South Africa’s animal laws are a relic of apartheid-era governance and fail to reflect constitutional values, modern scientific understandings, African ethics and the realities of modern animal technologies. The country's primary legislation, the Animals Protection Act 71 of 1962 is now over 60 years old, woefully outdated and in desperate need of reform.
Despite plans for a new bill having been on the cards since 2014, no public progress has been made in updating this legislation.
Reliance on criminal sanctions
One of the biggest failings of the primary law is that it is ineffective because it relies almost entirely on criminal sanctions. The law protecting animals needs to be transparent, accessible and effective at scale.
Consider a person keeping a dog permanently on a chain — correcting such a situation often requires expensive, slow and burdensome court proceedings. A more practical approach would be implementing administrative law fines more frequently and using permits to address individual acts of neglect and cruelty, as years-long court cases should be reserved for large-scale abuse.
Legislative loopholes
The current legislation also contains dangerous loopholes that allow cruelty to persist. The Animals Protection Act prohibits ‘unnecessary suffering’, without clarifying what suffering is actually necessary. The default position in law is then that any suffering could be justified.
The law currently places the onus of proving, beyond reasonable doubt, that suffering was ‘unnecessary’, on the apparatus of state – a largely disinterested police force, and an overstretched prosecutorial branch of the courts, and one untrained in matters of animal protection.
Rui Lopes and Michael Jenkins 16 Jan 2024
This legislative weakness leads to the kind of real-world situations where privately funded welfare inspectorates have to spend millions of rand in court to prove that practices like the live transport of animals on ships for slaughter overseas constitute unnecessary harm.
Effective law would ensure that, for example, the operators of the live animal transport vessel of the kind that docked in Cape Town last year would have to rather prove in court how the transporting of cattle and other animals in such deplorable conditions would be acceptable.
More than just a resource
New legislation is therefore crucial to bring animal protection law into the modern area and up to date with global developments. Science continues to demonstrate that a growing list of animals are sentient, meaning they are capable of experiencing both positive and negative emotions such as joy, pain, and fear.
The Constitutional Court has recognised the interests' animals have in their own lives, by recognising their intrinsic value - that individual animals have value in and of themselves, over and above the dominion that humans have historically exerted over them in pursuit of our own interests.
Rui Lopes and Jaimin Patel 21 Dec 2023
The courts have stated clearly that animal welfare and conservation are intertwined constitutional values, both important because of our nation’s history and inherent in the fulfilment of our constitutional right to a safe and protected environment.
The legislative and executive branches have failed to bring legislation in line with these rulings. The sad reality is that South Africa currently ranks poorly on the World Animal Protection Index, a global measure which evaluates how well nations protect their animals.
The notion of intrinsic value means that animals are more than mere property — they possess worth beyond their economic utility. Parliament needs to act to align legislation with this judicial precedent and our Constitution. New legislation is required to close the identified gaps, remove ambiguous phrasing, set clear and enforceable standards, and clearly identify enforcement and other roles.
Charan Saunders, Animal Welfare Consultant for the Animal Law Project
Potential risks
Failing to reform animal welfare laws carries not just social and ethical but also serious economic risks. Many of South Africa’s key export markets, particularly the European Union and the United Kingdom, have high welfare standards. Other Global South countries are updating animal protection law to avoid non-compliance risks, which could result in yet further trade restrictions and put vital economic relationships at risk.
For those who work in the conservation or farming communities, improved animal welfare standards should not be seen as taking away livelihoods, but rather as a reconfigured framework where animals are treated as a vulnerable group as opposed to just a resource or object. Many state and commercial entities recognise animals for their economic value and fail to acknowledge their intrinsic value and interests as individuals.
By enacting stronger animal welfare laws that acknowledge sentience and the positive obligation to enhance animal welfare, South Africa can secure its trade future, while ensuring its legal framework reflects contemporary scientific and ethical understandings.
The time for change is now. South Africa must bring its animal welfare laws into the 21st century — both to uphold its moral responsibilities and to safeguard its economic interests. Government needs to act with the urgency this moment requires.
Views expressed are not necessarily those of the publisher.
