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Back to Regulations Concerning the Private Possession of Big Cats

I.  Introduction

In South Africa, legislative jurisdiction regarding the conservation and management of wildlife is shared between the national and provincial governments.  The Constitution mandates that “[n]ature conservation, excluding national parks, national botanical gardens and marine resources,” is one of the functional areas in which there is concurrent national and provincial legislative jurisdiction.[1]  The governments of South Africa’s nine provinces exercise substantial legislative and executive jurisdiction over issues of the conservation and management of wildlife in the country, including regulation of imports and exports.[2]

However, the national government also wields significant legislative power over the protection of wildlife, largely to create national uniformity in affording such protection.  One demonstration of this power is the National Environmental Management: Biodiversity Act (NEMBA) of 2004[3] and its subsidiary legislation,[4] which put in place protections for various species that are threatened or otherwise in need of protection.  It also provides the authority for consolidating fragmented biodiversity legislation in the country through the establishment of national norms and standards specific to certain particularly vulnerable animals.[5]  A notable example is the National Norms and Standards for the Management of Elephants in South Africa (NNSMESA).[6]  One purpose of this document is to set uniform norms and standards so that “the management of elephants is regulated in a way that is uniform across the Republic” and takes into account the country’s international obligations.[7]  There is also a similar 2005 draft document on sustainable use of large predators, including cheetahs and leopards.[8]  The other major piece of legislation through which the national government protects animals is the Animals Protection Act (APA).[9]  This law is aimed at preventing cruelty to animals, including wild animals. 

This report discusses these two national laws. 

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II.  NEMBA and Subsidiary Legislation

A.  Vulnerable Species and Restricted Activities

NEMBA prohibits anyone from engaging in a “restricted activity” involving any listed “threatened or protected species” (listed species) without a permit.[10]  It authorized the Minister of Environmental Affairs and Tourism to establish lists of species that are threatened or in need of national protection, further subdividing the class of “threatened” species into those which are “critically endangered,” “endangered,” and “vulnerable.”[11]  The Minister issued NEMBA Regulations in 2007 that contained such lists.[12]  Accordingly, three members of the cat family (acinonyx jubatus (cheetah), panthera leo (lion) and panthera pardus (leopard)) were listed as vulnerable species in that they are “[i]ndigenous species facing a high risk of extinction in the wild in the medium-term future, although they are not critically endangered species or an endangered species.”[13]

Restricted activities with regard to the listed species include

(i)  hunting, catching, capturing or killing any living specimen of a listed threatened or protected species by any means, method or device whatsoever, including searching, pursuing, driving, lying in wait, luring, alluring, discharging a missile or injuring with intent to hunt, catch, capture or kill any such specimen; . . .

 (iv)  importing into the Republic, including introducing from the sea, any specimen of a listed threatened or protected species;

(v)  exporting from the Republic, including re-exporting from the Republic,

any specimen of a listed threatened or protected species;

(vi)  having in possession or exercising physical control over any specimen of a listed threatened or protected species;

(vii)  growing, breeding or in any other way propagating any specimen of a listed threatened or protected species, or causing it to multiply;

(viii) conveying, moving or otherwise translocating any specimen of a listed threatened or protected species;

(ix)   selling or otherwise trading in, buying, receiving, giving, donating or accepting as a gift, or in any way acquiring or disposing of any specimen of a listed threatened or protected species; or

(x)    any other prescribed activity which involves a specimen of a listed threatened or protected species. [14]

NEMBA further authorizes the Minister to prohibit engaging in any activity “that may negatively impact the survival of listed threatened or protected species” or engaging in such activity without a permit.[15]  For instance, the NEMBA Regulations stipulate various prohibited activities in relation to large predators (cheetahs and leopards are the only members of the cat family in this list).[16]  These include hunting 

  • a “put and take animal”;[17]
  • in a controlled environment;
  • with the use of any tranquilizer, narcotic, or other immobilizing agent;
  • in an area near a holiday facility for such animals;
  • with the use of a gin trap; or
  • without first obtaining a written affidavit from the owner of the land where the animal is located indicating the length of time the animal has been on the property and that it is not a “put and take animal.”[18]

The NEMBA Regulations also prohibit the purchase, acquisition, sale, supply, or export of any live cheetah or leopard with one exception: a person may purchase, acquire, sell, supply, or export any of these animals if he can provide an affidavit or other written proof indicating the purpose of the transaction and that the animal is not going to be used for prohibited hunting activities.[19]

However, it is important to note that the above-noted prohibitions that the NEMBA Regulations impose with regard to certain activities and methods involving cheetahs and leopards are inapplicable to an animal bred or kept in captivity “which has been rehabilitated in an extensive wildlife system; and has been fending for itself in an extensive wildlife system for at least twenty-four months.”[20]

B.  Penalties

The violation of any of the above-referenced provisions of NEMBA is an offense[21] punishable by fines and/or up to five years of imprisonment.[22]  If the conviction is for an offense regarding a listed threatened or protected animal, the applicable fine could reach up to three times the value of the animal.[23]  A person convicted under any of the above-referenced provisions of the NEMBA Regulations is also subject to a fine in the amount of 100,000 South African Rand (ZAR) (about US$11,255) and/or up to five years of imprisonment.[24] 

C.  Permits

There are two forms of permits: a regular permit and a standing permit.[25]  A key difference between the two is their period of validity.  A regular permit is issued for a maximum of one year, while a standing permit may be issued for up to thirty-six months.[26]  However, a possession permit to keep a big cat in a private home, which is categorized as a regular permit for the purposes of this report, may be issued for a span of fifty years.[27]  A permit holder may apply for renewal before the expiration of an existing permit.[28] 

Another key difference between the two types of permits involves conditions of eligibility.[29]  Only certain individuals or organizations may seek a standing permit to conduct restricted activity involving a big cat.  These are operators of commercial exhibition facilities (this includes zoological gardens), persons conducting registered captive breeding operations, persons operating a registered nursery, operators of registered sanctuaries or registered rehabilitation facilities, operators of registered scientific institutions, land owners of registered game farms, and registered wildlife traders.[30]  Certain restrictions apply to each permit.

Others may only apply for possession permits, game farm hunting permits, or personal effects permits.  A person wishing to obtain a big cat to have at home may apply for a possession permit.  The NEMBA Regulations state that “[a]ny person may apply for a possession permit for having or conveying” a big cat “if that person does not intend to carry out any other restricted activity with that specimen.”[31]  Registered nurseries may also apply for a possession permit.[32]  This permit enables a person to “buy, transport or convey and keep in his possession” a big cat obtained from a registered nursery.[33]  Similarly, landowners of registered game farms may apply for game farm hunting permits, and registered wildlife traders may apply for personal effects permits.[34]

A permit-issuing authority (this may be the national Department of Environmental Affairs or a provincial department, depending on the applicant and the animal involved) appears to have wide discretionary powers.  When approached for a permit, an issuing authority may

  • require the applicant to provide “any additional information,”
  • require an applicant to “comply with such reasonable conditions” before issuing a permit,
  • issue a permit subject to certain conditions, or
  • refuse to issue a permit.[35]

The discretionary powers of the issuing authority, however, are not completely unfettered.  A notable example of the limits is the requirement that its decisions be consistent with all applicable national laws and policy, as well as international laws binding on South Africa.[36]  The issuing authority is also required to issue a decision within twenty working days from the day an application for a permit is made.[37]  If it approves an application for a permit, the issuing authority is required to issue one within five working days after the decision.[38]  In addition, if it rejects an application for a permit, the issuing authority is obligated to provide the reason to the applicant in writing.[39]  Significantly, a decision of an issuing authority is appealable to the Minister of the Department of Environmental Affairs, who either rules on the appeal him or herself or sends the appeal to a panel.[40]

D.  Registration

The NEMBA Regulations provide that a registration is required for working as a wildlife trader and for operating a captive breeding operation, commercial exhibition facility, nursery, scientific institution, sanctuary, or rehabilitation facility.[41]  In addition, for a nursery to apply for a nursery possession permit, a registered wildlife trader for a personal effects permit, and a landowner of a game farm for a standing permit, they need to be registered accordingly.[42]  All individuals seeking to engage in an activity for which a registration is necessary are required to submit an application on the prescribed form and provide all the necessary supporting documents.[43]  If granting the application would affect the rights of third person, the applicant is required to give such person due notice to make an objection.[44]

When considering a registration application, an issuing authority is required to take various factors into consideration.  For instance, the issuing authority is expected to ensure that its decision is consistent with all applicable legal requirements.[45]  When the registration involves a specimen for a captive breeding operation, commercial exhibition facility, game farm, nursery, sanctuary, or rehabilitation facility, or for wildlife trading, the issuing authority must take into account the applicant’s preparedness to microchip or mark the specimen.[46]

Once the issuing authority receives an application for registration, it is required to take a number of actions, including ordering the inspection of the facility to be registered[47] and making a written recommendation to grant or reject the application.  If the recommendation is to grant the application, the recommendation should include any applicable conditions.[48]  Once it makes a decision on the application, the issuing authority is required to provide written notification within ten working days to the applicant and to anyone who may have submitted an objection to the application.[49]  If the issuing authority refuses to approve the application or approves the application but attaches conditions, it must, upon the request of the applicant, provide reasons for its decision.[50]  It is also under obligation to notify applicants whose application has been denied that they have the right to appeal.[51]

If the issuing authority approves an application for a registration, it is required to issue a registration certificate within ten working days after approval.[52]

The NEMBA Regulations impose several compulsory conditions for obtaining a registration certificate for captive breeding operations, commercial exhibition facilities, and rehabilitation facilities.  The holder of a registration certificate for any of these operations is required to prevent hybridization and/or inbreeding; keep a studbook, where appropriate; and report back to the issuing authority on these matters annually.[53]  In addition, if the registered commercial exhibition facility is a travelling exhibition, the person to whom the registration certificate is issued must inform the province to which the exhibition is travelling at least two months ahead of time.[54]

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III.  The Animal Protection Act (APA)

The APA, which protects against cruelty to both domesticated and wild animals, appears to have some relevance to big cats, including those possessed privately or kept in zoos.  The APA defines animals broadly to include “any equine, bovine, sheep, goat, pig, fowl, ostrich, dog, cat or other domestic animal or bird, or any wild animal, wild bird or reptile which is in captivity or under the control of any person.”[55]  It criminalizes various actions against these animals that amount to cruelty.  Such actions include instances in which a person

b) . . . confines, chains, tethers or secures any animal unnecessarily or under such conditions or in such a manner or position as to cause that animal unnecessary suffering or in any place which affords inadequate space, ventilation, light, protection or shelter from heat, cold or weather; or

c) Unnecessarily starves or under-feeds or denies water or food to any animal; or . . .

e) being the owner of any animal, deliberately or negligently keeps such animal in a dirty or parasitic condition or allows it to become infested with external parasites or fails to render of procure veterinary or other medical treatment or attention which he is able to render or procure for any such animal in need of such treatment or attention, whether through disease, injury, delivery of young or any other cause, or fails to destroy or cause to be destroyed any such animal which is so seriously injured or diseased or in such a physical condition that to prolong its life would be cruel and would cause such animal unnecessary suffering; or . . .

m) conveys, carries, confines, secures, restrains or tethers any animal —

  1. under such conditions or in such manner or position or for such a period of time or over such distance as to cause that animal unnecessary suffering; or
  2. in conditions affording inadequate shelter, light or ventilation or in which such animal is excessively exposed to heat, cold, weather, sun, rain, dust, exhaust gases or noxious fumes; or
  3. without making adequate provision for suitable food, potable water and rest for such animal in circumstances where it is necessary; or

n) without reasonable cause administers to any animal any poisonous or injurious drug or substance; or . . .

q) causes, procures or assists in the commission or omission of any of the aforesaid acts or, being the owner or any animal, permits the commission or omission of any such acts; or

r)  by wantonly or unreasonably or negligently doing or omitting to do any act or  causing or procuring the commission or omission of any act, causes any unnecessary suffering to any animal.[56]

A person convicted of animal cruelty charges is subject to a fine and a prison term of up to twelve months, or imprisonment for up to twelve months without a fine.[57]  Additional penalties may be imposed, including ordering the animal involved to be destroyed if the court deems it cruel to keep it alive, depriving the person of ownership of the animal in question, or even declaring the person unfit to own any animal.[58]

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Hanibal Goitom
Foreign Law Specialist
June 2013

 

[2] Services by Provincial Authorities, Republic of South Africa, Department of Environmental Affairs, https://www.environment.gov.za/services/provincial-authorities (last visited May 30, 2013); M.A. Kidd, Environmental Conservation, in 9 The Laws of South Africa 139, 246–47 (LexisNexis Butterworths, 2005).

[3] National Environmental Management: Biodiversity Act No. 10 of 2004 [NEMBA], 20 Butterworths Statutes of the Republic of South Africa [BSRSA] (rev. through 2011), http://www.info.gov.za/view/ DownloadFile Action?id=82170.

[4] NEMBA: Threatened or Protected Species Regulations [NEMBA Regulations] § 1, No. R. 152, Government Gazette [GG] No. 29657 (Feb. 23, 2007), available at the South African Department of Environmental Affairs and Tourism website, https://www.environment.gov.za/sites/default/files/legislations/nemba_threatenedspecies _regulations_g29657rg8638gon152.pdf.

[5] National Environmental Management Act (NEMBA) Regulations on Threatened and Protected Species, Republic of South Africa, Department of Environmental Affairs, Species Status Database, http://www.species status.sanbi.org/ threatened.aspx (last visited May 30, 2013).

[6] NEMBA: National Norms and Standards for the Management of Elephants in South Africa [NNSMESA], Government Notice [GN] No. 251, GG No. 30833 (Feb. 29, 2008), http://www.info.gov.za/view/DownloadFile Action?id=78006

[7] Id. § 2.

[8] Draft National Norms and Standards for the Sustainable Use of Large Predators Issued in Terms of Section 9(1) of the National Environmental Management: Biodiversity Act (Act No. 1 of 2004), 475 GG, No. 27214 (Jan. 28, 2005), http://www.info.gov.za/view/DownloadFileAction?id=60605

[9] Animal Protection Act No. 71 of 1962 [APA], 3 Butterworths Statutes of the Republic of South Africa [BSRSA] (rev. through 2012), version with amendments through 1993 available at the Animal Legal and Historical Center website, http://www.animallaw.info/nonus/statutes/stat_pdf/AnimalsProtectionAct71-62.pdf

[10] NEMBA § 57.

[11] Id. § 56(1); see also NEMBA Regulations § 10(b).

[12] NEMBA: Publication of Lists of Critically Endangered, Endangered, Vulnerable and Protected Species, No. R. 151, GG No. 29657 (Feb. 23, 2007), available at the South African government portal, http://www.info.gov.za /view/DownloadFileAction?id=72163.  This list was amended by NEMBA.  Amendment of Critically Endangered, Endangered, Vulnerable and Protected Species List, GN No. R. 1187, GG No. 30568 (Dec. 14, 2007), http://www .info.gov.za/view/DownloadFileAction?id=112825.

[13] Id. at 3.

[14] NEMBA § 1.  This does not apply to species in South Africa that are in transit.  Id. § 57.

[15] Id. § 57. 

[16] NEMBA Regulations, §§ 1 & 24.  The Regulations have been amended at least five times through the following measures:

Threatened or Protected Species Amendment Regulations, GN No. R. 69, GG No. 30703 (Jan. 28, 2008), https://www.environment.gov.za/sites/default/files/legislations/nemba_speciesamendment_g30703rg8825gon69.pdf

Threatened or Protected Species Amendment Regulations, 2009, GN No. R. 209, GG No. 31962 (Feb. 27, 2009), https://www.environment.gov.za/sites/default/files/legislations/nemba_species_g31962 rg9040gon209.pdf

Threatened or Protected Species Second Amendment Regulations, 2009, GN No. R. 210, GG No. 31963 (Feb. 27, 2009), https://www.environment.gov.za/sites/default/files/legislations/nemba_species _g31963rg9041gon210.pdf.

Threatened or Protected Species Second Amendment Regulations, 2011, GN No. R. 576, GG No. 34453 (July 11, 2011), https://www.environment.gov.za/sites/default/files/legislations/nema_tops _g34453gon576.pdf.

Amendment to the Protected Species Regulations, 2007, GN No. R. 614, GG No. 35565 (Aug. 2, 2012), https://www.environment.gov.za/sites/default/files/legislations/nemba_tops_protectedareas _g35565gon614.pdf.

[17] A “put and take animal” is defined as “a live specimen of a captive bred listed large predator, or a live specimen of Cerutotherium simum (white rhinoceros) or Diceros bicornis (black rhinoceros) that is released on a property irrespective of the size of the property for the purpose of hunting the animal within a period of twenty four months.”  NEMBA Regulations § 1.

[18] Id. §§ 1 & 24. 

[19] Id § 24.

[20] Id.

[21] NEMBA § 101; NEMBA Regulations § 73.  

[22] NEMBA § 102. 

[23] Id.

[24] NEMBA Regulations § 74.

[25] NEMBA § 88; NEMBA Regulations § 5.

[26] NEMBA Regulations § 22.

[27] Id.

[28] Id. § 38.

[29] Id. § 5.

[30] Id.

[31] Id.

[32] Id.

[33] Id.

[34] Id.

[35] NEMBA § 88.

[36] Id.; NEMBA Regulations § 10.

[37] NEMBA Regulations § 8.

[38] Id. § 18.

[39] Id.; NEMBA § 88.

[40] NEMBA § 94. 

[41] NEMBA Regulations § 27.

[42] Id. §§ 27 & 28.

[43] Id. § 30.

[44] Id. § 30.

[45] Id. § 29.

[46] Id.

[47] Id. § 32.

[48] Id.

[49] Id.

[50] Id.

[51] Id.

[52] Id. § 33.

[53] Id. § 35.

[54] Id. § 35.

[55] APA § 1.

[56] Id. § 2.

[57] Id.

[58] Id. § 3.

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Last Updated: 09/16/2014