dA.Derecho Animal (Forum of Animal Law Studies) 2019, vol. 10/1 35-58 Animal Law in South Africa: “Until the lions have their own lawyers, the 1 law will continue to protect the hunter” Amy P. Wilson Attorney. LL.M Animal Law Lewis & Clark Law School in Portland, USA Director and Co-founder Animal Law Reform South Africa Received: December 2018 Accepted: January 2019 Recommended citation. WILSON A.P., Animal Law in South Africa: “Until the lions have their own lawyers, the law will continue to protect the hunter”dA. Derecho Animal (Forum of Animal Law Studies) 10/1 (2019) - DOI https://doi.org/10.5565/rev/da.399 Abstract Despite the importance of animals to South Africa, animal law is not yet recognized a separate distinct area of law. In an attempt to rectify this, the article provides a high level introduction to this highly complex field. By providing background and context into historical and current injustices regarding humans and animals, it alleges that the current legal system has failed to provide adequate protection to either group. By analyzing the existing regulatory framework and case law, it lays out the realities of obtaining better protection for animals in law. It then argues why it is particularly critical for the country to consider animal interests both individually and collectively with human interests by providing examples of how these interests intersect in practice. It suggests an approach for future protection efforts and concludes by providing some opportunities going forward for animal law reform in South Africa. Keywords: Animal law; South Africa; animals; animal protection; law; human rights. Resumen - Derecho Animal en Sudáfrica: "Hasta que los leones no tengan sus propios abogados, la ley seguirá protegiendo al cazador" A pesar de la importancia de los animales para Sudáfrica, el derecho animal aún no es reconocido como un área distinta dentro del Derecho. En un intento por rectificar esto, el artículo proporciona una introducción de alto nivel a este campo tan complejo. Proporcionando antecedentes y un contexto a las injusticias históricas y actuales en relación a los humanos y animales, se alega que el sistema jurídico actual no proporciona una protección adecuada a ninguno de los grupos. Analizando el marco regulatorio y la jurisprudencia existente, se establecen las realidades de la obtención de una mejor protección para los animales en el Derecho. A continuación argumenta por qué es particularmente crítico para el país tener en consideración los intereses de los animales de forma tanto individual como colectiva con los intereses humanos proporcionando ejemplos de cómo dichos intereses se cruzan en la práctica. Sugiere un enfoque para futuros esfuerzos de protección y concluye brindando algunas oportunidades para la reforma del derecho animal en Sudáfrica. Palabras clave: derecho animal; Sudáfrica; animales; protección animal; Derecho; derechos humanos. 1 “Until the lions have their own historians, the history of the hunt will always glorify the hunter.” – African Proverb. https://doi.org/10.5565/rev/da.39 9 ISSN 2462-7518 Animal Law in South Africa: “Until the lions have their own lawyers, the law will continue to protect the hunter” Amy P. Wilson _________________ “We, the people of South Africa, Recognise the injustices of our past; Honour those who suffered for justice and freedom in our land; Respect those who have worked to build and develop our country; and Believe that South Africa belongs to all who live in it, united in our diversity” 2 _________________ Introduction If one mentions “animal law” in South Africa, the common response is one of confusion turned to interest. This is due to the fact that it is not yet a recognized, distinct field of law as it is in other jurisdictions around the world.3 Some may view this as surprising, considering that the importance of animals to South Africa as a nation and its people, cannot be overstated. In fact, to many, South Africa is the hub of animal experiences, hosting some of the largest populations of charismatic megafauna4 and ranking the third most biodiverse country in the world.5 However, the relationship with our fellow animals is a confounding one. Quintessential African species such as lions, elephants, rhinos are hunted for trophies, offered in human interactions, and both live animals and their body parts are lawfully traded locally and internationally.6 These and other wild animals are kept in zoos, used in circuses and aquaria, and otherwise exploited in the tourism industry or dealt with in abundant other consumptive and non-consumptive ways. Millions upon millions of animals are farmed and killed to meet the growing demand for animal protein,7 with abhorrent practices such as veal crates, sow stalls and battery cages widely utilized. If these animals are not kept alive as breeding machines they are slaughtered, and their body parts are wrapped up for store shelves - ready for guilt-free human consumption. Live animals are shipped across the oceans under conditions where they suffer terribly, over long periods of time. Animals are killed in cultural and religious ceremonies with ritual slaughter commonplace (with certain exemptions granted for these practices). Animal research and testing occurs largely unregulated8 and there is no prohibition on testing on animals for cosmetic purposes. Working animals face their own varied threats.9 Most of the practices in relation to animals occur largely behind closed doors with little transparency and accountability, sanctioned by the government. The public at large unwittingly supports the success of these industries by perpetuating the demand and thus ensuring the continuation of one of the largest injustices of our time. 2 Preamble to the Constitution of the Republic of South Africa, 1996 (referred to as the Constitution). Government Website: http://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng.pdf [Last Consultation Date: 16 December 2018] 3 This is not to say that lawyers may not be practicing in this field – it is not yet however known distinctly on its own. While animal law as a field considers the interests of the animal itself, usually, in the South African context, animals are considered generally in the context of another area. Thus, for example, animal interests may arise in the area of environmental law. Environmental lawyers, environmental focused non-profits and environmental departments in law firms all exist and are well-established, yet the same cannot be said for animal law. Other examples indicating that this is not yet a distinct field, are a lack of use of the term “animal lawyer” (although I regard myself as one); absence of courses on the subject in Universities, and others. For the purposes of this Article, when referring to “animal law” I mean generally as a distinct field. 4 South Africa is host to the largest population of rhino and ostriches in the world. It also has “large” elephant and lion populations. Notably however, for rhinos, lions and ostriches, this is due to their intensive farming. 5 According to the Biodiversity Finance Initiative Website: https://www.biodiversityfinance.net/south-africa [Last Consultation Date: December 13 2018] 6 Despite the gravity of the illegal trade in wildlife and their parts a detailed discussion falls outside the scope of this Article. 7 With approximately one billion chickens killed every year (chickens forming about 60% of the animal protein demand), 3,5 million cattle for beef, 3 million pigs for pork and collectively 5 million for sheep and lamb. Department of Agriculture, Forestries and Fisheries Website: https://www.daff.gov.za/Daffweb3/Portals/0/Statistics%20and%20Economic%20Analysis/Statistical%20Information/Abstract%202 018.pdf). [Last Consultation Date: December 11 2018]. This excludes the millions of fish, the growing aquaculture industry and “Operation Phakisa”. 8 Recent efforts have included updating non-binding, voluntary standard by the South African Bureau of Standards. These are not legally enforceable but have persuasive value. Other than this, there is little regulation and oversight as to the treatment of animals used in vivisection in South Africa, in terms of animal welfare. 9 One example for donkeys is the increasing demand for their hides in certain Asian countries for the making of “ejiao”, a gelatin consumed in Asian countries for medicinal purposes. Donkeys in South Africa face major threats from this practice. 36 Derecho Animal. Forum of Animal Law Studies, vol. 10/1 Amy P. Wilson Animal Law in South Africa: “Until the lions have their own lawyers, the law will continue to protect the hunter” As is apparent, the significance of animals and the policies and legal protection offered to them create a dichotomy.10 Although this is not unique to South Africa, nor is it uncommon for moral considerations and the law to be different, the particular history of the country and prevailing circumstances should impose a greater obligation to address oppression, regardless of the oppressee, or the rationale for the oppression. At the outset I wish to note that I am of the view that animals have their own intrinsic worth as individuals and have an interest in having that worth protected. They should therefore receive such protection in their own right and for reasons that flow from that worth. I accept this as a fundamental truth and affirm it throughout.11 Following on from this, such protection must out of necessity be recorded in statute and law in order to be enforceable.12 With this article I attempt to provide a rudimentary introduction to the highly complex field of animal law in South Africa. I will start by providing some necessary background and context and then analyze the current regulatory framework both on paper and in practice. I will then argue why it is particularly critical for the country to consider animal interests both individually and collectively with human interests by providing examples of how they intersect.