Getting over a legal hump


By Garry Hertzberg, practising attorney at Dewey Hertzberg Levy and host of Laws of Life with Garry Hertzberg on

A few years ago, the National Society for the Prevention of Cruelty to Animals (NSPCA) became aware of a religious sacrificial slaughter of two camels in front of a crowd of people.

NSPCA inspectors attended to the scene and described how the sacrifice involved eight attempts to slice open one of the camel’s throats until the slit was deep enough for the animal to bleed out; the other’s throat was slit three times. In an act of compassion, an inspector shot both camels to take them out of their misery.

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The organisation is tasked with looking out for the welfare of animals. They have the power to enforce national anti-cruelty legislation, bylaws relating to animals, and to take legal action against those who disregard these rules.

The NSPCA referred this matter to the National Prosecuting Authority (NPA) for prosecution. The NPA declined to prosecute. The authority has the final say on whether a matter will be prosecuted by the State and if they decline for whatever reason, a private person in law referred to as a ‘Natural Person’ may then institute a private prosecution.

The NSPCA tried to institute a private prosecution but was met with a legal hurdle – they are not a private person.

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The organisation was not satisfied and took the matter to court to try and get a declaration allowing them to prosecute. The matter went from High Court to the Supreme Court of Appeal, and finally the Constitutional Court. It took six years after the incident for the Constitutional Court to declare that the NSPCA does indeed have the power to institute private prosecutions, and would be allowed to do so in this case and any future incidents involving animal maltreatment.

The learned judge in the Constitutional Court stated in the opening of his judgment that there is a relationship between man and animals that has developed over time and animals are our companions, friends and brothers. He went on to say that when animals are mistreated, individuals step up to protect them and that organisations such as the NSPCA champion the fight against cruelty.

Now, anyone who mistreats our voiceless companions can be prosecuted by the State or by the NSPCA, as they now have that power.

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