Bizarre Legislation – The Halloween Edition - Part One

October – the world over – is associated with Halloween.

A celebration marked by Jack O’ Lanterns (which were originally carved turnips, not pumpkin heads) and children in fancy dress costumes enjoying the tradition of “trick or treat” (thought to have evolved from the British practice of allowing the poor to beg for food, called “soul cakes.”). Only in modern times, it comes with a bit of an ultimatum – give the kids sweets (the treats) or beware the trick they pull….

It’s a holiday filled with ghosts, ghouls, witches, and goblins (and any other weird and wonderful character that happens to be in vogue that year). Festivities are aplenty, characterised by candy, parties, and horror movies (for adults). 

It’s a lot of fun!

In fact, consumers in the United States spend in excess of US$10 billion on costumes, decorations, treats, and other Halloween-themed expenses (World Population Review).

Where did Halloween come from?

A brief history of everything “otherworldly”…

Halloween has never really been an “exclusively American holiday”. In fact, Halloween originated in Europe. But today, it’s celebrated by a vast number of people of many different religious backgrounds and in countries all over the world. South Africa included.

Halloween is an ooooold holiday. It kind of makes sense that it is themed around the supernatural, because where it comes from is a tad mysterious….

Some scholars according to History, believe that Halloween originates from Samhain - a Gaelic word pronounced “SAH-win”. Samhain is an ancient pagan religious festival originating from a Celtic spiritual tradition of welcoming in the harvest and ushering in “the dark half of the year. Celebrants believe that the barriers between the physical world and the spirit world break down during Samhain, allowing more interaction between humans and denizens of the Otherworld.” Therefore, enabling the dead to return to the Earth… In observance of this belief, celebrants would often try to communicate with the souls of passed loved ones, leave food out for spiritual visitors, and dress in costumes to scare off any fairies that might wish to kidnap them (World Population Review).

According to Britannica however, Halloween developed mostly from the Christian feasts of the dead (from the Middle Ages), most notably All Saints’ Day on November 1 (“a day commemorating all the saints of the church, both known and unknown, who have attained heaven”) and All Souls’ Day on November 2 (a day in the Roman Catholic Church “for commemoration of all the faithful departed, those baptized Christians who are believed to be in purgatory because they died with the guilt of lesser sins on their souls”).

By the 9th century, October 31 was celebrated as All Hallows’ Eve, which later became known as Halloween. European immigrants during the 19th century brought Halloween to the United States and with the idea, Halloween customs based on scary folk takes and legends galore.

Halloween – as we know it today – was born! By the 20th century Halloween had become one of the most looked forward to holidays in the United States – both children and adults going all out at the end of October every year.

But Halloween is not alone in ghastly festivities - Día de Los Muertos or the Day of the Dead is celebrated in Mexico over two days, starting on 31 October and aims to reunite the living and dead. Families create ofrendas (Offerings) to honour their beloved departed family members. Its sombre but beautiful –

“One time a year,

our departed come back

to celebrate with us”.

Halloween – The Legal Way

In the spirit of Halloween – and while ghosts and witches may not roam the halls of our law offices, we thought we would have a little ghoulish fun… by taking a look at some of the more bizarre laws from around the globe that seem too strange to be true. 

Zombie Bears in South Africa

There are quite a few laws and regulations that make us raise an eyebrow (and quite a few odd ones in South Africa), but there is one in particular that made us stop in our tracks.

We came across something that couldn’t be true. It’s too bizarre.

Because it has to do with Bears. In South Africa!

A real mystery, we think. Intriguing. Weird. But perfect as the first stop on the Bizarre Legislation - The Halloween Edition tour, we think.

Articles have been written about regulations dealing with Bears in South Africa. A country which, while rich in beautiful fauna and flora, is not home to Bears.

At least none have graced our shores for the last 5 million years or so.

Did you know? 

Bears did, in fact, exist in South Africa. The fossils of the Agriotherium africanum (which according to Inside Ecology and Carnivora were about 2.7 metres (9 ft) in body length with dog-like crushing teeth) were found in the Pliocene Varswater Formation at Langebaanweg in the Cape Province in the 1960’s.

There are two specific pieces of alleged Legislation that gave us pause. The one states that it is illegal to wrestle a bear in South Africa. And the other states that it is illegal to take a bear to the beach.

How could there be legislation regulating the treatment of an animal that is long extinct? Or one that does not exist in South Africa? Have the fossils come to life?

Are we dealing with Zombie bears perhaps?

Worth investigating? We think so….

Where do Bears fit in South Africa?

Ok, excuse the pun, but – bear with us. There is no single piece of legislation that defines or expressly includes bears. Instead, there are a multitude of interlinked and interconnected Acts that through interpretation could include bears.

Let’s take a look.

Under the Animal Protection Act 71 of 1962 and the Animal Protection Amendment Act 7 of 1972 (“APA”) an animal is defined as any “equine, bovine, sheep, goat, pig, fowl, ostrich, dog, cat or other domestic animal or bird, or any wild animal, wild bird or reptile which is in captivity or under the control of any person”.

The Review of the Regulation of Welfare of Wild Animals (2018) takes a close look at what a ‘wild animal” in terms of the APA means –

“The term “wild animal” is generally considered to be any animal that belongs to a species that exists in a wild state anywhere in the world, whether domesticated or not, and excludes fully domesticated species such as animals used in agriculture or kept as companion animals. The different pieces of legislation tailor the definition to the purpose of the legislation. The majority of the provincial nature conservation Acts and Ordinances define a “wild animal” as:

“any vertebrate, including a bird and a reptile but excluding a fish, belonging to a species which is not a recognised domestic species and the natural habitat of which is either temporarily or  permanently in the Republic and any sub-species thereof occurring in Africa and includes the  carcass, egg, flesh (whether fresh or cured), biltong, hide, skin, thong, tooth, tusk, bone, horn, shell, scale, claw, nail, hoof, paw, ear, hair, feather or any other part of such vertebrate, including any part of such vertebrate which has been processed into a final product.”

Animals’ non-endemic to the region specified in the definition are regarded as exotic animals (some of which may also be classified as alien and invasive species)”.

The National Environmental Management: Biodiversity Act 10 of 2004 defines an “alien species” as –

“a) a species that is not an indigenous species; or (b) an indigenous species translocated or intended to be translocated to a place outside its natural distribution range in nature, but not an indigenous species that has extended its natural distribution range by natural means of migration or dispersal without human intervention”.

And lastly, the KwaZulu Natal Policy for Keeping Wild Animals in Captivity (which according to the Review could “serve as a starting point for the development of national regulations that take into account welfare and good practice aims” includes at Annexure 1 a list of mammals for which permits, licences or registrations are required for keeping animals in captivity and includes both a Baluchistan Bear, Mexican Grizzly Bear (which as if 1969 has subsequently become extinct).

Bears are – by means of interpretation – included under our legislation it would seem.

So, in answer to our initial question - no, we are not talking about zombie bears.

What about wrestling Bears?

The APA regulates the protection of animals and specifically states at Section 2 that -

Any person who (amongst other things) -

(a)  “cruelly overloads, overdrives, overrides, beats, kicks, goads, ill-treats, neglects, infuriates, terrifies, tortures, or maims any animal; or

(b)  confines, chains, tethers, or secures any animal unnecessarily or under such conditions or in such a manner or position as to cause that animal unnecessary suffering or in any place which affords inadequate space, ventilation, light, protection or shelter from heat, cold or weather…”

Would be guilty of an offence.

Furthermore the Performing Animals Protection Act 24 of 1935 and the Performing Animals Protection Amendment Act 4 of 2016 both set out (at Section 1) that -

“No person shall exhibit or train or cause or permit to be exhibited or trained for exhibition any animal of which he is the owner or has lawful custody unless such person is the holder of a license” 

The person requiring the license must apply to the National Licensing Officer for the district in which the permanent address of the applicant is situated and must pay the prescribed fee (Section 3F(c) of the Performing Animals Protection Amendment Act 4 of 2016).

In addition, a license to exhibit or train an animal, is only given to a person who has shown that they are a fit and proper person. Furthermore, together with a license to exhibit or train an animal, a certificate is also required. This certificate (at Section 3F(2)) must be in writing and must include the following information:

(a)  “A detailed description of the animal that the applicant intends to exhibit or train for exhibition or use for safeguarding;

(b)  a detailed description of the general nature of the performances in which the animal is intended to be exhibited or trained to be exhibited;

(c)   a detailed description of the general nature of the safeguarding in which the animal is intended to be used;

(d)  a detailed description of the type of living quarters that will be provided to the animal when performing or not performing, being exhibited, or trained to be exhibited or for safeguarding;

(e)  meal plans and general practices that the applicant will follow to maintain and ensure the health and wellbeing of the animal;

(f)   the number of hours per day that the animal will be required to perform, be exhibited, trained to be exhibited or safeguarded;

(g)  written motivation for the granting of the licence;

(h)  information as to whether the applicant has ever held or been refused a certificate or licence in the past; and

(i)    proof of payment of the prescribed fee.”

Both the Protection of Animals Act (and its’ amendment) and the Protection of Performing Animals Act (and its amendment) are intended to protect animals and prevent cruelty (of any kind) towards them. Any person found to be in contravention of the Animal Protection Act’s (including Performing animals) are guilty of an offence which could result in a fine, imprisonment, closing down of their business, revoking their license, and having the animal confiscated.

And this would – by our interpretation above – includes bears.

The intention contained within our legislation (around protecting animals), is to protect animals i.e. to ensure no harm befalls them.

It’s therefore our interpretation that wrestling a bear, even if in a circus, would amount to cruelty to animals. It would cause stress and trauma to the bear, who would probably be bewildered. In our opinion, wrestling a bear would amount to goading, infuriating, and terrifying an animal.

We would therefore agree that yes, it is illegal to wrestle a bear in South Africa. As it should be worldwide. 

Just watch this video of Sabrina the Bear in a zoo in Warsaw who found herself “attacked” by a drunk human. The man was arrested and charged for cruelty to animals, disturbing the peace (and not wearing a face mask).

Rightly so.

What about taking bears to the Beach?

Public spaces are – according to open streets – spaces that are accessible and open to all South African citizens. Public spaces come in different forms and naturally include parks and beaches.

By-laws exist to ensure that – in conjunction with other legislature – public spaces are properly cared for ensuring environmental sustainability and the long-term interests of all South African’s.

When answering the question as to whether a person may take a bear to the beach, we decided to focus on the Animal Keeping By-Law and the Coastal By-Law of Cape Town.

Section 17 of the Coastal By-Law states that –

No person may in the coastal zone cause or permit an animal belonging to them, or in their charge, to—

(a)  “be in an area where, or at a time when, animals are prohibited;

(b)  behave in a manner that may pose a risk to, cause nuisance, disturb or harm another person, or cause damage to the beach area or infrastructure;”

One may argue that taking a bear to the beach – tame or not – may cause a nuisance or disturb another person.

Section 14 of the Animal Keeping By-Law states that –

“A person who keeps any animal must ensure that it is kept under proper and effective control when it leaves the premises where it is kept and that it does not endanger any person, animal or property when it leaves the premises.”

An animal in this case would include any wild animal, or exotic animal which is in captivity. A bear would be considered an exotic animal in this instance.

On that basis alone, it would seem that taking a bear to the beach is prohibited.

So yes, as improbable as it seems, not only are bears catered for under South African law but they are also protected against wrestling and are prohibited from going to the beach.

Who would have guessed?

It would seem that Halloween does indeed provide answers to some real mysteries.

We cannot wait until our next instalment of Bizarre Legislation – The Halloween Edition. More bizarre legislation’s coming your way…

In the meantime, please always keep in mind that if you have any questions on the information we have set out above or have a personal issue which you want to discuss with a suitably qualified legal professional, do not hesitate to contact us at NVDB Attorneys. 

We are a law firm that considers honesty to be core to our business. We are a law firm that will provide you with clear advice and smart strategies - always keeping your best interests at heart.