Case  CCT 270/24
[2026] ZACC 42

Hearing Date: 26 May 2026

Judgement Date: 09 October 2026

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

Today, this Court handed down judgment in an application brought under its exclusive jurisdiction, in which a declaration was sought that Parliament failed to facilitate public participation in the enactment of the National Environmental Management Laws Amendment Act 2 of 2022 (NEMLA Act).

The applicant, the South African Hunters and Game Conservation Association (SA Hunters), challenged the provisions introduced into the NEMLA Act by the National Environmental Management: Biodiversity Act 10 of 2004. The impugned provisions relate to the “well-being” of animals. The National Council of Societies for the Prevention of Cruelty to Animals (NSPCA) and EMS Foundation Trust (EMS) intervened to oppose the challenge. Parliament and the Minister of Forestry, Fisheries and the Environment (Minister) did not oppose it, but filed explanatory affidavits.

The NEMLA Act was introduced as the NEMLA Bill in the National Assembly (NA) on 23 May 2017. It did not define well-being. After the public participation process in the NA, a second version of the Bill defined well-being as “a state where the living conditions of a faunal biological resource are conducive to its health”. This version was transmitted to the National Council of Provinces (NCOP). Following public participation in the provinces and the NCOP, a third version culminated from the process, which defined 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”. The Bill also provided that animal well-being must be considered in their management, conservation and sustainable use. It empowered the Minister to prohibit activities that could negatively affect an animal’s well-being and to make regulations relating to animal well-being. The President assented to the Bill on 21 June 2022 and the impugned provisions came into force on 30 June 2023.

SA Hunters argued that the changes between the second and third versions were material and required further public participation. It sought an order declaring invalid the definition of “well-being” and the related provisions. Conversely, the NSPCA and EMS argued that the changes were not material and thus did not require further public participation. They further contended that the application was brought two years out of time and SA Hunters must be non-suited on that basis. Although Parliament and the Minister accepted that there was inadequate public participation, the Court concluded that their stance was not decisive. It emphasised that the determinative question is whether the changes were sufficiently material to require renewed public participation.

Before entertaining that question, if at all, the Court considered the delay. The application was instituted 25 months after presidential assent and 13 months after the impugned provisions came into force. A public participation challenge could have been brought from the date of assent. The Court, noting that a delay is unreasonable in the absence of a satisfactory explanation, found SA Hunters’ explanation unsatisfactory. SA Hunters had actively participated in both the NA and provincial processes and had focused on the concept of well-being. It had been informed of the definition in February 2023 but did not seek legal advice until May 2024 and only launched the application two months later. The Court rejected SA Hunters reliance on continuing policy discussions with the Department of Forestry, Fisheries and the Environment, as those discussions could neither undo legislation already passed nor justify refraining from bringing a challenge.

The Court held that it was not in the interests of justice to overlook the unreasonable delay. In doing so, it found SA Hunters genuine conservation interests closely linked to its members’ interests and narrower than the broad public interests in cases where delay has been previously overlooked. The Court then considered the merits insofar as they were relevant to delay and concluded that the prospects of the public participation challenge succeeding were doubtful. Moreover, in this case, the public had been consulted throughout the legislative process. Therefore, the alleged non-compliance was substantially narrow than in earlier cases where an affected profession had been excluded from consultation or where a late amendment radically expanded the scope of legislation. The Court held that not every substantive amendment requires a fresh round of public participation. The question was one of degree and objective reasonableness. The impugned provisions were found not to be self-executing and the decisions taken under the well-being provisions were open to administrative-law challenge. As the NEMLA Act is already in force, animal well-being has informed department policy, regulatory and administrative work and has featured in litigation concerning wildlife. Although a suspension of invalidity could reduce immediate disruption, it would also prolong the operation and further entrenchment of provisions said to be invalid and might require reversal of work already done after a renewed legislative process.

Accordingly, the Court concluded that, although the delay caused no evidential prejudice, the cumulative effect of all relevant factors meant the interests of justice did not permit delay to be overlooked.

In the result, the Court made the following order:

• 1. The application is dismissed.
• 2. The applicant must pay the costs of the fourteenth and fifteenth respondents, including, in the case of the fourteenth respondent, the costs of two counsel.

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The Full judgment  here