In a spearheading judgment the Constitutional Court in National Society for the Prevention of Cruelty to Animals (NSPCA) v Minister of Justice and Constitutional Development and others elevated the welfare of animals to a constitutional issue.

The Constitutional Court was called upon to consider whether the NSPCA is entitled to privately prosecute crimes of animal cruelty connected to its mandate. The matter required the Court to consider the legislative role and mandate of the NSPCA as prescribed in the Societies for the Prevention of Cruelty to Animals Act (SPCA) and the Animal Protection Act (APA), with regard to provisions in the Criminal Procedure Act dealing with private prosecutions.

The issue of whether the NSPCA can initiate a private prosecution arose when the NSPCA became aware of a religious sacrificial slaughter of two camels in front of a crowd. The slaughter was attended by a number of NSPCA officials, who regarded the process as being cruel and inhumane. The procedure entailed the slicing open of the camels’ throats until the slit was deep enough for the animal to bleed out. This required that the one camel had to be sliced eight times; the other three. In an act of compassion, an NSPCA inspector shot both animals to relieve them of their suffering.

The NSPCA referred the matter to the National Prosecuting Authority (NPA) on the basis that the religious slaughter amounted to an animal cruelty offence in contravention of the APA. Despite overwhelming evidence, the NPA decided not to initiate criminal proceedings. This spurred the NSPCA to want to initiate a private prosecution in terms of the CPA.

The CPA makes provision for two types of private prosecutions in circumstances where the NPA decides not initiate criminal proceedings. In terms of section 7 of the CPA, any private person who proves some substantial and peculiar interest may initiate a private prosecution, provided the NSPCA issues the person with a certificate nolle prosequi (refusal to prosecute). In terms of section 8 of the CPA any body may institute criminal proceedings where the right of prosecution is expressly conferred in terms of a statutory provision.

The NSPCA initially relied on section 7, providing for private prosecution by a private person. However, the NPA refused to issue it with a certificate nolle prosequi on the basis that “private person” in section 7 of the CPA should be interpreted to only include natural persons and not also juristic persons. The NPA was of the view that the NSPCA should rather have relied on section 8 of the CPA as the objects of the NSPCA operate for the benefit of the public.

The NSPCA decided to challenge the NPA’s distinction between natural persons and juristic persons in the interpretation of private persons arguing that this distinction amounted to unfair discrimination in contravention of section 9 of the Constitution. Both the High Court and the Supreme Court of Appeal rejected the NSPCA’s argument. Both courts further found that the NSPCA is a public body for purposes of section 8 of the CPA which confers a right of private prosecution on a body where a statutory provision expressly confers such power. However, both courts held that the SPCA Act does not confer a right of private prosecution on the NSPCA.
In the Constitutional Court the NSPCA advanced an alternative argument during oral submissions arguing that the SCPA Act confers it with a statutory power to institute private prosecutions and therefore that it was entitled to do so in terms of section 8 of the CPA. This is the argument initially relied on the respondents. The Constitutional Court allowed the NSPCA to raise the argument so late in the proceedings on the basis that it was sufficiently before the court.

The Constitutional Court considered the arguments advanced by all the parties and held that it would be preferable if the empowering provisions of the SCPA Act could be construed in a constitutionally-compliant manner that provides the NSPCA with the remedy it seeks.

The Constitutional Court followed a purposive and contextual approach to interpreting section 6(2)(e) of the SCPA Act in order to determine whether this provision “expressly confers” a right of private prosecution. Section 6(2)(e) of the SCPA Act permits the NSPCA to:
“institute legal proceedings connected with its functions, including such proceedings in an appropriate court of law or prohibit the commission by any person of a particular cruelty to animals, and assist a society in connection with such proceedings against or by it”.

Both the High Court and SCA found that the power to “institute legal proceedings” does not constitute a conferral of the power to private prosecution. In contrast, the Constitutional Court held that on a plain textual reading, the term “institute legal proceedings” can include the power to privately prosecute. This power is intricately “connected with its functions”. Therefore the Constitutional Court had to determine what the NSPCA’s functions include. In order to determine this, the court considered the SCPA Act together with the APA Act and other statutes aimed at protecting animals. It concluded that the NSPCA is explicitly charged with upholding these statues and preventing animal cruelty, and that the term “institute legal proceedings connected with its functions” in the SCPA Act must be interpreted to encompass prosecution of animal cruelty. Any other interpretation would render section 6(2)(e) of the SCPA Act a “toothless tiger”.

In further support of this conclusion, the Constitutional Court considered how the desirability of preventing animal cruelty has evolved over time and the increasingly robust stance taken by South African courts in this regard. Recently, Cameron JA in a minority judgment in NSPCA v Openshaw recognised that animals are worthy or protection not only because if the reflection that this has on human values, but because animals are “sentient beings that are capable of suffering and experiencing pain”. This judgment was favourable relied on by the High Court in South African Predator Breeders Association v Minister if Environmental Affairs and Tourism and not disputed on appeal. The SCA in S v Lemthongthi endorsed the intrinsic value of animals with reference to the constitution stating that our “[c]onstitutional values dictate a more caring attitude towards fellow humans, animals and the environment”.

The Constitutional Court interpreted the Lemthongthi judgment to go so far as to relate animal welfare to biodiversity. Consequently animal welfare is connected with the constitutional right to have the “environment protected … through legislative and other means” in section 24 of the Constitution. Importantly the Court states:
“This integrative approach correctly links the suffering of individual animals to conservation, and illustrates the extent to which showing respect and concern for individual animals reinforces broader environmental protection efforts. Animal welfare and animal conservation together reflect two intertwined values”.
The Constitutional Court reinforced the status of the NSPCA as public body with wide and singular responsibilities including preventing ill-treatment of voiceless beings. Given the singularity of the NSPCA as a body, a broad understanding of its powers is required. In light of the exceptional status of the NSPCA the Constitutional Court held that section 6(2)(e) of the SCPA Act should be interpreted to include the power of private prosecution so as to enable it to perform its legal mandates.

Written by Janah Miller, Senior Associate at Cullinan & Associates