Animal Protection Act

“If we stop loving animals, aren’t we bound to stop loving humans too?” – Alexander Solzhenitsyn (1918 – 2008)

Carte Blanche recently aired a piece on the cruel treatment of circus animals. Protesters were seen outside Brian Boswell’s circus in Johannesburg after the show. A less public part of the campaign against performing circus animals played out in the North Gauteng High Court.

An old piece of legislation – the Performing Animals Protection Act of 1935 – provides that no one may train or exhibit performing animals without a licence issued by a magistrate. the Minister of Agriculture, forestry and fisheries is responsible for Administering this legislation.

The National Society for Prevention of Cruelty to Animals (NSPCA) brought an application to have the relevant provisions of the Performing Animals Protection Act declared unconstitutional. the NSPCA argued that licences should be issued by the Department of Agriculture and not by a magistrate. the Act, said the NSPCA, blurred the lines between he judiciary and the executive, and breached the important constitutional principle of the separation of powers.

the high Court agreed, pointing out that the legislature makes laws, the judiciary interprets laws and the executive  implements laws. the independence of the judiciary is compromised if magistrates are expected to perform executive functions, such as the granting of licences. In the past, there was a “do it all” approach to magistrates, who were required to exercise a range of powers which more properly belonged with government. the Constitution changed this, bringing about a firm separation of powers.

The high Court ordered that the relevant provisions of the Performing Animals Protection Act were invalid and gave the Department of Agriculture six months to amend the Act to remove this illegality. Legislation may only be finally declared constitutionally invalid by the Constitutional Court, so the order was also made subject to confirmation by the Constitutional Court. Interestingly, it was also ordered that, pending the Constitutional Court’s decision, licence applications for  performing circus animals should be made to a committee comprising representatives of the NSPCA, the Department of Agriculture and the South African Veterinary Council.

the Constitutional Court has now confirmed the invalidity of the sections of the Act in question, and has given Parliament the opportunity to amend the Act to cure the defect. But in the interim, Magistrates will continue to perform the function of issuing animal training and exhibition licences.

National Society for the Prevention of Cruelty to Animals v. the Minister of Agriculture, Forestry and Fisheries (North Gauteng high Court, Case No. 44001/2012, 15 November 2012).