Lions, law and the limits of the ‘sustainable use’ concept

A seemingly technical high court case about lion bone export quotas has quietly become something far more consequential. With the admission of the EMS Foundation – alongside the involvement of the National Council of Societies for the Prevention of Cruelty to Animals (NSPCA) – the dispute has shifted from a narrow question of administrative law to a broader confrontation over the moral and constitutional foundations of wildlife governance in South Africa.

From quotas to constitutional conflict

At issue is a legal challenge brought by the South African Predator Association and others against the Minister of Forestry, Fisheries and the Environment. The applicants want the minister to be compelled to set export quotas for lion bones, arguing that the failure to do so is unlawful, irrational and infringes their constitutional right to choose their trade.

At face value, the case is straightforward. South Africa historically permitted the export of lion skeletons, largely sourced from its extensive captive breeding industry, under a quota system. That system has not been operational since 2019. Without quotas, exports cannot legally proceed. The industry has, in effect, been suspended.

For lion breeders and traders, this is framed as an economic injustice. Operators are reportedly sitting on stockpiles of skeletons whose value depends entirely on the resumption of legal exports. Their argument is rooted in Section 22 of the Constitution: the right to choose one’s trade, occupation or profession.

But the law does not operate in isolation. And this case is no longer confined to the interests of an industry.

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Why civil society changes the case

The admission of the EMS Foundation, alongside the involvement of the NSPCA, marks a pivotal shift. It signals that the court recognises the broader public interest dimensions of the dispute that extend well beyond regulatory compliance. This is no longer simply about whether the minister has fulfilled a statutory duty; it is about whether the system that duty sustains is defensible at all.

Together, these organisations represent a wider civil society intervention into the case. Their arguments are not centred on administrative fairness or economic harm, but on the legitimacy of the lion bone trade itself – its ethical implications, its ecological consequences and its compatibility with a constitutional order that commits the state to environmental protection and, increasingly, to considerations of animal welfare and wellbeing.

In effect, they shift the terrain of the case.

An industry in policy limbo

The lion bone trade sits at the heart of a longstanding contradiction in South African conservation policy.

On the one hand, the government has signalled its intention to phase out the captive lion breeding industry. On the other, it has left intact the regulatory architecture that once enabled its profitability. The result is a form of strategic ambiguity: an industry that is neither fully permitted nor formally prohibited.

The absence of quotas since 2019 has effectively halted legal exports without resolving the underlying policy question. This may have avoided immediate political fallout, but it has created legal instability, and opened the door to precisely this kind of litigation.

In the absence of clear policy, the courts become the arena in which unresolved decisions are contested.

Two constitutional visions collide

At the centre of the case lies a deeper constitutional issue.

The applicants rely on Section 22 of the Constitution, a provision that protects economic activity and has been a cornerstone of challenges to state regulation. But this right is not absolute. It must be read alongside Section 24, which guarantees the right to an environment that is not harmful to health or wellbeing and obliges the state to protect the environment for present and future generations.

In recent years, South African courts have begun to give this environmental right greater substance. In doing so, they have opened space for considerations of animal welfare and ecological integrity to enter legal reasoning.

The intervention by civil society organisations is likely to press this development further. It reframes the issue: not whether the state has interfered with a lawful trade, but whether the continuation of that trade is compatible with constitutional obligations.

The problem with ‘sustainable use’

Underlying the dispute, as I have written before, is the increasingly contested concept of “sustainable use”.

For decades, this idea has anchored South African conservation policy – the notion that wildlife can be utilised in ways that are compatible with conservation outcomes. But in practice, the boundaries of the concept have stretched, and in some cases blurred, beyond recognition.

The captive lion industry exemplifies this tension. It does not conserve wild populations or ecosystems. Instead, it produces animals for a sequence of uses: cub petting, canned hunting and ultimately the export of bones to international markets.

The question is no longer whether such an industry can be regulated more effectively. It is whether it can be justified at all.

More than a trade at stake

This is, in part, a story about governance. By declining to set quotas while also avoiding a definitive policy position, the state has deferred a difficult decision. That vacuum has now been filled by litigation.

Courts are not designed to make policy. But they are increasingly required to adjudicate its absence. The involvement of civil society ensures that the court will hear a broader range of arguments, not only about legality, but also about legitimacy. It raises the stakes of the case, transforming it from a technical dispute into a test of how South Africa understands its obligations to the natural world.

This case will not, on its own, determine the future of the captive lion industry. But it may do something more important: force clarity where there has been equivocation.

It may compel the government to articulate a coherent position. It may test whether constitutional environmental rights can meaningfully constrain exploitative wildlife practices. And it may signal a shift in how conservation itself is framed – from a model centred on use, to one that must increasingly account for ethics.

At stake is not simply whether lion bones may be exported. It is whether South Africa will continue to treat its wildlife as a commodity – or begin, finally, to reckon with the limits of doing so. DM