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202 Chapter 7
Even a law of general application will, however, be evaluated in
substantive terms to determine whether the limitation concerned passes
constitutional muster. The factors outlined in the limitation’s clause are
generally taken to require courts to undertake a broad proportionality
enquiry: 89 This means that the importance of particular rights for animals
would have to be weighed up against the importance of any provision of law
that seeks to limit those very rights. Any measure adopted must be connected
to the important purpose it seeks to achieve and must be a particularly good
means of realising the purpose. Of particular power in the limitation’s enquiry
is the requirement that a measure must be considered not to be unduly
restrictive of the rights under consideration in light of alternatives that could
be adopted.
The application of this substantive enquiry would allow for some
flexibility in relation to animal rights: Courts, for instance, could recognise
that meat-eating is currently regarded as a legitimate purpose for limiting
the rights of animals. 90 On the other hand, not all abuses in the meat
industry could be condoned simply on this basis: There would have to be an
assessment concerning the relation between the limitation and the purpose
as well as an evaluation as to whether less restrictive means could be
used to achieve the purpose in question. In many cases, such a
requirement could not be met.
Much of the suffering imposed on animals in the process of rearing them for
food is unnecessary when considered in relation to the purpose. For instance,
cattle are regularly castrated with no anaesthetics. Such mutilation, and the
consequent violation of their basic rights to bodily integrity (and the right to be
free from severe pain) could only be defended on commercial grounds since the
existing practice speeds up the castration process without requiring analgesia or
anaesthesia. It is unlikely that a court sympathetic to the importance of the
rights of the animals concerned could accept such a commercial justification
for this cruel practice: It would thus seem that less restrictive means could be
employed to achieve the same result but prevent wholesale violations of
animal rights. Similar points could apply to the sow stall 91 and battery cages. 92
Given the dire impact these practices have on animals, and the fact that they
disproportionately harm animal interests given the purposes they seek to
achieve and the alternatives that exist, the European Union has already
89 Makwanyane (n 8 above) para 149.
90
As has been mentioned, this could be recognised even if it is not objectively justifiable.
91 Sows are kept in narrow metal-barred stalls that are barely bigger than the sow herself
(known as a ‘sow stall’): She is prevented from being able to exercise and is unable to
turn around for nearly four months at a time. This cruel practice is unnecessary and is
being phased out by the European Union and in parts of the United States. See C Druce &
P Lymbery ‘Outlawed in Europe’ in P Singer (ed) In defence of animals (2006) 124.
92
Laying hens are kept in battery cages that are so small they cannot stretch their wings,
let alone walk or scratch the ground. These cages prevent most natural behaviours
and lead to the degeneration of the birds’ bodies and deformities in their claws. About
4 700 million hens worldwide are kept in these conditions Druce & Lymberry (n 91
above) 128 - 129.