Staff Reporter
WINDHOEK High Court Judge Orben Sibeya has set aside a decision by the Minister of Environment, Forestry and Tourism, Pohamba Shifeta, to relocate two lionesses, Ula and Elsa, which were born and raised on Farm Harnas, to Okapuka.
The applicants, Anna Magaretha van der Merwe, Marlice Eleratha van Vuuren, and Michiel Pieter Kirsten, who brought the application against the minister, said that Ula and Elsa were born in captivity in September 2017 at Farm Harnas. They are continuously fed and depend on their owners and caretakers for survival. On 19 February 2021, the applicants applied for registration of large carnivores regarding Ula and Elsa. The outcome of the application is still awaited. At the hearing of an urgent application, the parties agreed that Ula and Elsa would not be confiscated and relocated to Okapuka pending the finalization of the review application. This is the application that the court is presently seized with.
Van der Merwe said further that from November 2020 to August 2021, several inspections were carried out and that Ministry of Environment officials were shown Ula and Elsa and informed that the two lionesses were born on the farm. The applicants said they did not receive feedback regarding those inspections. Van der Merwe deposed that while awaiting the outcome of the application for registration mentioned above, they were informed on 14 February 2022 by an official of the Ministry that on 28 September 2021, the Minister decided to confiscate and relocate Ula and Elsa from Farm Harnas to Okapuka.
Van der Merwe deposed further that the officials contended that Ula and Elsa were kept in secret or hidden from the Ministry, an allegation she refuted as false. She contended that she informed the officials as far back as November 2020 of Ula and Elsa having been born in captivity at Farm Harnas. She insisted that the lionesses could not be hidden away as they are clearly visible.
Van der Merwe said further that the applicants were not afforded an opportunity to make representations to the Minister prior to the decision to confiscate and relocate the lionesses. Among the recommendations was that Harnas contravened sections 2(9) and 3(d) of the Regulations made under section 84(9) of the Ordinance applicable to large carnivores in captivity, while section 3(2)(e) was not contravened. On the allegation of not reporting the birth of Ula and Elsa to the Ministry within ten days of their birth, Van der Merwe said that she had no idea as to when the lionesses were born as her late husband, Mr. van Heerden, was the person in charge of the operations of Farm Harnas.
In the defendant’s case, statements from Jeremia Amutenya, Chief Warden in the Ministry, said that an inspection conducted at Farm Harnas revealed that there were more lions at the farm than the number contained in Harnas’ application. He contended that the additional number of lions included Ula and Elsa. The omission to register the birth of the two cubs contravenes the law.
Amutenya further deposed that the Ministry received information that the five lions were smuggled from South Africa as cubs, which constitutes a criminal offense. The Ministry registered a criminal case against Harnas under Epukiro CR 10/01/2021. In a warning statement, Van der Merwe admits having received the five cubs on Farm Harnas and kept them without registering them with the Ministry. This criminal case is awaiting trial at Otjinene Magistrate’s Court.
Ben Nowaseb, Chief Warden in the Ministry responsible for the Omaheke Region, said that Harnas committed criminal offenses in respect of ten lions, including Ula and Elsa, as well as importing five lion cubs and breeding at least four lions in captivity unlawfully. This led to the recommendation to confiscate and relocate the lions, including Ula and Elsa. Nowaseb deposed further that Harnas applied to register captive wildlife, including 16 lions, but Harnas only sought to regularize its number of lions after the Ministry’s inspection revealed that it had a total of 26 lions, including Ula and Elsa.
In his findings, Judge Sibeya said that he found at the outset, on a prima facie basis, that Harnas, on the established facts on record, committed transgressions of the relevant laws, in that it imported five lion cubs into Namibia without authorization and bred lions in captivity contrary to the law.
The judge, however, said that even if Harnas is in the wrong, and it was provided with the inspection reports, the Minister ought to have granted Harnas an opportunity to be heard before taking the decision on 28 September 2021. “The Minister should have heard Harnas and the applicants on the recommendations made, the viability of the recommendations, the views of the applicants on the relocation, and the destination of the lions. These considerations do not form part of the inspection reports discussed above. In view of the conclusions reached above, I find that the applicants managed to prove that the decision of the Minister of 28 September 2021 is arbitrary and unreasonable. The decision can, therefore, not be allowed to stand,” Sibeya said.
