June 14th, 2009 - High Court Judgment

THE RECENT CANNED LION JUDGMENT IN SOUTH AFRICA
Comment by C.A.C.H. (The Campaign Against Canned Hunting.)
Registered Section 21 and Public Benefit charity.
PBO Number:
There has been widespread rejoicing in and outside SA over the recent High Court decision handed down on 11th June in Bloemfontein. The press has published headlines like ‘the end of the road for canned hunting.’ Unfortunately, this is a long and winding road, and the end is nowhere in sight.

If one adopts the definition of canned hunting as any hunt where the target animal is unfairly prevented from escaping the hunter, then this is most certainly nowhere near the end of canned hunting. The so-called two year wilding rule is only an inconvenience to lion hunters because if lions are released from their separate cages into a large camp they will fight with each other. One can farm with 500 lions only if they are kept in separate enclosures. In fact, notwithstanding this judicial decision, we can expect canned hunting to continue to flourish for years to come. The lion breeders will certainly lodge an appeal, and cancer is faster than the SA legal system. It will take years to drag through the appeals process. Perhaps a filibuster was the strategy from the outset.
Below are some extracts from the judgment which will give readers a better idea of the reasoning in the 81 pages of legal text:-

Van der Merwe J:
“The real complaint of the applicants in respect of the definition of “put and take animal” and regulation 24 is in respect of the period of 24 months in these provisions for which the animal must have been fending for itself in an extensive wildlife system before it may be hunted.
Prior to the commencement of the regulations, all hunting was regulated by provincial legislation. By reason of the aforegoing, these provisions are presently still applicable to the hunting of lions. Although in all provinces permits are required for hunting of lions, there are material differences between the provisions and measures applicable in the provinces. In Mpumalanga, for instance, it is a requirement that the size of the area in which a lion may be hunted must be no less than 1000 hectares. Such provision is also applied in the North West province. In Gauteng this minimum area is 400 hectares, but that may be deviated from by permit. In the Free State only a minimum of 100 hectares is required. The rest of the provinces have no legislation in respect of minimum size of areas in which the hunt may take place. Only the Free State and North West provinces, where by far the greater portion of the industry is situated and operated, have self-sustaining provisions. In the Free State it is required that a lion must be free ranging for a period of three months before it may be hunted, whereas in the North West province this period is only 96 hours. It is clear therefore that there is no uniformity in this regard and that in some provinces it would be possible to hunt a lion bred in captivity virtually immediately after it had been released into whatever area is allowed by the permit. The average trophy price for a lion is approximately 22 000 US dollar for the farmer or hunting operator. An average additional 18 000 US dollar is also spent in South Africa in respect of such hunt, excluding taxidermic services. This amount is made up of the fees for the professional hunter, air fares and accommodation fees paid to the farmer or hunting operator. If taxidermic services are also rendered in South Africa, this figure is usually significantly higher. It is clear that the nett income per hectare in respect of farms where lions are hunted, by far outstrips the income derived from cattle farming in the same area….
The essence of these representations (by a SAN PARKS scientist) was that the hunting of captive bred lions should be allowed shortly after a lion has been released in an enclosure of at least 2 000 hectares. The main aspects put forward as justification for this stance were the earning of foreign revenue by the industry, the creation of job opportunities by it as well as the idea that captive breeding and hunting of lions is a conservation tool that relieves pressure on the selective hunting of wild lions.
The Panel of Experts gave descriptions of what is regarded as canned hunting, the fair chase principle and “put and take hunting”. Canned hunting was described as the hunting of species that are not self-sustaining, that is unable to feed themselves and produce healthy offspring naturally or are not able to exercise their natural escape mechanisms as reflected in the fair chase principle. The report states that the principle of fair chase is a determinant of ethical hunting. It is understood as the pursuit of an animal where it is in its own habitat and has a fair chance of evading the hunter through its natural vigilances, escape behaviour and physical capabilities and where the hunter uses a weapon that is able to drop and kill the animal with a single shot without causing unnecessary pain or discomfort to the animal. “Put and take” is described as the practice of releasing an animal onto a property, irrespective of the size of the property, for the sole purpose of shooting it as soon as possible after release.
The panel noted estimates of the economic value of hunting including that the economic value of trophy hunting only is estimated as between R153 million and R832 million, presumably per year. It was apparent to the panel that the contribution that hunting makes to the wildlife industry outstrips all the other sources of revenue such as wildlife sales and non-consumptive tourism. Although many foreign hunters contribute significantly to the tourism industry it was clear that the value of biltong hunting for instance by far exceeds that of trophy hunting. The panel said that the financial benefits of the hunting industry comprised direct financial benefits such as salaries and tips for employees, revenue for provincial conservation authorities and conservation levies and indirect financial benefits such as meat given to communities from a trophy hunt. The hunting industry also supports a host of associated industries such as retail sales of vehicles and fire-arms, taxidermists and construction, to name but a few. The panel however noted that while wildlife production units offer many jobs it has not been established whether these jobs are permanent or seasonal and that there was an impression that the conversion of livestock production units to wildlife production units may have resulted in a decline of permanent jobs in some cases.
Economic considerations may never be used to condone or ignore practices that either compromise the country’s biodiversity, undermine the humane treatment of hunted animals, or that may taint the reputation of the hunting industry in the long run.
The panel found that there is overwhelming evidence that selective breeding of animals for trophy hunting, genetic manipulation, import of alien species and introduction of animals outside their natural ranges, amongst others, is having a profoundly negative impact on the long-term integrity of South Africa’s biodiversity and the viability of ecosystems. “Put and take” was also found to be a threat to diversity conservation due to the risks posed when a wild animal from an intensive wildlife production unit is introduced to an extensive wildlife production unit. “The Panel recognises the role of captive breeding as a method to support the rehabilitation of species for conservation purposes, especially if free-roaming animals have to be captured or rehabilitated for whatever reason. However, captive breeding for the sole purpose of hunting has led to the abuse of the primary intention of captive breeding since the original intention was to conserve species rather than to hunt.
In this regard the panel had to find a balance between the view that captive bred predators should never be hunted and the view of those that believe that there should be no self-sustaining provision. In the result the panel recommended the 24 month self-sustaining provision as a compromise.

The draft regulations contained provisions to the effect that a listed large predator, including a lion, may only be hunted after it has been rehabilitated into an extensive wildlife system and has been fending for itself in the wild for at least two years.
(One lion breeders) stated that the main aims of his breeding project in respect of lions include to rebreed or re-establish the extinct Cape lion and to re-establish healthy lions in nature. In his affidavit in support of the answering affidavit, Prof. Jacobus du Plessis Bothma effectively demolished these matters as possible arguments in respect of contribution to biodiversity. Prof. Bothma was described as an expert without equal in respect of the ecology and management of large predators. This was not denied by the applicants. Prof. Bothma was also a member of the panel (of experts). Prof. Bothma pointed out that all sub-Saharan lions are regarded as one subspecies and are therefore genetically the same. He further pointed out that it would be impossible to rebreed the extinct Cape lion, as the genetic material thereof is extinct and impossible to obtain. All that can be done is to breed a specimen of the ordinary lion south of the Sahara that looks or looks somewhat like the Cape lion. It was further pointed out that there is no evidence to the effect that a captive bred lion has been or could be successfully re-established in nature, that is in the wild, and also that if this could be done, the introduction of doubtful genetic material emanating from the captive bred and/or genetically manipulated lions would be detrimental to natural biodiversity. All of this was expressly admitted in the replying affidavits in which it was also repeatedly stated that the applicants have no intention of re-establishing captive bred lions as wild or free ranging lions in nature.
What remains is the argument that hunting of captive bred lions relieves the pressure on lions in nature or wild lions, also those in other African countries. Incidentally, in a study referred to by both the first applicant and the respondent, apparently published in 2002, the sub Saharan lion population was estimated as between 28 854 and 47 132, of which approximately 50 persent is to be found in Southern Africa. I find the twofold answer of the respondent hereto convincing, namely that the Act requires the protection of biodiversity in the Republic of South Africa and that hunting of lions in nature in the Republic of South Africa should and could be regulated by the permit system.
Simply put, the question here is whether in all the circumstances of this case there is a rational basis for the 24 month self-sustaining provision in the regulations in respect of the hunting of captive bred lions.
The effect of the 24 month self-sustaining provision is that a captive bred lion may only be hunted after it has been fending for itself for at least 24 months in a extensive wildlife production system as defined, that is a system that is large enough and suitable for the management of self-sustaining wildlife populations in a natural environment which requires minimal human intervention in the form of inter alia the provision of water, food and health care, except in times of drought when more than minimal supplementation of food is allowed.

[66] It was argued on behalf of the applicants that it is not practically possible to comply with the regulations in this regard, in the sense that it would not be possible for lions to fend for themselves as required for a period of 24 months or in fact any substantial period. It was therefore argued that the self-sustaining provision is irrational and that it indicates that the provision was introduced as a device to close down the industry without saying so. But the applicants say that in any event there is no rational basis for a provision that requires a self-sustaining period in an extensive wildlife production system. This is inter alia illustrated by the recurrent rhetorical question in the applicants’ papers as to why a lion should have to fend for itself in an extensive wildlife production system for any period if it is inevitably destined to be hunted.

[72] I believe that the challenged provision clearly pass the rationality test. It is not disputed that the hunting of lions bred in captivity has damaged the reputation of the Republic of South Africa immensely. It is clear on the evidence and also not disputed that very many people all over the world find the notion of hunting a lion bred and raised in captivity, often by hand, and totally dependent on humans for its survival, abhorrent and repulsive. I find this view to be objectively reasonable and justifiable, to say the least. This is so even, or perhaps especially so, if the hunting of such animal takes place in the circumstances put forward on behalf of the applicants as the most humane, namely the following:

“Working back from the actual date (day 0) of the hunt, the following time line is suggested:
* day -7: feed the lion a big meal (lions are ‘feast-and-famine’ eaters – after gorging themselves on a really big meal, they can go without a next meal for several days.).
* day -5 or -4: the lion is darted and the immobilized animal put in a crate, transported to the property where it will be hunted and released. Make sure that several adequate water points are available for the lion.
* day 0: the lion is hunted (four or five days after being released and running free. It means that there is no further contact by the lion with humans since it does not require to be fed. The lion may be lucky during this time and catch something on its own to eat).”
The main thrust of the argument of the applicants is that the 24 months self-sustaining provision will destroy the industry with resultant negative economic and social impact. The applicants point out that millions of rands were spent on establishing infrastructure and facilities in respect of the industry. They also point out that millions of rands per annum is earned by the industry, much of it in foreign currency, directly and indirectly, by the creation of job opportunities and business opportunities as a result of the industry. The applicants say that the closing down of the industry will make the capital spent on infrastructure and facilities wasteful, will bring an end to the earning derived from the industry, will cause many jobs to be lost and also will result therein that many lions will have to be put down.

[77] The respondent recognises the investments made and the direct and indirect benefits of the industry. I am not convinced however that the respondent is wrong in saying that the 24 months self-sustaining provision will not necessarily put an end to the industry by making it financially not viable. I have already pointed out that it must be accepted that the 24 months self-sustaining period can be practically implemented. It is common cause that a male lion is of acceptable trophy quality only by the time that it reaches the age of approximately four years. It is difficult to understand why it would not be financially viable to keep such a lion for 24 months thereof in an extensive wildlife production system. Even on the evidence of the chairperson of the first applicant that an adult male lion would require approximately 6000 kilogram of meat over a two year period and that that requirement can be met by providing blue wildebeest with the effective cost of approximately R14,00 per kilogram, that cost would amount to approximately R85 000,00. Other evidence presented by the applicants is that about 30kg to 40kg of meat per week is required, which could on this basis reduce the cost of prey hunted by half this amount. The price obtained for that lion would however be 22 000 US dollars on average. Ms Fletcher says that their operation requires a price of a minimum of 25 000 US dollars up to 60 000 US dollars. One can imagine also that in the light of the scarcity factor in respect of available lions for hunting that I accept will be caused by the provision in question, these prices might rise.
It was argued in the alternative in the application as originally framed that the 24 months self-sustaining provision should be phased in. The argument was also based on economic considerations, specifically losses as a result thereof that existing obligations would not be met if the regulations came into effect on 1 June 2007 as was then envisaged. This matter has however since been overtaken by events. At least on 23 February 2007 it was made known to the industry that there is a resolve to have a 24 months self-sustaining provision. Moreover, as pointed out earlier, the regulations are not presently applicable to lions. When the regulations are made applicable to lions, as is indicated by the respondent, the question of a phasing in could in any event then be considered.”
(End of Extracts from Judgment)

As can be seen, the Minister himself accepts that the two year wilding rule will not close the industry down. And lions are anyway excluded from the Regulations currently, and the killing free for all will go on un-constrained for years as the appeals process drags out. And then there is the ‘phasing out’ process adverted to in the judgment. For the unfortunate thousands of lions caught up in this dreadful industry, this whole Court case is much ado about nothing.
THIS IS MOST CERTAINLY NOT THE END OF THE ROAD FOR CANNED HUNTING.

Comment by Chris Mercer.
Campaign Against Canned Hunting
Wilderness
South Africa.
13th June 2009.