On 26 and 27 May 2026, the Constitutional Court heard arguments in a challenge brought by the South African Hunters and Game Conservation Association against the inclusion of “well-being” in the National Environmental Management: Biodiversity Act 10 of 2004 (NEMBA). The provision was inserted by the National Environmental Management Laws Amendment Act 2 of 2022, and defines well-being as the holistic circumstances and conditions of an animal that are conducive to its physical, physiological and mental health and quality of life, including its ability to cope with its environment.

The challenge is formally procedural, founded on the alleged inadequacy of public participation prior to the insertion. Parliament and the Department of Forestry, Fisheries and the Environment have proposed a 24-month suspension to allow further public engagement. The National Society for the Prevention of Cruelty to Animals is defending the inclusion. Judgment is reserved.

Whichever way the Court rules, the case crystallises a substantive shift already underway in South African biodiversity management, and one that environmental practitioners should be thinking about now.

Why This Matters Beyond The Courtroom

For decades, South African biodiversity law has been organised around populations, species, permits and quotas. It has been comparatively good at managing the unit of analysis (species, hectares, tonnages) and less comfortable with the individual animal as a sentient being. The insertion of “well-being” into NEMBA explicitly bridges that gap. It places animal welfare considerations inside the principal statute governing biodiversity and wildlife management, rather than relegating them to the Animals Protection Act, which generally responds after harm has occurred.

The direction of travel is not new. In National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development 2017 (1) SACR 284 (CC), the Constitutional Court recognised the connection between animal welfare and constitutional environmental rights, locating the protection of animals partly in section 24. The 2023 White Paper on the Conservation and Sustainable Use of South Africa’s Biodiversity and the High-Level Panel report on elephants, lions, leopards and rhinoceroses then signalled an integration of welfare and well-being into conservation policy. The current case is the legal stress-test of that direction.

The Statutory Change In Plain Terms

The relevant amendments to NEMBA introduce a definition of well-being and weave the concept through provisions dealing with biodiversity management plans, threatened or protected species (TOPS), norms and standards, and the regulation of restricted activities. Practically, this means that decisions on permits, management plans and operational interventions involving listed or otherwise regulated species cannot be made solely on population-level or ecological grounds. The welfare experience of the individual animal must be a relevant consideration.

The Competing Positions Before The Court

The applicant’s position, in summary, is that the well-being concept is vague, that public participation prior to insertion was inadequate, and that the provision could be used to constrain lawful sustainable-use activities such as hunting and game farming. The NSPCA’s position is that the inclusion gives effect to a constitutional direction already articulated by the Court, recognises animals as sentient and shifts the regulatory focus from punishing cruelty after the fact to preventing avoidable harm. The state respondents support a 24-month suspension to allow re-engagement.

It is not the function of this article to take a position on the merits. What matters for environmental management practice is that, on any of the realistic outcomes, well-being considerations are part of the regulatory conversation, and operators who prepare on that basis will be better positioned than those who wait for the judgment.

What Is At Stake For Environmental Management

The case has practical implications across several common environmental management decisions –

1. Biodiversity management plans and species management: capture, translocation, contraception, collaring, supplementary feeding, water provisioning and lethal removal protocols all engage welfare considerations alongside ecological objectives.
   
2. TOPS and bioprospecting permits: applications, conditions and compliance reporting for activities involving threatened or protected species may need to address welfare outcomes, not only population-level impacts.
   
3. Damage-causing animal interventions: commonly used by mining, agricultural and infrastructure operators, these decisions now sit more obviously within an integrated assessment of necessity, proportionality and welfare.
   
4. Environmental authorisations and biodiversity offsets: species components of EIAs, scoping reports and biodiversity offset strategies need to anticipate welfare-aware criteria, particularly where translocation, captive holding or culling are contemplated as mitigation.
   
5. Sustainable-use industries: game farming, ecotourism, captive breeding and the hunting industry should expect engagement with welfare standards as a routine feature of permitting and compliance, regardless of the case outcome.

Practical Actions For Operators And Practitioners

Pending judgment, environmental teams and operators should focus on –

1. Reviewing standard operating procedures for any activity involving wild animals, including capture, restraint, transport, holding, release, contraception and culling, against current best-practice welfare guidance, irrespective of the case outcome.
   
2. Strengthening species components of EIAs and biodiversity management plans to expressly consider welfare outcomes alongside population-level and ecological objectives.
   
3. Auditing TOPS and other permit conditions to identify welfare-relevant obligations that may be tightened or clarified through guidance or rule-making following the judgment.
   
4. Engaging veterinary and welfare expertise early in the planning of management interventions, so that necessity, proportionality and alternatives are properly recorded.
   
5. Documenting decisions with a defensible record of the rationale, alternatives considered and welfare measures adopted is increasingly the difference between a robust decision and a contested one.

Conclusion

The Constitutional Court’s judgment will resolve the immediate legal question. It is unlikely, however, to reverse the broader trajectory: South African biodiversity governance is moving from a framework that treats wild animals only as biological resources towards one that also recognises them as sentient subjects of welfare. That shift has constitutional support, policy backing and a measurable foothold in practice. For environmental practitioners, the prudent course is to integrate welfare considerations into species-related decisions now, both because it produces better environmental outcomes and because the regulatory direction is unlikely to change.

How LexEco Can Assist

LexEco advises mining, agricultural, infrastructure, conservation and sustainable-use clients on the practical integration of welfare considerations into biodiversity and wildlife management. Our team assists with the species components of EIAs, biodiversity management plans, TOPS and NEMBA permit applications; the development of welfare-aware standard operating procedures for capture, translocation and damage-causing animal interventions; the design and review of biodiversity offset strategies; and the negotiation of permit conditions and compliance reporting that anticipates the direction of biodiversity governance in South Africa. Early engagement allows projects and operations to be positioned defensively against the likely regulatory and judicial trajectory, not retrospectively against it.