interim interdict pending review of the Minister's decision.

• Whether the Minister could lawfully 'roll over' a quota determined for 2021 to apply in 2022 without fresh consultation for the later year
• Whether the Minister's quota decision required submission to Parliament and publication in the Government Gazette to have legal effect
• Whether the Minister complied with procedural requirements under NEMBA regarding consultation (sections 99 and 100)
• Whether the Minister acted lawfully in the absence of a proper Non-Detriment Finding (NDF) from the Scientific Authority for black rhinoceros
• Whether HSI-Africa had locus standi to bring the application
• Whether the requirements for an interdict pendente lite were satisfied
• Whether the balance of convenience and separation of powers considerations favoured granting interim relief
• Whether there was improper non-joinder of provincial MECs

The Court granted an interim interdict restraining: (1) implementation of the Minister's 31 January 2022 quota decision for 2022; (2) publication of the quota in the Government Gazette or otherwise; and (3) issuance of any hunting/export permits for the three species. The order was to remain in force pending determination of the Part B review application. Costs were reserved for determination at the review hearing. The matter was heard on 18 and 23 March 2022 with judgment delivered on 21 April 2022.

The binding legal principles established are: (1) A Minister cannot lawfully conduct a public consultation process for quota determination in respect of one calendar year and then apply the outcome to a different calendar year without fresh consultation - this violates procedural fairness and the principle of legitimate expectation; (2) When determining quotas under CITES regulations, the Minister exercises power sourced in NEMBA section 97(1)(b)(viii) regarding ecologically sustainable utilization of biodiversity, and must therefore comply with NEMBA's requirements including submission to Parliament 30 days before Gazette publication (section 97(3A)); (3) The irreparable harm test in interdict applications involving wildlife is satisfied where implementation would result in death of animals that cannot be reversed if review succeeds; (4) In balancing separation of powers concerns against constitutional environmental rights (section 24), courts may grant interim interdicts suspending ministerial decisions in 'clear cases' where there is potential for permanent violation of constitutional rights and the administrative decision can still be implemented later if review fails; (5) Public participation under NEMBA sections 99-100 must be meaningful and relate to the specific time period for which the decision will apply.

The Court made several non-binding observations: (1) That various factors such as natural disasters, disease outbreaks, and poaching trends might differ from year to year and be relevant considerations for quota determination; (2) That the Minister could potentially abandon the 2021 roll-over decision and commence a fresh 2022 quota process with sufficient time remaining in the year; (3) That South Africa has an 'unblemished international reputation for wildlife tourism' that generates income significantly outweighing trophy hunting revenue; (4) That the primary beneficiaries of trophy hunting are 'wealthy, foreign hunters who may wish to adorn their homes, man-caves, offices, club houses and the like with the hubristic consequences of their expensive forays into the wilds of southern Africa'; (5) Commentary on the evolution of the legitimate expectation doctrine since the Traub case, suggesting courts may adopt a more flexible approach; (6) That it is 'notorious' and subject to judicial notice that poaching of elephant and rhinoceros in South Africa is 'rife'. The Court also expressed gratitude to counsel for their helpful submissions and the Minister for her detailed answering affidavit under time constraints.

This case is significant for establishing important principles regarding: (1) procedural fairness in administrative decision-making, particularly that a public consultation process for one time period cannot be 'rolled over' to apply to a different period without fresh consultation; (2) the interaction between NEMBA, CITES regulations, and ministerial quota-setting powers; (3) the requirement for Parliamentary oversight through submission of regulations 30 days before publication; (4) the application of the legitimate expectation doctrine in environmental decision-making; (5) balancing separation of powers concerns against constitutional environmental rights under section 24; (6) the importance of Non-Detriment Findings by Scientific Authorities in wildlife quota decisions; and (7) protection of animal welfare and biodiversity conservation through interim relief. The judgment demonstrates the courts' willingness to grant interim interdicts to protect wildlife pending review, recognizing the irreparable nature of harm when animals are killed. It reinforces that economic considerations from trophy hunting must be balanced against conservation imperatives and constitutional environmental protections.