SUBSCRIBE TO OUR MAILING LIST

Enter your email address to subscribe to our weekly newsletter.

Could Culling of Elephants Be Considered Inhumane and Illegal in South African Law?

0

ABSTRACT

Elephant culling is included in National Norms and Standards for the Management of Elephants in the Republic of South Africa, as a last-resort option to reduce elephant population size when required to meet reserve objectives. Recent judg- ments in South African courts have emphasised the importance of considering animal welfare in conservation. We assess the approved method of culling elephant family units, in terms of the legal and policy framework in South Africa, as well as considering elephant welfare and wellbeing. We find that the current culling method is likely to be inhumane, and potentially inconsistent with the Constitution, as interpreted by the judi- ciary. In addition, in certain circumstances, culling is illegal in terms of the Animals Protection and Meat Safety Acts, and contravenes World Organisation for Animal Health and global standards for the slaughter of animals. We recommend con- sidering a moratorium on culling of elephant family units, as well as of lone bulls, until humane slaughter methods, and standard operation procedures that ensure an extremely high probability of instantaneous (“clean”) kill, are developed and approved. We recommend an ethics review process for con- servation management interventions involving wellbeing risks to animals, such as is required for animal research. Notwithstanding other imperatives that need consideration, conservation practice should better balance welfare, to align with both South African legislation and global norms.

The greatness of a nation and its moral progress can be judged by the way its animals are treated. —attributed to Mahatma Gandhi

1. Introduction

With rapidly expanding human pressure and global change, there is increas- ing pressure on wildlife populations across Africa, as well as increasing human–wildlife interaction and conflict.1 This may necessitate more man- agement interventions to mitigate anthropogenic effects, as well as ensuring the sustainability of populations and ecosystems in areas that are increas- ingly constrained by development.2 African savanna elephants (Loxodonta africana) are globally endangered,3 with declining populations across much of Africa, but increasing populations in southern Africa.4 Within South Africa, elephants are not classified as threatened, increasing by more than 40% since 2006, and occurring in 80 reserves or extensive wildlife areas, including small fenced areas with increasing populations.5 South African National Norms and Standards for the Management of Elephant (N&S)6 require an elephant management plan for areas with elephants, which needs to consider the purpose of the reserve and the long-term survival of the species and ecosystem, and indicate any planned management interventions.7 As such, conservation managers will need to balance many different imperatives that come to bear on decisions, as elaborated in the Assessment of South African Elephant Management.8

Elephant management is contentious, and both the N&S and the man- agement assessment emerged from a Ministerial Scientific Round Table of experts that concluded that “there is no compelling evidence for immediate, large-scale reduction of elephant numbers in the Kruger National Park (KNP),” but that “in some protected areas including the KNP, elephant density, distribution and population structure may need to be managed locally.” 9

Culling is the last resort option in elephant population management, and all other interventions need to have been seriously considered prior to consideration of culling.10 The history of elephant culling, methods, economics, management context, approaches, demographic effects, distur- bance culling, short- and long-term consequences of culling in terms of stress, behaviour, demography, and gaps in our knowledge, have been reviewed by Slotow et al.11 An assessment, by Lötter et al. of the ethical considerations for elephant management by culling included significant ethical issues, analogous to justifying killing fellow humans in a war, and “can be justifiable only as an ethically flawed procedure to be employed under strict conditions.”12 Lötter et al. further emphasised the weightiest moral considerations of making a decision to cull elephants, and that one should “avoid prolonging any suffering by killing them as humanely as possible, in as short a time as possible, and with the least possible dis- turbance.”13 Hopkinson et al. undertook an assessment of the legal context for the management of elephants in South Africa, and most of the legis- lative framing they provided is still relevant.14 However, there have been important developments since their assessments, mainly in the subsequent proclamation of the N&S, and court judgements that highlight the impor- tance of considering animal welfare and wellbeing in conservation, which are reviewed in the following in Section 3 and Table 1.

In addition, the National Environmental Management Biodiversity Act of 2004 (NEMBA)15 is currently under revision,16 and will require animal wellbeing to be taken into account in biodiversity management, as dis- cussed in Section 3.

In this article, we review the legal and policy context for elephant culling in South Africa, considering animal welfare and legal requirements for humane killing of animals, including within the context of consumptive use of products. We recommend policies regarding the future of elephant culling in South Africa. Importantly, we do not address the question as to whether a reduction in elephant population size by culling may or may not be necessary, but rather, whether the current method of culling, as provided for in the N&S, is justifiable and appropriate. As such, this article takes a narrow perspective addressing welfare concerns of the method, and does not undertake a balancing of other conservation imperatives that would be brought to bear on any specific decision to cull, which we will address elsewhere.

2. Culling Methods

We consider culling in terms of the two different contexts in which ele- phants are killed to reduce population size: (1) the killing of male elephants (“bulls”) that are separate from the females, and (2) the killing of family units of elephants, comprising related adult females, their various aged offspring, and associated adult males present at the time of the cull. Minimum standards for culling have been set in the N&S, requiring that culling must be done with quick and humane methods, with a rifle of minimum specified calibre.17 The killing of male elephants is through shooting with the appropriate calibre weapon, which can ensure a quick, clean, and humane kill. If the animal is killed quickly, while alone, there may be little medium- or long-term effect on the remaining elephants.18 The “clean kill” spots for elephants are brain shots (frontal or temporal).19 Given the size and thickness of the skull, and the circumstances of the cull, however, achieving “clean/outright” kills is difficult, even with con- trolled hunting situations.20 This is especially challenging when attempting a high kill rate when culling family units. An additional consideration is when groups of bulls are culled, in which case the first bull is killed, and the others are herded to the proximity of the carcass, and then shot21; this results in a delay in killing subsequent bulls.

The killing of family units is more complicated, and the N&S require the entire family unit and associated juvenile bulls to be killed. The acceptable practice for culling family units is by shooting from a helicop- ter.22 A group is herded by the helicopter to a place where ground teams can access the carcasses, and animals are killed by shooting from the helicopter while they are being herded, with the matriarch shot first.23 This causes confusion as the others mill around the matriarch.24 Then, the next oldest elephants are systematically killed, with the youngest calves last, until the whole group is down.25 Thereafter, the ground teams move in and prepare the carcasses for processing 26 in line with the N&S, one purpose of which is to ensure that elephants are managed in a way that ensures the sustainable use of hair, skin, meat, and ivory products.27

Although the intention is to kill the elephants as cleanly and quickly as possible with a brain shot, in practice this is difficult to achieve, and it is inevitable that the process takes several minutes to complete: up to 19minutes for a group of seven from initial herding to last shot,28 and about 10minutes average for more than 10 culls in KNP conducted when the highly trained team was still in place in 1994.29 Once the shots start, the elephants mill about distressed, vocalising loudly with young elephants bellowing, until the process is completed, making it increasingly difficult to get “good” shots. Some individuals are wounded, or trapped under others, rather than instantaneously dispatched.30 The required checking of carcasses to ensure death is not as thoroughly done as would be consid- ered acceptable from a good slaughter practice, and cull officials often do not look for the five signs used to confirm death.31 Even when using drugs for culling, such as Scoline in KNP, the process takes up to 20min- utes to complete, with similar behaviours by the matriarch and other herd members as just outlined.32 Noting that use of Scoline is now prohibited in the N&S as the elephants remain fully conscious until subsequently shot,33 these observations are still relevant for any alternative method that may be considered that involves tranquillisation.

Non-fatal wounding of animals does occur. For example, Hattingh et al.34 note that most animals die instantaneously, implying that some do not, and Whyte35 indicates that Scoline had the advantage of obviating wound- ing and providing a far greater safety margin for staff and scientists attending such culls. Balfour et al.36 indicate that “any of the culled animals still showing signs of life when the ground crew moved in were imme- diately brain shot by a marksman on the ground,”37 and “in the unfortunate event that elephants are wounded, or managed to escape from a group identified for elimination, the operators must act to ensure that such situations are dealt with as quickly as possible to minimise emotional or physical suffering,”38 implying that such events do occur. It should also be noted that, as the last large-scale culls took place in the mid 1990s, there is a now general lack of expertise, requiring training,39 posing a risk to effective slaughter.

It should be noted that additional culling methods not currently allowed by the N&S have been proposed in the KNP Elephant Management Plan (EMP).40 The proposed interventions include the creation of a landscape of fear for elephants by disturbance culling and elephant pitfalls with stakes, with the aim of provoking distress calls to scare other elephants.41

3. Legal and Policy Context

3.1. The Constitution

Notwithstanding that prima facie reading of the South African Constitution42 is anthropocentric in its foundation, it has been argued that the “Environmental Right” of section 24 in the Bill of Rights is the primary right conferring protection to the natural environment. The Right (the “Environmental Right”) reads as follows:

Everyone has the right—
to an environment that is not harmful to their health or wellbeing; and

to have the environment protected for the benefit of present and future generations through reasonable legislative and other measures that—

prevent pollution and ecological degradation;

promote conservation; and

secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.43

The “environment” is defined in section 1 of NEMA, and encompasses “animal life”; hence, it is common cause that the Environmental Right applies, in some manner, to animals. Three arguments tie the Environmental Right to the welfare of animals. First is anthropogenic interpretation, in which animal welfare is given effect solely through the benevolence of humans.44 The repugnance, compassion, and empathy that people experience when an animal is treated in an inhumane manner are seated, as a minimum, in people’s wellbeing and, in its extreme, their health.45 Furthermore, some might argue that the repugnance and aver- sion to animal cruelty also degrade or harm a person’s right to dignity46 of the Constitution47 when this occurs. People’s right to have the envi- ronment protected48 is given effect through people being custodians of the environment, and, hence, animal welfare. Thus, it is common cause that people may exercise their right to have animals protected against cruel and inhumane treatment.49

Second, the ecocentric interpretation considers humans as part of the animal kingdom and an integral component of the environment; thus, the term “everyone has the right” should not be restricted to humans alone, but includes, at least, non-human animals.50 Thereby, the Environmental Right would confer rights to the environment and components thereof. The conferring of constitutional-based rights to the environment is not novel or speculative; the National Water Act (NWA)51 underpins the bimodal nature of the Environmental Right by granting a water right to both people in terms of a “human needs reserve,” and to the environment—the “envi- ronmental reserve,” which is to protect aquatic ecosystems.52 The act places equal weight on these two reserves,53 and, in so doing, embraces the notion that non-human animals enjoy environmental rights similar to those their human counterparts. The corollary to this interpretation of the Constitution is that environmental decision makers, both private and public, have a non-discriminatory fiducial duty to give due consideration to these rights in a manner equivalent to what they do for people.54

Third, the Environmental Right is viewed as bimodal, being both anthro- pocentric and ecocentric.55 Irrespective of whether the interpretation is anthropocentric, ecocentric, or a combination, it is evident that the well- being of animals is entrenched within the Bill of Rights. This conclusion is echoed in the progressive and evolving recognition of animal rights in South African courts, as explained in Section 3.56 The generality and the transformative nature of the Constitution disavow parochial, narrow char- acterisation of what may be considered inhumane, and morally and eth- ically acceptable to society.57

The fiduciary need to reduce elephant numbers to prevent unsustainable impacts to their habitat is derived from the Environmental Right in that environmental degradation is to be prevented58 and the environment con- served59 for the benefit of present and future generations. Furthermore, consumptive use of elephant products is encapsulated within this right by the way the “use of natural resources” must be “ecologically sustainable.”60

3.2. South African Case Law

Animal welfare and prevention of cruelty to animals have a deep legislative history, dating to the establishment of the South African Society for the Prevention of Cruelty to Animals Act (SPCA Act) in the 1870s, and later in the 1914 SPCA Act.192 The duty of the Legislature to entrench the need to protect animals from cruel treatment was originally founded in Rex v. Masow.193 In v. Smit,194 the court found that the action of destroying an animal must be done “humanely” and with “as little suffering as pos- sible” and established the principle that animals are no longer considered to be and treated as “things,” and overrode this provision in South Africa’s Roman-Dutch-derived Common Law.195

Recognition that animal welfare is intertwined with people’s dignity was grounded in v. Moato,196 which found “cruelty to animals […] offends the finer feelings and sensibilities of his fellow humans,” and affirmed in v. Edmunds,197 that cruelty to animals was prohibited to “prevent degen- eration of the finer human values in the sphere of treatment of animals.” v. Edmunds, however, confirmed the purpose of the SPCA could not be extended beyond safeguarding animals from cruel treatment to con- ferring them with “human status,”198 effectively contextualising the inter- pretation of this act within an anthropogenic construct of the Constitution.

The requirement of South African courts to take into consideration the sentience of animals appeared in Justice Cameron’s minority opinion in NCSPCA v Openshaw.199 By emphasising that animals are “sentient beings,” Justice Cameron recognised that animals are able to perceive and reason, and experience feelings that includes a capacity to “suffer and experience immense pain.”200 Justice Cameron further observed that, despite being sentient, animals “have no voice of their own,” and, in so doing, high- lighted the important of the role the courts in this regard.201 This under- standing was subsequently advocated by the courts in South African Predator Breeders Association v. Minister of Environmental Affairs and Tourism,202 and, thereafter, in South African Predator Breeders Association v. Minister of Environmental Affairs and Tourism.203

Animal welfare is not secondary or subsidiary to conservation, as Justice Khampepe stated, “Animal welfare and animal conservation together reflect two intertwined values,” coupling animal welfare with the constitutional right to have the environment protected in accordance with part (b) of the Environmental Right.204

Irrespective of the various forgoing interpretations of the Environmental Right, the South African Courts have become progressively more willing to embrace the notion of animal welfare being a fundamental component of what is considered to be the “environment.” Furthermore, there appears to be a clear evolution of thought in South Africa’s courts from animals being mere objects of possession without protection against inhumane treatment and cruelty, to a realisation of the sentience of non-human animals being a key consideration in their treatment by human counter- parts. As stated in one court judgment, “Therefore, the rationale behind protecting animal welfare has shifted from merely safeguarding the moral status of humans to placing intrinsic value on animals as individuals” and “guarding the interests of animals reflects constitutional values.”205 Our actions must not be inhumane or cause suffering; must prevent “ill-treat- ment of voiceless beings”206; human-induced “suffering is abhorrent and repulsive”;207 should be placing intrinsic value on animals as individuals and dictating a more caring attitude to animals as a being capable of suffering and experiencing pain208; all of which speak to part (a) of the Environmental Right. Taken together with part (a) of the Environmental Right, positions taken by the courts “speak to the kind of custodial care we are enjoined to show to the environment for the benefit of this and future generations,” “including the prevention of unnecessary cruelty to animals—including those which we may use for service or food is a goal of our society.”209 In terms of the act of culling, if it is inhumane, or adversely affects the welfare of animals, then it can be argued that this contravenes the Environmental Right within the Constitution.

3.3. Other South African Legislation

In terms of the biodiversity legislation (see Table 1), culling of elephants requires an approved elephant management plan and culling plan. Culling has to take into account the sentient nature and highly organised society of elephants, be in line with the principles outlined in the N&S, and in a quick and humane manner, through shooting, and, from the hunting clause, without driving an elephant by any means, or using a pitfall.210 As culling is a restricted activity, a permit is required to be issued, and must comply with the N&S.211

Culling has to comply with the Animals Protection Act,212 which states that “any person who—by wantonly or unreasonably or negligently doing or omitting to do any act or causing or procuring the commission or omission of any act, causes any unnecessary suffering to any animal” is criminally liable.213 This will become more explicit with the revision of NEMBA to include the wellbeing of fauna at a high level (Table 1), which will require all permitting, management plans, culling plans, and so on to consider animal wellbeing explicitly.

The Meat Safety Act (MSA)214 currently precludes the culling of any elephant in the field if any parts are used for consumption, as this act requires the slaughter of these animals to be undertaken in a registered abattoir.215 Once regulations are promulgated to provide for the killing of game animals on the hoof (see Table 1), which are long overdue, this restriction may no longer apply. The MSA also requires humane killing, and immediate death, and restricts shooting of heavily pregnant game animals.216 The Animal Protection Act (APA)217 prohibits wantonly, unrea- sonably, or negligently causing any unnecessary suffering to any animal.

Such prohibition is in accord with international agreements on animal slaughter to which South Africa is a party (e.g., OIE),219 as well as being in accord with global standards for slaughter or euthanasia of animals (e.g., EU 2009, AVMA220) (see Table 1).

3.4. Assessment of Culling

Any or all of the following actions likely make culling of elephant family units illegal in terms of the current legislation, and inhumane by South African and global standards, and by the arguments presented in the preceding, in contravention of the Bill of Rights within the Constitution:

  1. Driving animals using a helicopter to an appropriate location for culling, that can be accessed for processing the carcasses by a ground team, causes distress to the elephants, and constitutes causing unnec- essary distress in transporting animals to slaughter.
  2. The current procedure for culling of groups is inhumane in that, even if all individuals could be accurately shot to ensure an instant kill, the method of first killing the matriarch, and then subsequently killing the other animals in the group, causes the animals that are being slaughtered to suffer distress of the highest level, including by calves who suffer the longest, for a substantially longer period than would be acceptable by any standards of slaughter or euthanasia.
  3. There is a demonstrated probability of wounding in the process, rather than a clean kill.
  4. The process of verification of death by the ground team takes too long from the time of shooting to be considered acceptable by the standards.
  5. It is unavoidable that pregnant females are shot.

The method for culling of individual bull elephants may provide for humane slaughter if it is conducted in such a manner as to ensure an extremely high probability of instant death with no prior distress. This is possible if the elephant is alone, is approached on the ground, and the marksman is proficient enough to ensure a clean shot. Killing of game in the field through a head shot is acceptable, under the global standards.221 However, the global standards do raise the concern of welfare risk from “[i]naccurate targeting and inappropriate ballistics not achieving outright kill with first shot.”222 It is also critical, from a welfare perspective, that bulls are alone, as there is a reaction from other animals if not bulls are alone when killed.223 Culling individuals from a helicopter will result in distress in the animal prior to shooting, which would contravene the APA and MSA, as well as global agreements.

The proposal in the SANParks KNP Elephant Management Plan to intentionally create landscapes of fear in elephants through methods such as disturbance culling is of major concern.224 To plan to or intentionally distress animals through culling or initially wounding an individual within a group to create landscapes of fear for animals constitutes wantonly and unreasonably causing unnecessary suffering to any animal, thereby con- travening the APA, as well the constitutional Bill of Rights (argued in the preceding), and is counter to the principle and purpose of a protected area.

The consumptive use of elephant products from culled animals to benefit the local community, or to be reinvested in conservation, should be a requirement in terms of ethics.225 Because this constitutes trade,226 however, and the sale or provision of meat for consumption,227 a burden of proof of compliance with humane slaughter is required for each instance. This cannot be met by current practice in terms of culling of either individual males or family units.

4. Discussion

Lötter et al. indicated that culling raises serious concerns,228 justifiable only as an ethically flawed procedure to be employed under the strictest conditions.229 They furthermore explored the interplay between ethics and practice of professionals in the context of elephant management, empha- sising that human power, as encompassed within the scientific and tech- nological expertise of professions, must be moderated in the best interests of humanity.230 “Elephants thus need protection from us, something that we must give them by means of ethical values strong enough to restrain our activities,”231 they wrote, adding, “We have a prima facie case not to kill elephants, as all humans have both a moral reason not to kill, as well as an absence of economic or survival reasons to kill” such that the premise of ethics based on hunter-gatherer relations with elephants no longer applies.232 The Environmental Right would apply to other species besides elephants, and to ecosystems. If these are threatened, for example, with extinction by elephants, any rights enjoyed by elephants would have to be balanced against rights of other components of the environment, in compliance with limitation of rights in section 36 of the Constitution. Such balancing would need to be part of the decision to cull as an inter- vention to protect the broader environment, but, in addition to factoring in any rights that elephants may have as a component of the environment, the decision must also balance whether a humane method is available or not, as this impinges more strongly on s10 and s24(a) of the Constitution.

Managers of elephants act as moral agents on behalf of humanity, and as professionals who need to abide by generic professional and ethical values of justice, non-maleficence, beneficence, and autonomy.233 Furthermore, as stated by a veterinary association, “changing societal attitudes toward animal care and use have inspired scrutiny of some tra- ditional and contemporary practices applied in the management of … animals encountered in the wild.”234 Academic conservation thinking has evolved, from notions of protecting the environment or approaches in which conservation has to pay for itself, to recent formulations such as compassionate conservation and convivial conservation,235 with an increas- ing emphasis on the need to consider animal welfare in conservation.236

5. Recommendations

While it may be with the best intentions that conservation managers propose to cull elephants and attempt to complete the task as well as possible, we have identified the current method as likely to be inhumane and illegal. Notwithstanding the need for balancing different imperatives in the decision to cull, our assessment of the welfare concerns of the current methods leads us recommend:

  1. Consider a moratorium on culling of elephants in family units until a humane slaughter method that causes the least, and acceptable, distress to all target animals has been developed and approved.
  2. Consider a moratorium on culling of individual male elephants until development of Standard Operating Procedures (SOP) that ensure an extremely high probability of instantaneous clean kill, with clear indications of the circumstances that ensure this, and of the risks that have to be mitigated. These might include a prohibition of driving males to a killing area or culling of male elephants from a helicopter, to reduce distress prior to slaughter, or of male elephants who are part of a group.
  3. Align conservation planning and management interventions with legal provision, including reasonable balancing of animal welfare and wellbeing implications into plans and actions. More discussion and understanding is required as to the Environmental Right as it applies to animals and ecosystems, and how these can be reasonably balanced when anthropogenic disturbance creates direct threats to intergenerational sustainability from one component of the environ- ment to others.
  4. Require of an ethics review process for all conservation management implementations and interventions involving wellbeing risk to ani- mals, such as is required for animal research.237 This is especially true for the culling plan as envisaged by the N&S.
  5. Require accreditation with stringent training (excluding on-the-job practices) in terms of technical competency (previously specialised and trained people may no longer be available), and assessment in terms of psychological ability, for those tasked with culling.

6. Conclusion

We have demonstrated the misalignment of policy when it is sector based, that is, biodiversity policy developed by an environmental department that does not consider legislation that mandates a different department: in this case, Agriculture has the mandate for both animal welfare and slaughter. Policies were not necessarily developed in ignorance of welfare, but this was excused away as being out of mandate. The South African Constitution and legal judgements have emphasised the constitutional basis of animal welfare in section 24, and the revised NEMBA considers animal wellbe- ing.238 We believe that culling of elephants provides an extreme example of historical practice entrenched as a norm, where technicist/militarist approaches239 tend to shield social reflection, and there is a cultural back- lash to hold on to conservative tradition.240 We highlight the urgent need to prioritise a shift in conservation practice to align with both South African legislation and global norms, and prevent the inhumane culling of elephants using the current approaches. Alternative methods and solu- tions are required for reduction of elephant numbers, if this is indeed required—methods and solutions that are less biophysical, technical, or exploitative in terms of commodification, and that reflect a more “convivial conservation.”241

Acknowledgements

We appreciate the discussions with many colleagues about the issues of concern around elephant culling, which have assisted in our formulation of this article. We thank Lucy Bates for her inputs during a review of an earlier version of the article. The enabling environment of Ezemvelo KZN Wildlife and the University of KwaZulu-Natal is acknowledged.

Disclaimer

The ideas, arguments and opinions expressed in this article are the authors’ own and do not necessarily represent those of Ezemvelo KZN Wildlife or other institutions of affiliation of the authors.

ORCID

Rob Slotow http://orcid.org/0000-0001-9469-1508

Andrew Blackmore Michelle Henley

http://orcid.org/0000-0003-3271-9645 http://orcid.org/0000-0002-1675-7388

Karen Trendler Marion Garaï

http://orcid.org/0000-0002-8633-8410 http://orcid.org/0000-0003-3884-624X

Original article: https://doi.org/10.1080/13880292.2021.1972529

Share.

Comments are closed.