Species extinction and biodiversity loss are two of the many disturbing impacts of the Anthropocene, a time that acknowledges ‘the devastating and overwhelming impact of people on Earth and its systems’, as ‘the consequences of human actions have become the major factor in influencing ecological outcomes’1
. One of the many species facing extinction in the Anthropocene is the rhino (Taylor et al. 2014, p. 7
). Around 80% of the world’s rhino population is located in South Africa (Mohammed 2016
). South Africa currently has around 19,000 white rhino and 2011 black rhino (Taylor et al. 2014, pp. 14, 18
). The principal threat to South Africa’s rhino population is poaching for purposes of supplying a market for rhino horn in parts of Asia where, among other things, the horn is believed to have medicinal value (Emslie et al. 2016
). Poaching of South Africa’s rhino population increased at 9000% between 2007 and 2014 (Mohammed 2016
). A total of 1054 rhino were poached in 2016 (Department of Environmental Affairs 2017
). While the number of poaching incidents in 2016 represents a slight decline from 2015, it belies the fact that dwindling rhino populations have made it harder for poachers to meet demand in parts of Asia for rhino horn products.
The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) imposes restrictions on trade in rhino horn internationally,2
and has done so since the 1970s. White rhino are listed on Appendix II of CITES, as a species not immediately threatened with extinction, but in respect of which unregulated trade could risk their survival in the wild.3
Black rhino are listed on Appendix I of CITES: trade is required to be subject to ‘particularly strict regulation in order not to endanger further their survival’, and must only be permitted in ‘exceptional circumstances’4
. South Africa, a country rich in biodiversity, has been a party to CITES since 1975. National laws aimed at conserving South Africa’s biodiversity give effect to CITES. The National Environmental Management Biodiversity Act 10 of 2004 (NEMBA) makes it illegal to trade in listed species within South Africa without a permit issued by the Department of Environmental Affairs.5
It was, however, only in 2009 that a moratorium was introduced to prohibit all local trade of rhino horn within South Africa.6
Although there is no demand for rhino horn products within South Africa, the moratorium was introduced in response to concerns that local trade in rhino horn was being undertaken with the intention of illegally smuggling rhino horn out of the country to supply the Asian market, in breach of CITES (Taylor et al. 2014, p. 21
). The moratorium within South Africa was thus aimed at more effective conservation of South Africa’s rhino population. It was introduced in the implementation of environmental laws giving effect to a substantive constitutionally entrenched environmental right. Like CITES, South African environmental laws are anthropocentrically-orientated: they lend themselves to interpretations and application that treat human interests as more valuable than those of all other forms of life on earth (Washington et al. 2017
). Anthropocentrically oriented laws can be contrasted with ecocentrically oriented laws which recognize the inherent value of all forms of life, since ‘Earth, not humanity is the Life-centre…Earth is the whole of which we are subservient parts’ (Washington et al. 2017
; Rowe 1994
In 2015, the moratorium was set aside by the High Court in the judgment of Kruger v Minister of Water and Environmental Affairs
 1 All SA 565 (GP) (Kruger
). In this article, it is argued that in setting aside the moratorium on the grounds that it was an administratively unjust decision, the court failed to engage with or respond to the challenges of the Anthropocene. It did so through an unapologetic and uncritical application of anthropocentrically oriented laws. It will be demonstrated that the court’s approach is indicative of a lack of appreciation of the need locate environmental problems within the context of the Anthropocene. The High Court interpreted and applied South African administrative justice laws alongside anthropocentrically oriented environmental laws providing for biodiversity conservation in a manner that showed scant regard for the impact of its order on rhino populations. When legislative measures aimed at protecting rhino populations are under scrutiny in the courts, the risk of extinction ought to be of paramount concern. It ought to be appreciated that ‘further biodiversity loss and other forms of ecological decay will probably exacerbate the conditions that are leading to a state shift in the biosphere’ (Kotzé 2014a, p. 14
). Biodiversity loss and ecological decay will, in turn, impact all aspects of the environment, including human health and wellbeing. Questions about the effectiveness of legislative measures aimed at protecting rhino populations thus raise questions about survival: of humankind and the earth’s systems of which we are a part. We are presented, in the Anthropocene, with a ‘new context in which we are going to have to consider how we should deal with the effects of global human-induced ecological change, which is mostly as a result of our energy-intense processes and consumer-driven, neo-liberal economies’ (Kotzé 2014b, p. 123
). Law-makers, courts and lawyers need to take seriously their role in preventing the decimation of species such as the rhino in the Anthropocene. This article aligns with Kotzé’s view that: ‘If part of the solution to the socio-legal, political, economic and ecological problems that arise in the Anthropocene lies in socio-institutional intervention and human transformation, then we must also turn to law (and governance) as human constructs and mediating social interventions in our efforts to respond to the many challenges of the Anthropocene’ (Kotzé 2014b, p. 124
). From this point of departure, it is argued here that in the Anthropocene it is both necessary and appropriate to investigate ways in which biodiversity protection laws can help to overcome humankind’s dominance over and abuse of ecology through a more ecocentric approach. This article thus explores an aspect of the ‘residual utility’ of the anthropocentric/ecocentric binary, while being cognizant of the limitations thereof (De Lucia 2017, p. 191
). As Cormac Cullinan explains ‘the failure of our legal and political systems to recognize the rights of Nature has enabled humans to create many of the environmental crises now facing us’ (Cullinan 2008, p. 12
). The potential of introducing more ecocentrically-oriented biodiversity protection laws, which recognize the intrinsic value of, and confer explicit rights on nature, ought to be investigated. A discussion about the nature and content of such laws falls outside the scope of this article. Instead, this article engages with the limitations of anthropocentric approaches to biodiversity conservation (Scholtz 2005, pp. 70–71
). These approaches are consistent with capitalism’s ethos pursuant to which ‘Mother Earth is converted into a source of raw materials, and human beings into consumers and a means of production, into people that are seen as valuable only for what they own, and not for what they are’ (Adelman 2017, p. 302
In the absence of genuinely ecocentric laws, those aspects of current environmental law that create the potential for ecocentric application should be explored if we are to respond to the challenges posed by the Anthropocene. The view that awarding greater recognition to the rights of nature ought to be rejected outright on the basis that ‘most natural objects do not have a moral claim’ (Scholtz 2005, p. 71
) is contested. As Cullinan argues:
‘the key issue is whether or not the law provides an effective remedy if humans fail to respect the autonomy of other members of the Earth community or to comply with the ordering principles of that community. Unless there is a remedy with tangible consequences for the wrong-doer, there is little prospect of the law succeeding in its aim of deterring undesirable or anti-social behavior.’
This article posits a legal theory of transformative environmental constitutionalism as a conceptual framework for grappling with how, notwithstanding the predominantly anthropocentric orientation of South African environmental laws, ecocentrism can be pursued by lawyers and applied by courts so as to be more responsive to the challenges and context of the Anthropocene. Precisely because of the prevailing legal landscape, South African environmental law scholarship adopts a predominantly anthropocentric point of departure, largely focused on human rights (See for example (Scholtz 2005
; Du Plessis 2011
)). Scholarship exists about the importance of recognizing nature’s intrinsic value in South Africa and beyond (See for example (Cullinan 2008
)), but the implications thereof in practice, and from the perspective of enhancing the interconnected concerns of human dignity and equality and environmental protection require further discussion. This article is an attempt to explore the significance of a more ecocentric approach to South African environmental laws aimed at biodiversity conservation.7
The courts have arguably opened the door for such an approach. In South Africa courts are enjoined to interpret legislation in a manner that promotes the spirit, purport and object of the Constitution.8
The transformative spirit of the Constitution arguably calls for an interpretation of relevant environmental law that is more ecocentric and gives recognition to the intrinsic value of rhino in disputes concerning conservation. Pursuant to Section 39(2), a minority judgment of the Supreme Court of Appeal adopted a somewhat ecocentric orientation to the interpretation of animal welfare statutes. In his minority judgment, Cameron JA remarked that ‘the statutes recognize that animals are sentient beings that are capable of suffering and of experiencing pain’.9
The Constitutional Court, interpreting the powers of the National Society for the Prevention of Cruelty to Animals, has recognized that ‘the rationale behind protecting animal welfare has shifted from merely safeguarding the moral status of humans to placing intrinsic value on animals as individuals’.10
The challenge remains for courts to further develop these strands of ecocentric thinking, including when administrative law reviews are brought that implicate biodiversity conservation, as opposed to animal welfare, so as to facilitate improved environmental governance in South Africa, more responsive to the Anthropocene.
2. South African Environmental Law’s Predominantly Anthropocentric Approach to Biodiversity Conservation
Before critiquing the High Court’s anthropocentric application of South African law in Kruger
, it is appropriate to engage with the predominantly anthropocentric orientation of South African environmental laws, with a focus on those laws aimed at biodiversity conservation. The laws are hierarchically arranged.11
At the top of the hierarchy is the right to an environment not harmful to health of wellbeing contained in Section 24 of the Constitution of the Republic of South Africa, 1996. The Constitution provides that it is the supreme law of South Africa, such that all other law must be consistent with it in order to be valid. In terms of the common law (which emerged prior to the enactment of the Constitution, and must now be developed so as to be consistent therewith) animals are ‘a thing’ capable of being privately owned by humans (Kidd 2011
). After the enactment of the Constitution, in order to give effect to Section 24, framework environmental legislation was enacted, the National Environmental Management Act 107 of 1998 (NEMA), with which all specific environmental legislation must be read. NEMA falls in the middle of the hierarchy. Specific environmental laws, such as NEMBA, which is aimed at biodiversity conservation, fall at the lower end of the hierarchy. Regulations enacted in terms of NEMBA, together with NEMBA itself, constitute the primary laws applicable to biodiversity conservation. NEMBA and its regulations must be read in a manner consistent with NEMA and the environmental right, as well as with the values enshrined in the Constitution pursuant to Section 39(2) of the Constitution.
Section 24 of the Constitution provides that everyone has a right to an environment not harmful to health or well-being; that the environment is to be protected for the benefit of present and future generations; and that reasonable legislative and other measures are to be taken to give effect to this right. The right specifies that such reasonable measures must ‘promote conservation’ and ‘secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development’.
Section 24 is typically construed anthropocentrically. South African courts tasked with interpreting the environmental right have thus far interpreted the term ‘everyone’ to mean every human, and the term ‘generations’ as referring to generations of humans. Moreover, the requirement that reasonable measures must ‘secure ecologically sustainable development and use of natural resources’ has an anthropocentric orientation. Non-human life may, in terms of Section 24, be regarded merely as a utility or commodity for the benefit of (sustainable development and use by) humans, and biodiversity need only be protected from this vantage point. However, David Bilchitz contends that Section 24 of the Constitution can, and should be interpreted in a more inclusive, ecocentrically-oriented manner that recognizes, at least, the rights of non-human animals (Bilchitz 2010, pp. 276–81
). This more inclusive and ecocentrically-oriented interpretation of Section 24 would align with a legal theory of transformative environmental constitutionalism, and be more responsive to the challenges and context of the Anthropocene. Although there is very little environmental rights jurisprudence emerging from the South African courts (Kotzé and du Plessis 2010
), it is argued below that the potential for a transformative approach towards the environmental right is possible, and would align with South Africa’s project of transformative constitutionalism.
NEMA, as framework environmental legislation to give effect to the environmental right, contains in Section 2, a number of principles with which the state must comply when it engages in environmental governance (when it performs action that may significantly affect the environment). The principles are applicable when the state implements NEMBA and its regulations. The importance of the NEMA principles has been recognized by the courts on numerous occasions.12
Although courts, when environmental decision-making is at issue, ought to grapple with whether the principles have been applied by the state, they rarely do so. As explained below, the courts’ focus is often fixed on administrative law requirements alone. Michael Kidd observed in 2006 that South Africa’s judiciary requires ‘greening’ in that judges ‘must correctly consider, interpret and apply the relevant environmental law, and give environmental considerations appropriate deliberation’ (Kidd 2006
). Although there has been some ‘greening of the judiciary’ since 2006,13
Kidd’s call for ‘greening’ remains pertinent.
The principles, and thus the perspective from which environmental governance occurs in South Africa, are predominantly anthropocentric. Section 2(2) of NEMA provides: ‘Environmental management must place people and their needs at the forefront of its concern, and serve their physical, psychological, developmental, cultural and social interests equitably’. Section 2(4)(d) treats non-human life as ‘environmental resources, benefits and services’ that must be equitably distributed so as to ‘meet basic human needs’. Sections 2(4)(a)(v) and (vi) are drafted from the perspective that the environment is a resource for ‘development’, ‘use’ and ‘exploitation’ by humans.
However, some of the principles arguably create the potential for recognizing the intrinsic value non-human life independent of its value to human life. A number of provisions speak to ‘ecologically sustainable development’. Section 2(4)(a)(i) speaks to avoiding the disturbance of ecosystems and loss of biodiversity, and where such disturbance cannot be altogether avoided, requires that it be minimized and remedied. Section 2(4)(a)(vii) provides for the precautionary principle, while 2(4)(a)(viii) gives effect to the preventive principle. Section 2(4)(b) provides: ‘Environmental management must be integrated, acknowledging that all elements of the environment are linked and interrelated, and it must take into account the effects of decisions on all aspects of the environment and all people in the environment by pursuing the selection of the best practicable environmental option’. The best practicable environmental option is defined in Section 1 as ‘the option that provides the most benefit or causes the least damage to the environment as a whole, at a cost acceptable to society, in the long term as well as in the short term’. It is argued here that the existence of principles that create the potential for recognizing the intrinsic value non-human life independent of its value to human life could facilitate the interpretation and application of environmental law that is more responsive to the Anthropocene. It is illustrated below that this potential was not explored in Kruger.
NEMBA provides for the management and conservation of South Africa’s biodiversity. It is anthropocentrically oriented in that its objectives include ‘the use of indigenous biological resources in a sustainable manner’ (Section 2(a)(ii)) and the fair and equitable sharing among stakeholders of benefits arising from bioprospecting involving indigenous biological resources (Section 2(a)(iii)). It further imposes a duty on the state to act as trustee over, or custodian of the nation’s biodiversity, including its ‘genetic resources’ (Section 3(a)). The stated purpose of provisions in NEMBA dealing with ecosystems and species that are threatened or in need of protection is the ecologically sustainable utilization of biodiversity (Sections 51(d) and (e)). However, the purpose is also to ensure the survival of species in the wild, and the ecological integrity of ecosystems (Sections 51(a) and (b)). This part of NEMBA goes on to empower environmental authorities to determine lists of threatened, vulnerable, endangered and critically endangered species and ecosystems, and to require that permits be applied for in respect of activities pertaining to those species and ecosystems. Overall, NEMBA’s approach to conservation treats biodiversity as a utility for human consumption, rather than a part of nature with intrinsic value.
The predominant orientation of South African environmental laws described here is anthropocentric (this observation applies equally to other environmental laws not discussed here), although there do exist provisions that create the potential for more ecocentric application. The potential of these more ecocentrically-oriented provisions is explored later in this article.
Alongside South African environmental laws are laws regulating the conduct of the administration of the state. In South Africa the administration of the state (including the implementation of South African environmental law) is required to be consistent with the right to just administrative action in Section 33 of the Constitution. In terms of this right, administrative action must be performed in a manner that is lawful, procedurally fair and reasonable. Environmental decision-making by government must (where it falls within the definition of ‘administrative action’) be consistent with these requirements. The Promotion of Administrative Justice Act 3 of 2000 (PAJA) gives effect to the right to just administrative action. It provides for procedures that must be followed in order for administrative action to be fair, and provides for grounds upon which administrative action may be challenged in court when someone aggrieved by a decision believes it to be unjust (unlawful, unfair or unreasonable). PAJA is anthropocentrically oriented. It gives effect to humans’ right to administrative justice. When litigation about environmental decision-making turns purely on issues of administrative injustice (such as the failure to follow a fair procedure for the benefit of humans), questions about environmental harm can easily be sidelined, with the potential of an ecocentric application of laws being obscured. It is argued here that this is what occurred in Kruger, the judgment setting aside the moratorium on rhino horn trade. As courts in South Africa are enjoined to interpret statutes in a manner that upholds the spirit, purport and objects of the Constitution, a more transformative approach was possible, and, indeed, appropriate.