Two organisations and a Khoi traditional healer want the elephants kept at the Joburg Zoo to freed from captivity. Picture: Timothy Bernard/Independent Newspapers
ANIMAL Law Reform SA, EMS Foundation and Khoi Chief Stephen Fritz have asked the North Gauteng High Court to declare that elephants in captivity at the Johannesburg Zoo enjoy rights enshrined in the Constitution.
Animal Law Reform SA, a non-profit company, EMS (Elizabeth Margaret Steyn) Foundation, a social justice non-governmental organisation and Fritz, who describes himself as a community leader, traditional healer, environmentalist and wildlife conservationist, have hauled Johannesburg City Parks and Zoo, the City of Johannesburg, Gauteng Department of Economic Development, Agriculture, Environment and Rural Development as well as Forestry, Fisheries and the Environment Minister Dr Dion George to the high court.
The Gauteng Department of Economic Development, Agriculture, Environment and Rural Development was separated after the May 29 general elections following the establishment of the government of national unity.
In papers filed at the North Gauteng High Court in Tshwane, the entities and Fritz argue that South African law recognises that animals are sentient beings capable of suffering and experiencing pain.
According to the groups and Fritz, animals have intrinsic value as individuals and that intrinsic value is a central rationale for their protection.
”South African law recognises that the protection of animals is intrinsically linked to the moral status of humans … The welfare of animals including those in captivity and conversation are inextricably intertwined and together form part of the section 24 right and the values underpinning the Constitution,” they argued.
Section 24 of the Constitution states that everyone has the right to an environment that is not harmful to their health or well-being and to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures.
The measures prevent pollution and ecological degradation, promote conservation and secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.
In addition, the organisations and Fritz said animals in captivity constitute biodiversity for the purposes of the National Environmental Management: Biodiversity Act.
”The applicants (Animal Law Reform SA, EMS Foundation and Fritz) contend that, on proper interpretation of section 24 of the Constitution, and the legislation enacted to give effect to section 24, the right enjoyed by everyone to have the environment protected requires that the welfare and wellbeing of individual animals be considered and promoted,” read the papers.
They added that Johannesburg City Parks and Zoo and the City of Johannesburg’s continued confinement of elephants at the Johannesburg Zoo is unlawful and unconstitutional.
Animal Law Reform SA, EMS Foundation and Fritz further believe that the elephants are being kept at the Johannesburg Zoo in conditions that are adverse to their welfare and wellbeing and in a state of demonstrable and significant distress in breach Johannesburg City Parks and Zoo and the City of Johannesburg’s obligations under section 24 of the Constitution read with section seven of the country’s supreme law, which states that the Bill of Rights is a cornerstone of democracy.
”It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom. The state must respect, protect, promote and fulfil the rights in the Bill of Rights,” reads the section.
Animal Law Reform SA, EMS Foundation and Fritz also point fingers at Johannesburg City Parks and Zoo and the City of Johannesburg for failing in their obligations to respect, promote, protect and fulfil the right to the environment by ensuring the welfare and wellbeing of the elephants at the Johannesburg Zoo.
Additionally, Fritz accused Johannesburg City Parks and Zoo and the City of Johannesburg’s decision to confine and exhibit the elephants infringes the rights of Khoi people to participate in a cultural life of their own choosing, enjoy their culture and practise their religion as a community and an environment that is not harmful to their health and wellbeing.
He also stated that the confinement and exhibition of the elephants is offensive to the culture and living heritage of the Khoi people
“The third applicant (Fritz) further contends that the manner in which the first and second respondents (Johannesburg City Parks and Zoo and the City of Johannesburg) confine and exhibit the elephants undermines the recovery and perpetuation of the Khoi people’s living heritage including their values, spiritual beliefs and holistic approach to nature, society and social relationships protected by the National Heritage Resources Act,” Fritz explained.
Parties interested in the matter were given 20 days from September 17 to file court papers to be admitted as amicus curiae (friends of the court).
In July, Charley, an adult African elephant bull at the National Zoological Gardens in Tshwane was retired due to advanced age and now kept at the Shambala Private Game Reserve in Limpopo.
loyiso.sidimba@inl.co.za