SOME NEW THOUGHTS ON PROTECTING ANIMALS AGAINST CRUELTY: A HUMAN RIGHTS PERSPECTIVE

Abstract

In South Africa, as in most parts of the world, people are the subjects of the legal system. Our legal system, and indeed the idea of law generally in most if not all legal systems, is to create rules that prescribe human conduct. One of the primary functions of law is thus to create a system of social controls to regulate the behaviour of people in society. Since the law regulates people, Boberg reminds us that “the importance of being a person in the eyes of the law lies in the fact that only a person can have rights and duties”. Thus the law’s focus is on people. Only people owe legal duties under the law and conversely only people are afforded the protection of legal rights under the law. Boberg goes on to state that “things, on the other hand, neither have, nor are they capable of having, rights and duties: they are the objects of the rights and duties of persons”. Animals are classified by our law as things (in other words “property”) and not as people. Animals consequently have no rights under South African law – not even the right to be free from being inflicted with cruelty and suffering.

In line with this submission, the animal anti-cruelty laws in South Africa are therefore not designed to protect animals – since animals are not entitled to the protection of the law. The purpose behind the animal anti-cruelty laws is to protect people who are sensitive to animal suffering. Schwartz confirms this when he says that “it is not the mistreated dog who is the ultimate object of concern … Our concern is for the feelings of other human beings, a large proportion of whom, although accustomed to the slaughter of animals for food, readily identify themselves with a tortured dog or horse and respond with great sensitivity to its sufferings”. That animals have no rights in South African law is trite. Karstaedt citing various cases heard in South African courts, says something similar: “[A]ccording to our case law, it [animal anti-cruelty legislation] was not even intended to protect animals. The legislature’s intention, we are told, was to protect human beings who are sensitive to animal suffering from affronts to their sensibilities and ‘to prevent degeneration of the finer human values in the sphere of treatment of animals’”.