Harvard academics weighs in on fight over Joburg Zoo elephants

Two Harvard law academics are seeking to join legal efforts to free three elephants at the Johannesburg Zoo — Lammie, Mopane and Ramadiba — saying the case “holds international importance”.

Countries from the Global South were emerging “as leaders in taking progressive and essential steps to protect nature and animals”, said the Harvard academics, who last week applied to become friends of the court.

“This case is crucial for advancing a broader interpretation of the right to a healthy environment, both within South Africa and broadly,” they said.

Two animal welfare organisations — Animal Law Reform South Africa and the EMS Foundation — along with traditional leader Stephen Fritz, senior chief of the South Peninsular Khoi Council, have asked the Pretoria high court to order the release of the elephants, which were  “in a state of deep distress”.

Their living conditions breached a raft of laws, including the Animal Protection Act and the National Environmental Management: Biodiversity Act, said the welfare organisations. They want the court to declare that the confinement of the elephants as unconstitutional and allow the EMS Foundation to integrate them into the wild.

Elephants are “sentient beings” — they feel or are aware of feelings, said the organisations. Citing expert opinions, EMS Foundation executive director Michele Pickover said elephants were renowned for their intelligence, memory and intricate mental lives, “through which they are capable of experiencing both deep suffering and pleasure.

“The playfulness of younger elephants in matriarchal herds, the joy of family groups at reunions, stand-offs between bulls of all ages, the care and protection older females display towards the young … their acute awareness of death and the mourning of family members are all forms of behaviour that display the vast range of emotions of which elephants are capable.”

Elephants are especially not suited to confinement in a zoo, said Pickover. In their natural habitat, they live in herds of up to 100 individuals and roam in ranges of up to 11,000km. National norms and standards require that elephants held in captivity must be treated in a way that “recognises their sentient nature, highly organised social structure and ability to communicate”.

If elephants are to be kept in a zoo, “at a minimum” the zoo must comply with the highest standards of animal welfare and the law, said Pickover. The Johannesburg Zoo had failed to do this, she said.

South Africa 'stands as a regional and global leader with its progressive constitution, commitment to fundamental rights and openness to the relevance of international and foreign law'

—  Prof Kristen Stilt and Macarena Montes Franceschini from Harvard Law School

Expert opinions based on observation and video recordings concluded that Lammie, Mopane and Ramadiba did not have the space they needed. There was no pool big enough for them to submerge themselves in. Lammie, in particular, appeared to be in poor physical condition — she was overweight and exhibited signs of mental distress and depression. All three appeared to be in poor mental condition. Their diet was inadequate in quality and variety and they received minimal physical and mental stimulation.

But the Johannesburg Zoo, a respondent in the case along with the municipality, rejected these assertions. In an answering affidavit, zoo manager Thanduxolo Mendrew said the “expert opinions” cited by the welfare organisations came from people “who have not spent any time with the elephants”.

The zoo’s staff “dispute the veracity or relevance of much of the opinions expressed by these experts”.

“I expressly deny the incomplete description of the elephant enclosure, the night rooms, the boma and handling facilities, available freshwater troughs, mud-pond, cement dam and enrichment contained in the enclosure,” he said.

Mendrew said the experts relied on video footage taken from the public viewing area. One of the videos was taken when Lammie was grieving the death of her long-time partner, Kinkel. The zoo decided to halt Lammie’s training until she showed an interest in it again “and the staff took turns to stay with Lammie for entire days and during the evenings — often sitting with her and reading to her in her night enclosure”.

In keeping the elephants, the zoo was “substantially complying” with the law, he said. He said the animal welfare groups’ case was not really about the best interests of Lammie, Mopane and Ramadiba but about their views in the “international debate about whether animals should be kept in zoos”.

This was strenuously disputed by the zoo’s critics. In replying court papers, Pickover said casting aspersions on their motives was “unfounded and unwarranted, and made solely for atmospheric purposes in an effort to obfuscate the applicants’ case”.

She said on a proper interpretation of the law and the constitution, the elephants were not being kept in conditions that complied with the law — even if the facts on the ground claimed by Mendrew were accepted.

In their application to be admitted as a friend of the court, the Harvard Law School academics — Prof Kristen Stilt and Macarena Montes Franceschini — said South Africa’s Bill of Rights highlighted the state’s duty to ensure the interests of animals “as part of maintaining a healthy environment”.

The Constitutional Court and the Supreme Court of Appeal had already acknowledged the intrinsic value of animals and the apex court had “directly” linked animal welfare to environmental protection, they said.

There was also a “growing global trend” to recognise the “remarkable cognitive, social and emotional nature of elephants”, they said. They detailed recent developments in the law from across the world, including a judgment from the High Court of Islamabad, which stated that animals were not mere property but the holders of rights.

They said South Africa “stands as a regional and global leader with its progressive constitution, commitment to fundamental rights and openness to the relevance of international and foreign law”.

A broader interpretation of the right to a healthy environment was “crucial in this urgent moment of climate change”, they said.