The far-reaching implications of expanding legal rights to animals continue to crop up in court actions around the world. One such case has just been filed in the High Court of South Africa in a review application seeking to release three adult elephants from the confines of a “barren”, soccer-field sized enclosure in the Johannesburg Zoo.
The action, led by attorney Sarah Kvalsvig, calls for the elephants to be rehabilitated into a larger and more natural environment “in conditions that are commensurate with the fundamental needs and nature of elephants”.
The main applicant is Animal Law Reform South Africa (ALRSA), a non-profit organisation established five years ago by animal law attorney Amy P. Wilson, human rights lawyer and academic Prof Bonita Meyersfeld, and University of Johannesburg constitutional law expert Prof David Bilchitz.
In a founding affidavit lodged with the Pretoria High Court on 20 June, the applicants allege that zoo authorities are in breach of the country’s Animal Protection Act Law of 1971, a provincial nature conservation ordinance, and the more recent Threatened or Protected Species Regulations of 2007.
Beyond these statutory measures related specifically to animal welfare, the case goes further by invoking constitutional rights to an environment that is protected for the benefit of current and future generations.
A co-applicant, the EMS Foundation, has undertaken to pay the costs of re-integrating the three elephants – named Lammie, Mopane and Ramadiba – into a new sanctuary area. The offer has previously been spurned by the Johannesburg Zoo authorities, who have yet to file responding papers.
The South African case is similar to another recent animal law case which came before the State of New York Court of Appeals. In that case, several animal interest groups sought the release of an Indian elephant named Happy from the Bronx Zoo by invoking the ancient common law writ of habeas corpus.
The New York appeal court rejected the application – in a 5-2 split decision – with the majority ruling that habeas corpus was intended to protect the liberty right of human beings to be free of unlawful confinement.
“It has no applicability to Happy, a nonhuman animal who is not a ‘person’ subjected to illegal detention. Thus, while no one disputes that elephants are intelligent beings deserving of proper care and compassion, the courts below properly granted the motion to dismiss the petition for a writ of habeas corpus,” wrote Chief Judge Janet DiFiore.
Significantly, however, two judges wrote dissenting opinions which essentially call for the law to adapt to changing times and also recall the USA’s long history of slavery and the exploitation of black people, women, children and other marginalised groups.
Judge Jenny Rivera argued that, other than keeping animals in a zoo, there were many better ways to raise public awareness of the threats facing the animal kingdom. “(Zoo confinement) is an affront to a civilized society, and every day ‘Happy’ remains a captive – a spectacle for humans – we, too, are diminished.”
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