Judge makes trunk call on export of elephants

Five 30-year-old retired circus elephants will remain in South Africa after Judge Dhaya Pillay, in the KwaZulu-Natal High Court, stopped their export to Dubai.

Brian Boswell of Brian’s Circus – not to be confused with the Boswell Wilkie Circus – had applied for a permit to sell and export five elephants to a facility in Dubai in 2014.

Boswell said yesterday he had not yet decided if he was going to appeal the judgment.

“I haven’t spoken with the lawyers yet. We must still decide,” he said.

In the meantime, the elephants would remain on his property in Cato Ridge near Pietermaritzburg.

“We’ve had them for 30 years. They’re not a problem to us. They’re on my farm at the moment – which is an enormous place – in good health and being well looked after, the same as they have been for 30 years,” said Boswell.

“We have seven elephants at the moment. It was five we were trying to obtain a permit for.”

Both the KZN MEC for economic development, tourism and environmental affairs and Ezemvelo KwaZulu-Natal Wildlife refused Boswell’s application, citing the National Environmental Management Biodiversity Act (Nemba).

Instead of challenging the refusal, Boswell tried to challenge the legality of the powers granted to the minister of environmental affairs in Nemba.

He failed to convince the court of his case.

“The applicant’s legality challenge is not substantive but formal, based on the norms and standards not being authorised by the empowering statute,” Pillay wrote in her judgment.

“In other words, once the Minister publishes regulations stopping the export of elephants, other than for conservation, that would dispose of the alleged legal deficit and, with it, the applicant’s hopes of exporting his elephants for any other purpose,” Pillay said.

“As it turns out, the Minister has published two regulations that prohibit the import and export of elephants without a permit.”

Pillay dismissed Boswell’s application with costs, including the costs of senior counsel.

The National Society for the Prevention of Cruelty to Animals welcomed the decision and said the Pietermaritzburg SPCA conducted regular inspections to keep an eye on the animals.

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