there has been limited litigation involving them. But as with much of the litigation
involving biodiversity, the underlying drivers for the litigation can be a clash of
cultural ethics, self-interest (economic) or a desire to protect the environment.
One case, Kloof Conservancy v Government of the Republic of South Africa and
Others (D) Case No: 12667/2012, 22 October 2014, was aimed at forcing government to give effect to its regulatory obligations. In this regard, in terms of section 70
(1)(a) of the Biodiversity Act, the Minister was obliged to publish the national list of
invasive species within 2 years of the section coming into effect. In December
2012—more than 6 years after the deadline for publishing the list—the Kloof
Conservancy applied to court for an order compelling the Minister to publish the
list as well as the Regulations. Before the matter reached trial the Minister published
interim 2013 Regulations and Notices, presumably in an effort to defeat the application. The Kloof Conservancy, however, launched a second application asking for
the 2013 Regulations and Notices to be reviewed and set aside as well other orders to
be made. Between arguing the case and the judgment being made, the Minister
passed the 2014 Regulations and 2014 Notice. This meant that much of the Kloof
Conservancy’s requests became moot because the Regulations and Notice had been
passed.
Notwithstanding this, the court showed its displeasure with the almost 8-year
delay in passing the Regulations and Notice by awarding costs against government
on an attorney-and-client basis i.e. a punitive costs order. It also declared the failure
to publish the Regulations and Lists timeously to be unconstitutional and unlawful.
In an unusual approach the court also made orders about implementation. It ordered
that all steps had to be taken to ensure that organs of state complied with their duties
and directed the Minister to appoint enough environmental management inspectors
to ensure compliance with government’s duties in relation to invasive alien species
in Kwa-Zulu Natal within 6 months of the judgment (Note: the Minister successfully
appealed aspects of the judgment related to the deployment of environmental
management inspectors—See Minster of Water and Environmental Affairs v Kloof
Conservancy (106/2015) [2015] ZASCA 177 (27 November 2015).
Although not directly related to his findings, the judge also expressed some
reservations about the ‘legality’ of aspects of the 2014 Regulations. These obiter
dictum comments may encourage future litigation on the Regulations.
By contrast to the Kloof matter, another case was initiated in the early 2000’s
(before the Alien and Invasive Species Regulations were promulgated) with the aim
of preventing government from exercising its powers. This case related to the
sentimental and ethical considerations that can arise in the context of alien species,
particular animal species. In this instance government took a policy decision to
extirpate the Himalayan Tahr (Hemitragus jemlahicus) on Table Mountain, whose
ancestors had been introduced to South Africa from India by Cecil John Rhodes. The
decision was met with outrage by many people, some of whom formed the “Friends
of the Tahr” group, to challenge the culling. “Friends of the Tahr” launched an
application to have the decision to cull reviewed. It was either withdrawn or
dismissed (Butcher 2004). The matter may be resurrected in the future as a media
article reports that the group was looking to approach the court about the possible
culling of three remaining tahrs which were sighted in 2017 (Chambers 2017).
18 Biological Invasion Policy and Legislation Development
541
involving biodiversity, the underlying drivers for the litigation can be a clash of
cultural ethics, self-interest (economic) or a desire to protect the environment.
One case, Kloof Conservancy v Government of the Republic of South Africa and
Others (D) Case No: 12667/2012, 22 October 2014, was aimed at forcing government to give effect to its regulatory obligations. In this regard, in terms of section 70
(1)(a) of the Biodiversity Act, the Minister was obliged to publish the national list of
invasive species within 2 years of the section coming into effect. In December
2012—more than 6 years after the deadline for publishing the list—the Kloof
Conservancy applied to court for an order compelling the Minister to publish the
list as well as the Regulations. Before the matter reached trial the Minister published
interim 2013 Regulations and Notices, presumably in an effort to defeat the application. The Kloof Conservancy, however, launched a second application asking for
the 2013 Regulations and Notices to be reviewed and set aside as well other orders to
be made. Between arguing the case and the judgment being made, the Minister
passed the 2014 Regulations and 2014 Notice. This meant that much of the Kloof
Conservancy’s requests became moot because the Regulations and Notice had been
passed.
Notwithstanding this, the court showed its displeasure with the almost 8-year
delay in passing the Regulations and Notice by awarding costs against government
on an attorney-and-client basis i.e. a punitive costs order. It also declared the failure
to publish the Regulations and Lists timeously to be unconstitutional and unlawful.
In an unusual approach the court also made orders about implementation. It ordered
that all steps had to be taken to ensure that organs of state complied with their duties
and directed the Minister to appoint enough environmental management inspectors
to ensure compliance with government’s duties in relation to invasive alien species
in Kwa-Zulu Natal within 6 months of the judgment (Note: the Minister successfully
appealed aspects of the judgment related to the deployment of environmental
management inspectors—See Minster of Water and Environmental Affairs v Kloof
Conservancy (106/2015) [2015] ZASCA 177 (27 November 2015).
Although not directly related to his findings, the judge also expressed some
reservations about the ‘legality’ of aspects of the 2014 Regulations. These obiter
dictum comments may encourage future litigation on the Regulations.
By contrast to the Kloof matter, another case was initiated in the early 2000’s
(before the Alien and Invasive Species Regulations were promulgated) with the aim
of preventing government from exercising its powers. This case related to the
sentimental and ethical considerations that can arise in the context of alien species,
particular animal species. In this instance government took a policy decision to
extirpate the Himalayan Tahr (Hemitragus jemlahicus) on Table Mountain, whose
ancestors had been introduced to South Africa from India by Cecil John Rhodes. The
decision was met with outrage by many people, some of whom formed the “Friends
of the Tahr” group, to challenge the culling. “Friends of the Tahr” launched an
application to have the decision to cull reviewed. It was either withdrawn or
dismissed (Butcher 2004). The matter may be resurrected in the future as a media
article reports that the group was looking to approach the court about the possible
culling of three remaining tahrs which were sighted in 2017 (Chambers 2017).
18 Biological Invasion Policy and Legislation Development
541