Download this publication - PULP

Does transformative constitutionalism require the recognition of animal rights? 205
geese and the gastronomical pleasure of those who eat foie gras is that it has
a price – ‘and the price is the degradation of man’s own dignity’. 105
Justice Asher Grunis wrote the minority opinion and found, similarly,
that a balancing process had to take place. He placed greater stress on the
agricultural interests concerned and, in particular, the livelihood of farmers
in the industry. 106
In this light, he found that the suffering of the geese was
proportionate to the benefit of producing foie gras. 107 Such a judgment
could change over time and he was of the view that ultimately ‘the current
arrangement should not continue indefinitely, for the suffering of the geese
should not be ignored’. 108
The order made by the majority ultimately invalidated the regulations
that allowed foie gras to be produced although it suspended the order for 18
months. The suspension gave the Ministry the opportunity to put alternative
regulations in place that would ban the industry but make provision for
those who had made their livelihoods through the production of foie
gras. The order had to be suspended several times given executive
inaction until it eventually took effect in July 2005. The practice of forcefeeding
geese, however, continued until February 2006, when the High
Court made another order forcing the state to enforce the judgment within
two months.
This case is a very important precedent in that it demonstrates the
importance of a balancing approach when faced with conflicting interests
between animals and humans. First, all the justices clearly recognised that
animals have interests which require protection and may be subject to severe
suffering. Whilst not deciding the question on the ground of ‘rights’ (given
the particular challenge), the reasoning is analogous to that which would
occur in terms of our limitations clause.
Secondly, a substantive enquiry had to be conducted into the value of foie
gras production to society and the harms caused to the geese. Ultimately,
the severe suffering caused from this practice could not be justified for the
selfish gastronomic benefits obtained by some, and even to ensure
individuals were able to maintain their employment. This suggests the
possibility that, in certain instances, human interests may be outweighed by
animal interests. In the South African context, it is necessary to recognise
animal interests at the constitutional level in order to conduct an evaluation in
this manner and to avoid human interests – such as the freedom of trade and
occupation – in all cases outweighing animal interests.
105 See Noah (n 94 above), the Opinion of Justice Asher Grunis para 31.
106 As above.
107
As above.
108 As above.