Animal Interests and South African Law: The Elephant in the Room?

Since the inception of constitutional democracy in South Africa in 1994, legislators, policy-makers and courts alike have tended to avoid expressly recognising the interests of animals in law. This chapter will seek to consider this trend in two significant areas – namely, the protection of animals against cruelty and the regulation of wildlife – in which there have been engagements in post-apartheid South Africa between the law and animal interests. Other than complete avoidance, where animal interests are considered, the discourse of courts and legislative bodies avoids the ethical implications of such a recognition and focuses on “objective” scientific matters. I shall contend that this “avoidance” of animal interests and ethics may often be successful in enhancing protections for animals and can be justified, at times, in this light. Yet, if the interests of animals continue to be routinely ignored, legal actors contribute towards the blindness of human beings to their value and thus limit what can be achieved in advocating for better protections. Thus, litigation and advocacy strategies need to develop a manner of ensuring that animal interests are expressly placed on the table and inviting courts (and other actors) to make pronouncements that can alter the status and seriousness with which they are treated. Such an approach, moreover, will be consistent with the ideas that shaped the liberation struggle and new constitutional order in South Africa and recognise that compassion, humanity and a refusal to sanction injustice must not arbitrarily be confined to the human species but extend to other animals too.