In lengthy papers filed in the Pietermaritzburg High Court on Friday 17th December 2010, the Animal Interest Alliance (“AIA”) claims that the appointment of the Board of Ezemvelo KZN Wildlife by MEC Lydia Johnson is invalid and must be set aside by the court.
The matter will come before the High Court on 20th January 2011 unless it is opposed.
It is alleged that the MEC did not follow the procedure stipulated in the KwaZulu-Natal Conservation Management Act 1997 (“the Act”) and that the statutory requirements that determine the composition of the Board have not been met.
In his affidavit, William Horsfield, chairman of the AIA, points out that the law requires the MEC to determine a process to ensure that her invitation to the public, to put forward names for consideration for appointment to the Board, reaches “the greatest number of residents of the province”. It is alleged that many stakeholders who have a keen interest in the conservation of the wildlife resources of the province were excluded from the nomination process.
Key stakeholders who must be represented on the Board include organised agriculture in the province, the House of Traditional Leaders and community based organisations from rural areas. It is alleged that the Board lacks this representation and moreover, that it does not have within its ranks, expertise stipulated by the Act in the field of environmental law, or generally to enhance its competence.
Mr Horsfield concludes that with the exception of Mrs Di Dold, former conservation director of the Wildlife and Environment Society of Southern Africa, none of the board members have a demonstrated interest in nature conservation as required by law.
The court application by the AIA brings to a head a dispute that began in mid 2006 when Ezemvelo KZN Wildlife attempted to introduce a broad policy to regulate the keeping of wild animals in captivity, the effect of which would have been to ban the keeping in captivity of all wild animals, indigenous and exotic, except under strict conditions determined solely by Ezemvelo KZN Wildlife. The legal power of Ezemvelo KZN Wildlife to determine such a policy was challenged and eventually abandoned in mid 2007. However it became clear that Ezemvelo KZN Wildlife had not abandoned its policy and began fixing impossible conditions to permit applications.
Mr Horsfield complains in his affidavit “The actions of the Second and Third Respondents (the Ezemvelo KZN Wildlife Board and the Nature Conservation Service) adversely affect the rights of the Applicant, its members and any member of the public wishing to keep a wild animal in captivity. By setting impossible requirements, the Second and Third Respondents are effectively denying applicants for permits of the right to a fair application procedure and the legitimate expectation that such a permit will be granted on fair and reasonable conditions, consistent with permits and/or licenses traditionally issued”.
He goes on to state: “I submit that the conduct of the Second and Third Respondents discloses acts of bad faith and exposes a hidden agenda intended to enforce the policy, the effect of which is engineered to prohibit the keeping of wild animals in captivity altogether”.
During the dispute the AIA discovered that the board of Ezemvelo KZN Wildlife had comprised only five members instead of the mandatory nine members for some years. This means that Ezemvelo KZN Wildlife has operated unlawfully from 2004 and that all of its actions during this period are invalid. The matter was compounded by the fact that the board was suspended by former MEC Mtholepi Mthimkulu from 18th September 2008 until its reinstatement on 19th June by the High Court. In this matter, Mr Justice Wallis commented that the board did not have its statutory nine member complement.
The implications for the province of Ezemvelo KZN Wildlife having operated without a validly appointed board since 2004, and continuing to do so under the present board, are massive. It renders all of the activities of Ezemvelo KZN Wildlife unlawful.
Of particular concern to the members of the AIA is the implementation and administration of the Threatened or Protected Species Regulations (2006) in the province. The MEC is the issuing authority for all permits under the regulations. However Ezemvelo KZN Wildlife is carrying out her duties under the regulations without a proper delegation of authority to do so. This means that all permits issued by Ezemvelo KZN Wildlife are invalid.
The AIA raised its concerns about all of these matters on many occasions with the present and former MECs, the Premiers and national Ministers of Environmental Affairs, to no avail. Mr Horsfield, commenting on the conduct of the MEC, the Ezemvelo KZN Wildlife Board and the Nature Conservation Service says: “All three are demonstrably grossly out of touch with their statutory mandates and in the case of the Second Respondent (the Board) have acted beyond their statutory powers. The conduct of the Second Respondent is apparently supported and endorsed by the First Respondent (the MEC)”.
The Premier and the Minister of Water and Environmental Affairs are also criticised “for their failure to exercise political oversight in the matter when this was clearly within their constitutional obligations and functions”.
It is ironic that on the same day as the launch of the court action by the AIA, the Premier, with the Chairman of the Ezemvelo KZN Wildlife Board invited comment on proposed new "Procedures and Standard Terms and Conditions for applications and authorisations for keeping animals in captivity in KwaZulu-Nata". This is the first acknowledgement by the powers that be that the complaint of the AIA that the process adopted by Ezemvelo KZN Wildlife hitherto has been invalid.
The immediate difficulty facing the Premier is that the very existence of the Board, to whom he has entrusted the public consultation process and ultimately the administration of applications for authorisations for the keeping of animals in captivity, is under threat.
Mr Horsfield explains that court action has always been a last resort for the AIA. He says that despite the substantial interest it has in the conservation of the province, the MEC has not taken it seriously. The final straw for the AIA and its members was that despite have participated actively in the defunct policy process, and having been instrumental in its abandonment, the MEC chose not to disclose to it or to its members her intention to appoint a new board.
Mr Horsfield says that the AIA â€œlaunches this application with a measure of reluctance but it is compelled to do so as it appears that the malaise that has plagued the management of the Second and Third Respondents for more than five years will not be addressed by the First Respondent until she is ordered to do so by the court.