LIONS LOSE - COMMENT ON THE SUPREME COURT JUDGMENT

Bloemfontein - The SA Predator Breeders' Association recently won a Supreme Court of Appeal case regarding the trophy hunting of captive lions - commonly called "canned hunting".

The Supreme Court held the Minister of Environmental Affairs, Mr Van Schalkwyk, did not take a "rational decision" when he determined that captive-bred lions had to fend for themselves in an extensive wildlife system for 24 month before they could be hunted.

There seems to be much misunderstanding in conservation circles about this judgment, so I am going to clarify it, and copy relevant extracts of the judgment below for interested people to read.

In fact, the Supreme Court picked up on a point which we have made right from the beginning, namely, that the 24 month wilding rule was arbitrary and meaningless, having no conservation value.

We maintained that it was nothing more than a pretence; viz: ‘if we can pretend that the lion is wild then we can all pretend that canned hunting has been banned.’ The Minister’s aim was to use this public relations gimmick to deflect public anger, and at the same time allow canned hunting to continue behind the false cloak of regulation. We described the Minister’s 24 month wilding rule at the time as ‘mischievous and misleading.’
The Supreme Court described it as ‘irrational,’ and we cannot fault this characterisation. The 24 month wilding rule was a publicity stunt which had no place in Conservation, and that is exactly what underlies the Supreme Court’s decision. See extracts from the judgment below, in italics.
This judgment, and the current unregulated free for all in captive lion breeding and canned hunting is the clearest indicator of the incompetence and dysfunctionality of SA conservation services. Look at the consequences of their mindless promotion and permitting of this awful industry. Wild lions will continue to be poached and captured from game reserves and neighbouring countries to supply fresh blood for the lion breeders, in order to combat captivity depression. The unnatural confinement of predators has the potential to breed pathogens such as feline AIDS which can devastate both captive and wild populations. The barbaric cruelty will increasingly drive away ethical tourism (our share of world tourism is still a miserable less than half of one per cent!) We get emails every day from outraged tourists who refuse to visit this country. And now the captive lion breeders are moving in to selling lion bones for the infamous Chinese traditional medicine market which has already emptied the forests of Asia of their tiger populations.
In short, thanks to the lack of foresight and intelligence in conservation structures, predators are becoming domesticated livestock – but un-protected by animal cruelty legislation. Imagine the outcry if farmers bred sheep and goats for hunters to shoot arrows in to? Our wildlife desperately needs protection from conservationists; with friends like the current crowd, the lions hardly need enemies.
What this Supreme Court decision reveals is that captive lion breeding has moved out of conservation, and in to agriculture. Lions have become alternative livestock. Our useless Conservationists have allowed the ‘wild’ to be taken out of our wildlife. Why do we waste taxpayers’ money on them?

Chris Mercer
Campaign Against Canned Hunting Inc
Wilderness, South Africa.

EXTRACTS FROM SUPREME COURT JUDGMENT

“The SA Predator Breeders Association argued against the 24 month wilding period in the TOPS regulations as follows:
1. The period of 24 months bore no rational connection to any legislative purpose of the Act.
2. No rational basis existed for the underlying assumption that a captive-bred lion can be rehabilitated at all.
3. The period of 24 months could not be rationally justified by any information in the possession of the Minister when he approved the Regulations or subsequently.

[41] The appellants, having adopted the stance that a captive-bred lion could not successfully be rehabilitated at all, objected that the 24 month delay was arbitrary and unsupported by any scientific evidence. As will be seen I am of the view that closer examination of the Minister’s reasons bears out their objections.
[42] The evidence placed before the court in the application on this issue may be summarised as follows:
1. The panel of experts does not appear to have investigated the feasibility of rehabilitating lions from a captive environment. It assumed that a captive-bred lion could be rendered self-sustainable by appropriate rehabilitation.
[43] Thus there was no material disagreement between the experts on the question of the prospect of rehabilitating a captive-bred lion. At worst a successful outcome was speculative, at best, very unlikely. This foundation provided no sufficient reason for the Minister to lay a premise of self-sustainability before hunting could be allowed. To do so was not a rational exercise of his power.

[34] It appears from these and other passages in the answering papers that the Minister was motivated by the following considerations:
1. The recommendation of the panel of experts appointed in 2005 to advise him on the compilation of norms and standards for the hunting industry.
2. Public opinion in so far as it was strongly opposed to the hunting of captive-bred lions.
3. The ethical practices of hunting including ‘fair chase’.

[35] To the extent that the Minister was influenced by the report of the panel in reaching his final conclusion on the form that reg 24(2)(b) should take, he was the decision-maker and was entitled and indeed under a duty to take into account all relevant evidence including the views of experts such as the Panel. But in this instance:
i) the panel met, heard representations formulated and submitted its report and was disbanded a year before the draft regulations were published for comment;
ii) the modus operandi in formulating its report was to reach consensus on disputed issues and to reflect that agreement in the report that it submitted to the Minister, without detailing the conflicting views or the motivations for them. The Minister was not therefore in a position to consider or judge for himself concerning the substance or merit of such views but was entirely reliant on what the Panel had regarded as an acceptable compromise;
iii) what Olver and Bothma deposed to in their affidavits in the court proceedings concerning the substance of the panel’s consideration of any matter, its thoroughness or fairness in evaluating conflicts and its reasons for arriving at its recommendations is hearsay and moreover irrelevant to the decision of the Minister unless there is evidence that it was reflected in the report of the experts and was present to his mind in making his decision.

[36] The Minister explained that he himself had been strongly in favour of imposing an outright ban on the hunting of captive-bred lions. His opposition seems to have stemmed from ethical reasons, the prevalence of malpractices in relation to such hunting and the adverse effects on South Africa’s reputation particularly in relation to tourism. The Minister deposed that he was persuaded to adopt the lesser step involved in the formulation of reg 24(2), ‘as recommended by the panel’ with the intention of permitting continued hunting of captive-bred animals subject to its terms. He described this (as the panel had done) as a compromise between those who would tolerate no hunting and those who would allow it. The Minister and his expert witnesses conceded that there was no scientific basis for the assumption that a captive-bred lion could be rendered self-sufficient within any certain period or indeed at all. Such examples of apparent self-sustainability as he offered were shown by the respondent in reply to be in the highest degree unreliable. Nor was the Minister able to put forward any ground that might justify the 24 month freeze. As I have said I understand his reasoning to be that he thought that that would be a sufficient period within which an animal could prove its self-reliance and would afford it opportunity to develop its ‘natural’ skills for use in avoiding those who sought to hunt it, this last apparently regarded by him as humane, ethical and favouring the fair chase principle.

[37] It is by no means clear to me how either ethical hunting (whatever its limits may be) and fair chase fit into a legislative structure which is designed to promote and conserve biodiversity in the wild, and, more especially in relation to captive-bred predators that are not bred or intended for release into the wild. But the Minister’s reliance on the recommendation of the panel is in any event misplaced and represents a distortion of its view. The line drawn by the Minister at 24 months appears to be an arbitrary attempt to cut the gordian knot which linked the two irreconcilable protagonists, without a justifiable basis in fact or expert opinion for choosing that cut-off point. It was both misguided (in its interpretation of the panel’s recommendations) and irrational (in possessing no foundation in fact). Nor as I have pointed out was it related to the statutory powers conferred on him.

[44] No doubt the Minister was entitled to take account of the strong opposition and even revulsion expressed by a substantial body of public opinion to the hunting of captive-bred lions. But in providing an alternative he was bound to rely on a rational basis. The evidence proves that he did not do so.