The National Council of SPCAs has suffered a serious setback in its high court bid to secure a total ban on the export of sheep from South African shores to over the equator.
The high court sitting in Makhanda has dismissed an application which would allow the NSPCA to convert its case from motion proceedings to action proceedings — which would have permitted it to call expert witnesses to testify.
The NSPCA launched its motion proceedings in 2020 asking the court to issue a blanket ban on this export practice because it maintains that sheep suffer such a degree of heat stress in the closed ship environment that it amounts to terrible cruelty prohibited by South African law.
But Middle East livestock exporter Al Mawashi and its parent company Livestock Transport and Trading Company (LTTC) believe a unique ventilation system in their ships will prevent any heat harm to the sheep.
Matters brought via motion proceedings in court are done via affidavits rather than by oral evidence.
But the NSPCA — recognising that there was a dispute of fact over whether ship ventilation systems might mitigate heat stress — applied to the high court in April to convert the motion proceedings to action proceedings which would allow it to call expert witnesses to testify.
The NSPCA maintains that it has international experts who can testify that ventilation systems do not mitigate heat stress in sheep kept in confined conditions on a ship crossing the equator.
But judge Nozuko Mjali said that the court rules did not permit the conversion of motion proceedings to action proceedings.
She said the NSPCA could have foreseen the dispute of fact over heat stress as it had emerged in previous litigation between it and Al Mawashi.
More than 1,700 pages had already been filed in the motion proceedings and to now convert it to trial proceedings would prejudice Al Mawashi, LTTC and other respondents, including the Department of Agriculture, and the state veterinary services in the Eastern Cape.
Mjali hinted that the NSPCA could still follow the correct procedure, which would be to apply to court to refer the limited dispute of fact in its motion proceedings to oral evidence.
But it would have to prove that it could not have foreseen there would be a dispute of fact when it launched its application proceedings.
In another blow to the NSPCA, she ordered that it had to pay all the legal costs of the application, including the cost of two counsel.
Al Mawashi SA MD Ilyaas Ally welcomed the latest court ruling.
He said it was disingenuous of the NSPCA to claim in 2021 that they were unaware of the superior ventilation systems in vessels used for transporting animals as Al Mawashi had “embarked on a massive public education programme to educate all stakeholders, including NSPCA, on the animal health and welfare provisions during shipments, including livestock carrier ventilation systems”.
Ally accused the NSPCA of squandering public donations at the cost of struggling SPCA branches.
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