Centre for Environmental Rights – Advancing Environmental Rights in South Africa

This week, two important judgments concerning environmental law were handed down by the Constitutional Court and the Supreme Court of Appeal respectively.

The first is the case of Bengwenyama (Pty) Ltd and Others v Genorah (Pty) Ltd and Others, where the Constitutional Court decided upon the administrative fairness of the allocation of prospecting rights to a third party in terms of the Mineral and Petroleum Resources Development Act, 2002 (MPRDA) on land owned by a community. The decision to grant the prospecting rights was found to be unlawful and was set aside.

One of the reasons for setting aside the decision was a lack of evidence that the Deputy Director General “considered and was satisfied that the environmental requirement in section 17(1)(c) read with section 39(2) [of the MPRDA] was fulfilled.”  This section requires that the Minister must not grant a prospecting right if it will result in unacceptable pollution, ecological degradation or damage to the environment. It was also held that the recipient of the prospecting right, Genorah, had failed to adequately consult with the community who owned the land and that the decision-maker had not given the community a hearing or complied with the fairness requirements of PAJA.

In the matter of SA Predator Breeders Association v Minister of Environmental Affairs, the Supreme Court of Appeal  held that the Minister of Environmental Affairs had acted irrationally when making the decision that captive-bred lions had to fend for themselves in an extensive wildlife system for 24 months before they could be hunted. Heher, J held that the inclusion of lions within the  definition of a “listed large predator” would render the prohibition in the Threatened or Protected Species Regulations (GNR 152 of 23 February 2007) against the hunting of captive bred large predators within 24 months of their release invalid.

Heher J held that “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”.  He also held that regarding the prospects of success for the rehabilitation of captive-bred lions, on the expert evidence it appeared that “at worst a successful outcome was speculative, at best, very unlikely.”

In 2008 the Minister amended the regulations to remove lions from their ambit so that, whilst legal proceedings took place, the balance of the regulations could be put into effect.  At the time the Minister indicated that, if the judgment was in the Department’s favour, lions would be re-introduced into the regulations, an option now no longer available to the Minister.  The likely effect of this judgment is thus that the Department will have to substantially review its policy on so called “canned lion hunting” and if necessary seek amendments to the National Biodiversity Act.