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Does transformative constitutionalism require the recognition of animal rights? 203
agreed to phase out many of these practices. It has, for instance, agreed to ban
all cosmetic testing on animals from 2009, to ban the sow stall by 2013 and to
prohibit the conventional battery cage by 2012 such that all production will
use free-range methods. 93
Such changes in farming practices would substantially improve the lives
of a large number of animals without negatively impacting upon the lifestyles
and well-being of human beings in South Africa. I have thus sought to provide
some illustrations of the way in which the substantive features of the limitations
clause could be used to allow for certain violations of animal rights whilst still
ensuring that these rights make a difference to the lives of animals in South
Africa.
A ground-breaking case decided in Israel illustrates the power of the
principle of proportionality to find an adequate balance between human
and animal interests. 94 In that case, the Court was seized with a petition
from an animal protection organisation known as ‘Noah’ requiring the
Minister of Agriculture to issue regulations prohibiting the force-feeding of
geese for the production of foie gras. The key statute involved in this case was
the 1994 Cruelty to Animals Law that sought to prohibit cruelty towards
vertebrate animals. As background to the decision, it is important to
understand that the foie gras industry in Israel had existed for 40 years and
was the fourth largest in the world. 95 Foie gras is the fatty liver of a goose or
duck and can only be produced if birds are force-fed. Such animals are forcefed
three times a day with an air pump through a long metal tube: The tube
itself can cause bruising, lesions and perforations of the oesophagus. After a
month of such force-feeding, the birds’ livers swell up to about 12 times their
natural size which makes walking and breathing difficult. The pre-slaughter
mortality rate for foie gras production is up to 20 times the average rate on
other bird farms. 96
In a remarkable decision, the majority of the judges ruled in favour of
banning the force-feeding of geese. Justice Tovah Strasberg-Cohen
recognised that the state of Israeli law required a balancing of animal and
human interests to take place. 97 Her inquiry involved three steps to decide
whether ‘unnecessary suffering’ was caused to animals in the foie gras
industry: The first step considered an evaluation of the purpose of the law
93 Druce & Lymberry (n 91 above) 126 130. On the ban on testing cosmetics on animals,
see http://www.cosmeticsdesign-europe.com/Products-Markets/EU-refuses-bid-tolift-ban-on-animal-cosmetics-testing.
94 See ‘Noah’ The Israel Association for the Protection of Animals v Attorney-General In the Supreme
Court Acting as High Court of Justice, HCJ 9231/01 [2002–3] http://elyon1.court.gov.il/
files_eng/01/320/092/S14/01092320.s14.pdf. The case is discussed in Sullivan &
Wolfson (n 88 above).
95
Sullivan & Wolfson (n 88 above) 143.
96 Sullivan & Wolfson (n 88 above) 143.
97 It could be argued that such a balancing process is required even in South African law as it
stands by the notion of ‘unnecessary suffering’ that is contained in the Animal Protection
Act 71 of 1962 in, eg, sec 2(1)(r).