Wildlife conservation scores another landmark judgment

By Martin Welz

The wildlife conservation NPO, Landmark Foundation, has scored another landmark high court victory.

The Grahamstown high court yesterday ordered the Eastern Cape MEC for Environmental Affairs to disclose his department’s records of all applications received and permits issued to trap, kill, hunt or translocate any leopards in or from the Eastern Cape since 2017.

The Department has been refusing Landmark’s requests for this information for the past two years, claiming that by disclosing the information it would infringe on the permit applicants’ right to privacy.  

Judge Govindjee has now ordered the MEC and his information officer to do so within 14 days – and pay Landmark’s legal costs.

The application was launched by the trustees of the Landmark Foundation after the  department refused to grant its formal PAIA application for  access to the information.

Previously, in 2019, the Landmark Foundation had obtained a court order interdicting the Department from permitting the capture of four free-roaming leopards in the Baviaanskloof area (a world heritage site) and their translocation to a privately owned game farm involved in trophy-hunting (the Buffalo Kloof Private Game Reserve).

Cape leopards are listed as “an indigenous species facing a high risk of extinction in the wild in the medium-term future” in terms of the Threatened and Protected Species (TOPS) Act. 

According to the Landmark Foundation “it is more correct to state that leopards are critically endangered – due to their low density, their habitat transformation and the genetic isolation of existing leopard populations.”

There are currently fewer than 400 adult leopards remaining in the entire Eastern Cape.

The capture and translocation of the four leopards required the issue of a special permit, which the Department granted.

The Landmark Foundation objected to the granting of the permit as it argued that it was ecologically, environmentally and administratively unsound. There were also insufficient grounds to show that the leopards in question had caused livestock losses and were on that basis to be deemed ‘damage causing’.

The Landmark Foundation was granted an interim court interdict prohibiting the translocation on 29 June 2019. 

The Foundation’s attorneys then requested the Department to provide the name of the farm from which the leopards were to be relocated, and to confirm whether the leopards had in fact been captured and relocated. The department refused to supply this information.  

The Foundation’s request for a copy of the permit issued to Buffalo Kloof was also refused; it was, in any event, due to expire on 24 July 2019 and, said the Department, the farmer concerned had indicated that “he will not pursue the relocation of the leopards to Buffalo Kloof as the permit will have expired” before the court return date.

Landmark then asked for an assurance from the Department that no new permits would be granted to capture or relocate the leopards in question, without prior notification of the Landmark Foundation’s attorneys.

The Department refused to give such an assurance as it was “not prepared to entertain any ‘informal’ requests for information; any information had to be sought in terms of PAIA”.

The Landmark Foundation learned, after the fact, that three of the leopards concerned were in fact translocated to Buffalo Kloof pursuant to a new permit subsequently issued by the Department without notice to the Foundation.

On 19 September 2019 the Landmark Foundation lodged a formal request for access to information under section 18(1) of PAIA. They now wanted access to all such permits issued by the department since 2017. This was refused on the grounds that the permits and applications contain “personal information about third parties (the applicants) the disclosure of which is prohibited in terms of section 34(1) of PAIA”.

Landmark then took this decision on appeal to the Eastern Cape high court, arguing that the principles set out in the National Environmental Management Act (NEMA) require, inter alia, that  “the participation of all interested and affected parties in environmental governance must be promoted” and that “Decisions must be taken in an open and transparent manner, and access to information must be provided in accordance with the law.”

The Act further states: “The environment is held in public trust for the people [and] must be protected as the people’s common heritage.”

Section 32 of NEMA confers legal standing to enforce environmental laws on any person or group that acts in the public interest, or in the interest of protecting the environment, and re-enforces the public right to transparent government.

The Eastern Cape Provincial Administration’s position – that interested members of the public are not entitled to access to any information contained in TOPS permit applications and permits – need only be articulated to be exposed as constitutionally repugnant, and legally unsound, said Landmark’s counsel, Advocate Matthew Blumberg, SC.

In his lengthy judgment, Judge Govindjee states: “The subject matter of the application for access to information involved permits issued in relation to vulnerable indigenous species facing a high risk of extinction in the medium term. The application was brought by the Foundation to obtain information relevant to the management and conservation of threatened and protected species. It is accepted that state management in conservation of threatened species invokes a public interest dimension. The right to access to information is closely linked to the cultivation of an accountable, responsive and open society and the realization of other constitutional rights, including the right to a healthy environment. Animal welfare and conservation  form part of this right. Access to information is the norm, rather than the exception.”

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