THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Reportable
Case No: 462/07

In the matter between:

NATIONAL COUNCIL OF SOCIETIES FOR
THE PREVENTION OF CRUELTY TO ANIMALS

APPELLANT

and

PETER OPENSHAW

RESPONDENT

CORAM:
FARLAM JA, CAMERON JA, HEHER JA, HURT AJA
and MHLANTLA AJA

HEARD:

16 MAY 2008

DELIVERED:
30 MAY 2008

SUMMARY:  Interim relief - refusal of – delay by appellant in instituting principal
action – right to interim relief forfeited – reasonable apprehension of
irreparable harm not established - Order in para [31].

NEUTRAL CITATION:  This judgment may be referred to as NCSPCA v
Openshaw (462/07) [2008] ZASCA 78 (RSA)

MHLANTLA AJA

MHLANTLA AJA:
[1] The appellant appeals against a decision of Van der Merwe J
(sitting in the Bloemfontein High Court) in which its application for an
interim interdict restraining the respondent from presenting live prey to
tigers in contravention of the Animal Protection Act 71 of 1962 (the Act)
was dismissed with costs.  The appeal is with leave of this court.

[2] The issue is whether an inference can be drawn from a statement
by the respondent in video footage, that he committed an offence in terms
of section 2(1)(g) of the Act, and if so, whether one can infer that this
would be an ongoing practice so as to constitute the apprehension of harm
required for an interdict.

[3] First, however, it is necessary to consider the respondent’s
contention that the appeal has become moot.  On 8 May 2008, a week
before the hearing of the appeal, the respondent filed a notice of motion
for the admission of his affidavit as evidence in the appeal.  In this
affidavit he informed the court that he had resigned as manager at the
tiger sanctuary (which employed him at the time the interdict was sought
against him) and had accepted a contract of employment at the Abu
Dhabi Tourism Development and Investment Company from 14 May
until 31 December 2008 with a prospect of being offered a further
contract.  He explained that his decision to seek other employment was
based solely on financial considerations.  He further stated that there was
no prospect of him returning to the tiger sanctuary after 31 December
because the job did not offer him the financial security he and his family
required.

[4] It is common cause that the respondent left the Republic of South
Africa on 14 May 2008 to assume his duties in Abu Dhabi.  It was
contended on his behalf that the appeal was moot and that the court
should accordingly dismiss the appeal in terms of section 21A of the
Supreme Court Act 59 of 1959.1

[5] When the appeal was heard, submissions were advanced both on
the question of mootness and the merits. In view of the fact that I have
come to the firm conclusion that the appeal must fail on the merits, it is
unnecessary for me to deal with the mootness argument.  I am prepared to
assume without deciding that, even if the matter is moot, this is not a case
in which a court should exercise its discretion in terms of section 21A of
the Supreme Court Act.

1 Section 21A reads:
' (1) When at the hearing of any civil appeal to the Appellate Division or any Provincial or
Local Division of the Supreme Court the issues are of such a nature that the judgment or order
sought will have no practical effect or result, the appeal may be dismissed on this ground
alone.
(2) (a) If at any time prior to the hearing of an appeal the Chief Justice or the Judge President,
as the case may be, is prima facie of the view that it would be appropriate to dismiss the
appeal on the grounds set out in subsection (1), he or she shall call for written representations
from the respective parties as to why the appeal should not be so dismissed.
(b) Upon receipt of the written representations or, failing which, at the expiry of the time
determined for their lodging, the matter shall be referred by the Chief Justice or by the Judge
President, as the case may be, to three judges of the Division concerned for their
consideration.
(c) The judges considering the matter may order that the question whether the appeal should
be dismissed on the grounds set out in subsection (1) be argued before them at a place and
time appointed, and may, whether or not they have so ordered-
(i)
order that the appeal be dismissed, with or without an order as to the costs
incurred in any of the courts below or in respect of the costs of appeal,
including the costs in respect of the preparation and lodging of the written
representations; or
(ii)
order that the appeal proceed in the ordinary course.
(3) Save under exceptional circumstances, the question whether the judgment or order would
have no practical effect or result, is to be determined without reference to consideration of
costs.
(4) The provisions of subsections (2) and (3) shall apply with the necessary changes if a
petition referred to in section 21 (3) is considered.'

[6] I accordingly proceed to deal with the merits.  The appellant is a
statutory body established in terms of the Societies for the Prevention of
Cruelty to Animals Act 169 of 1993.  Its objects are set out in section 32.
These inter alia, include the prevention of ill-treatment of animals by
promoting their good treatment by man.  The respondent was the manager
of the Laohu Valley Reserve in the Philippolis district.  He was employed
on a conservation project of the Chinese Tigers South Africa Trust.  The
aim of the project is to save from extinction an endangered sub-species of
tiger known as the South China Tiger or Chinese Tiger.

[7] The respondent attempted to train captive-born Chinese Tiger cubs
to function in the wild.  The project planned to bring the tiger cubs born
in China to South Africa and place them in a sanctuary, the Laohu Valley
Reserve, where they would be taught to survive by hunting.  These tigers
would eventually be returned to a reserve to be created in China.  At the
time of the institution of the proceedings, three tigers, named Tiger
Woods, Madonna and Cathay, were under the control of the respondent
for the purposes of the project.

[8] The appellant initially sought an order for a final interdict
preventing the respondent from presenting live prey such as blesbok to

2 Section 3 reads:
'The objects of the Council are-
(a)
to determine, control and co-ordinate the policies and standards of societies, in order
to promote uniformity;
(b)
to promote co-operation among societies;
(c)
to prevent the ill-treatment of animals by promoting their good treatment by man;
(d
to promote the interests of societies;
(e)
to take cognizance of the application of laws affecting animals and societies and to
make representations in connection therewith to the appropriate authority;
(f)
to do all things reasonably necessary for or incidental to the achievement of the
objects mentioned in paragraphs (a) to (e).'

the tigers.  The appellant founded its application on section 2(1)(g) of the
Act which states the following:
'(1) Any person who-
(g)
save for the purpose of training hounds maintained by a duly
established and registered vermin club in the destruction of
vermin, liberates any animal in such manner or place as to
expose it to immediate attack or danger of attack by other
animals or by wild animals, or baits or provokes any animal or
incites any animal to attack another animal
shall, subject to the provisions of this Act and any other law, be guilty of an offence
and liable on conviction to a fine or to imprisonment for a period not exceeding
twelve months or to such imprisonment without the option of a fine.' (Emphasis
added.)

[9] The application was launched after the appellant's officials were
alerted to video footage of a documentary on a television programme
called 50/50 which was broadcast on SABC 2.3  The footage depicted
blesbok being caught in a net, followed immediately by a statement by
the respondent.  The appellant contended that the respondent had
demonstrated an intention to contravene the provisions of s 2(1)(g) of the
Act when he made the following statement:
'What we are going to do, we are going to present one of them live to Tiger Woods
and Madonna and the others we will put into the enclosure that Cathay and Hope
normally stay in.'

[10] The respondent in his answering affidavit stated that the footage
had been taken on different occasions over the period June to August
2005 and spliced together to give the appearance of a single episode.  He

3 A recording of the programme as broadcast accompanied the founding papers and formed part of the
record of this appeal.

admitted making the statement but did not explain what he meant nor
what happened to the blesbok.  He elected to remain silent and not
respond to what he termed conjecture on the appellant’s part. He further
denied contravening s 2(1)(g) or any provisions of the Act.

[11] The respondent thereafter set out the modus operandi of the
programme since 2005.  He stated that there are a series of different-sized
enclosures fenced with appropriate predator-proof fencing as follows:
(a)
A small enclosure which serves as a quarantine camp for newly
arrived cubs;
(b)
Enclosures of 4ha and 9ha respectively, in which the young cubs
are exposed to the vegetation and terrain, and where they might encounter
smaller prey such as guinea-fowl and rodents.  This camp has sometimes,
in the absence of tigers, been used to hold antelope before they were
introduced to the larger enclosures.  The respondent stated that he had no
plans or intentions of allowing tigers and blesbok to be present
simultaneously in future in the 9ha enclosure.
(c)
A 40ha enclosure, with a river running through it, in which sub-
adult and adult tigers roam together with a limited number of antelope.
According to the respondent, the river and the size of the camp make
hunting very difficult and the prey are highly attuned to the behaviour of
the tigers.  He further stated that the best way to introduce the blesbok
into this enclosure would be to first remove the tigers.  This would allow
the blesbok a period of time to acclimatise themselves to the area and
consequently much harder to hunt when the tigers were eventually re-
introduced to this enclosure.
(d)
A 600ha enclosure of which the predator-proof fencing was
nearing completion. Large numbers of several species of prey, including

blesbok, springbok, ostrich, mountain reedbuck and wildebeest were
already situated in this enclosure.
(e)
A 6000ha enclosure in which larger numbers of prey referred to in
(d) above were located.

[12] The respondent thereafter proceeded to set out the current status
and future plans of the re-wilding programme:
(a)
Tiger Woods and Madonna, both 2 ½ years old, were located in the
40ha camp.  Thirteen blesbok had been introduced in August 2005.
There were two adult blesbok remaining in August 2006 when he
deposed to his answering affidavit.  It has accordingly taken the tigers
more than a year to hunt the herd of 13 blesbok down to two.  More
blesbok would be released into the camp once the remaining two had
been hunted.  The respondent stated that he would not do so in the
immediate proximity of the tigers as this would be counter-productive to
the aims of the project.  He outlined the process to be adopted, ie, the
tigers would first be removed to allow the blesbok time to acclimatise
properly.  This had to be done to ensure that the tigers were exposed to
situations which were akin to those which the tigers would encounter in
the wild.  He indicated that the tigers were nearing the point in their
development where they could fend entirely for themselves in the 600ha
camp.
(b)
On 26 May 2006 Cathay was separated from the other tigers and
kept in a 14ha camp, as a result of territorial and aggressive behaviour
towards the other female.  Apart from the guinea fowl and rodents which
creep in through the fence, no live prey has been introduced in this camp.
She has been sustained on carcasses which were provided by the
respondent every five to seven days.

(c)
Once Tiger Woods and Madonna were released into the 600ha
enclosure, Cathay would be released into the 40ha camp.  She would
however be kept in the 14ha camp when the blesbok were released into
the 40ha camp.

[13] The appellant in its replying affidavit did not challenge the
respondent's averments in regard to the modus operandi and current
status of the re-wilding project.  It abandoned its claim for final relief on
the papers and sought an interim interdict pending the determination of
what it described as 'disputed' factual issues by means of a hearing of oral
evidence.  It sought interim relief pending the determination of an action
to be instituted within 30 days of the grant of the interim order.

[14] The court below found that the respondent had not furnished any
specific explanation or interpretation of what he meant when he made the
recorded statement.  The learned judge stated that he was inclined to
agree with the appellant that the recording provided prima facie evidence
that s 2(1)(g) of the Act had been contravened in respect of the two tigers
in the enclosure.  He however stated that as the interdict was not a
remedy for past invasion of rights: the appellant had a duty to show prima
facie that there was a reasonable apprehension that, unless restrained by
interdict, the respondent would continue or in future contravene s 2(1)(g)
of the Act.  The court below found that, as none of the averments by the
respondent were disputed or contradicted, it had to accept that the
respondent would not in the future expose prey such as blesbok to the
tigers in contravention of s 2(1)(g).  He accordingly dismissed the
application with costs.

[15] In this appeal the respondent’s counsel raised a preliminary
objection that the appellant had by its delay in instituting the action
envisaged forfeited any right to interim relief. Counsel for the appellant
submitted that the action had not been instituted because the appellant
was awaiting the outcome of the appeal on this issue and that it intended
to utilise the judgment to prefer criminal charges against the employers of
the respondent.

[16] The argument on behalf of the appellant, in my view, has no merit.
First, the judgment cannot be used against the employer who is not a
party to these proceedings.  Second, in regard to the long delays Van
Wyk J stated the following in Juta & Co Ltd v Legal and Financial
Publishing Co (Pty) Ltd4:
'If one bears in mind the long delays for which no explanation has been given, that as
far back as December the applicant had numerous clear cases of copying in its
possession, according to the letter written by the applicant, and that up to now no
action has been instituted, it seems that the applicant has erred in selecting this
method, namely, an application for an interdict pendente lite, but even if it was the
appropriate procedure at the time the applicant has, by reason of the facts stated
above, forfeited its rights to this temporary relief. Had it issued summons at the time
when the notice of motion proceedings were instituted, the trial could already have
taken place.
There is such a thing as the tyranny of litigation, and a Court of law should not allow
a party to drag out proceedings unduly. In this case we are considering an application
for an interdict pendente lite, which, from its very nature, requires the maximum
expedition on the part of an applicant.'

[17] In my view these principles are applicable.  The application for
final relief was launched on 11 July 2006.  The respondent filed his

4 1969 (4) SA 443 (C) at 445C-E.

answering affidavit on 28 August 2006.  The appellant filed its replying
affidavit on 19 October 2006 wherein it abandoned the claim for final
relief and sought interim relief pending the determination of an action to
be instituted by it within 30 days.

[18] It is now more than 19 months since the launch of the application
and the appellant has still not instituted the action to which its claimed
interim relief is ancillary.  There is no doubt that if the appellant had
acted promptly, the trial of this action would probably have preceded the
determination of this appeal.  Both parties would have had the
opportunity to present their cases in court and all the issues would have
been properly ventilated.  In my view, the delays are highly prejudicial to
the respondent.  The appeal accordingly falls to be dismissed on account
of the appellant's delay in instituting the principal action to which its
claimed interdictory relief is ancillary.

[19] In regard to the merits of the case, counsel for the appellant
contended that the appellant had established a clear right in terms of the
Act and as such it was not necessary to establish a reasonable
apprehension of irreparable harm for an interdict to be granted.  He
further submitted that as the re-wilding of the tigers was an ongoing
programme and as no explanation was furnished for the events contained
in the video recording, the only reasonable inference that could be drawn
was that s 2(1)(g) had been contravened and would be similarly
contravened in future.  He further contended that the respondent had not
averred that this was an isolated event and had only provided
explanations for current and not future practices.

[20] An interdict is not a remedy for past invasion of rights but is
concerned with present or future infringements.  It is appropriate only
when future injury is feared.5  Where a wrongful act giving rise to the
injury has already occurred, it must be of a continuing nature or there
must be a reasonable apprehension that it will be repeated.  The requisites
for the right to claim an interim interdict are:6
(a)
A prima facie right.  What is required is proof of facts that
establish the existence of a right in terms of substantive law;
(b)
A well-grounded apprehension of irreparable harm if the
interim relief is not granted and the ultimate relief is
eventually granted;
(c)
The balance of convenience favours the granting of an
interim interdict;
(d)
The applicant has no other satisfactory remedy

[21] The test in regard to the second requirement is objective and the
question is whether a reasonable man, confronted by the facts, would
apprehend the probability of harm. The following explanation of the
meaning of 'reasonable apprehension' was quoted with approval in
Minister of Law and Order v Nordien:7
'A reasonable apprehension of injury has been held to be one which a reasonable man
might entertain on being faced with certain facts.  The applicant for an interdict is not
required to establish that, on a balance of probabilities flowing from the undisputed
facts, injury will follow: he has only to show that it is reasonable to apprehend that
injury will result.  However the test for apprehension is an objective one. This means

5 Phillip Morris Inc v Marlboro Trust Co SA 1991 (2) SA 720 (A) at 735B.
6 Eriksen Motors (Welkom) Ltd v Protea Motors Warrenton 1973 (3) SA 685 (A).
71987 (2) SA 894 (A) at 896.  See also Janit v Motor Industry Fund Administrators (Pty) Ltd 1995 (4)
SA 293 (A) at 304, End Conscription Campaign v Minister of Defence 1989 (2) SA 180 (C) at 208I-
209C

that, on the basis of the facts presented to him, the Judge must decide whether there is
any basis for the entertainment of a reasonable apprehension by the applicant.'8

[22] If the infringement complained of is one that prima facie appears to
have occurred once and for all, and is finished and done with,9 then the
applicant should allege facts justifying a reasonable apprehension that the
harm is likely to be repeated.

[23] Applied to the facts of this case and in so far as the statement by
the respondent in the video footage is concerned, it does not reveal what
actually happened to the blesbok, but only that the respondent  expressed
an intention to do something.  Having regard to the facts, a fair inference
can be drawn that the respondent would in August 2005 commit one
offence in contravention of s 2(1)(g) of the Act.  In my view, the court
below correctly found the recording of the programme coupled with the
respondent’s failure to explain his statement indicated only a single
contravention of s 2(1)(g) of the Act.

[24] The next issue is whether an inference can be drawn that this
would be an ongoing practice. In this regard the argument on behalf of
the appellant that it was unnecessary to show an apprehension of
irreparable harm is ill-conceived. In my view, the appellant still had a
duty to show objectively that, when faced with the facts a reasonable
person would find an apprehension of harm, that the respondent is likely
in future to contravene s 2(1)(g) of the Act by presenting live prey such as
blesbok to tigers in circumstances which are prohibited by the section.

8 Nestor v Minister of Police 1984 (4) SA 230 (SWA) at 244.
9 Performing Right Society Ltd v Berman 1966 (2) SA 355 (R), Francis v Roberts 1973 (1) SA 507
(RA).

[25] It is common cause that the application was launched in 2006, a
year after the statement was made. In his answering affidavit the
respondent gave a detailed description of his modus operandi and what he
intended to do in future.  This included his intention to release the tigers
in a much bigger area where they will be totally dependent on hunting for
themselves. The respondent furthermore made an expression of future
intent not to release any live prey in the immediate proximity of the
tigers.  His intention was not put in issue by the appellant.  There is also
no evidence indicating anything to the contrary.  Nothing has happened
since August 2005.  It is accordingly evident that this was an isolated
incident.

[26] It is so that the expression of future intent is not an express
undertaking; however when regard is had to the facts of this matter, the
respondent's intention is clear and unequivocal. In my view, his
expression of intention is sufficient.  There is no other evidence that has
been placed before the court by the appellant that could objectively be
viewed as showing a reasonable apprehension of harm.  In the result, I
cannot say that the more plausible inference to be drawn is a likelihood
that the respondent will contravene s 2(1)(g) in the future.

[27] Counsel for the appellant further contended that an interdict
should, in any event, be granted as the respondent had mentioned that
new cubs would be brought to the sanctuary and that this was a clear
indication that the section will be contravened in future.  In this regard he
relied on the agreements between the Trust and the Chinese government
to provide new tiger cubs for the reserve.  He contended that there was a

risk that live blesbok would be presented to the new cubs and that this
would be in contravention of s 2(1)(g) of the Act.

[28] There is no substance in this argument. This issue, as correctly
pointed out by counsel for the respondent, was never raised in the
founding papers or during the hearing in the court below.  It was the
respondent who in his answering affidavit raised the issue of the new
cubs being supplied as and when they were born, but this was denied by
the appellant.  At no stage did the appellant, on the basis of the
agreements or any evidence, seek to make out a case that new cubs would
have to pass through a phase where it was necessary for the respondent to
feed them live prey. This issue surfaced for the first time during the
application for leave to appeal. This, in my view, is a new case that has
been advanced on appeal and the respondent has not had an opportunity
to address the issues raised by the appellant.

[29] It is trite law that the applicant in motion proceedings must make
out a proper case in the founding papers.10  Miller J in Shakot Investments
(Pty) Ltd v Town Council of the Borough of Stanger,11 puts the matter
thus:
'In proceedings by way of motion the party seeking relief ought in his founding
affidavit to disclose such facts as would, if true, justify the relief sought and which
would, at the same time, sufficiently inform the other party of the case he was
required to meet.'

[30] The applicant must set out the facts to justify the relief sought and
also to inform the respondent of the case he is required to meet.  The

10 Port Nolloth Municipality v Xhalisa; Ludwala v Port Nolloth Municipality 1991 (3) SA 98 (C) at
111E.
11 1976 (2) SA 70 (D) at 704G

appellant is precluded from making a case on appeal that was not only not
pleaded on the papers but was also disavowed by the appellant in reply.
Accordingly the afterthought is impermissible.  In the circumstances I am
satisfied that the appeal must fail.

[31] In the result, the following order is made:
'The appeal is dismissed with costs.'

N Z MHLANTLA
ACTING JUDGE OF APPEAL

CONCUR
FARLAM JA
HEHER JA
HURT AJA

CAMERON JA:

[32] I have had the benefit of reading the judgment of my colleague
Mhlantla AJA but regret I cannot agree with her conclusion.  In my view
the respondent should have been interdicted from any future conduct in
violation of s 2(g) of the Animal Protection Act 71 of 1962 (the Act), and
ordered to pay the costs of the applicant (the Council).  The divergence
stems essentially from the fact that I differ from my colleague’s approach
on two issues:
(a)
the status and role of the Council;

(b)
the fact that the respondent, Mr Openshaw, in the face of
evidence clearly indicating that he had violated the Act, expressly
declined to give any undertaking that he would not do so again.

Mootness
[33] Shortly before the appeal, Openshaw submitted evidence that he
was leaving his employment (from which the Council said the
circumstances requiring an interdict arose) and relocating to a position
abroad.  He said this rendered the appeal moot.  I do not agree.  Section
21A(1) of the Supreme Court Act 59 of 1959 (which my colleague sets
out in footnote 1 to her judgment) confers a discretion on this court to
dismiss an appeal on the ground that it ‘will have no practical effect or
result’.  In my respectful view, to exercise that discretion would not be
appropriate in this case.  The discretion exists to prevent appellants from
presenting issues ‘that are wholly academic, … exciting no interest but an
historical one’.12  In this case, even though the danger that Openshaw
might in future violate the Act has largely (if not entirely) receded
because of his job abroad, the issues that propelled the Council’s
intervention remain live.

[34] Societies for the Prevention of Cruelty to Animals (SPCAs) are
registered under the Societies for the Prevention of Cruelty to Animals
Act 169 of 1993 (the SPCA Act) (s 8).  This statute sets out the objects of
the Council and creates a board to achieve them (s 2).  The objects the
statute entrusts to the Council (s 3) include not only –

12 JT Publishing (Pty) Ltd v Minister of Safety and Security 1997 (3) SA 514 (CC) para 17, a case
where the statutes challenged had already been repealed and where the court observed that ‘Neither of
the applicants, nor for that matter anyone else, stands to gain the slightest advantage today from an
order dealing with their moribund and futureless provisions’ (para 16).

‘(c) to prevent the ill-treatment of animals by promoting their good treatment by
man’,
but also –
‘(e) to take cognizance of the application of laws affecting animals and societies and
to make representations in connection therewith to the appropriate authority’.

[35] In recognising that the Council’s objects go beyond preventing ill-
treatment, but include the wider responsibility of making representations
about laws affecting animals, the legislature assigns the Council broader
lobbying and advocacy functions.  And since making representations on
the application of laws entails commenting on their sufficiency (or
insufficiency), the objects include also law revision and law reform.

[36] The Council’s pursuit of an interdict in the High Court plainly
involved ‘the application of laws affecting animals’.  The court
application concerned not only the prevention of cruel treatment, but the
broader question of the adequacy (or inadequacy) of the laws preventing
such treatment.  The Council thus has a real and continuing interest in the
proper disposal of the interdict application.  This is particularly so if, as I
respectfully consider, the interdict was wrongly refused in the court
below.

Should an interdict have been granted?
[37] I turn now to why in my view the interdict should have been
granted.  And we must start by identifying the role of the Council in the
proceedings.
[38] The Act and the SPCA Act are both animal welfare legislation.
Though not conferring rights on the animals they protect, the statutes are

designed to promote their welfare.13  The statutes recognise that animals
are sentient beings that are capable of suffering and of experiencing pain.
And they recognise that, regrettably, humans are capable of inflicting
suffering on animals and causing them pain.  The statutes thus
acknowledge the need for animals to be protected from human ill-
treatment.

[39] It is for this reason that the legislature created the Council, invested
it with statutory status, and conferred on it powers and duties.  Implicit in
this is the legislature’s recognition that the Council has an important
function.  Though animals are capable of experiencing immense
suffering, and though humans are capable of inflicting immense cruelty
on them, the animals have no voice of their own.  Like slaves under
Roman law, they are the objects of the law, without being its subjects.

[40] The statute thus constitutes the Council and its associated SPCAs
as their guardian and their voice.  The Council was thus rightly impelled
to action when its representatives became aware of Openshaw’s claim in
the documentary film that he proposed to ‘present one of [the captive

13 In R v Moato 1947 (1) 490 (O), Van den Heever J (Fischer JP concurring) stated that the object of the
predecessor of the current Act, the Prevention of Cruelty to Animals Act 8 of 1914, ‘was not to elevate
animals to legal subjects and this prohibition is not meant to confer protection on them.  The object was
plainly to prohibit one legal subject behaving so cruelly to animals that he offends the finer feelings
and sensibilities of his fellow humans’ (my translation).  This was endorsed in part by Miller J
(Harcourt J concurring) in S v Edmunds 1968 (2) PH H398 (N), who said that the object of the Act
‘was not to elevate animals to the status of human beings but to prevent people from treating animals in
a manner which would offend the finer sensibilities of society’, adding that ‘While it was not the
purpose of the Protection of Animals Act to confer human status on animals it was assuredly part of its
purpose to prevent degeneration of the finer human values in the sphere of treatment of animals’.  The
part Miller J left out was Van den Heever J’s erroneous statement that the ‘prohibition is not meant to
confer protection’ on animals.  OA Karstaedt ‘Vivisection and the Law’ (1982) 45 THRHR 349 at 351-
352 makes a convincing case that the Act’s purposes go beyond merely protecting the sensibilities of
the community, an argument for which the approach of Miller J (‘part of its purpose’) leaves room.
(Contrast Kevin Hopkins ‘Some New Thoughts on Protecting Animals Against Cruelty: A Human
Rights Perspective’ 2003 Obiter 431, who appears to accept that ‘the animal anti-cruelty laws in South
Africa are … not designed to protect animals – since animals are not entitled to the protection of the
law’.)

blesbok] live’ to the tigers in his care.  That foretold a criminal infraction
of s 2(1)(g) of the Act, which prohibits the liberation of ‘any animal in
such manner or place as to expose it to immediate attack or danger of
attack by other animals or by wild animals’.

[41] The prohibition in s 2(1)(g) does not of course attempt to inhibit
naturally predatory behaviour by animals in the wild.  It proscribes cruel
human interventions that supplant natural conditions with unnatural
confinement and expose live prey to the danger of immediate attack with
no recourse.  In argument before us, Openshaw rightly did not dispute
that feeding a live blesbok to a tiger in a confined space would constitute
cruel maltreatment in violation of the section.

[42] When efforts to get the police to initiate a prosecution in response
to the broadcast failed, the Council eventually launched these
proceedings.  The founding affidavit simply and exclusively relied on
what Openshaw said in the documentary film.  Given its plain import, the
form of the challenge lent great significance to Openshaw’s answering
affidavit.  But instead of dealing directly with the Council’s allegation
that the ‘intention and execution’ of his statement as captured on film
entailed an offence under the Act, his deposition –
(i)
set out at length the foundation, operation and future
methodology of the tiger project (which he said entailed no intention to
feed live prey to tigers, partly because this would be counter-productive);
(ii) disputed the constitutionality of the Act;
(iii) claimed that the video evidence was hearsay and inadmissible against
him;

(iv) admitted nonetheless that he is the person on the film who made the
statement;
(v) denied that he committed any offence under the Act;
(vi) claimed that, because of his explanation of the project’s future
methodology, ‘the events covered in the video, which was filmed a year
ago, are irrelevant to the relief claimed by the applicant’;
(vii) recorded that because of the Council’s aim to prosecute him, ‘and in
view of the irrelevance of the contents of the video to the relief sought’,
he had been advised ‘not to respond further’.

[43] What is signally missing from this is (a) any account of what
actually happened to the blesbok; and (b) any undertaking or assurance
that what happened would not be repeated.

[44] These two facts are in my view central to assessing the Council’s
claim for relief.  Their significance must be weighed together, and
separately.  It is the refusal to explain what happened to the blesbok that
inclined Van der Merwe J in the High Court to agree with the Council
that the film provided prima facie evidence of a contravention of the Act,
and which leads my colleague Mhlantla AJA (rightly, in my respectful
view) to infer that Openshaw committed an offence (para 23).

[45] Counsel sought to explain Openshaw’s reticence on the basis that
he wanted to avoid making admissions that might be used against him in
a criminal prosecution.  That may be so.  But Openshaw must carry the
consequences of his choice to remain silent, and to evade the plain

implications of his conduct.14  In these proceedings for the enforcement
of a statute, his reticence casts a shadow on his motives and conduct.

[46] What is more, his failure to give any sort of undertaking against
future violations not only lacks any explanation; in my view it lacks any
justification.  Counsel for Openshaw conceded during argument that his
affidavit contained nothing that would prevent Openshaw in future, if so
minded, from feeding live prey to tigers.  The fear of incriminating
admissions provides no inhibition here.  Openshaw could have proffered
an undertaking couched in a form that eluded any admission of past
wrongdoing (‘To the extent that the Council claims or fears that I may
have violated the Act, I hereby undertake …).

[47] It is his express and deliberate omission to do this that in my view
cried out for interdictory relief against him.  I accept, of course, that an
interdict is not a remedy for past wrongs.  The matter is different,
however, when the past wrong does not involve merely commercial
issues or financial interests,15 but unacknowledged criminal conduct,
where the perpetrator is impenitent.  The interdict application involved a
criminal prohibition aimed at preventing ill-treatment of voiceless beings,
whose enforcement the legislature in important respects entrusts to the
Council, a public body with wide and singular responsibilities in the field.

[48] In my respectful view, since the evidence establishes that a
criminal prohibition has been violated, it is wrong to accept a mere
expression of future intention to abstain.  The perpetrator’s deliberate

14 Compare Osman v Attorney-General, Transvaal 1998 (4) SA 1224 (CC) paras 22ff.
15 Performing Right Society Ltd v Berman 1966 (2) SA 355 (R), Juta & Co Ltd v Legal and Financial
Publishing Co (Pty) Ltd 1969 (4) SA 443 (C) (copyright); Philip Morris Inc v Marlboro Shirt Co SA
Ltd 1991 (2) SA 720 (A) (trade mark).

refusal to impose any self-limiting undertaking not to do so itself creates
the need for judicial intervention.  It is then for the court to supply the
omission by issuing an interdict.

[49] The balance of convenience in my view clearly favoured the grant
of an interdict.  If no offence had been committed, and Openshaw
honoured his expressed intention not to feed live prey to predators in
future, the interdict would do no harm; on the other hand, given the
glaring absence of any undertaking supplementing his professed
intentions, the interests of the animals required the grant of an order.  The
analogy of interdict applications involving alleged personal assaults is by
no means far-fetched: except that animals have less voice than most
apprehensive assault victims.

[50] These considerations to my mind overshadow the Council’s
omission to institute action after the High Court’s refusal of an interim
interdict, and in my respectful view the appeal should be allowed with
costs, and the High Court’s refusal to grant an interim order reversed.

E CAMERON
JUDGE OF APPEAL
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

30 May 2008

STATUS: Immediate

NATIONAL COUNCIL OF SOCIETIES FOR THE PREVENTION OF
CRUELTY TO ANIMALS v PETER OPENSHAW
Please note that the media summary is intended for the benefit of the media
and does not form part of the judgment of the Supreme Court of Appeal

The Supreme Court of Appeal (by a majority of four judges with one judge
dissenting) today dismissed an appeal against a judgment of the Bloemfontein
High Court brought by the National Council of Societies for the Prevention of
Cruelty to Animals against Mr Peter Openshaw.

The NCSPCA applied for an interim interdict in the Bloemfontein High Court
prohibiting Mr Openshaw, as manager of the Laohu Valley Reserve, from
presenting live blesbok to the tiger cubs on the reserve as part of the re-
wilding programme.  During a documentary on the television programme
50/50, Mr Openshaw made a statement to the effect that he would be
presenting a live blesbok to two tiger cubs.  In terms of the Animal Protection
Act it is a criminal offence to liberate any animal in such a way as to expose it
to immediate attack by other animals.  The court below found that the
NCSPCA had failed to establish reasonable apprehension of irreparable harm
and accordingly dismissed the application. It is against this judgment that the
appeal was brought.

The SCA, in a judgment by Mhlantla AJA with Farlam JA, Heher JA and Hurt
AJA concurring, held that a period 19 months had passed since the
application had been launched and the appellant had failed to institute the
principal action. It had accordingly forfeited its right to the interim relief sought.
The court further held that as an interim interdict was a remedy against future
infringements and was only appropriate when future injury was feared, the
appellant had a duty to show a reasonable apprehension that harm, namely
the presenting of live blesbok to tigers, would occur in the future.  As the
appellant had not been able to prove this, the appeal had to be dismissed.

In a dissenting judgment, Cameron JA was of the view that the interdict
should have been granted as the respondent had contravened the relevant

section and had expressly declined to give any undertaking that he would not
do so again.