Daisy Glasby- 25850881 Law of Persons 144- Tutorial 3
The USA case Nonhuman Rights Project v Breheny has brought questions about
what the result would be of a similar case in South Africa. 1 In South Africa, animals
are defined as legal objects and not legal subjects. 2 This means that they do not
have legal personhood despite being protected by the Animals Protection Act 71 of
1962 (“Animal Protection Act”). This would make it more likely that in South Africa,
an animal would not be granted personhood either.
In South Africa, a legal subject is defined as a being or entity which is capable of
having legal rights and duties.3 Legal objects are seen “any object which has
economic value for human beings and upon which the law has not conferred the
capacity to have rights, duties and capacities”. 4 South African law considers animals
as legal objects and provides them with certain rights in the Animal Protection Act
with regards to conditions of confinement. Section 2 (b) of the Animal Protection Act
outlines these conditions and sets out consequences for any person who “confines,
chains, tethers or secures any animal unnecessarily or under such conditions or in
such a manner or position as to cause that animal unnecessary suffering or in any
place which affords inadequate space, ventilation, light, protection or shelter from
heat, cold or weather”.
In South Africa, a case regarding the personhood of an animal would most likely
result in the dismissal of the case because of South Africa’s stance on animals as
legal objects. In Natal Zoological Gardens (Pty) Ltd v Natal Lion Park the poor living
conditions of animals in a zoo in KwaZulu-Natal was displayed on a documentary
series and no consequences for the zoo’s conditions were sought after. 5 This case
displays South Africa’s disinterest in protecting the confinement conditions of
animals and shows how South Africa would not be likely to grant legal personhood to
an animal.
Granting animals legal personhood would grant them advantage of the opportunity to
“sue” when it comes to hunting and killing of populations in order to conserve the
1
Guardian staff and agencies “Happy the elephant is not a person, says court in key US animal rights case” The
Guardian (15-06-2022).
2
A Barratt (ed) Law of Persons and the Family 2ed (2018) 37.
3
Barratt (ed) Law of Persons and the Family 7.
4
D Bilchitz “Moving beyond arbitrariness: The legal personhood and dignity of nonhuman animals” (2009)
SAJHR 38.
5
2008 JOL 21613 (BCT).
biodiversity.6 Another pro would be that animals would have the right to “own land”
which would give the animals have protected land and the right to not be confined in
inadequate conditions.7 Granting animals legal personhood could be seen in certain
circumstances as taking away rights of people, for example if hunting is legal in a
country that right could be taken away from a person. 8 Another disadvantage could
be that the rights of owning pets and farm animals would become complicated as it
would become the equivalent owning another person essentially.9
An advantage of not granting animals legal personhood would be that it would be
easier to draw the line between animals and legal persons without having to make
complicated rules and regulations about different animals and which ones get rights.
A disadvantage to not granting animals legal personhood would be that animals
would continue to be forced to live in captivity with poor conditions that are not
suitable for their lifestyle or appropriate for their well-being.
Legally the decision in Nonhuman Rights Project v Breheny to not grant Happy legal
personhood was correct as there was not enough legal backing for granting
subjectivity, however there could be a moral argument for granting animals more
rights than they have now. Granting animals legal personhood may not be the best
route to take but granting animals partial subjectivity, or even limiting the rights
people have over animals, would allow for the development of the law to become
more inclusive. Rights do not have to viewed as finite, animals gaining more rights
does not have to be seen as people losing rights.
Animals are seen as legal objects in South Africa and in most of the world. Granting
animals legal personhood could have pros and cons just as not granting them
subjectivity has its own advantages and disadvantages. In Nonhuman Rights Project
v Breheny the decision was legally correct and would have a similar result in South
Africa, however arguments could be made that granting animals certain aspects of
personhood would be for the best.
Bibliography
6
H Humphrey Trophy or Travesty: Granting Animals Legal Personhood in an Attempt to End Trophy Hunting
(2020) unpublished paper presented at 20th International Wildlife Law Conference at Stetson University 02-04-
2020. (available at https://www.stetson.edu/law/conferences/wildlife/media/IWLC-20%20Slides%20-
%20Humphrey.pdf).
7
Humphrey Trophy or Travesty: Granting Animals Legal Personhood in an Attempt to End Trophy Hunting.
8
Humphrey Trophy or Travesty: Granting Animals Legal Personhood in an Attempt to End Trophy Hunting.
9
Bilchitz (2009) SAJHR 38.
Books
A Barratt (ed) Law of Persons and the Family 2ed (2018), Pearson.
Unpublished sources
H Humphrey Trophy or Travesty: Granting Animals Legal Personhood in an Attempt
to End Trophy Hunting (2020) unpublished paper presented at 20th International
Wildlife Law Conference at Stetson University 02-04-2020 (available at
https://www.stetson.edu/law/conferences/wildlife/media/IWLC-20%20Slides%20-
%20Humphrey.pdf).
Journal Article
Bilchitz D “Moving beyond arbitrariness: The legal personhood and dignity of non-
human animals” (2009) 25 South African Journal on Human Rights 38-72.
Printed media
Guardian staff and agencies “Happy the elephant is not a person, says court in key
US animal rights case” The Guardian (15-06-2022).
Cases
Natal Zoological Gardens (Pty) Ltd v Natal Lion Park (2008) JOL 21613 (BCT).
Legislation
Animals Protection Act no. 71 of 1962.
