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n Stellenbosch Law Review = Stellenbosch Regstydskrif - The minority defending the interests of the vulnerable [An evaluation of the minority judgment in NCSPCA Openshaw 2008 5 SA 339 (SCA)]
This contribution considers the current status of non-human animals in South African law and the implications of the minority judgment by Cameron JA in the matter of NCSPCA v Openshaw 2008 5 SA 339 (SCA) thereon. Animals are still classified as legal objects in South African law and they therefore possess no rights. Only natural and juristic legal persons possess rights and duties to be protected and their interests are acknowledged in their own right. This status is a prerequisite for the granting of legal protection to an entity in its own right.
The animal welfare legislation in South Africa has been interpreted by the courts only to provide for the indirect protection of animals from cruel treatment. This indirect protection is intended to protect public morals and human interests without acknowledging the interests of animals. Cameron JA however found that the interests of animals are a factor to be considered where the Animal Protection Act 71 of 1962 is contravened. This is based on the recognition in animal welfare legislation that animals are sentient beings and therefore capable of experiencing suffering and that humans are capable of inflicting cruelty on animals.
The issues relating to animal cruelty should therefore be determined in law by way of a substantive analysis of the exact nature of animals as sentients. This investigation must include non-legal factors including an investigation into the medical, scientific and moral understanding of animals. The acknowledgement of animals as vulnerable and sentient beings has, at least, provided the basis for a future argument for the elevated legal status of animals based on a more accurate and holistic definition of sentience.
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