In the 2016 National Council of Societies for the Prevention of Cruelty to Animals (NSPCA) case, the Constitutional Court observed that "Animal welfare and animal conservation together reflect two intertwined values". Despite this, the Department of Environmental Affairs at the time consistently claimed to have no mandate concerning the welfare of wild animals. This was the argument, too, in the 2017 NSPCA case dealing with the lion bones export quota, yet in that case, the court upheld animal welfare arguments. This paper traces the development of the legal position in South Africa in relation to the welfare of wild animals and considers whether the 'two intertwined values' statement correctly reflected South African law at the time. It considers Bilchitz's arguments on an appropriate approach to wild animal welfare and analyses recent 2022 amendments to the Biodiversity Act that introduce elements of animal well-being into our conservation law, providing an opinion as to the legal position today.

The biodiversity crisis is imminent, with human activities resulting in catastrophic levels of biodiversity loss globally. One million species are likely to become extinct, many within decades unless we reduce the intensity of the drivers of biodiversity loss. Strategic litigation has proven to be one of the most effective means of accelerating action on climate change (with the number of climate change-related cases more than doubling since the Paris Agreement in 2015), but no equivalent approach has been adopted to address the Sixth Mass Extinction. Recently, however, the utility of biodiversity litigation in curbing biodiversity loss has been gaining recognition. Definitions of biodiversity litigation and its elements, as well as trends in biodiversity litigation globally, have emerged, but challenges are faced in bringing matters seeking to protect species and ecosystems to court. Under South African law, there exist legal mechanisms to litigate for the protection of biodiversity, as is evidenced by recent jurisprudence (including Sustaining the Wild Coast NPC & Others v Minister of Mineral Resources and Energy & Others> (Case Number: 3491/2021, 28 December 2021)) and Christian John Adams & Others v Minister of Mineral Resources and Energy & Others (Case Number: 1306/22, 1 March 2022)). These cases demonstrate a shift towards the protection of nature for the benefit of present and future generations. Biodiversity litigation is an emerging field of law, and the presentation provides insights to legal practitioners and conservationists on what to consider when seeking to use litigation as a conservation tool.

Whilst it is not permitted to capture or kill southern African pythons (Python natalensis) in South Africa, the illegal keeping, poaching, and trade in these snakes have increased in recent years. Pythons are used for various purposes by traditional healers, and python skins are used to make fashion items such as shoes, bags, belts, and other accessories. The southern African python is listed as a protected species under Section 56 (1) of the National Environmental Management: Biodiversity Act, 2004 (Act 10 of 2004), which includes indigenous species of a high conservation value or national importance that require national protection. In 2019, the National Council of Societies for the Prevention of Cruelty to Animals (NSPCA) received information regarding an individual illegally housing snakes in a warehouse and participating in the illegal activity of feeding live animals as prey. The NSPCA acted without hesitation and accessed the property under a warrant. Various welfare concerns were noted, including injuries that were left untreated, underweight animals, snakes that had burn wounds from incorrect lighting, and live rabbits kept as snake food. The feeding of live animals is illegal. Three southern African pythons and all the rabbits were removed from the property by the NSPCA. The pythons were taken to a wildlife veterinary hospital for treatment, and the rabbits were rehomed. The NSPCA initiated the prosecution of those involved in the abuse of the animals, and after two years of the NSPCA following up on the case, finally, justice was served. The Honourable Magistrate Mr Maboho passed down a groundbreaking judgement that has gone on to become the biggest legal win for reptiles in South African history and will have a lasting impact in future cases of cruelty involving reptiles. In a second case two years later, ten southern African pythons were removed under warrant from a captive wildlife facility. The snakes were being kept in unhygienic conditions, were in a state of dehydration, and showed signs of extreme malnourishment. A criminal case for animal cruelty and the illegal keeping of Threatened or Protected Species (TOPS) was opened and is still pending. 

Since the exposure of canned lion hunting, the National Council of Societies for the Prevention of Cruelty to Animals (NSPCA) has raised opposition to the captive lion industry in its entirety and has served in the interest of thousands of captive lions (Panthera leo) for two decades. The NSPCA has lodged its objections to lions in captivity, associated lion hunting, and lion bone exports and continued to stress and raise concerns over animal welfare and the cruelty associated with the developing industry. The industry serves no conservation value and does not contribute towards wild lion conservation. The rapid expansion of lion breeding, captive hunting, and tourism activities, including other spin-off industries, remains highly controversial and widely opposed. The commercial nature of the industry is entrenched within a profit-and-production-based model that exploits these animals at every stage of their lives. Lions are intensively bred, and cubs are removed from the mother and used, sold, or rented for human interaction. Once too big, they are used in lion walk excursions before being sold for further exhibition and breeding or even for captive lion hunts. Their body parts are sold directly or indirectly into the global lion bone trade for use in products of no medicinal value. During the seventeenth meeting of the Conference of the Parties (CoP17) to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), proposals to uplift the protection of African lions (Panthera leo) to Appendix I were rejected. The decision was that (1) there would be zero annual export quota of lion bone derived from wild lion specimens, and (2) that the Department of Environment, Forestry & Fisheries (DFFE) would establish annual export quotas for trade in bones, bone pieces, bone products, claws, skeletons, skulls, and teeth derived from South African captive breeding facilities. In a High Court application, the NSPCA undertook litigation measures against the DFFE on the basis that the formalisation of an annual lion bone export quota in South Africa following CoP17 of CITES would result in further commercialisation of the captive lion industry whilst ethical, conservation and animal welfare concerns remained excluded. The courts ruled in the NSPCA's favour, ultimately stating that animal welfare must be considered when making conservation and wildlife use policy decisions, not just for lions, but all wildlife, which ultimately impacts broader biodiversity conservation efforts. Landmark court cases such as this have shifted for policy, regulatory and legislative changes to include and recognise wildlife welfare within South Africa. 

Elephant culling is included in the National Norms and Standards, under the National Environmental Management: Biodiversity Act, for the Management of Elephants in the Republic of South Africa, as a last-resort option to reduce elephant population size when required to meet protected area objectives. Recent judgments in South African courts have emphasised the importance of considering animal welfare in conservation. We assess the approved method of culling elephant family units in terms of the legal and policy framework in South Africa, as well as considering elephant welfare and well-being. We find that the current culling method is likely to be inhumane and potentially inconsistent with the South African Constitution, as interpreted by the judiciary. In addition, in certain circumstances, culling is illegal in terms of the Protection and Meat Safety Act and contravenes World Organisation for Animal Health and global standards for the slaughter of animals. We recommend considering a moratorium on the culling of elephant family units, as well as of lone bulls, until humane slaughter methods and standard operating procedures that ensure an extremely high probability of instantaneous ("clean") kills, are developed and approved. We recommend an ethics review process for conservation management interventions involving well-being risks to animals, such as is required for animal research. Notwithstanding other imperatives that need consideration, conservation practice should better balance welfare to align with both South African legislation and global norms.

South Africa has allowed the commercial captive breeding and trade of African lions (Panthera leo) and other large felids since the 1990s. However, publicly available information to quantify the extent and nature of this industry, and insight into the diversity of relevant provincial nature conservation statutes, are lacking. Our study reviewed the provincial regulations that govern the captive predator industry in South Africa and used the Promotion of Access to Information Act, Act 2 of 2000 (PAIA) to obtain records held by the nine provincial departments regulating the captive breeding, keeping, and trade of large felids. The information obtained through the PAIA process was highly inconsistent across the provinces, demonstrated the absence of standard operating procedures, and highlighted the convoluted and decentralised permitting systems. The research postulates that varying and sometimes conflicting provincial regulations can lead to the exploitation of legal loopholes and unregulated growth of the industry. In addition, provincial resources are inadequate for authorities to carry out their fundamental mandates of nature conservation. Although the PAIA process was challenging, the information received provided valuable insight into the unregulated nature of this industry and demonstrated major concerns in addressing the necessary challenges associated with animal welfare. Furthermore, with more than half of the PAIA requests either refused, rejected or ignored, the true magnitude and nature of South Africa's commercial captive predator industry cannot be accurately quantified. In the absence of a fully regulated and controlled industry with adequate national norms and standards, we fully support the intention of the South African Government to transition away from the commercial captive predator industry. It is recommended that a gap analysis together with a baseline national audit could provide an effective management tool to responsibly phase out this industry in line with the High-Level Panel's recommendations.

Despite being a self-proclaimed leader in conservation, South Africa's historical approach to the subject has been wrought with problems and deficiencies. This is particularly prevalent in the Department of Forestries, Fisheries and Environment's (DFFE) interpretation of the environmental right in the Constitution, specifically the term "sustainable use"; their consistent denial of a mandate to deal with animal welfare issues and their failure to engage with the animal protection sector, among other issues. Such an approach has resulted in consequences ranging from environmental and biodiversity crises; and inequity to the growth and promotion of unsustainable and ethically problematic industries and practices. More recently, however, owing to recent judgments by the highest court in the country, public pressure and international outcry, among other factors, there have been some encouraging developments. In July 2022, the DFFE released the "Draft White Paper on the Conservation and Sustainable Use of South Africa's Biodiversity" for public comment. If properly drafted and incorporated, this White Paper has the power for groundbreaking and much-needed legal and policy transformation in the country. It could potentially revolutionise the current paradigm and put South Africa on a path to achieving genuine sustainability and inclusive justice and make the country a true leader in conservation – one which protects not only humans but nonhuman animals and the environment too. This session aims to take a critical look at the Draft White Paper on the Conservation and Sustainable Use of South Africa's Biodiversity released by the DFFE in July and engage with some of the provisions contained therein through the lens of animal law, together with environmental protection and social justice.