Wildlife crimes legislation; SA Renewable Energy Council; Climate Change Mitigation research by UCT, with Minister in attendance

Environment, Forestry and Fisheries

21 February 2017
Chairperson: Mr P Mapulane (ANC)
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Meeting Summary

The first presentation was by the Energy Research Centre of the University of Cape Town. It highlighted the lack of implementation policy on climate change, despite the country’s commitments to the United Nations. The commitment was rushed and the resulting White Paper faced delays in implementation. There was no database for emissions by companies, as there was no Emission Regulations which were supposed to be operational by 2013. Standard reporting systems were available widely and the systems were used by developed countries. However, the Department of Environmental Affairs was yet to design one for South Africa for mandatory reporting. There was frustration on the implementation of carbon budgets from business and a lack of reporting requirements for carbon cuts. Business leaders were helping the government in the technical quantitative analysis. The regulated companies were assisting the Regulator to come up with Regulations. The 2011 document was celebrated for its ambition and wide scope, however, in hindsight, it overreached as there was no capacity to implement it. The Department disputed that the White paper was rushed as there was wide consultation before the meeting of 2011. The Committee advised the Energy Research Centre to consult labour on issues of climate change if this report was not final. The Committee also advised the Department to analyse the report by the Energy Research Centre and prepare a detailed response to present on 25 March 2017, when the Committee would be updated on the Departments work on climate change.

The next presentation was by the South African Photovoltaic Industry Association (SAPVIA) and it briefed the committee on SAPVIA’s value in renewable energy investment. The industry invested highly in the country and created over 26000 jobs for youth and women. SAPVIA represented over 300 companies and of its members, 31% of shareholders, were black South Africans. The industry represented 44% of Foreign Direct Investments in the country in 2014. There was huge cost on the investment and businesses in the industry following Eskom’s legal action. Many local businesses closed and went bankrupt due to the delays from the action. SAPVIA appreciated the President’s statement that government would intervene and find a resolution with Eskom to ensure that the renewable energy sector was free to do business and add value to the economy. The Committee was assured that the majority of jobs created by members of SAPVIA were permanent and that although the President’s intervention on Eskom had no timeline, the intervention would be welcomed sooner to revive the projects that were stopped.

The Department of Environmental Affairs presented on the legislative review of wildlife crimes involving Rhino. The Department’s mandate came from the National Environmental Management Biodiversity Act (NEMBA) and supported regulations like the Convention on International Trade in Endangered Species (CITES) and Threatened or Protected Species (TOPs). NEMBA also provided for norms and standards as well as penalties for offences on poaching and wildlife violation. Poaching Rhino was strictly prohibited. A person could hunt Rhino with a permit issued by the DEA within the rules provided by NEMBA. The DEA was actively pursuing an appeal of the High Court’s ruling which set aside the moratorium of 2009 as if it never existed. The ruling affected cases that were concluded by the DEA and the Department since established structures and legal instruments to address concerns that led to the moratorium. Prosecutors could use common and provincial laws to charge an offender in addition to charges listed in NEMBA. Where an offender was charged under the Criminal Procedure Amendment Act, the reverse onus would apply. The jail terms were getting longer due to the use of other legislation to charge offenders over and above NEMBA. The Committee commended the DEA for the work it did to stop Rhino poaching but recognized that consolidation of the laws that applied to wildlife protection was needed to remove reference to old apartheid laws and make prosecuting the offenders easier. The DEA stated that it was unfair to say it could not be trusted on the allegations against the Minister of State Security. South Africa was working with the South African Development Community (SADC) countries and other countries beyond this region to establish collaborative agreements in the enforcement of laws on Rhino poaching.

The Department of Justice and Constitutional Development (DoJCD) presented with regards to sentencing in respect of Rhino poaching-related offences and stated that the DoJCD got involved in Rhino issues in 2014 when the Global March organisation requested amendments to the Criminal Procedures Act on Section 11 by amending the law on bail to shift the burden of proof in bail hearings to offences on Rhino poaching. The reverse onus was incorporated in the Criminal Law Amendment Act (the Minimum Sentences Law), however, the proposal to introduce minimum sentences was denied. Sentencing of offenders would be at the court’s discretion. Considering the level of crime on Rhino Poaching, the DoJCD started initiatives to sensitize judicial offers on the offences and ensure that experienced prosecutors were assigned to Rhino poaching cases. 

Meeting report

Opening remarks
The meeting was opened by Mr Z Makhubele (ANC) who informed members and guests that the Chairperson would attend at a later time. He welcomed all people present and noted apologies from the Deputy Minister.

He welcomed the Director General and members of his staff.

Presentation: Implementation of South African Climate change Mitigation Policy
Mr Hilton Trollip, Senior Researcher: Energy Research Centre (ERC) of the University of Cape Town (UCT), stated that at a colloquium of this Committee 3 months ago, UCT presented an interim report on the implementation of climate change mitigation measures by South Africa. UCT received strong comments from business leaders taking exception to comments made, which suggested that the business leaders may have had undue influence in the development of the policy. The business leaders expressed their willingness to work with the Committee and UCT to look at climate change mitigation measures and some of their concerns were considered in preparing this presentation. This presentation was on mitigation research findings based on research done by UCT on climate change.

Mitigation work was on decreasing the amount of greenhouse gas in the atmosphere causing climate change and research was done on how to decrease these gases. South Africa made commitments to the United Nations Framework Convention on Climate Change (UNFCCC), which were being implemented based on the Paris Agreement of UNFCCC.  In the climate change research White Paper of 2011, South Africa committed to report back to the UN on how the country was pursuing implementation of the Policy. This paper looked at the information available on what was done until December 2016. There were always challenges to implementing a policy as many interests were involved and navigating the politics was not easy.

A mitigation measure was what an emitter could do to reduce emissions while a mitigation policy was what government did to regulate emitters’ behaviour for change. This paper was on the Policy by government. Government developed policy through collecting information from operating institutions and set standards to avert climate change. Based on commitments made to UNFCCC, government committed to a five year period implementation plan with the first period as 2016-2020, the second 2021-2025 and the third 2026-2030. The meeting in Durban in 2011 sped up the climate policy drafting but it was very rushed. Government made statements but did not have time to go to the details. The implementation of the policy was therefore difficult.

To control emissions, government needed to know who the emitters were. At the moment there was no legal requirements for a company to disclose its emissions.  The White Paper stated that the emissions reporting system was the foundation of South Africa’s climate change response and that it would be made mandatory. In other countries, facility reporting was common and results were available to the public. Also the White Paper indicated that reporting regulations would be operational by 2013, but as at December 2016, there were no reporting regulations. A business industry task team on climate change said at a meeting with the DEA, they agreed that the reporting should be per company and not per facility. At a meeting to discuss carbon budgeting between Companies, government and Eskom, it said that the DEA accepted that implementation of carbon budgets would be a learning process as government did not have a framework for the carbon budgets. The data used for carbon budgeting had to be reliable and credible, so until that data was available, any information that relied on that data would be questionable. Information in designing a mandatory reporting programme was available on the UN websites and it provided for a detailed programme and requirements, what to have in the program and clear objectives necessary. This was applied by Australia, China, US and many developed countries.

There was frustration on the implementation of carbon budgets from business and lack of clarity as well as incompleteness of the design on reporting requirements on carbon cuts. The business leaders were helping government in the lack of technical quantitative analysis by the DEA. Business was now assisting in designing in the 2016-2010 voluntary phase of implementing the policy. It therefore placed the regulated in a position of assisting the regulator to come up with regulations. Carbon Budgets were first mentioned in the White Paper and were supposed to be allocated by 2015. The 2011 document was celebrated for its ambition and wide scope, however, in hindsight, it was over reach in terms of capacity on the ground.

Discussion

The Chairperson welcomed the Honourable Minister of Environmental Affairs, Ms Edna Molewa. He then commented that at the climate change colloquium, the Committee undertook to recall the UCT to brief them on the final findings of the research. This presentation should be received when the Committee discussed the climate change report on 25 March, when the DEA would brief the Committee on all issues on climate change. However, the DEA could also comment on this report, but would be allowed to comprehensively respond to the research and prepare detailed responses of the study for the Committee to understand the issues and the interventions.

Ms J Edward (ANC) commented that the trajectory range period was 2016-2020 and asked if the country was already a year behind target. What was the reason for this and would it ever make it on time? How would it work? On the five year plans, she asked if the five year periods were separate or ran continuously so that it was technically a 15 year period. If the White Paper was published in 2011, which said South Africa would start by 2013, did that mean that the country was four years late? Was it a matter of catching up or changing the way it was planned to happen? How far was South Africa with any form of database (electronic or not) that would be accessible by the public?

Ms H Kekana (ANC) asked in light of challenges associated with reporting regulations, how far was the process of reviewing the White Paper which was aimed for review every five years?

Mr R Purdon (ANC) enquired if Mr Trollip was related to the newly elected Mayor of Port Elizabeth? He asked why there was only implementation for the next five years and not realistic targets. As the presentation emphasised on emissions data, who took the ultimate responsibility on the collection of data and analysis?

Ms H Nyambi (ANC) asked if as a country, South Africa did not have a firm grip on data on emissions, how did government know that the country was within or outside the emissions targets?

Mr Z Makhubele (ANC) asked ERC to remind the Committee if input from business was accommodated in the final report and whether the business’ view swayed the ERC’s perspective. Did ERC engage labour to understand their perspective? Currently there was no legal requirement for a company to report on emissions, what was the DEA’s capacity and challenges of enforcement? Where did South Africa stand in comparison with developing countries that might be in a similar situation and how were the countries dealing with Carbon Budgets. He noted that the presentation by Mr Trollip the projector was different from the one issued in hard copy. He therefore asked Mr Trollip to make his updated copy available to the Secretary for recirculation.  

Ms Nosipho Ngcaba, Director General of DEA, appreciated the external analysis from ERC. She stated that the climate change policy of 2011 was not done in a hurry. There was a lot of consultation from 2008 into scenarios on what might be possible for South Africa on emission reductions. The research then informed the announcement made by President Zuma in 2009 at COP15 in Copenhagen. From 2010-2011 there was also an extensive consultation process on the National climate change White Paper. In 2012, flexibility was built into the policy flexibility recognising that it was difficult to target emissions to an exact amount. Stakeholders such as NGOs, labour and civil society were consulted on mitigation measures and potential and this developed into the marginal abatement cost plans for different technology options in the 2016-2020 phase.

The Chairperson informed the DEA that the Committee was not looking at a detailed response and the detailed report would be heard on 25 March 2017. The Committee was pressed for time as it really had to hear on Rhino poaching.  Today the intention was to have a brief discussion. Mr Trollip would give the DEA a detailed report and the Department could comment further in writing.

Ms Nosipho Ngcaba, Director General, DEA accepted the Committee’s recommendation but made a comment on access to data and transparency around data that business was providing or not providing and allowing the public access to it. This was about building an emissions reduction system over time. The first phase 2016-2020 was a pilot phase without legal instrument supporting and therefore there was voluntary submission of information by the companies. The second phase of 2021-205 would be backed up by a legal framework and compliance would be mandatory.

The Minister pointed out that there was difference between hard core research and use in implementing policy and legal implications thereof. One could discuss with the industry and agree to get facility data but whether that data was available to the public would be another issue and had legal implications. The ERC was involved in the mitigation scenario planning and provisioning of the peak plateau decline trajectory that was discussed by Cabinet. Even so, there were gaps in information that was available. The Department would provide the information on the gaps in its subsequent presentation. The elements of the mitigation system between 2016-2012 consisted of carbon budgets, tax on pollution prevention plans and reporting in terms of the greenhouse emissions.

Mr Hilton Trollip responded that a lot of work went into what was possible theoretically. The same as having a target, the implementation was building a vehicle to get there.  This was where there was a lot of difficulty and this report was about building the system between 2013 and now. The challenges faced by government was in drafting and implementing regulations and whether government could get the information when the companies refused to give it.

The Chairperson commented that although some companies were reporting their emissions in the United States but not in South Africa, we could blame these companies if there was no legal framework.

Mr Trollip continued by saying that a company would not give information if it did not serve their interests. From the outside, it was observed that South Africa did not have the legal instrument to get that facility working. It was a battle and everyone was welcome to join it. On being related to the Mayor, he said that he believed he was related to the Mayor but had never met him. He said that ERC did not interview anyone from labour in the research. The presentation might had been critical of South Africa but the country was a leader on climate change for the past 15years amongst developing countries. Within that context therefore, South Africa was doing very good.  On the ultimate responsibility for the collecting of data, currently the data came from the greenhouse emissions inventory which was last updated in 2010. There was no legal requirement for companies to provide data, so the ultimate responsibility was on government.

Mr Makhubele advised that engagement with labour was critical as labour would give a complete scenario of what was actually happening. If labour did not come forward to ERC, ERC should reach out to them as they were the ones that were mostly affected by climate change.

The Chairperson asked if the research findings were final since if they were, there was no point to engage stakeholders such as labour. The department should look at the report and comment comprehensively.

Presentation by South African Photovoltaic Industry Association: Renewable Energy Collaborating for Sustainability, Investment and Economic Development.
The Chairperson introduced the history of the presentation. Issues arose in the Committee’s discussion with Eskom and the Committee received a request from the South African Photovoltaic Industry Association (SAPVIA) to make a presentation. Ordinarily, this presentation should have been given in the presence of Eskom and although the Committee may be criticized for allowing SAPVIA to appear, Parliament was an open and transparent place and anyone who requested an audience should be allowed.

Presentation
Mr Davin Chowin, Chairperson of SAPVIA, began by stating that the organisation represented around 300 members in different technologies both large and small scale in renewable energy. SAPVIA members made over R194billion in investments, however, Round 4 investments were delayed due to Eskom’s action which cost R50-60bn and 13500 jobs. SAPVIA worked with the DEA National Treasury, Eskom and other government agencies to modernise energy generation and stimulate economic development.  

SAPVIA was rolling out several programmes such as solar parks, REDZ’s with the DEA and implementing slaw/wing industrialisation to align its programme with government policy on industry and development of SMME’s. It was also aiming to implement a Bursary Programme for 800 students per year. The organisation added economic value as figures showed an 83% decrease in price of energy coming into South Africa. With government pressure, the energy savings could become more effective and establish the country as a leading market for investment. Local communities also relied on this programme as renewable energy led to significant reduction in the use of water. SAPVIA created 26790 jobs in the first 3 years for South African citizens, 77% targeted for the jobs were youth and 10% women. There was high Foreign Direct Investment (FDI) in renewable energy. 44% of all FDI came through this program in 2014.

R57bn worth of projects awarded were yet to be constructed. Progress was blocked by the legal action by ESKOM and SAPVIA appreciated any intervention by government. The geographic dispersion of renewable energy connected far off areas to the grid, places where economic development was slow. 31% of shareholding in this industry was held by Black South Africans and 11% was held by local communities.  The link between climate change and renewable energy was crucial. SAPVIA therefore requested the Department to resolve the promulgation of RE Development Zones (REDZ) and Grid Corridors and issue consistent directions. The approvals had to be streamlined to reduce delays in implementation of projects.


Discussion
The Chairperson restated that ideally, Eskom should have been present in the Chamber to hear this presentation. The Committee welcomed the President’s announcement that government would intervene on the Eskom case as renewable energy added value and the country would benefit from an energy mix.

Ms Kekana said that the Committee welcomed the issue on job creation, however, he wanted clarity if these jobs were permanent or temporary.

Mr Purdon asked if there were any timelines with the interventions on Eskom.

Mr Davin Chowin said that the jobs were permanent, as once the project finished, people employed moved on to the next project. There was however a portion of temporary positions made up of recruits from local communities where a project was operating. SPAVIA encouraged its members and investors to employ youth even though the industry was mechanised.

On the announcement by the President, the timing was critical as delays already cost so much money. Many small enterprises which were established to participate in the programme went bankrupt due to the case and although international companies were affected, the effect was more on South African businesses. Any further delays by Eskom would therefore be bad, and it depended on Eskom and whether it would turn up to sign the PPA’s.

The Chairperson observed that the Acting CEO of Eskom made comments on his tweets showing his support for renewable energy. Eskom also made comments on the President’s intervention and the Committee was asking Eskom to expedite its response.

The Minister commented that the engagement process was underway in Cabinet. Further, DEA would collaborate with the Department of Energy and Technology and Science on renewable energy efforts. On raising the grid, the Ministry would attend to it as it was an internal matter. The plan was to be consistent in the process of decision making for example some area may require bird studies and delay approval, but where the study was already done, the approval would be fast tracked to ensure efficiency.


Presentation from Department of Environmental Affairs (DEA) on Legislative review of wildlife crimes involving Rhino
The Minister introduced the presentation by highlighting that the DEA was looking at the issue of Rhino Poaching on all fronts, first on conservation by managing Rhino population for the Rhino to multiply and be safe, secondly in managing the security and safety aspects working with other departments beyond the legislative provisions, then through the DEA’s international work in collaboration with user and transit states and by working with communities in partnership. The legislative review work started in 2013/2014 and amendments were made in reaction to the gaps in the law and regulations. This presentation would also discuss the moratorium of 2009 which was set aside by the High Court in November 2015.

DDG Mr Shonisani Munzhedzi said that present before the Committee was the team from the DEA which would look at regulations and supporting the DEA was the CEO of SAN Parks who would work on and assist on legislations. There were also colleagues from NPA who were partners with the DEA in the conservation process.

Ms Thea Carroll, Chief Directorate: Biodiversity Planning and Management, DEA, presented on the mandate of the DEA which arose from the National Environmental Management Biodiversity Act (NEMBA). To kill a Rhino was a restrictive activity and poaching was killing an animal without permission which was an offense. NEMBA provided Regulations such as CITES, TOPS and Professional Hunting Regulations, the Act also governed the norms and standards of the Rhino management for marking Rhino horns, issuing of Rhino hunting prohibition notices that prohibited the domestic trading in Rhino Horns and providing a Biodiversity Management Plan for the long term conservation tools for Black Rhinos which were endangered species and White Rhino which were protected species.

In terms of the Bio Diversity Act, the Minister could declare a species as threatened. Once a species was listed, a person needed a permit to possess it. All specimens, dead pieces to import and export, one needed a permit especially to kill or hunt a Rhino. The TOPS regulations prohibited hunting a captive Rhino, luring a Rhino, or using a tranquilizer. There was no commercial trade allowed for Black Rhino and for export, the country where the Rhino Horn was being sent had to confirm that the Horn or specimen would not be used for Commercial purposes. Specimens could only be exported through specially designated ports of exit; there were 15 points of entry and exit where a Rhino Horn or specimen could enter or leave the country on both land and sea. A person was allowed to have 2 horns for personal purposes only but the Horn could only be exported through a Freight Agency and not be transported by or on the individual person. Offences provided under NEMBA included failure to comply with a prohibition notice or permit, fraudulently altering or fabricating a permit or making a false statement for purposes of obtaining a permit. Under CITES, it was an offence to erase or change markings on a Rhino Horn. On penalties, the Act provided for both fines and imprisonment.

Norms and Standards were introduced in 2009 to regulate hunting, marking of live animals and Horns and they were published in 2012. The amendments were focused on being specific in terms of NDA and profiling. The final Norms and Standards were tabled and the DEA tabled the draft before the Select Committee on Land and Mineral Resources on 28th February 2017 for approval. In preparation to the ruling by the Constitutional Court on possible setting aside of the Rhino horn trade, there was a feasibility study that was done to assess the regulations required to address concerns that led to the moratorium and most of the regulations were passed in readiness such as having a database for Rhino and NDA profiling of the animals. There was an ongoing case in the Supreme Court which was an Appeal from a High Court ruling made in 2015, setting aside a moratorium issued by the DEA in 2009. The High Court set aside the moratorium as if it never existed and the Chief Justice ordered both Parties to file submissions in the Supreme Court and the DEA was concerned by the High Court’s ruling. The DEA disputed the High Court’s ruling as by 2015, the DEA had established structures, regulations and systems that should have pursued the court otherwise.

The Chairperson enquired from the DEA to explain the status of the case and if the DEA pursued the retrospective application of the moratorium and to advise the Committee if the case was still a case worth of pursuing in light of developments in the law since 2009.

Ms Thea Carroll responded that the case was still important as the decision in the High Court affected all cases that the DEA pursued since 2009 in trade and Rhino Court domestically. The Court did not find that the moratorium was unconstitutional. The moratorium made sense in 2009 when the system was not developed to assist in regulating Rhino trade, now the DEA had capacity and the regulatory framework and the trade could be regulated, but the DEA could not agree that the moratorium should be as if it ever was. The moratorium was a reasonable reaction at that time.

Ms Frances Craigie, Chief Directorate: Enforcement, DEA, said that in addition to the offences, the Prosecutors had other laws to refer to when charging an accused. All of the Acts carried different penalties which could be added to the accused on conviction. Many SADC countries adopted this practice as well to charge in addition to common law offences. On minimum sentences, DEA met with the Minister of Justice and SAPS to discuss whether NEMBA should have minimum sentences and the agreement was that there was need for further research as the other laws already provide for minimum sentences.

Reverse Onus in relation to bail was also discussed under NEMBA which would make a NEMBA offence an offence under Schedule 5 of the Penal Code. Where there were charges, the reverse onus would apply. Sentences ranged from 6 to 20 years based on the charges and the option of fines was not ordered by the court in preference of direct imprisonment. The jail terms were getting longer due to the use of other legislations to charge offenders over and above NEMBA. Other recommendations from international work by UN Drugs and Crime and a recent report in the current international legislative system was that flora and fauna that was imported illegally into a country was laundered into the legal activities of another country where there was a law that prohibited the trade in that item. The UN therefore proposed for countries to consider drafting laws of products were so illegally harvested for example Tigers were not covered under the SA law, but if they were brought into the country illegally, the laws of South Africa had to regulate that by introducing reverse onus provisions for any importer. From the COP17 meeting which was held in Durban, South Africa and other African countries were urged to adopt legislation and enforcement controls on trade restrictions and penalties and make provision for strong penalties including custodial sentences for killing of Rhino amongst other recommendations.

Presentation from the Department of Justice and Constitutional Development (DoJCD): Sentencing in respect of Rhino poaching-related offences.
The Chairperson informed the meeting that the Committee asked the SA Law Reform Commission to discuss the possibility of revising legislation on Wildlife protection. The State Law Advisors then requested the Department to prepare a presentation which was now before the Committee.

Ms Thandasa Laskhosana represented the DoJCD, she worked in the legislative drafting unit of the Department. She confirmed that the Committee invited the Minister to provide a synopsis of the legislation that was used to prosecute Rhino related offences and the Minister referred the issue to the DoJCD hence this presentation.

She stated that the presentation by DEA already shown that Rhino related offences were prosecuted under NEMBA, Provincial legislation and common law. The DoJCD got involved in 2014 when the Global March Organisation requested amendments to the Criminal Procedures Act on Section 11 which dealt with bail provisions to accused persons on Rhino related offences. The proposal was to introduce the shift of burden of proof for the accused to satisfy the court why he should be given bail (reverse onus). The Global March also proposed changes to the Criminal Law Amendment Act (the Minimum Sentences Law) to introduce minimum sentences for Rhino offences. Government Departments met and supported the amendments to Schedule 5 on reverse onus and agreed that there was no need to introduce the minimum sentences. The amendments to Schedule 5 were included in the Criminal Matters Amendment Act, 2015. Considering the level of crime on Rhino Poaching, the DoJCD started initiatives to sensitize judicial offers on the offences and ensured that experienced prosecutors were assigned to Rhino poaching cases.  

Discussion
The Chairperson noted that on the Compliance and Enforcement presentation by the DEA, the Riotous Assembly Act 17 of 1956 was one of the Acts used to prosecute Rhino related offences. In that Act, the preamble said: “To consolidate the laws relating to riotous assemblies and the prohibition of the engendering of feelings of hostility between the European and non-European inhabitants of the Union and matters incidental thereto, and the laws relating to certain offences”. This Act was issued in response to the defiance campaigns of 1955 to prevent people assembling. This was a bad legislation from Apartheid which should have been removed a long time ago. He asked which parts of the Act were being used for wildlife protection.  The fact that there was this host of legislation to be used pointed to the need for a consolidated Act that could be used in Wildlife legislation. This fact was confirmed by the DEA in its presentation and the consolidation would assist for the DEA to stop using the Apartheid laws.

Ms Edward asked to understand on the national trade, was the CITES allowing domestic trade of Rhino Horn to a smaller scale? How would the law cover a case where a foreigner used a poor South African to get Rhino Horn? Would farmers of Rhino be allowed to harvest horns on their own farms to trade and who would regulate this legislation and how would it be regulated? If a person was allowed 2 horns, was it 2 horns per time or per month or how often? What would the effect be and was the law not creating bigger loopholes in terms of cross-border poaching?

Mr Z Xalisa (EFF) asked how could the Committee trust the DEA if it could be easily infiltrated by the Minister of Intelligence Mr David Mahlobo?

The Minister indicated that the Department did not understand the question and asked Mr Xalisa to elaborate.

Mr Xalisa elaborated that there was an allegation that the Minister of Intelligence was also involved in Rhino poaching, his question was to check how far the investigations were and how people should trust the DEA to curb Rhino poaching if it could be easily infiltrated by the Minister of Intelligence.

Mr Purdon said that he noticed that the examples of the legal cases dealt with the ordinary people. He asked how many kingpins were prosecuted and how many cases were prosecuted since 2014. Where does South Africa stand in the implementation agreement with Mozambique and were there MoU’s with other neighbouring countries? From the presentation, there were inconsistencies on how the court handled convictions; some were given 77 years and others suspended sentences and deportation for similar crimes. He asked if there was a data base or national register of Rhino horns, and whether it was available to the public. What process was followed on this database and why the DEA did not publish poaching figures. It was confusing that given the time and effort the DEA put into fighting the moratorium, the Minister changing her mind to now allow Rhino horn poaching and would the promulgation of Rhino Horn trading domestically be based on the Constitutional court finding?

Mr Makhubele asked if efforts were being made to establish the value of a Rhino Horn to determine the penalty. Further, to what extent was the DEA concerned with the fact that when the matter came to court, different exhibits were shown than the ones confiscated and how it affected the prosecution of wildlife crime? Is the country moving towards ensuring that all the parks had capacity to deal with this issue? On the minimum sentences, one of the reasons that it was not approved was that it may give an impression that human life was less than that of animal life, did that hold? Unless if there was that argument from other sectors, it was not a scientific issue to consider. He pointed out that SADC countries may be used as entry points and therefore South Africa had to put attention to SADC before looking at international standard for countries that were far away. South Africa should work on establishing compatible laws with SADC countries. Were there efforts in that regard to ensure that there were similar laws in SADC countries?

The Chairperson said that the problem was that we don’t appreciate the magnitude of the problem. Rhino poaching was a very big problem and it could not be approached as business as usual and it was seriously insensitive of the people who were dealing with this problem to make such a statement. It was a war out there; the poachers were heavily armed, the rangers dealt with life threatening situations daily and to say that there was sensitivity was a nonstarter and unacceptable. This was a crisis and a legislative response was required to deal with the situation. If the maximum sentences would not serve as a deterrent, what then would deter offenders? Must the criminals be shot on site to deter others? The court must impose appropriate sentences and there should not be inconsistencies where one court imposed one sentence and another did not. Once it was established beyond reasonable doubt, there had to be a minimum sentence that the court could impose. Most of those caught were repeat offenders as once they given bail, they went somewhere else to commit a similar crime. There had to be a level of urgency of these matters. The Private Land Owners Association demonstrated that the resources they put to prevent poaching were substantial. The government should therefore not raise non-arguments as this could not be accepted. He asked for the Department to clarity on whether it was pursuing the case to deal with the retrospective application of the moratorium and not contesting the other issues? What was the status of the case?

DEA Response by Minister Molewa
On the suggested consolidation of all legislation, all the laws listed governed the management and licensing and the presentation was talking of vertical consolidation of the law not horizontal. The mandate to remove old laws belonged to the DoJCD and even the issue of penalties was under the DoJCD mandate. However, the DEA could work with other Departments at a Horizontal level to convince them to work on the laws. The DEA had not worked with DoJCD yet, but it would take it up and elevate it if the consultation failed. There were serious issues to deal with. The consolidation discussed here was on the vertical level.

On the moratorium on international trade and allowing those that were farming to do domestic trade, in 2008, South Africa lost a number of Rhinos, through the former Minister, the DEA looked to curb the increasing poaching through instruments such as database, regulatory frameworks, whether the DEA was able to issue permits and keep records. At that time, this was not in place. Now, the DEA had to some extent done the database, the government stock piles were audited every year, data was correlated and it was ongoing. The moratorium was placed on domestic trade as there was always a ban on international trade. The placing of a moratorium was voluntary not per any convention. It was put to allow time for the DEA to clean its house and put the structures in place. Now a lot was done and the private sector was asking why not lift the moratorium when the system was in place. It was not easy to explain as the DEA achieved what it wanted to do when placing the moratorium. If the Judgment said that the moratorium should be lifted forthwith, it would have been fine, but to lift it as if it was never in place destroyed work done in 2009 and people that were caught would walk free. This was what the DEA would like to reverse as it had far reaching implications.

The issue of minimum sentencing, the matter would be referred to the DoJCD Minister as it fell under DoJCD’s mandate. On prosecution and conviction of Kingpins, the DEA would come back to the Committee on the figure but there were people who were prosecuted in other countries. South Africa could chase the poachers within the country’s borders on land, air and sea. Beyond that (in international space) the criminals were dealt with by Interpol and iquick. Francis was a member of the Environmental Advisory Board of Interpol and we were lucky that South Africa was represented at that level. The statistics given to the Committee were for cases done in the country which were updated quarterly, the latest report was from December 2016 and it was available on the DEA website. DEA worked successfully with Mozambique through SAN Parks. The two countries set up a joint police manning the two borders, the DEA was raising awareness with the judicially in Mozambique on dealing with poaching offences, built 7 villages outside the Kruger National Park, South Africa donated Aeroplanes and night vision gurgles to Mozambique rangers and both countries report together in CITES. In addition, the Minister was going to Mozambique on Friday to speak to the Mozambican counterpart on poaching and environmental issues.

The database existed with University of Pretoria in their archives and also with DEA, but it could not be opened to the public because the Poachers would know where the Rhino were. The database was for following the poachers.  The DEA did a lot of work and there were Rangers who worked in darkness and suffered. It was therefore unfair to say the DEA was doing less. It worked with good intentions to win the poaching battle without bodies of Rangers on the floor.  It should not be raised that the DEA could not be trusted as the DEA was keeping poachers on their feet, working hard day and night. Minister Mahlobo was not a Minister in the DEA. The person who implicated Minister Mahlobo spoke on tape that Minister Mahlobo said that the DEA should remove certain technologies in the Kruger National park for him to do his activities. That person who was talking on the tape belonged to a company which was removed from Kruger Park. This decision was made by the Board and Minister Mahlobo was not part of the Board or the DEA.

Ms Thea Carroll said that the regulations prohibited commercial trade in Rhino Horn. Export could be for personal use only and it was restricted to two horns per person for their life time. The draft regulation was open to the public for comments. Commercial purposes were prohibited and it included donation in the other country. Farmers have been allowed to dehorn with a permit. There was a National Rhino Horn database includes all private holders.

Ms Francis Craigie said that very horn had DNA taken and the University of Pretoria did the analysis and submitted the results to the DEA to keep a DNA footprint of every horn. South Africa had MoUs with Namibia, Laos (alleged consumer state) Cambodia, and Vietnam.  Zimbabwe (draft), China and Thailand. The country also worked with countries in the SADC region even where there was no MoU.

Mr Fundisile Mketeni, Chief Executive Officer, SAN Parks said that the Capacity around a National Park depended on the size as the needs differed. For small parks, an area of integrity was demarcated based on a Rhino protection plan. SAN Parks would therefore plant cameral clips, do Collaring, deploy small planes in addition to ground mobility over the park as a deterrent. Additionally, there were competence assessment for firearms training, dog handling, Rangers were trained as EMIs. There were Camper units for mobile Rangers moving about the parks. SAN Parks was also working with other provinces which did risk assessment to assist small Parks Poachers move from Kruger National Park into smaller Parks. The Price of a horn was hard to determine as the market was underground but prices were going up as people were sending a wrong message that Rhino Horns were running out and collectors were rushing to collect Horns.

The Chairperson said that people said the value of the Rhino was when it was dead as one could get the Horn, there was therefore no incentive to keep it alive. Tourism did not interest everyone.  He clarified that the DEA was doing more and the proposals for more legislation were only to strengthen the Department but the Committee recognised the effort that the team did to protect the Wildlife, especially people like Nicolas Funda and the team at Kruger Park who sacrificed their lives to protect Rhino. It was a fact that the DEA needed more legal instruments to deal with the problems on poaching. On the allegations against the Minister of State Security, the Committee issued a statement calling on the law enforcement agencies to investigate. Any allegation of poaching required further investigation irrespective of where it came from and there had to be a report.

The Committee supported the interaction between the DEA and DoJCD to discuss some of the legal instruments raised by the Committee. Any discussions had to be reported to the Committee to strengthen the DEA, prosecutors, law enforcement agencies and the judiciary to fight the problem. On the case in the Constitutional Supreme Court, the matter was sub judice and the Committee would wait for the court’s decision. The DEA had to submit a report as soon as the court ruled on the way forward.

Finally, the Chairperson appreciated the Minister’s attendance, the Director General and her team, the Staff of DoJCD, CEO of SAN Parks and everyone for attending the meeting.

The meeting was adjourned.

 

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