Performing Animals Protection Amendment Bill [B9-2015]: public hearings

Meeting report

South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC) at the University of Johannesburg
Mr David Bilchitz, Professor, University of Johannesburg and Director, South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC) stated that the submission was supported by The South African Veterinary Association, the University of Pretoria, Faculty of Veterinary Sciences and the Centre for Applied Legal Studies, University of Witwatersrand. India had recently banned the training and exhibition of five wild animals including bears, tigers and monkeys, following recommendation by an expert committee. It took into consideration evidence of suffering that comes with training animals particularly for circuses. He gave examples of cruel training methods used on animals. The Constitutional Court had ruled that licences in terms of the Performing Animals Protection Act (PAPA) should not be conceived of as a judicial function but by the Executive. Placing this power within the Executive required attention to the manner in which it was regulated. The PAPA should protect the wellbeing of animals and the original Act dated back to 1935 and was out-dated due to scientific developments regarding the welfare of animals.

Mr Bilchitz gave an overview of the submission. The Bill had to clarify the purpose of the Act and provide clear guiding factors in the law in which decisions were made by the National Licencing Officer. It had to ensure that the decision maker was an expert in animal welfare and only allow delegation to experts in that area. Opportunities had to be granted for democratic participation in the licencing process to enable maximum information to be acquired and transparency. It should include reptiles and aquatic animals such as dolphins. It should criminalise cruelty in terms of the Act and declare persons convicted of cruelty unfit to take charge of an animal. It should make provision for the upkeep costs on those who wish to use animals and it should enable the Minister to regulate and ban certain practices. The purpose of the Act lacked clarity.

The exhibition and training activity should not cause harm to the physical, emotional and psychological welfare of the animal. Provision should be made for the welfare of the animal after the performance had ceased and provision for its welfare if the licence was not granted. The current provision stated that an animal scientist or a veterinarian could make decisions on licencing. It was unclear what was meant by the phrase “animal scientist”. What qualifications were necessary to be an animal scientist? This could include people in agriculture who worked with animals and those who worked on the cell biology of animals in the laboratory. The Bill should include animals in zoos, horse shows and bird shows as they were also animals in entertainment. Section 7 should be amended to allow the Minister to prohibit a performing or exhibition activity which could reasonably be shown to be detrimental to the welfare of animals. He further elaborated on all the changes that were proposed.

Discussion
Ms D Steyn (COPE) asked if Mr Bilchitz had made a presentation to the Department of Agriculture, Forestry and Fisheries (DAFF) and if any proposals at the time were included in the current form.

Mr M Filtane (UDM) referred to the recommendation that a licencing officer should be someone who had expert knowledge on animal welfare. Why should that be the case? It was suggested that acts of cruelty to animals should qualify one to be criminalised. Does a magistrate have to have expert knowledge on the social elements of a human being before he could deliberate on a case? Could one not confine themselves to the specific requirements of a licence? Animal welfare could be very diverse and so were the needs of human beings.

Ms D Carter (COPE) asked for clarity on the definition of ‘any animal’ because that could be a huge definition. She made reference to the aspect of animals for entertainment and asked what happened to the South Africa Police Service (SAPS) dogs and the rats that were trained to go to Burundi and take out landmines. Would they also have to be licenced?

Mr T Ramokhoase (ANC) asked for clarity on the notion of expertise. Was it at the highest level of expertise or not because in the field of experts there were levels?

Mr Bilchitz replied that he had made a presentation last year in a workshop held by DAFF and the law had improved from the first draft that was seen. The Department was responsive to some of the input that was provided but not sufficiently so.

As far as expertise was concerned, he gave an analogy of children in court. If judges did not understand issues around children, they drew in expertise such as family advocates and social workers to do a review in relation to the child. Animals could not tell us about their needs and they were extremely vulnerable creatures. Science had shown that it was not that simple to judge whether an animal was happy or not. There were many issues to take into consideration such as its living conditions and its origin. Not any ordinary person could necessarily know that just from looking at an animal or the environment, therefore some level of expertise was required. It could be provided in the law that a decision maker could draw in the necessary expertise in making a decision. If there was pressure to grant a licence were people going to have an enquiry? It would be better to have somebody who already had the expertise to make the decision. The important thing was that the law covered those animals which were used in the industry and those that had interests that may be affected; to whom there could be cruelty.

Reptiles and aquatic animals should be included or any other animals such as octopi, which science had shown to need welfare. The law should cover all areas in which animals were involved in entertainment and those kept for exhibition. Expertise required was not only that of vets as that would be too restrictive. There were people who were trained in animal welfare who were not vets.

Ms Carter asked how security animals such as police dogs would fall in the Act.

Mr Bilchitz replied that currently animals used in the military and the police were excluded. It would be a good idea that those animals were also subject to some regulation to ensure that they were treated well. That could be done separately and not in terms of the existing provision.

Mr M Filtane (UDM) asked that given that South Africa was multicultural was there no possibility that if a licencing officer had to be typically qualified, the culture of that particular person could be the driving force behind granting or refusing licences?

Mr Bilchitz said that it was important to have diverse decision makers across race, culture and gender in order to avoid cultural biases influencing decisions. Animal welfare was not something that was purely culturally dependent. There was a scientific fact or answer to whether or not an animal was suffering in its particular environment or not.

The National Council Society for the Prevention of Cruelty to Animals
Mr Andries Venter, Senior Inspector, National Council of Society for the Prevention of Cruelty to Animals (NSPCA), presented the organisation’s comments on the current draft bill for the PAPA. He outlined the role of the NSPCA. The NSPCA identified that there was a lack of knowledge in magistrates issuing licences across the country and magistrates were being abused by applicants. If one applicant was refused a licence they would go to another magistrate who would then issue the licence which was valid either nationally or locally depending on the magistrate’s discretion. The legislation needed to be revised. Some exhibitions and performances caused harm to animals and were still allowed to go ahead through magistrates issuing those licences. There was a severe lack of consultation of magistrates with experts or skilled people in the relevant areas.

The legal team advised the NSPCA that the Act was old and that it was an administrative function just like a liquor licence and a better system needed to be put in place. The Constitutional Court ruled only on Sections 2 and 3 where it related to magistrates therefore the DAFF was instructed through Parliament to concentrate efforts towards those two areas.

The purpose of the Act was to prevent animals from suffering and to protect performing animals. It also entailed public protection. If an animal was scared the public was in danger. If there were incompetent handlers and unacceptable methods of training, these performances became cruel. Skilled persons had to be part of the licencing and appeals process. Animal welfare experience was essential and one who was not experienced in the field would not know what to look for or what questions to ask. Environmental affairs and wild animals should be considered. If a licencing officer issued a licence for lions or elephants in one province and that licence was valid elsewhere in the country, there would be clashes with provincial legislations.

The draft currently read: 3E (1) the National Licencing officer may delegate any of his or her functions under the Act to an expert or other person appointed in terms of section 3D. Mr Venter proposed the insertion after 3D ‘…except for the issuing, granting or reinstating of a licence.’ The scrutiny, issuing and granting of licences should be centralised at the national office to prevent bias.

The Act had to include that there had to be physical inspection of the premises, accommodation, equipment and facilities where the acts were performed by the animals. The number of hours per day that the animal would be required to perform or exhibited should be indicated. A disaster management report from the local district or municipal disaster management commander was important because some performances involved large crowds but there was no disaster management input and that should be considered in the legislation.

Environmental Management Systems Foundation submission
Ms Michele Pickover, Director, Environmental Management Systems (EMS) Foundation, stated that there was an urgent need for improved legislation on animal protection in South Africa. The PAPA and the Animal Protection Act (APA) were out-dated and had critical weaknesses in interpretation, application, administration, locus standi and enforcement. DAFF appeared not to have jurisdiction to investigate animal cruelty or take action against it. This it outsourced solely to Non-Governmental Organizations (NGOs). Permits for the movement of wild animals and the permits allowing animals to be held needed to be substantially more specific in terms of welfare and protection requirements and must include conditions which facilitated welfare inspection.

EMS Foundation wanted to make a specific intervention in relation to elephants because the captive elephant industry obtained licences for their activities through PAPA but PAPA did not protect elephants in captivity. There was lack of clarity in terms of which government department was responsible for the keeping and management of elephants in captivity. Current research revealed that information about elephants in captivity was not known or kept by national or provincial government including DAFF. There were 129 elephants in captivity in South Africa. 22 were owned by private individuals or companies and two state entities (the Johannesburg Zoo and the National Zoological Zoo in Pretoria). Five individuals or companies owned 53% of these elephants. Almost every elephant in captivity in South Africa had been taken from the wild as a baby or juvenile, kidnapped and forcibly removed from its family.

There was a concern for elephants because they were highly social. They were vulnerable to Post Traumatic Stress Disorder (PTSD) and therefore vulnerable to suffering in a captive setting. This information meant there should be ethical consideration in current policies and legislation. In South Africa, the captive elephant industry had a history of cruel, abusive and domination training and deaths of handlers. The elephant-back safari industry used a dominance-based free contact approach to elephant control. This involved the use of a variety of tools such as bull hooks, and methods that caused intense distress, pain and injury. Negative reinforcement techniques were part of the training. Prevention of use of elephants in captivity for circuses and elephant-back safaris would not have a significant economic or negative tourism impact.

Ban Animal Trading comments on the PAPA
Ms Smaragda Louw, Director, Ban Animal Trading (BAT) stated that processes needed to be in place to ensure that the welfare of the animals was monitored. Any committee that was tasked with granting and issuing PAPA permits should have at least one member representing the rights of animals. The organization was opposed to the commercialization of animals. The focus in this submission was on animals that were used for commercial gain in circuses specifically. The organization proposed an unqualified ban on the use of all animals in circuses. Several countries in Europe including Austria, Belgium and the Netherlands now prohibited the use of wild animals in circuses and countries such as Greece prohibited the use of all animals in the circus.

In South Africa in 2001 a handler was killed by a circus elephant and in 2013 an alligator escaped from a circus enclosure in Port Elizabeth. Animals in the circus spend most of their time in confinement. Training of circus animals happened behind closed doors. If positive reinforcement methods were used for training then trainers would walk around with treats and not whips. The circus played no role in conservation and had no educational purpose. Research showed that animals were conscious and emotional beings to the same degree as humans. Intentional cruelty must be criminalized and exploitation of animals in circuses must be banned.

South African Dog Academy submission
Mr Nicholas Minnie, Director, South African Dog Academy (SADA), said that training methods included force, bribe, repetition, play and master-dog methods. Humans were also trained all the time and if one did something wrong they were fined or imprisoned. On behalf of SADA Access Control, the security industry under the control of Private Security Industry Regulatory Authority (PSIRA) and South African National Security Employers Association (SANSEA) the proposal was that the use of animals for safeguarding should be excluded from the proposed amendment. Prior to 1989, the various security companies and the above mentioned associations together with the NSPCA representatives agreed to propose regulations for guard dogs and handlers. Trust was broken when the NSPCA went directly to the Department of Justice and provided a different interpretation to the agreement which resulted in the industry being added to the PAPA as a last resort.

SADG did not train dogs but it trained people and there were special dogs for training purposes. If the organization was included in the PAPA then all dog or animal training facilities were incorporated in PAPA as well. That included the police and welfare organizations. Under the regulations, the movement of animals should be a record done after the movement of the animals so that in the event of an illegal act, the particular dog could be identified.

South African Veterinary Association submission
Mr John Austin, doctor, South African Veterinary Association (SAVA), stated that the PAPA legislation that was now 70 years old and no longer served to protect the interests of animals. Magistrates were not qualified to adjudicate licences. Section 3 described the licencing officer as a veterinarian or animal scientist.  The PAPA stated that veterinarians may not permit themselves to be exploited in a manner which may be detrimental to an animal, to the client or to the profession. This put veterinarians in a very difficult situation where they had to adjudicate the interests of three different groups. The harm which was caused by humans to animals stemmed from ignorance, indifference, insensitivity, greed and power. Only persons who were qualified to make judgement in considering the applications for licences in terms of the Act should be appointed to do so. SAVA was mindful of the need of its profession to be centrally involved in an adjudicating and advisory capacity as executive officers through the appointment of veterinarians to the office of National Licencing Officer as experts delegated to perform the function. It rejected the proposal that animal scientists as contemplated and defined in the Amendment Bill were suitably or uniformly qualified in knowledge and expertise to function alongside veterinarians as licencing officers.

Private submission
Mr Hendrik du Toit, retired Senior Technician, Department of Water Affairs, stated that affected persons should be able to object to the licence and not interested persons but the court should decide on that. There should be regulations such that people who wanted to train animals knew what was involved beforehand and not later on because building facilities was an expensive venture and to have it later condemned would be a loss. There must be public participation in the framing of regulations and these should be subjected to Parliament for final approval. They should be published so that people were aware of what was happening. The Appeal Board which was not supported by The Constitution should be replaced by an independent tribunal whose chairperson must be a lawyer with a panel that comprised people with knowledge such as veterinarians. The definitions in the Act were not very clear. There was use of wrong words such as ‘the safeguarding of animals’ instead of animals used for safeguarding.

United Front 4 Animals submission
Ms Nikki Elliot, Founder and Director, United Front 4 Animals (UFA), stated that their submission was focused mostly on circus animals and the issuing of licences to circuses. Cruelty was inherent in travelling circuses. There was a focus in legislation, on the cruelty rather than the welfare of animals. The Committee accepted and endorsed as guiding principles among others, the five basic freedoms which were freedom from hunger, thirst and malnutrition; freedom from fear and distress; freedom from physical and thermal discomfort; freedom from pain, injury and disease; and freedom to express normal patterns of behaviour. There were no criteria for any licencing officer to take into account what constituted ‘fit and proper’ licence applicants. No circus owner could be regarded as fit and proper for various reasons. The organization supported the ban called for by BAT but if the Committee decided that animal circuses should still have licences then only a veterinarian with a suitable animal welfare and behaviour qualification should be recommended to issue licences for all performing animals.

Discussion
Mr L Ntshayisa (AIC) asked the SADA for clarity on the notion that the organization did not train dogs but trained people instead. Were these people trained in order to train animals or were dogs not trained at all? If that was the case then how were the dogs expected to perform if they were not trained? The UFA had proposed banning animals in circuses and yet the organization supported the Bill Amendment. Where then should the animals perform if they were not allowed in circuses?

Ms Carter stated that in the 1930s the PAPA was specifically aimed at circuses but at the moment there were five circuses, three of which had animals, but it was the rest of the industry that was being affected. These included security dogs and not about the circuses. What was going to happen in agricultural shows, zoos and oceanariums as those too fell under ‘any animal’? This would affect not just three licences but possibly 17 000 others. Where did the recent case of juvenile elephants take place?

Mr M Filtane (UDM) asked what problems were anticipated with regards to the relocation of animals for use. Was there any proof that the stress that these animals have had to put up with was beyond their capacity, perhaps beyond that of human beings? The question was asked because there seemed to be an overemphasis on the fact that the animals were being ill-treated. Human beings when striving to get something, were also subjected to certain levels of stress therefore why was that such a big issue? Was there any proof that this stress lasted beyond a certain period of time or it was there during training or performing?

Ms A Steyn (DA) stated that many of the presentations were made for something that was not on the table. If the Bill in its current form with maybe a few amendments was to be put in place, would these amendments strengthen the Bill? At this stage the focus was on the licencing aspect and how that should be done. It was important to have a register of who received licences and what the licence was for.  

Mr P Mabe (ANC) asked whether legislation should make it standard that there should be welfare officers. He requested clarity on whether stakeholders were contesting having magistrates playing the licencing role or they were suggesting bringing some expert opinion as it related to the issue of licences, especially for performing animals. The legislation still stated the magistrate as the licencing authority.

Ms Z Jongbloed (DA) asked Mr Minnie for clarity on his idea that a PAPA licence would cost R30 and take approximately nine months and on the R54 million that was mentioned.

The Chairperson added that they were dealing with the amendment of the Bill and the focus was only on relieving judiciary services of their duty to award licences and giving the task to relevant administrators, which was DAFF in this context. She highlighted that the Department had indicated to the Committee that it was working on an animal welfare Bill which was what some of the presentations focused on. The licencing process should be strengthened such that it was not subject to abuse.

Ms Pickover responded that she took some of the photographs herself in Limpopo and Eden in Knysna. The problem was that there was no monitoring and that was what the legislation would hopefully accomplish and there would be access to the places. The licencing process should be fixed and ultimately the overall legislation. She asked Members to ensure access to information around the licencing process was a key component because it was almost impossible for NGOs to monitor what went on in these industries. Having just a veterinarian as a licencing officer would be completely wrong because veterinarians were part of the industry and were sometimes responsible for some of the cruelty involved. They did not abide by a proper code of ethics that spoke to animal welfare. Behavioural experts should be brought in specifically in relation to elephants. There was a lot of research by psychologists around PTSD and it was in the same environment as animals therefore from a moral standpoint elephants were similar.

Mr Minnie replied that his remark on training people and not dogs was not to be taken literally. He explained that in the police force for dog training or evaluation a dog was taken through the whole training process for three months. One handler could handle dogs that were at different training standards in a day. Some handlers could have six to eight dogs in a training session.  Not all training establishments did the same. There was a general profile that was filled in for accreditation and it was audited by a responsible person who was trained to do that. The instructors went up to grade five, which was the substance detection work.

He suggested that the state veterinarian be the final authority in the licencing. If procedures were followed, a clerk should be able to issue a licence. A licence should be declined for serious reasons and not trivial ones. The NSPCA had come up with regulations that were difficult to comply with. There was no law that regulated those statements by the NSPCA. The Licenced Animal Training Association (LATA) proposed that even the local veterinarian could give a permit. This could be taken to the state veterinarian for counter signing. That was where the R30 cost came in. One could only go to the magistrate of their magisterial district for a licence. If a magistrate of another district issued a licence then that magistrate would not be doing their job correctly.

Mr Austin replied that in the situation of the PAPA the National Licencing Officer and people delegated with powers to administer the Act must be independent. Clearly they would not be paid by clients. If veterinarians were part of any problem concerning animal welfare, that would be contrary to the values of the profession. It ought to be formally reported. He replied that he was not aware of any complaints being reported to the South African Veterinary Council about these particular issues. Until such complaints were made it was difficult to respond specifically to the comment. Organisations such as the EMS were encouraged to bring it to the attention of the regulating authority.

Ms Louw responded that dogs that were confined in small kennels and were trained using means of negative training became traumatised and when they were rescued rehabilitation took time. This was more extreme with wild animals that were made to do things that were completely not in their nature such as sitting on bar stools and jumping through hoops. The organization was against the use of wild animals in the circus but if the permit process did go through it should be an open process. The organization would like to see what the terms and conditions for the licences would be and asked that on all the committees somebody from an animal rights organization be present to represent the interests of the animals.

Mr Venter replied that the problems they faced included that animals were trained and then stationed at different locations and not necessarily at the same facility where the licence was applied from. Those sights need to be checked to ensure they could accommodate the type of animal and how the animals would live in those environments or whether they would live there or be moved around. If these comments were taken into consideration then the NSPCA would be happy with the Bill. Experts were needed in the adjudication process especially where wild animals were concerned.

Ms Elliot added that circus animals should not perform at all. No animals should be made to do tricks and South Africa should join the more than 40 countries and states that have banned the practice of animals performing. Stereotypical behaviour such as swaying in elephants and pacing in tigers and lions was evidence of stress. It was well documented and much had been written about it. Even outside captivity they were difficult to rehabilitate. Concerning the licencing procedure, the Act should be strengthened and there should be a procedure where a properly qualified person was appointed as licencing officer, preferably a veterinarian who was qualified in welfare and behaviour of animals including wild animals. All organizations should be able to make submissions to the licencing officer if they felt that the licence should not be issued.

The Chairperson excused the stakeholders from the meeting, the Members of the Committee remained behind.

Report of the Portfolio Committee on Agriculture, Forestry and Fisheries on the International Fisheries Agreement that binds the Republic of South Africa dated 12 May 2015
The Chairperson stated that Members had to look at the international agreement that was tabled by the Department. The Department had clarified issues that were of concern to the Members and the Chairperson wanted to check with the Members if the report could be adopted. The Secretary read the report
The agreement was on the establishment of Indian Tuna Ocean Tuna Commission, for the conservation of the Southern Bluefin tuna. The United Nations Food and Agriculture Organization wanted to take measures to prevent, deter and eliminate illegal, unreported and unregulated fishing. The Committee previously could not finalise the agreement because the explanatory memorandum that accompanied the International Agreement was not prepared according to the National Assembly’s rule 3062 and the Department of International Relations and Cooperation’s (DIRCO) guidelines. Legal opinions regarding the alignment and lack of consistency of the agreement with domestic laws and other international obligations of the country from both the Department of Justice and Constitutional Development and DIRCO were out-dated. The Department of Agriculture, Forestry and Fisheries (DAFF) did not provide adequate information on all three agreements including financial implications and contribution to job creation. The Committee resolved to give the DAFF more time to provide parliament with the required information.

The Committee made a decision on the International Agreement and recommended that Parliament approves the international agreement.

The Chairperson adjourned the meeting.