National Council of Societies of the Prevention of Cruelty to Animals v Withers and Others (686/2015) [2016] ZAECGHC 33 (19 May 2016)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

CASE NO: 686/2015

DATE: 19 MAY 2016

In the matter between:

THE NATIONAL COUNCIL OF SOCIETIES OF THE

PREVENTION OF CRUELTY TO ANIMALS........................................................................Plaintiff

And

LISETTE GETRUDE WITHERS.................................................................................First Defendant

ELEPHANTS OF EDEN CC.....................................................................................Second Defendant

THE MEMBER OF THE EXECUTIVE COUNCIL

OF THE EASTERN CAPE PROVINCIAL GOVERNMENT

TASKED WITH ECONOMIC DEVELOPMENT AND

ENVIROMENTAL AFFAIRS......................................................................................Third Defendant

THE MEMBER OF THE EXECUTIVE COUNCIL OF

THE NORTH WEST PROVINCIAL GOVERNMENT

TASKED WITH AGRICULTURE, CONVERSATION,

ENVIRONMENT AND RURAL DEVELOPMENT................................................Fourth Defendant

THE MINISTER OF WATER AND ENVIRONMENTAL

AFFAIRS OF THE REPULBIC OF SOUTH AFRICA..............................................Fifth Defendant

Heard on: 10 December 2015

Delivered on: 19 May 2016

JUDGMENT

MAKAULA J:

A. Introduction:

[1] The plaintiff argues that the main issue before this court is the application of section 2(1)(a) and (b) of the Animals Protection Act 71 of 1962. It remains to be seen whether this is true.

[2] The relevant portion of the section state that any person who ill-treats, neglects, infuriates, tortures or cruelly beats, or mains goads or terrifies any animals; or confines, chains, tethers or secures any animals 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; shall subject to the provisions of the Animal Protection Act and any other law, be guilty of an offence and liable on conviction to be fined or to imprisonment for a period not exceeding twelve months or to such imprisonment without the option of the fine.

[3] On 17 February 2013 the third defendant issued a permit to the first defendant with number 3913 for transportation of five elephants, four of one year old, and one of two years old (the calves) from Sandhurst Farm in Toska in the North West Province to the Request Farm, Alexandria in the Eastern Cape. The instant application

concerns the aforementioned permit.[1]

[4] On or about 13 March 2013 the four elephant calves were transported from Sandhurst Farm to the Request Farm. The calves were kept at the Request farm until March 2014.

[5] On 18 December 2013 the plaintiff issued summons against the defendants seeking inter alia the following relief:

5.1 the review and setting aside of the permit issued by the third defendant to the first defendant for the transport of the African

elephant calves, a protected species in terms of the National Legislation;

5.2 an interdict against the first and second defendants in terms whereof they are prevented from being in control of elephants unless the facility where the elephants are kept complies with the relevant prescribed standards.

[6] The fourth defendant did not enter an appearance to defend and the fifth defendant delivered a notice that it abides by the outcome of the action.

[7] After the close of pleadings, the calves were removed together with all other elephants which were kept at the Request farm to Knysna Elephant Park near Knysna in the Western Cape where they remain.

[8] The defendants amended their respective pleas by incorporating special pleas raising the following issues:

8.1 that the relief sought by the plaintiff is now moot by virtue of elephants having been removed from the Eastern Cape Province to the Western Cape Province;

8.2 that this Honourable court no longer has jurisdiction to adjudicate upon the claims, by virtue of the elephants having been moved out of the province; and

8.3 that the relief sought by the plaintiff, in so far as it may not be moot, is not supported by the necessary averments to sustain causes of action for the relief sought.

[9] The plaintiff delivered a replication to the allegations pertaining to mootness.

[10] The first, second and third defendants seek an order to strike out the replication as an irregular step.

[11] The plaintiff delivered a notice of intention to amend its particulars of claim in which it sought to amend the relief so that

the interdict will prohibit the defendants from being in control of the elephants, irrespective of where they are kept.

[12] In essence there are five interlocutory applications which are serving before me namely:

12.1 An application by the plaintiff to amend its particulars of claim;

12.2 An application by the plaintiff to compel the first and second defendants to disclose specified documents in terms of Uniform Rules 35(3) and (6);

12.3 An application by the plaintiff to compel the third defendant to disclose specified documents in terms of Uniform Rules 35(3) and 35(6); and

12.4 An application by the first and second defendants for setting aside the plaintiff’s replication, on the basis that it constitutes an irregular step; and similar application by the third defendant. The same grounds are advanced by the first, second and third defendants in the two applications and therefore for all practical purposes I shall treat them as a single application.

B. Application to amend:

[13] The plaintiff’s current prayer for interdictory relief reads as follows:

“2. The first and second defendants are interdicted and prohibited from keeping the four elephant calves and other elephants under the control of the first and second defendants at any facility unless such facility:

2.1 constitutes a limited or an extensive wildlife system;

2.2 is compliant with the national Norms and Standards for the Management of Elephants in South Africa; and

2.3 has an approved elephant management plan.”

[14] The plaintiff applies to amend this relief to read as follows:

“The first and second defendants are interdicted and prohibited from keeping the four elephant calves and other elephants under the

control of the first and/or second defendants.”

[15] The first and the second defendants object to the amendment of the plaintiff’s particulars of claim on grounds that:

“1. The proposed amendments seek to introduce relief premised on an entirely new cause of action not pleaded or foreshadowed when action was instituted at a stage, when the matter has been set down for hearing and the trial is imminent;

2. The proposed amendment is excepiable in that it seeks to introduce relief for which no allegations which would sustain such a cause of action are set out in the particulars of claim;

3. The proposed amendment seeks to introduce relief in regard to which the above Honourable court has no jurisdiction, in that as it is pleaded by the plaintiff in its particulars of claim, the elephants which are the subject matter of the interdict sought are located outside this area of jurisdiction.”

[16] Similarly, the third defendant objected to the amendment basically on the same grounds as raised by the first and second defendants.

Thus, I need not deal with the grounds as set out by the third defendant.

[17] The effect of the proposed amendment is that the plaintiff now seeks an interdict prohibiting the first and second defendants from keeping the elephants under their control irrespective of where they are kept.

[18] The plaintiff accepts that the allegations concerning the inadequacy of the facilities at Request Farm have become irrelevant and does not seek to include equivalent allegations regarding Knysna Elephant Park. The plaintiff therefore concedes that the grounds for the interdictory relief are no longer available to it.

[19] The plaintiff denies that it seeks to introduce new allegations in its particulars of claim. The plaintiff submits that the evidence that will be led at trial has not expanded nor has it changed save that the ambit will be reduced slightly because the evidence regarding the compliance of the facility at Request Farm with the Norms and Standards[2] will no longer be relevant. The plaintiff further submits that the allegation that the elephants are kept at Knysna Elephant Park unlawfully has already been made in the particulars of claim.

[20] The plaintiff avers that it has pleaded allegations which are sufficient to sustain the proposed relief and do not constitute a new cause of action in that:

20.1 the calves were, at the time of being transported from Sandhurst Farm to Request Farm, wild elephants and not genuine orphaned calves in terms of the Norms and Standards;

20.2 because the calves are not genuine orphans, they may not be kept in temporary or permanent captivity;

20.3 irrespective of where the calves are kept, the keeping of the calves is unlawful; and

20.4 the first and second defendants are thus unlawfully exercising control over the calves.

[21] Furthermore, the plaintiff avers that it has pleaded that the first and second defendants contravened the provisions of section 2(1)(a) and (b) of the Animals Protection Act 71 of 1962 in a manner referred to in paragraph 1 above.

[22] In sum, the plaintiff argues that it has made sufficient allegations to support an interdict in that it:

22.1 alleges rights that have been infringed, namely, public’s rights that these elephants be treated lawfully as regulated by statute and which places the corollary obligations on the first and second defendants to treat elephants lawfully and the plaintiff’s

rights to enforce these rights;

22.2 alleges interference with these rights, that is the contravention of the particular statutory provisions referred to, and therefore has pleaded allegations reflecting continuing interference with the rights relied upon; and

22.3 alleges that it has no other remedy.

[23] Mr Ford, for the first and second defendants, correctly argues that the averments in the particulars of claim relate to the calves only and their retention at Request Farm. I say so because the allegations relied upon by the plaintiff in paragraphs 19.1 and 19.2 above relate to the time of transportation of the calves from Sandhurst to Request Farm. The allegation in 19.2 above is that, the calves are not genuine orphans and therefore cannot be kept in temporal or permanent captivity. To me, that allegation, refers to Request Farm because the plaintiff is not privy to how the calves are kept in Knysna Elephant Park as no allegations in that regard have been pleaded. It does not appear in the pleadings that the calves are kept in captivity whether temporally or permanently in contravention of the Norms and Standards nor any statutory provision at Knysna Elephant Park.

[24] The plaintiff did not plead facts to support the allegations that the first and second defendants, assuming they have control over the calves or other elephants at Knysna Elephant Park or anywhere in South Africa, ill-treat and/or confine the calves or elephants.

[25] Mr Bester, if I understood his argument clearly in respect of the permit issued by the third defendant; is that it shall act as a guideline in future on factors which needed to be considered when issuing permits. With respect, I do not agree with him because the permit was to transport the specific calves from North West Province to the Eastern Cape. The validity of that permit has come and gone because the calves have been transported to the Eastern Cape and have since been moved to the Western Cape Province. The purpose of the permit is a thing of the past and no longer relevant. I do not see how it would be relevant in future because circumstances leading up to transportation of calves are not static. Currently there are no facts before me as to how the calves were moved to Knysna Elephant Park and the conditions under which they are kept.

Excepiability:

[26] The first and second defendants aver that the amendment if granted would render the summons to be excepiable because the plaintiff

failed to file an affidavit which would set out exceptional circumstances that would persuade this court to exercise its discretion in favour of allowing the amendment despite its excepiability. Further, the first and second defendants contend that the relief sought relates to the calves which are located in the Western Cape Province and no facts are pleaded to support a contention that the elephants are under the control of the first and second defendants and the conditions under which the calves are kept as alluded to. There are no allegations or references to the law made to sustain the order sought by the plaintiff, so argue the first and second defendants. The first and second defendants further submit that if there are some facts or allegations pleaded, they are vague and embarrassing and they do not know which case to meet.

[27] The plaintiff on the other hand argues that even if I were to assume that the summons is excepiable, but such excepiability can and shall be cured by the furnishing of particulars or evidence during trial which would disclose a cause of action.

[28] Lack of averments about the conditions under which the calves are kept in Knysna Elephant Park especially in the light of the Norms and Standards cannot be cured by evidence during trial. The pleadings as they stand,[3] do not disclose a cause of action in respect of how the calves or elephants are kept and whether the first and second defendants have control in Knysna Elephant Park. The plaintiff has failed to plead facts to prove that the first and second defendants are in control of elephants there. As the pleadings stand, I do not agree with the submissions by the plaintiff and I am of the view that lack of averments or facts about the control the first and second defendants have over the animals cannot be cured by evidence.

[29] The plaintiff has not pleaded facts to support the conclusion of law pleaded that the keeping of the calves by the first and second defendants at Knysna Elephant Park is unlawful. The amendment sought by the plaintiff if granted, would inevitably lead to the summons being excepiable.

Jurisdiction:

[30] The plaintiff argues that this matter is a classic case which recognises the legal principle of continuance of jurisdiction where part of a cause would ordinarily fall outside of the court’s jurisdiction, based on considerations of convenience, justice and good sense, which justifies a court exercising jurisdiction over the whole cause. Mr Bester relied on Permanent Secretary, Department of Welfare, EC v Ngxuza[4] in support of this argument.

[31] The case of Ngxuza (supra) relied upon by the plaintiff is distinguishable from the present matter, in that unlike in Ngxuza, this court does not have partial jurisdiction over the cause of action raised by the plaintiff. In Ngxuza[5], Cameron JA (as he then was) said the following:

“[22] The objection in any event has no substance. First, this is no ordinary litigation. It is a class action. It is an innovation expressly mandated by the Constitution. We are enjoined by the Constitution to interpret the Bill of Rights, including its standing provisions, so as to ‘promote the values that underlie an open and democratic society based on human dignity, equality and freedom’. As pointed out earlier we are also enjoined to develop the common law – which includes the common law of jurisdiction – so as to ‘promote the spirit, purport and objects of the Bill of Rights’. This Court has in the past not been averse to developing the doctrines and principles of jurisdiction so as to ensure rational and equitable rules. In Roberts Construction Co Ltd v Willcox Bros (Pty) Ltd this Court held, applying the common-law doctrine of cohesion of a cause of action (continentia causae), that where one court has jurisdiction over a part of a cause, considerations of convenience, justice and good sense justify its exercising jurisdiction over the whole cause. The partial location of the object of a contractual performance (a bridge between two provinces) within the jurisdiction of one court therefore gave that court jurisdiction over the whole cause of action. The Court expressly left open the further development and application of the doctrine of cohesion of causes. The present seems to me a matter amply justifying its further evolution. The Eastern Cape Division has jurisdiction over the original applicants and over members of the class entitled to payment of their pensions within its domain. That, in my view, is sufficient to give it jurisdiction over the whole class, who, subject to satisfactory ‘opt-out’ procedures, will accordingly be bound by its judgment.” (Emphasis added)

[32] The argument by the first and second defendants that the plaintiff seeks to introduce a new cause of action entirely seeking to interdict the alleged control exercised by the first and second defendants over the calves in the Knysna Elephant Park when there is no such cause of action is contended in the Eastern Cape, is sound. No order is sought by the plaintiff in the Eastern Cape to interdict the first and second defendants apart from the fact that the plaintiff seeks to interdict the first and second defendants nationally and generally.

[33] I am of the view therefore that the application for the amendment of the particulars of claim must fail.

C. Application to compel:

[34] On 17 March 2015, the plaintiff served a Rule 35(3) Notice on the first and second defendants calling for the discovery of certain documents. On 8 May 2015, the first and second defendants served on the plaintiff a supplementary affidavit in which they discovered documents contained in two bundles marked A and B thereto. Seemingly the plaintiff did not receive the supplementary affidavit on time. Be that as it may, the plaintiff filed an application to compel discovery seeking the following order:

“1. Directing the First and Second Defendants to comply with paragraphs 1 to 10 inclusive, 13 to 15.2 inclusive, 17 to 19 inclusive, and 21 to 30 inclusive of the Plaintiff’s Notice in terms of Rule 35(3) dated 16th March 2015;

2. That in the event of the First and Second Defendants failing to comply with the Order in paragraph (1) above, the Plaintiff be

authorized to apply to this Honourable Court on the same papers, suitably amplified, for an Order dismissing the First and Second

Defendants’ defence with costs;

3. That the First and Second Defendants pay the costs occasioned by this application, jointly and severally, the one paying the other to be absolved.”

[35] The documents sought to be delivered and their relevance was dealt with by the plaintiff in his founding affidavit in support of this application as follows:

“19. The plaintiff seeks disclosure of all documents provided to the third defendant by the first and second defendants in support of the application for the permit in terms of which the elephants were imported into the Eastern Cape (permit 3193), as well as

correspondence exchanged regarding this application and its issuance (items 1 and 2 of the notice).

20. Items 3, 4 and 5 pertains to similar documents regarding permit 21147, issued to the first defendant by the fourth defendant, which is the third defendant’s counterpart in the North-West Province. The plaintiff also seeks disclosure of the application for the permit itself.

21. Items 6, 7 and 8 pertain to similar documents in respect of permit number 27256 issued by the third defendant to the first defendant, which is a standing permit for the facility at Request Farm where the elephants have previously been held. This permit would be required to lawfully hold elephants at that facility.

22. These documents are relevant to the determination of the status of the elephant calves, namely whether they are wild elephants, and whether they are genuine orphaned calves as defined in the Norms and Standards (“the status of the calves”). They are furthermore relevant to the issue of what information was supplied for purposes of the third defendant considering whether or not to issue a permit, and what information was supplied in this regard. With specific reference to the standing permit, the documents requested are relevant with regard to the issue of the circumstances in which the elephants were kept at Request Farm.

23. In items 9 and 10 the plaintiff seeks documents pertaining to the veterinary examination of the calves that was a condition of permit 21147. These documents clearly pertain to the health and wellbeing of the calves.

24. Items 13 to 15.2 pertain to documents regarding the acquisition of the four calves by the first and/or second defendants (it is still not clear who claims to be the owner of the elephants). These documents are relevant to the status of the calves.

25. Item 17 pertains to the Elephant Management Plan for the erstwhile facility at Request Farm, and documents pertaining to the preparation and finalisation thereof. Such a plan has to be approved by the third defendant before a particular facility may keep elephants. Items 18 and 19 refer to documents that infirmed the preparation of the Elephant Management Plan. These documents are relevant to the circumstances and conditions in which the elephants were kept, and the manner in which they were treated/handled whilst at Request Farm.

26. Item 21 request elephant management plans in respect of the new facility where the elephants are kept. Similarly, these documents are relevant to the conditions under which the elephants are kept currently, and how they are treated/handled.

27. Item 28 derails documents that are relevant to the issue of how the elephants are being treated/handled.

28. I point out that the items requested in item 28 are requested with specific reference to them being mentioned in the Elephant Management Plan for Request Farm. The third defendant has already disclosed this Environmental Management Plan, but without any annexures or any of these documents listed in item 28 of the notice. A copy of the Elephant management Plan is attached as MM2.

29. Item 29 requests an email referred to in a document discovered by the third defendant. I attach as MM3 a copy of the document discovered by the third defendant as item 4, dated 17 October 2012, and described as “Investigations Report and Recommendations (Application for Tops Ordinary Permit, Transport of Five Elephants), includes application, standing permit and correspondence”. On the manuscript first page of the investigation report the following sentence appears: “There are domesticated elephants see email received from C Kumleben at Knysna Elephant Park on 17/10/2012”. This reference, as is apparent from the investigation report, is a reference to the elephant calve forming the subject matter of this action. This email therefore, on the face of the investigation report, pertains to the status of the calves.

30. Item 30 deals with permits and related documents regarding permission having been granted to move the calves from Request Farm to Knysna Elephant Park and to keep them at Knysna Elephant Park. These documents are relevant as to the status of the calves as well as the conditions in which they are being kept.”

[36] The first and second defendants responded as follows to the relevant paragraphs in their answering affidavit:

36.1 The items 1 to 2 sought by the plaintiff were dealt with under item 6 and 16 of Bundle A;

36.2 Items 3.4 and 5 were discovered under Bundle A item 17;

36.3 Items 6, 7 and 8 were discovered in Bundle A under item 18;

36.4 The documents requested in paras 22 and 23 of the founding affidavit were discovered under item 3 of Bundle B;

36.5 The documents sought under items 13 to 15.2 have been discovered under item 8 of Bundle A;

36.6 The documents requested under item 17 have been discovered under item 8 of Bundle A;

36.7 Items 21, 28 and the documents requested under item 28 have been discovered in Bundle B under items 1, 4, 5, 6 and 12 and Bundle A under items 11, 12, 13 and 14;

36.8 The documents requested under item 29 could not be found and are not in the possession of the first and second defendants nor under the control or possession of the attorney;

36.9 The documents requested under item 30 have been discovered under items 6, 16, 17, 18, 19, 20 and 21 under Bundle A.

[37] Summarily, the application is assailed by the first and second defendants on three grounds, namely:

37.1 That the pleadings have not been closed because there is still an application for Amendment of the particulars of claim which is still pending;

37.2 That the first and second defendants have complied with Uniform Rule 35(3) in that all relevant documents were discovered. Those that were not discovered, are irrelevant;

37.3 That the relief sought by the plaintiff is moot and the documents sought in Items 1-10 of the plaintiff’s Rule 35(3) Notice relate to the issue of permits which is academic and accordingly moot.

[38] In paragraphs 4 and 8 of the discovery affidavit which were incorporated by reference in the supplementary affidavit, the first

and second defendants aver as follows:

“4. I have in my possession and control, or in the possession of my Attorneys or agent, the documents relating to this action and which I intend to use in the action, alternatively which tend to prove or disprove any party’s case, such documents as set forth in the First and Second Parts of the Schedule attached hereto.

8. According to the best of my knowledge and belief, I have not now and never have had in my possession, custody, control or power, or in the possession, custody, control and power of my Attorney or Agent or any other person on my behalf, any document/copy of a document/extract of a document relating to any matters in question in this action, other than the documents set forth in the First and Second Schedules hereto.”

[39] In reply the plaintiff contended that the supplementary discovery affidavit does not comply with the requirements of Uniform Rule 35(3) more importantly because it does not provide a complete answer nor disclose all the documents referred to in the Notice in terms of Rule 35(3). Furthermore, the first and second defendants do not disclose nor state on oath that some other documents are not in their possession or their whereabouts are not known to them, so argued the plaintiff. In amplification, the plaintiff relied on the following aspects of the supplementary discovery affidavit:

“8. The defendants contend that items A6 to A16 constitute the documents referred to in items 1 and 2 of the plaintiff’s notice.

However, it is patently clear that this is not so. Item 9 is dated 3 February 2014, whilst Permit 3913 was granted on 17 February 2013, almost a year earlier. This document could not possibly have been included with the application for the permit. Items A6 to A16 does not refer to a single item of correspondence between the first and/or the second defendants and the third defendant regarding the application.

9. The defendants further contend that A17 constitutes the documents requested by the plaintiff as items 3 to 5. However, A17 is merely a copy of Permit 21147 and its conditions.

10. The defendants contend that A18 constitutes the documents requested by the plaintiff as Items 6 to 8. However, A18 is merely a copy of Permit no. 27256 and its conditions. It is therefore only a response to Item 6.

11. The defendants contend that B3 constitute the documents requested in Items 9 and 10. The conditions to transport permit 21147 (forming part of A17) stipulates that “a veterinarian should examine the health status of the animals prior to the importation”. B3 does not include a report on the health status of the elephants by a veterinarian. B3 further does not include any correspondence between the first and/or second defendants and Dr Douw Grobler, who apparently was the veterinarian engaged by the first and second defendants regarding the transport of the elephants.

12. The defendants contend that B2 discloses the documents requested in Items 13 to 15.2. However, B2 is only an agreement of sale between Akula Trading 208 (Pty) Limited and the second defendant, and nothing more. It is therefore only an answer to Item 13.

13. The defendants contend that A8 disclosed the documents requested in Items 17 to 19. However, A8 is only the Elephant Management

Plan dated December 2011, without the appendices referred to in the notice.

14. The defendants contend that A11 to A14 and B1, B4 to B6 and B12 disclose the documents referred to in Items 21 to 30 of the notice. However, a perusal of these documents shows that they do not cover the documents that have been requested.”

[40] The plaintiff argued that the special plea that the review has become moot cannot form a basis for the first and second defendants not to comply with their discovery obligations. The plaintiff submitted that the argument by the defendants that the pleadings have to be finalised first before discovery can be made is not correct and argued that the relevancy of the documents sought to be discovered can be determined on the pleadings as they are. Furthermore, the first and second defendants do not disclose, state on oath that such documents are not in their possession, or their whereabouts known to them, so argued the plaintiff.

[41] The plaintiff brought a similar application in respect of the third defendant seeking the following order:

“1. Directing the Third Defendant to comply paragraphs 12, 13 and 14 of the Plaintiff’s Notice in terms of Rule 35(3) dated 16th March 2015;

2. That, in the event of the Third Defendant failing to comply with the Order in paragraph (1) above, the Plaintiff be authorized to apply to this Honourable Court on the same papers, suitably amplified, for an Order dismissing the Third Defendant’s defendant with costs;

3. That the Third Defendant pay the costs occasioned by this application.”

[42] The documents sought in paragraphs 12, 13 and 14 in the notice are the following:

“Documents evidencing the appointment of T. Tyali and M. Eksteen as environmental management inspectors in terms of Part 2 of Chapter 7 to the National Environmental Management Act 107 of 1998.

Documents reflecting the conditions of the appointment of T. Tyali and M. Eksteen as environmental management inspectors.

Documents reflecting the qualifications, training and experience of T. Tyali and M. Eksteen.”

[43] The plaintiff submitted that the request for these documents flows from the discovery by the third defendant of a memorandum by Thembinkosi Tyali, describing himself as the “Assistant Manager: Biodiversity Conservation, Cacadu” to Dayalan Govender, identified as “The Manager” in the Eastern Cape Department of Economic Development, Environmental Affairs and Tourism. Citing from the memorandum, the plaintiff stated that the report refers to T. Tyali and M. Eksteen who carried out an inspection at the Elephants of Eden facility with a specific purpose “to check the welfare of the newly placed calves from North West Province” and made the following findings:

“In our opinion and based on the findings of the site visit the operator is acting within the constraints of our legislation.”

[44] The plaintiff argued that the opinion expressed by Tyali and Eksteen is relevant to the basis of the plaintiff’s action against the first and second defendants regarding whether the calves are kept in temporal or permanent captivity and whether they are ill-treated in terms of Norms and Standards.

[45] The plaintiff submitted further that even though the conditions at Request Farm are no longer relevant but the majority of the allegations relied upon by the plaintiff are ‘not locality specific’. Furthermore, the plaintiff alleged that it is entitled to investigate whether Tyali and Eksteen were appropriately qualified to be appointed as environmental management inspectors, whether in fact they were so appointed and subject to what conditions their appointments may have been made.

[46] The plaintiff argued that the documents are therefore relevant to the issues in dispute between the parties and the third defendant is obliged to allow the plaintiff to inspect those documents.

[47] In answer, the third defendant, relying on the defence raised that the review has become moot, submitted that if that defence is upheld, effectively that would result in the end of the lis between the parties. The implication therefore is that the pleadings have not yet been closed and this court is not in a

position to properly determine the issue of relevance of the requested documents.

[48] The third defendant insisted that the report by Tyali and Eksteen has no relevance to the allegations against the first and second defendants especially because such allegations have been denied by the first and second defendants. The third defendant stated that the report by Tyali and Eksteen would only be relevant to the conditions at Request Farm and therefore has no relevance to the present relief sought. The third defendant argued that the plaintiff has failed to set out a basis in fact or in law as to its entitlement to investigate the qualifications, appointment and conditions of appointment of Tyali and Eksteen thus failing to establish any connection between what is sought in this regard about Tyali and Eksteen and the issues between it and the defendants.

[49] Uniform Rules 35(1) and (2) require a party to any action who has been called upon, to make discovery of all documents and tape recordings ‘relevant to any matter in question’ in such action and requires further ‘that such notice shall not, save with the leave of a judge, be given before the close of pleadings’. Uniform Rule 35(3) provides that, if any party believes that there are, in addition to the documents or tape recordings disclosed, other documents or tape recordings which ‘may be relevant to any other matter in question’ require that party to make the same documents or tape recordings available for inspection in accordance with subsection (6) or to state on oath that such other documents are not in his possession, in which event he shall state their whereabouts if known to him.

[50] It is clear from the wording of Rule 35(1) that discovery shall not occur before the close of pleadings ‘unless with the permission of a judge’. In Government of the Republic of South Africa v Ngubane[6]; Holmes JA said:

‘In modern practice litis contestatio is taken as being synonymous with close of pleadings, when the issue crystallised and joined . . . And in modern terminology, the effect of litis contestatio is to “freeze the plaintiff’s rights as at that moment.”’

[51] Citing with approval the principle enunciated above by Holmes JA, Wallis JA, in Natal Joint Municipal Pension Fund v Endumeni Municipality:[7]

“There is no problem with this formulation when parties abide by their pleadings and conduct the trial accordingly. Frequently,

however, they do not do so because other issues arise that they wish to canvass and either formally, by way of an amendment to the pleadings, or informally, as in the present case, the scope of the litigation is altered. Here the defendant sought to add new issues specifically relating to the validity of the amendment that introduced the proviso. Up until then the parties were at one that the proviso was in force and available to be relied on by the Fund, subject to the issues around its interpretation. If the plaintiff’s rights were frozen at the close of pleadings, the basis would have been that the proviso was in force. It would make a mockery of the principles of litis contestatio to permit Endumeni to depart from its previous stance by challenging the validity of the proviso, but to bind the Fund to a factual situation at the close of pleadings that had altered by the time that Endumeni sought to challenge the validity of the proviso.

[15] The answer is that when pleadings are reopened by amendment or the issues between the parties altered informally, the initial situation of litis contestatio falls away and is only restored once the issues have once more been defined in the pleadings or in some other less formal manner. That is consistent with the circumstances in which the notion of litis contestatio was conceived.”

[52] Dealing with the issue of relevance Joffee J in Swissborough Diamond Mines v Government of the Republic of South Africa[8] said:

“The broad meaning ascribed to relevance is circumscribed by the requirement in both subrules (1) and (3) of Rule 35 that the document

or tape recording relates to (35(1) or may be relevant to (35(3) ‘any matter in, question. The matter in question is determined from the pleadings.”

[53] It is clear to me that an amendment has an effect of reopening the pleadings and discovery in terms of Rule 35(3) at that stage cannot occur without the leave of a judge. I have already in this matter refused the plaintiff the right to amend its particulars of claim. Had I granted the amendment, the effect thereof would be to reopen the pleadings and I would have refused the application in terms of Rule 35(3) for that reason unless leave would have been granted by a judge. Be that as it may, the pleadings have now closed and I have to determine the relevance of the documents sought by the plaintiff. I now continue to do so.

[54] The documents required in claims 1 and 2 are relevant to the issue of a permit that allowed the transportation of the calves from the North West Province to the Eastern Cape Province. The validity of that permit has come and gone in that not only have the calves arrived in the Eastern Cape; they have subsequently been transferred to the Knysna Elephant Park (in the Western Cape) which is outside the jurisdiction of this court. I shall not traverse the aspect of jurisdiction as I dealt with amply in the application for amendment.

[55] The documents sought in items 3 to 5 relate to documents pertaining to the issue of permit 21147 issued by the Department of Agriculture and Conservation, Environment and Rural Development of the North West Province. Similarly the effect is the same as items 1 and 2 because the purpose for such a permit has been achieved and cannot be relevant anymore especially that the calves are in the Western Cape having been transported again after other subsequent permits have been sought and granted by both the Eastern and Western Cape provincial governments. The documents sought in respect of permit 3913 and items 1 to 5 cannot be found relevant to the line issues between the parties that are still to be determined.

[56] Similarly, the same argument prevails in respect of the documents sought by the plaintiff in respect of items 12, 13, 14 and 15 from the third defendant. These documents relate to the appointment of Environmental Inspectors by the third defendant, their qualifications, training, experience etc. The plaintiff asserts that the documents are relevant to the issues between the first and second defendants. In the same breath the plaintiff concedes that the conditions under which the calves are kept at Request Farm are no longer relevant. The argument by the plaintiff that the items sought do not specifically refers to Request Farm only i.e. are not ‘locality specific’ as put by the plaintiff does not hold water to me. The plaintiff should have stopped at the concession and not try and argue the relevance of these documents because in truth and reality they do not form part or are not relevant to the matter in question between the parties at this stage (when the elephants are no longer in the Eastern Cape).

[57] The documents sought by the plaintiff in items 6 to 8 pertain to permit number 27256 issued by the third defendant to the first

defendant which is a standing permit for the facility at Request Farm where the elephants have previously been held. We now know that there are no elephants kept at Request Farm. I fail to understand the relevance of the documents sought. The reasons advanced further by the plaintiff are not relevant to the relief sought by the plaintiff.

[58] Items 9 and 10 relate to health and wellbeing of the calves. Items 13 to 15.2 pertain to the status of the calves which to me has not relevance to the relief sought. As aforesaid the elephants have left Request Farm and are in the Western Cape, therefore items 17 and 28 pertain to the Elephant Management Plan at Request Farm cannot be relevant to the relief sought.

[59] There are no averments made by the plaintiff that the first and second defendants have control over the calves or elephants at Knysna Elephant Park. This court is not privy to the conditions under which the calves are kept at Knysna Elephant Park and in that event I do not see the relevance of the items sought in items 19 and 21 above.

[60] I deal with the relevance of the items sought by the plaintiff mindful of the assertion by the plaintiff that the first and second defendants have made partial discovery of some of the items sought even though their relevancy is contested. That discovery does not detract from the determination of their relevancy. This should further be viewed in the backdrop of the averments by the first and second defendants in their discovery affidavit and incorporated in the supplementary affidavit as referred to in paragraph 40 above. The first and second defendants state that they do not have in their possession nor in the possession of their attorneys the documents sought by the plaintiff relating to any matter in question in the action. I cannot therefore be able to find that the supplementary discovery affidavit in respect of the first and second defendants does not comply with Uniform Rule 35(3).

[61] The same finding should follow in respect of the supplementary affidavit submitted by the third defendant. Running the risk of repeating myself, as reflected in paragraphs 45 and 46 above, the documentation sought by the plaintiff in summary, relate to the appointment and duties of Tyali and Eksteen as managers in the Eastern Cape Department of Economic Development, Environmental

Affairs and Tourism and the recommendations made by them in respect of the facility at Request Farm. I cannot see the relevance of that at this day and age when calves or elephants are kept at that facility. Furthermore, whether Tyali and Eksteen are qualified has no bearing in the issues at play in this action. The submissions made by the plaintiff in respect of all the defendants intertwine and so are the legal principles at play. I find that the application to compel the third defendant in terms of Uniform Rule 35(3) stands to be dismissed also.

D. First and second defendants’ application in terms of Rule 30:

[62] The first and second defendants brought this application seeking an order setting aside the ‘plaintiff’s replication to first, second and third defendants’ special pleas in so far as they relate to mootness” on the following grounds:

“1. That it constitutes an irregular step in that:

1.1 it is not responsive to the Special Plea of the First and Second Defendants, or that of the Third Defendant and accordingly does not constitute a consequential adjustment as contemplated in Rule 28(8);

1.2 it accordingly constitutes a purported amendment which has not been pursued or introduced in accordance with the provisions of Rule 28 and which is not an amendment recognised by the Rules of Court;

1.3 it impermissible seeks to introduce a new cause of action for the relief claimed in prayer 1 of its Particulars of Claim, whereas a new cause of action must properly be pleaded in the plaintiff’s particulars of claim and accordingly be introduced by means of an Amendment thereto and not indirectly and impossibly by means of a replication.”

[63] The third defendant brought a similar application seeking an order “that the plaintiff’s replication to the first, second and third defendants’ special pleas insofar as they relate to mootness dated 19 May 2015 be set aside as an irregular step as contemplated in Rule 30 of the Uniform Rules of Court.”

[64] The application is opposed by the plaintiff.

[65] The replication complained of by the defendant reads as follows:

“1. The plaintiff denies that the relief sought is moot;

2. The relief sought in prayers 1 and 2 of the plaintiff’s particulars of claim are in the public interest in that:

2.1 a determination as to whether or not the factors pleaded by the plaintiff in paragraph 22 of its particulars of claim ought to be taken into account in considering whether or not to issue a permit of the nature of permits 3913, is relevant to the consideration of every permit application in respect of African Elephants;

3. It is likely that other decisions to grant permits of this nature will have to be reviewed in future if these aspects are not

determined here;

4. In addition:

4.1 further permit(s) in respect of the four elephant calves and other elephants have been issued by the Western Cape Provincial Government subsequent to the institution of these proceedings, in terms of which the calves were moved from the Eastern Cape Province to the Western Cape Province.”

[66] The plaintiff argues that the allegation contained in the replication, as a matter of law answers the special plea of mootness

in that (a) it sets out factual allegations which, if proven, shall establish that the controversy on the pleadings is still a live one, and that the relief sought will have practical consequences between the parties; and (b) it sets out reasons, why, in addition, even if the relief is in principle moot between the parties, it is in the interest of justice

to adjudicate the point, in which event the trial court shall be entitled to exercise a discretion as to whether or not to grant the relief.

[67] The plaintiff argued that the special plea of mootness is not an attack on the plaintiff’s cause of action but (a) it relates to locus standi and (b) dictates how a court should exercise its discretion which is in the context that it was used in the replication.

[68] The plaintiff argued further that the effect of public interest relates to coordination by various issuing authorities to apply the same standards and way of approving permits. In other words the issue of public policy shall serve as a guidance as to which issues are relevant to the granting of permits. Therefore, that would rebut the allegation that the order shall be of no practical effect to the parties. The plaintiff submitted that the proper place to put up a rebuttal to the special plea is the replication.

[69] Mr Ford, argued that the objects, functions, powers and duties of Societies of the Prevention of Cruelty to Animals[9] (the Act) do not include what the plaintiff sought, that is, to act on behalf of the public.

[70] I agree with this submission by Mr Ford. I shall deal with the relevant portions of the Act in this regard. Section 3(c) of the Act provides that the object of the Council is to prevent the ill-treatment of animals by promoting their good treatment by man and section 3(e) provides further that the Council is to take cognisance of the application of laws affecting animals and societies and to make representations in connection therewith to the appropriate authority.

[71] In this application, the plaintiff seeks an order which has nothing to do with its objects, purpose and functions but which has to do with setting up standards and guidelines which would bring about uniformity within the nine provincial authorities as to what in the public interests, should be taken into account in issuing transportation permits. Section 6(2)(e) of the Act grants the board of National Council of Societies of the Prevention of Cruelty to Animals the powers to:

“defend legal proceedings instituted against the Councils and institute legal proceedings connected with its functions, including such proceedings in an appropriate court of law or prohibit the commission by any person of a particular kind of cruelty to animals, and assist a society in connection with such proceedings against or by it.”

[72] What is referred to above and the functions stipulated in section 6 of the Act, nowhere is it stated or can reasonably be inferred that an order as is sought by the plaintiff is catered for. The plaintiff is a creature of statute and cannot act beyond its purpose, objects, powers and functions.

[73] Permit 3913 was issued for the sole purpose of transporting the calves or orphaned elephants from North West Province to the Eastern Cape Province at Request Farm. In prayer 1 of the particulars of claim, the plaintiff seeks an order that the third defendant’s decision to issue permit number 3913 to the first defendant be reviewed and set aside. This relief has nothing to do with the ill-treatment of the calves or orphaned elephants. I agree with Mr Ford’s argument that even the ill-treatment or allegations made thereof are broad and lack detail.

[74] The allegations, assuming they have detail, which I am not convinced they do, are or were applicable to Request Farm. The calves or orphaned elephants have now moved to Knysna Elephant Park where they remain. No facts or allegations are made about the conditions they live under especially that they no longer fall under the definition of orphans as stated.

[75] Furthermore, the permit was for the transportation of the calves or orphaned elephants to Request Farm. The calves or orphaned elephants were delivered at Request Farm and have since moved to Knysna Elephant Park after yet another permit was issued.

[76] It is glaring that the facts which are placed before an issuing authority like the third defendant are not static. They vary according to circumstances and different considerations are taken into account when such permits are issued. It is inconceivable

therefore that the facts which were taken into account in issuing a permit which has expired can serve the purpose of setting a precedent for the nine provincial authorities. Certainly, a declaratory order in this matter cannot achieve legal certainty in the issue of future permits; the facts of this case which have become academic as the permit has expired, cannot serve to establish a precedent upon which future permits can be issued.[10]

[77] The plaintiff argued that it is likely that other decisions to grant permits of this nature will have to be reviewed in future if these aspects are not determined in this application as stated in paragraph 64 above. With respect this is not the case that the plaintiff pleaded. This introduces a new case. No one knows what the future reviews would entail especially because, as aforesaid, the facts would not be the same as the present.

[78] Mr Boswell, for the third defendant submitted that what remains to be decided is whether the third defendant failed to consider the application on the basis that it involved a protected species at the time the permit was issued. He submitted, correctly so, that that is a factual issue which shall have no bearing on any other permits which may be issued by other issuing authorities in future.

[79] The current order sought shall have no practical effect on the elephant calves or orphaned elephants which have now been moved to the Western Cape.

[80] I am convinced that the plaintiff by introducing the issue of public interests, in the manner it did in the replication; it is actually raised entirely new grounds for the granting of the reliefs sought. The replication falls to be struck out.

[81] Having heard and determined all the five interlocutory applications that served before me, I make the following order:

The application to amend the plaintiff’s particulars of claim is dismissed with costs, such costs to include the employment of two counsel;

The application to compel the first and second defendants to discover specified documents in terms of Uniform Rule 35(3) and 35(6) is dismissed with costs, such costs to include costs consequential upon employment of two counsel;

The application to compel third defendant to discover specified documents in terms of Uniform Rule 35(3) and 35(b) is dismissed with costs;

The application by the first and second defendants to strike out plaintiff’s replication is upheld with costs, such costs to include costs consequential upon the employment of two counsel; and

The application by the third defendant to strike out the plaintiff’s replication is upheld with costs.

M MAKAULA

JUDGE OF THE HIGH COURT

Counsel for the Plaintiff: Adv Bester

Attorneys for the Plaintiff: Messrs Neville Borman & Botha

22 Hill Street

GRAHAMSTOWN

Counsel for the 1st & 2nd Defendants: Adv Ford SC

Adv Richards

Attorneys for the 1st & 2nd Defendants: Netteltons

118A High Street

Counsel for the 3rd Defendant: Adv Boswell

Attorneys for the 3rd Defendant: Messrs Whitesides

53 African Street

[1] The plaintiff argues that the main issue before this court is the application of section 2(1)(a) and (b) of the Animals Protection Act 71 of 1962. It remains to be seen whether this is true. The relevant portion of the section state that any person who ill-treats, neglects, infuriates, tortures or cruelly beats, or

mains goads or terrifies any animals; or confines, chains, tethers or secures any animals 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; shall subject to the provisions of the Animal Protection

Act and any other law, be guilty of an offence and liable on conviction to be fined or to imprisonment for a period not exceeding

twelve months or to such imprisonment without the option of the fine.

[1] The plaintiff argues that the main issue before this court is the application of section 2(1)(a) and (b) of the Animals Protection Act 71 of 1962. It remains to be seen whether this is true.

The relevant portion of the section state that any person who ill-treats, neglects, infuriates, tortures or cruelly beats, or

mains goads or terrifies any animals; or confines, chains, tethers or secures any animals 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; shall subject to the provisions of the Animal Protection

Act and any other law, be guilty of an offence and liable on conviction to be fined or to imprisonment for a period not exceeding

twelve months or to such imprisonment without the option of the fine.

[2] National Norms and Standards For The Management of Elephants in South Africa issued in terms of the National Environmental Management: Biodiversity Act 10 of 2004.

[3] Erasmus: Superior Court Practice JUTA, Cape Town at page B1-151 and the authorities cited therein.

[4] 2001 (4) SA 1184 (SCA) (Ngxuza).

[5] Ibid at para [22].

[6] 1972 (2) SA 601 (A) at 608D-E.

[7] 2012 (4) SA 593 (SCA) at 601E.

[8] 1999 (2) SA 279 (TPD) at 316D-E.

[9] Act 169 of 1993.

[10] In National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC) the Constitutional Court held: “A case is moot and therefore not justiciable if it no longer presents an existing or live controversy which should exist if the Court is to avoid giving advisory opinions on abstract propositions of law.”

[10] In National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC) the Constitutional Court held:

“A case is moot and therefore not justiciable if it no longer presents an existing or live controversy which should exist if the Court is to avoid giving advisory opinions on abstract propositions of law.”