Legal opinion: Attorneys Mason Inc, Pietermaritzburg – Mr Petrus Coetzee
At the present moment there is a ban on docking dogs' tails, effective from 1 June 2008 in terms of the Veterinarians Code of Conduct. The SA Veterinary Council has resolved to issue the ban – effectively the ban prohibits vets from docking tails.
Prior to the SAVC passing the ban in its Code of Conduct on docking, the docking of dogs' tails was condoned, i.e. the act of docking itself was overlooked or disregarded as being cruel and inhumane, this was contained in the previous Code of conduct and allowed breeders to perform the docking.
The SAVC has since amended its Code of Conduct pertaining to the docking of dogs' tails and came into operation on 1June 2008.The SAVC has attempted to remove the condonation of tail docking, causing the actions of persons who dock tails to be unlawful and illegal.
As it stands there is no notification of the resolution, which has been taken by the SAVC. There is no notification in the Government Gazette nor is there Ministerial approval as required by the Veterinary and Para Veterinary Professions act 19 of 1982. .
Rules as contained in Section (30) of the Veterinary and Para Veterinary Professions Act No. 19 of 1982, make provision for the Council (SAVC) to make certain rules.
Section 30(1)(g) authorises the Council to make rules on any matter which the council deems necessary or expedient for the promotion of its objects or for the exercise of its powers or for the performance of its functions.
The SAVC has resolved to ban tail docking on ethical considerations. This ban would accordingly be a rule, which falls within the council's power in terms of Section 30(1)(g).
In terms of Section 30(2) the rule created under Section 30(1)(g) would primarily be for vets who deal with domestic pets.
Section 30(3) which states that: no rule made in terms of Subsection (1) or any amendment or withdrawal thereof shall be of force and effect until approved by the Minister and published in the Gazette by the Registrar.
Because the rule has not been published in the Government Gazette or been given Ministerial approval, (through search of the Government website re: Government Gazettes and telephone call to Ms.Singh of the SAVC) it has no effect, the law has not been changed.
If prosecution is instituted this could be a possible defence, it will be difficult for the state to prove that the docking causes the puppy unnecessary pain and suffering and or maims the animal.
The prosecution would have to lead medical and scientific evidence to prove that the docking of dogs' tails is cruel.
The facts of each case will have to be considered as our courts adopt a casuistic approach. If the docking was performed in a manner which establishes beyond a reasonable doubt that same constituted ill treatment, torture or maiming of an animal, any prosecution in terms of Section 2(1) of Act 71 of 1962 will succeed.
The prosecution will have to lead expert evidence that the docking was performed in such a shocking manner, that the only inference to be drawn by the court, is that the dog would have suffered. This in turn will then prove that ill treatment, torture or maiming occurred.
Provided the docking in was done professionally, it is doubtful that the prosecution will succeed in proving that there was ill treatment, torture or maiming.
Legal opinion: Attorneys Mason Inc, Pietermaritzburg – Mr Petrus Coetzee
Prior to the SAVC passing the ban in its Code of Conduct on docking, the docking of dogs' tails was condoned, i.e. the act of docking itself was overlooked or disregarded as being cruel and inhumane, this was contained in the previous Code of conduct and allowed breeders to perform the docking.
The SAVC has since amended its Code of Conduct pertaining to the docking of dogs' tails and came into operation on 1June 2008.The SAVC has attempted to remove the condonation of tail docking, causing the actions of persons who dock tails to be unlawful and illegal.
As it stands there is no notification of the resolution, which has been taken by the SAVC. There is no notification in the Government Gazette nor is there Ministerial approval as required by the Veterinary and Para Veterinary Professions act 19 of 1982. .
Rules as contained in Section (30) of the Veterinary and Para Veterinary Professions Act No. 19 of 1982, make provision for the Council (SAVC) to make certain rules.
Section 30(1)(g) authorises the Council to make rules on any matter which the council deems necessary or expedient for the promotion of its objects or for the exercise of its powers or for the performance of its functions.
The SAVC has resolved to ban tail docking on ethical considerations. This ban would accordingly be a rule, which falls within the council's power in terms of Section 30(1)(g).
In terms of Section 30(2) the rule created under Section 30(1)(g) would primarily be for vets who deal with domestic pets.
Section 30(3) which states that: no rule made in terms of Subsection (1) or any amendment or withdrawal thereof shall be of force and effect until approved by the Minister and published in the Gazette by the Registrar.
Because the rule has not been published in the Government Gazette or been given Ministerial approval, (through search of the Government website re: Government Gazettes and telephone call to Ms.Singh of the SAVC) it has no effect, the law has not been changed.
If prosecution is instituted this could be a possible defence, it will be difficult for the state to prove that the docking causes the puppy unnecessary pain and suffering and or maims the animal.
The prosecution would have to lead medical and scientific evidence to prove that the docking of dogs' tails is cruel.
The facts of each case will have to be considered as our courts adopt a casuistic approach. If the docking was performed in a manner which establishes beyond a reasonable doubt that same constituted ill treatment, torture or maiming of an animal, any prosecution in terms of Section 2(1) of Act 71 of 1962 will succeed.
The prosecution will have to lead expert evidence that the docking was performed in such a shocking manner, that the only inference to be drawn by the court, is that the dog would have suffered. This in turn will then prove that ill treatment, torture or maiming occurred.
Provided the docking in was done professionally, it is doubtful that the prosecution will succeed in proving that there was ill treatment, torture or maiming.
Legal opinion: Attorneys Mason Inc, Pietermaritzburg – Mr Petrus Coetzee