Introduction

On 26 May 2026, the Constitutional Court began hearing argument in a challenge brought by the South African Hunters and Game Conservation Association (SAHGCA) against the inclusion of “well-being” provisions in the National Environmental Management: Biodiversity Act 10 of 2004 (NEMBA). The challenge targets amendments effected by the National Environmental Management Laws Amendment Act 2 of 2022 (NEMLAA), which introduced a statutory definition of animal well-being and required regulators to take it into account in biodiversity decision-making.

The National Society for the Prevention of Cruelty to Animals (NSPCA) is opposing the application and defending the amendments. Parliament and the Department of Forestry, Fisheries and the Environment have indicated support for a 24-month suspension of the impugned provisions to allow further public participation, rather than outright invalidation.

The case is narrowly procedural on its face: it turns on whether public participation under section 72 of the Constitution and the Rules of Parliament was sufficient before well-being was inserted into NEMBA. The substantive consequences are, however, considerable. The Court’s decision will accordingly affect how biodiversity decision-makers approach permits, norms and standards, hunting authorisations, translocation, culling and other activities that touch on individual wild animals.

Background

NEMBA, since its enactment in 2004, has been the principal vehicle for the regulation of biological diversity in South Africa. Its focus has historically been on species, ecosystems and populations, with the framework geared toward conservation, sustainable use and access and benefit sharing. Animal welfare, by contrast, has been regulated under separate legislation, principally the Animals Protection Act 71 of 1962 and the Performing Animals Protection Act 24 of 1935, enforced by the NSPCA.

NEMLAA broke from that historical divide. In 2022, it inserted into NEMBA a definition of “well-being” as “the holistic circumstances and conditions of an animal, which are conducive to its physical, physiological and mental health and quality of life, including the ability to cope with its environment”. NEMLAA also amended the objects and decision-making provisions of NEMBA to require that the well-being of fauna be taken into account where biodiversity decisions affect individual animals.

The amendment crystallised a tension that had been building in South African environmental law for some time. In National Council of Societies for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development [2016] ZACC 46, the Constitutional Court accepted that the protection of animal welfare had transcended its older moral-philosophical roots and now formed part of constitutional environmental governance, recognising the intrinsic value of animals. The 2023 White Paper on the Conservation and Sustainable Use of South Africa’s Biodiversity took the position further, affirming the intrinsic value of living organisms and the relevance of their well-being to conservation policy.

SAHGCA’s challenge attacks NEMLAA’s well-being amendments at their procedural foundation, arguing that Parliament did not facilitate adequate public involvement in the legislative process before well-being was inserted into NEMBA. It seeks an order declaring the provisions invalid, alternatively suspending their operation pending a further consultative process.

The Legal Issues Before The Court

The matter raises four issues of legal significance for the regulated community:

• Procedural validity. The principal question is whether the parliamentary process complied with the obligation in section 72(1)(a) of the Constitution to facilitate public involvement in the legislative process. The Court will need to decide whether the insertion of well-being, as a novel concept materially altering NEMBA’s decision-making architecture, attracted a higher participatory threshold than was met.
  
• Severability and remedy. If procedural invalidity is established, the Court must decide whether to strike down the well-being provisions, to read them down, or to suspend the declaration of invalidity. Parliament and the Department’s support for a 24-month suspension is a tacit acknowledgement that the procedural defect, if found, may be remedied without losing the substantive amendment. The choice of remedy will significantly affect the practical position of regulators and licensees during any suspension period.
  
• Substantive content of well-being. Although the case is framed procedurally, the substantive content of well-being will inevitably feature in the argument. NEMBA’s definition is broad and encompasses “physical, physiological and mental health and quality of life”. Whether the inclusion of mental health and quality of life in a biodiversity statute is constitutionally permissible, given the section 24 environmental right and Schedule 4 “environment” competency, may be tested.
  
• The interface with the Animals Protection Act. The well-being amendments do not displace the existing animal cruelty regime under the Animals Protection Act. The Court’s reasoning will likely engage with whether the dual regime creates unworkable overlap or, conversely, whether it represents a coherent statutory architecture in which biodiversity law sets ex ante decision-making standards and the Animals Protection Act provides ex post enforcement.

Implications For Regulatory Decision-Making

If the well-being amendments survive, NEMBA decision-makers (the Minister, the Department, provincial conservation authorities and management authorities) will be required to take well-being into account when exercising powers that affect individual wild animals. The practical implications are wide-ranging:

• Permitting. Permit applications under Chapter 7 of NEMBA, including for restricted activities involving threatened or protected species, will need to engage explicitly with well-being. Decision-makers will need to record their consideration of well-being in their reasons.
• Norms and standards. The Minister’s power to publish norms and standards under section 9 of NEMBA may be exercised in a manner that gives operational content to the well-being requirement, including in respect of translocation, captive breeding, hunting and the management of damage-causing animals.
• Biodiversity management plans. Species and ecosystem management plans approved under sections 43 and 44 of NEMBA may need to incorporate well-being considerations in their implementation protocols.
• Environmental authorisations. Where activities listed under the National Environmental Management Act 107 of 1998 (NEMA) intersect with wildlife, for example, mining and prospecting activities that affect protected species, the well-being amendments may feed into the environmental impact assessment and authorisation process via NEMA’s integration principles.
• Compliance and enforcement. The Environmental Management Inspectorate’s monitoring and enforcement mandate may extend to well-being-related conditions imposed on permits and authorisations.

Conversely, if the provisions are struck down or suspended, well-being falls back into the Animals Protection Act and the common law. Regulators may not, in that scenario, lawfully refuse or condition permits on well-being grounds, and decisions made after suspension on that basis may be vulnerable to review.

Practical Significance

The judgment, when handed down, will have practical consequences for:

• mining and prospecting operators whose activities affect protected wildlife or protected ecosystems, where well-being-related conditions could feature in the environmental authorisation process or in species-specific permits under NEMBA;
• game farmers, breeders and ranches, where day-to-day management decisions, including translocation, contraception, culling, hunting, may need to be defended against well-being-based regulatory standards;
• the hunting industry, particularly trophy and put-and-take hunting operators, whose practices have been the immediate focus of well-being-based criticism;
• conservation NGOs and management authorities, which may seek to use well-being as a basis for participation in or challenge to biodiversity decisions; and
• funders and insurers exposed to biodiversity-linked transactions, where regulatory uncertainty around well-being may affect risk allocation and conditions precedent.

Operators should not wait for the judgment to plan. Whatever the outcome, the Constitutional Court’s engagement with well-being will shape the legal landscape for biodiversity decision-making for years to come. Internal compliance frameworks, permit application strategies and environmental management programmes should be reviewed against both scenarios, retention and invalidation, so that the operational response on the day of judgment is informed rather than reactive.

How Bishop Fraser Attorneys Can Assist

The well-being question sits at the intersection of constitutional law, environmental governance and the day-to-day regulation of activities involving wild animals. Bishop Fraser Attorneys advises mining, environmental and biodiversity sector clients on:

• NEMBA permitting and norms-and-standards compliance, including the integration of well-being considerations into permit applications and environmental management programmes;
• NEMA environmental authorisations where activities intersect with protected wildlife or protected ecosystems;
• Strategic responses to legislative and regulatory developments arising from the Constitutional Court’s decision, including amendments to internal compliance frameworks;
• Administrative law challenges to biodiversity decisions, including PAJA review of permit refusals or conditional approvals; and
• Public participation strategy in respect of NEMBA, NEMA and related legislative and regulatory processes.

The Constitutional Court’s decision will not end the policy debate over the place of individual animal well-being in South African environmental law. It will, however, set the legal framework within which that debate continues. Early, structured engagement with the implications of the judgment — on either scenario — is the most effective way to manage the regulatory and litigation risk that the outcome will generate.