Rhino Integrated Management Systems; Rhino Horn Trade Constitutional Court Judgment

Environment, Forestry and Fisheries

23 May 2017
Chairperson: Mr P Mapulane (ANC)
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Meeting Summary

The outcome of the lengthy meeting between the Department of Environmental Affairs (DEA) and the Portfolio Committee of the Constitutional Court judgment on the lifting of the moratorium on the trade in rhino horn, and the appeal that the DEA had lost -- at a cost to taxpayers of R1.5 million (which could double when the calculations were concluded) -- was that a follow-up briefing was needed. The Chairperson of the Committee did not feel the implications of the judgment had been thoroughly explained.

Several draft regulatory measures on the domestic trade in rhino horn had been published in the Government Gazette on 8 February 2017. The DEA was now in the process of assessing the comments received. Regarding national coordination of permits to buy or sell rhino horn, the National Environmental Management Biodiversity Act (NEMBA) provided for the provincial Members of Executive Committees (MECs) to be the issuing authority for private permits. The Minister of Environmental Affairs would issue permits for SANparks and other organs of state.

The Chairperson wanted to know what process had been used to arrive at the quota for lion bones to be exported. He knew of a figure of 800 skeletons per annum. These were to be derived from lions bred in captivity. A recommendation had been made to the Minister, informed by the study from the Scientific Authority, on the impact of the bone trade on the wild population. The Trade Record Analysis of Flora and Fauna in Commerce (TRAFFIC) report on tiger and lion bone had also been used. In the discussions with the Convention on International Trade in Endangered Species (CITES), the fact that one needed to address the demand had been established. It was not known when the Minister’s decision would be communicated.

The Committee wanted to know who the Scientific Authority was, and were told that it was a committee whose bi-annual meetings were hosted by the South African National Biodiversity Institute (SANBI). Among others, it was composed of representatives from SANParks, museums and the National Zoological gardens, who were appointed by the Minister.

There were just over 300 captive breeding facilities for lions in the country, mostly in the North West, Free State and Limpopo. Although the Chairperson saw no problem with the DEA’s sustainable use approach to lions, he was concerned over how the DEA responded to questions from those opposed to captive breeding.

The DEA published draft Norms and Standards for the management and monitoring of the hunting of leopard in South Africa for trophy hunting purposes (Leopard N&S), in terms of section 9 of NEMBA, in the Gazette on 8 February 2017 for public participation for a period of 30 days. The purpose of the Leopard N&S is to ensure that trophy hunting is done in an ecologically sustainable manner.

There are requirements aimed at reducing the impact on population stability, which included hunting only in demarcated hunting zones, and only males above seven years may be killed. The monitoring function for leopards was the responsibility of SANBI.

Leopards were listed under Appendix 1 in CITES. There was an approved quota of 150 animals that could be exported per annum, but fewer than that (between 35 and 45) were hunted per year. The leopard population in South Africa was estimated to be about 4 476.

Meeting report

 

DEA briefing on Constitutional Court judgment on domestic trade in rhinoceros horn

 

Ms Thea Carroll, Chief Director: Biodiversity, Planning and Management, Department of Environmental Affairs (DEA), said the purpose of the presentation was to provide information to Members of the Committee relating to the Integrated Rhinoceros Management system and the outcome of the Constitutional Court judgment on domestic trade in rhinoceros horn.

 

The judgment had been the culmination of the application by Johan Kruger (2012), joined by John Hume (2015), for the setting aside of the moratorium on domestic trade in rhino horn. The moratorium had been set aside by the High Court on 26 November, 2015.

 

Application for leave to appeal was filed in the High Court, the Supreme Court and the Constitutional Court, and it had been dismissed in all cases. On 30 March, 2017 it was dismissed in the Constitutional Court.

 

The implications of the High Court order were:

 

  • The High Court ordered the setting aside of the moratorium with immediate and retrospective effect.
  • The High Court order, upheld by the Constitutional Court, had the effect same as if there were no moratorium in place at all.
  • Domestic trade in rhino horn in South Africa was once again permissible, subject to permits to be issued in terms of the National Environmental Management Biodiversity Act (NEMBA) and applicable provincial conservation legislation.
  • Implications on prosecutions that had been concluded successfully, or which were still pending, were being considered.
  • Commercial international trade remained prohibited in terms of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) provisions.

 

The way forward on domestic trade in rhinoceros horn was:

 

  • National coordination of permits to buy/sell rhino horn.
  • To establish a Standard Operating Procedure (SOP) and standard permit conditions.
  • Finalisation of regulatory measures pertaining to domestic trade in rhino horn, and the export of rhino horn for primarily non-commercial purposes.
  • The Eastern Black Rhinoceros should also be de-listed as an invasive specie and listed as protected to ensure it would not be hunted without the need to even apply for a permit.

 

The Chairperson asked Ms Carroll to continue with the next presentation.

 

 

Recent changes in legislation pertaining to rhinoceros horn, lion bones and hunting

The DEA had published draft regulatory measures relating to the domestic trade in rhino horn in terms of the NEMBA Act 10 of 2004. Domestic trade in rhino horn meant selling, giving, donating or in any other way disposing of, buying, receiving or in any other way acquiring rhino horn or any product or derivative thereof. Several draft regulatory measures had been published in the Government Gazette on 8 February 2017 for public participation for 30 days. The DEA was in the process of assessing the comments received for finalisation of the draft regulatory measures for implementation

With regard to recent changes in legislation pertaining to lion bones, with effect from 2 January 2017, for African populations, a zero annual export quota was established for specimens of bones, bone pieces, bone products, claws, skeletons, skulls and teeth removed from the wild and traded for commercial purposes. Annual export quotas for trade in bones, bone pieces, bone products, claws, skeletons, skulls and teeth for commercial purposes, derived from captive breeding operations in South Africa, would be established and communicated annually to the CITES Secretariat.

 

 

The DEA published draft Norms and Standards for the management and monitoring of the hunting of leopard in South Africa for trophy hunting purposes (Leopard N&S), in terms of section 9 of NEMBA, in the Gazette on 8 February 2017 for public participation for a period of 30 days. The purpose of the Leopard N&S is to ensure that trophy hunting is done in an ecologically sustainable manner.

 

There are requirements aimed at reducing the impact on population stability, which included:

 

  • Restricting the hunting of leopards to males of seven years and older.
  • Taking and passing of an on-line leopard hunting examination. 
  • Establishing leopard hunting zones (LHZs) for the even distribution of hunting efforts across the leopard range in each province.
  • LHZs to be determined by the South African National Biodiversity Institute (SANBI), based on returns of hunting information and leopard population monitoring data.
  • Only one leopard hunt in a particular LHZ per hunting season.
  • If a female or under-aged male was hunted, no further quota may be allocated in the affected LHZ for the next hunting season.

 

The DEA was in the process of assessing the comments received, for finalisation of the draft leopard norms and standards for implementation.

 

Discussion

 

The Chairperson recapped the presentations and said that in the following week there would be a briefing on the possibility of legislation regarding wildlife crime, including proposed steep sentences to serve as deterrence against such crimes. It had been proposed that that presentation should be on the present day as similar matters were discussed, but feedback from the Minister had been to leave the programme as it was, because the DEA was not ready with the above-mentioned presentation.

 

Ms J Edwards (DA) wanted to double check if the monitoring function regarding lions and leopards would be done locally, provincially or nationally. Who would this monitoring body be? What was the estimated timeframe on applying for a license to hunt a leopard? She wanted to make double sure how long hunting would stop after killing an underage or female leopard. One often heard that rural farmers hunted leopards because they killed livestock. What would the legal implications be if farmers did not apply for a permit to do so? She had gone to a couple of discussions on the tiger bone trade at the previous CITES conference, where a lot of mention had been made that the trade was moving into Southern Africa because of the availability of lion bones. Were impact studies being done?

 

Mr R Purdon (DA) said mention had been made of intensive protection zones for rhino. Being aware of the zone in the south of the Kruger National Park (KNP), he asked if there were others, and where they were. There was increased support for Anti-Poaching Units (APU) in SANParks -- would private reserves and reserves managed by provinces, such as Umfolozi, also receive support? What was the timeframe for the Community Empowerment and Champions plan? Regarding the section on demand management, what did the Department aim to do there? There were a number of non-governmental organisations (NGOs) involved in demand management at an international level -- had any efforts been made to work with these people? The presentation had talked about securing and growing “key rhino populations”. What was classified as a key population? Was it limited to the wild or did it include privately owned rhino?

 

He asked what the timeframes for the finalisation of the electronic National Integrated Permit System were. It had been said that the Member of the Executive Council (MEC) issued permits for private people, but who issued permits for parks? Was there any idea of timing on the analysing of the comments after the Gazette publication? Did the DEA have a system to study the effect which the lifting of the moratorium had on hino poaching numbers? Had anything been measured? It was very vague that two rhino horns may be exported under certain conditions -- was it two per person or two per year?

 

Regarding captive breeding facilities for lions registered with the provincial conservation authorities, was that information available for the public? What was the timing on the recommendation concerning the proposed quota for lion? Who was the scientific authority in South Africa? Was it a board or a body, and what qualified one to be a member?

 

Mr S Makhubele (ANC) asked if there were any litigations related to the setting aside of the moratorium. He said that some MEC’s may not agree to the Minister becoming the issuing authority for permits to buy or sell rhino horn. With regard to the standards being set, would that not cause inconsistencies in the application of the standards? In the second presentation, it had been said that the ideal situation would be to have the port of exit for rhino horn as OR Tambo Airport, but were there not individuals with private jets who did not exit through OR Tambo? What was the process in that regard? He felt that hunting licences being revoked for the next season if an underage male of female was killed, was a bit much and in favour of the farm owner. Were no other penalties possible? If a hunter honestly mistakenly hunts the wrong leopard, what was the mitigation, or were all those charged and condemned the same? In terms of the Minister’s briefing notes (a document that was circulated to the Members), communities having access to land were needed to deal with wildlife crime and the transnational syndicates involved. Was it known whether the DEA was successful in this regard? Were communities equally part of the economic spin-off from game farming, for example?

 

Mr T Hadebe (DA) said that in his opinion the draft regulations on the domestic trade in rhino horn was not consistent with the fundamental principle of CITES Article 2, where it was said that permission for the trade of rhino horn could be allowed only under certain conditional circumstances. According to him the “blanket permission” that was assumed would stimulate the demand for the rhino trade in the country. How would it be assessed that an individual was buying a horn for personal use? There were a number of issues that had not been cleared out. With poaching already being such a problem, how would the country be able to manage the domestic trade of rhino horn or part thereof? What were the economic spin-offs on lion and leopard trophy hunting? Had research been done to see if it was not more worthwhile to have live lions and leopards? What was driving the demand to come up with the minimum standards of how many could be hunted? It made more sense to have live lions and leopards for thousands of tourists to view. Lions suffered from canine distemper, as well as a neuro deficiency virus that was already affecting the population. Had the DEA looked at the impact that would have in the future, before coming up with norms and standards for trophy hunting in the country?

 

Mr S Mabilo (ANC) wanted to know the latest state of affairs regarding the general protection of lions in parks and provincial reserves. The progress on programmes regarding the economic benefits for communities was known, but what was the impact of the interventions in addressing historical issues of ownership, job creation and local economic development. The Northern Cape’s numbers on rhinos and wildlife had not been disaggregated -- what was the state of affairs there? How responsive was the DEA’s communication strategy in terms of having been adapted to rural areas? How robust and slick was the process on permits? Could it be ensured that it was immune to bribery through adequate monitoring? Was there a clear data base to aid administration?  

 

The Chairperson asked if the DEA were seeing results in the integrated management of rhino as presented in first presentation. Was the system working? The statistics released by the Minister in February this year had indicated that 1 054 were poached in 2016, compared to 1 175 in 2015. Too many rhinos were still being killed. What was the ratio between poaching numbers and the total number of rhinos in the country? What was the birth rate? If the number of those being killed and dying were compared to the number of those being born, what did we see? Did we not see a gradual decrease in the number of rhinos in the country, because South Africa had the biggest population of rhinos in the world?

 

He said that the reason why the moratorium and prohibition notice had been put in place did not come out in the presentation. It was assumed the Committee knew. An explanation for the reasons behind the moratorium was needed. The Chairperson thought the DEA would have made a case, with the reasons why the moratorium had been put in place. Since 2015, when the moratorium had been challenged the first time, what had been done concerning the issues that had led to the moratorium in the first place? Why had the DEA taken two years to deal with those issues? That may talk to the attitude towards the court judgment. One would have thought the Department would have introduced measures to deal with some of the issues as soon as that judgment came through the first time, while appealing. It seemed the DEA had been doing nothing for two years. Was there any litigation flowing out of the long period it took to respond, and what had been the impact of some of the court cases? Related to that, could the Committee be furnished with the legal costs relating to this litigation?

 

The Chairperson referred to the debate around canned hunting, and lions being bred in captivity. He said that from the information he had been exposed to - the approach of sustainable use of natural resources the DEA was pursuing - he saw no problem with that. It was correct that resources must benefit the economy of country. He was, however, concerned over how the DEA had responded to questions from those opposed to captive breeding. Was the DEA dismissing those questions or were they planning to address such concerns?

 

He asked what value was to be derived from lion bones. Mentioning the Scientific Authority’s recommendation to the Minister of a quota of around 800 skeletons per annum -- a figure that had not been mentioned in the presentation but which the Chairperson knew of -- he asked what process had been used to arrive at that quota. What was the current CITES listing for leopards? Did one know the population of leopards in the country and was that population growing or declining?  Was there hunting taking place currently, and what was the reason for the new norms and standards regarding that?

 

Department’s response

 

Mr Shonisani Munzhedzi, Deputy Director General: Biodiversity and Conservation, DEA wanted to deal with matters of principle raised through the questions. In the biodiversity and conservation space there generally were two types of philosophies used by countries. The first was “non-consumptive use of natural resources” where “you don’t use, you don’t touch, you are a vegetarian” The other was non-consumptive in the sense that there was no off take from a system that would take care of itself and where you “walked lightly” . South Africa was following the philosophy that advocated sustainable use. There were three tenants of the National Environmental Management Biodiversity Act (NEMBA) and the Convention on Biological Diversity (CBD): conservation, sustainable use and fair and equitable sharing of the benefits from the resources.

 

It was recognised that South Africa’s context was different. Unlike the countries where the Great Migration took place, here it was not a purely open system. The Kruger National Park was still a closed system that required human intervention to ensure a balance between the animals and the resources. Hence there had to be norms and standards and the many things that were being referred to there. CITES became a very critical space and presupposed use and movement before regulating trade.

 

He said that the DEA had taken transformation very seriously. The country came from a past of use. The definition of a biodiversity economy puts three tenets in the space: transformation, economic growth or potential of the natural resources and contributions, and the issue of sustainability and conservation. That programme included the “Wildlife Economy,” meant specifically for the involvement of the previously disadvantaged in the management of natural resources through conservation from the land they had received back through land restitution.  Support had to be mobilised to make that happen. The measurement and impact of that would be on the basis of targets the DEA had set for itself until 2030. There was a percentage of land that should then be black owned, a percentage of animals that should be in that space, and a value chain that should be facilitated and supported. 

 

Together with the Department of Rural Development and Land Reform (DRDLR) and the Commission on Restitution of Land Rights (CRLR), there were targets to be met on percentages of black owned land. Following that, and under NEMBA, there was core management that would say that the land remained in conservation. The land would have to be managed by a management authority together with the new owners as core managers, with an upfront core beneficiation scheme that would be informed by what the land could provide. These were some of the aspects that would affect local economic development and transformation interventions, such as referred to by Mr Mabilo. In the implementation of this, certain areas had been identified, and they included the Northern Cape.

 

He answered the question relating to tourism and hunting by saying that for South Africa, it was not a matter of “either, or”. There were areas that were zoned. There was no hunting in national parks. In some provincial and in private reserves, such activities were permitted. Both of these approaches were part of advancing conservation. There were quarterly statistics released by the Minister around the impact of the Integrated Rhino Management System. The latest figures had been released in February and new figures were expected soon. The DEA wanted to improve on the 10% decline in poaching.

 

The Chairperson asked for clarification on the statistics.

Mr Munzhedzi said the statistics were released by the Minister on a quarterly basis and that preceding years were included. The statistics would include the number of arrests and the Police, Justice, the National Prosecuting Authority (NPA) and Customs cooperated to release information from their side.

 

The Chairperson made the point that 1 000 Rhinos were still killed. Was the graph for the total rhino population going up or down?

 

Mr Munzhedzi said that information was available and would be covered in their response.

 

Ms Carroll answered that the monitoring function for leopards was the responsibility of the South African National Biodiversity Institute (SANBI) They also monitored the volumes of lion bone in trade, and also managed the national leopard monitoring programme.

 

Regarding permits for leopard hunting, she said that persons in an LHZ could apply by 1 September, and by 30 September all the information about population management must reach SANBI, which would then go through a process to see where hunts could be allocated. By the end of November, the process must be finished because hunting should take place over December and January, and the industry could not market a leopard hunt without a quota being allocated.

 

Enforcement activities would continue if a hunt was stopped for one season. Not hunting a female or a young male would be a condition of the hunting permit, to cover the norms and standards, so if it happened, it would be an offence in terms of the Act and investigations and enforcement measures would follow. The same applied to illegal killing. Most game farmers know that they need a permit to kill a leopard if it causes damage. There was a process to follow. If a leopard causes damage, a permit to remove the leopard must be applied for. Inspection of preventative measures, as well as losses suffered, would be conducted and based on that information a permit would be handed out. A leopard may be shot if there was an imminent threat to human life. That must be reported within 24 hours. If a leopard was killed illegally, enforcement processes would take their course.

 

The Trade Record Analysis of Flora and Fauna in Commerce (TRAFFIC) report on tiger and lion bone would be made available to the Committee. In the discussions with CITES, the fact that one needed to address the demand was established. Therefore lion bones were sought from captive breeding facilities mainly as a by-product of that hunting industry. The question was, if one closes that down, where would the demand shift?  Studies must be done about the bone trade to inform processes going forward. South Africa had said, let us put a quota in place based more or less on what the country has put into the market already over the last few years. The situation was being monitored in collaboration with agreed to studies so that the DEA could see how the country needed to adapt. There was also the research from the Scientific Authority which included the impact of the bone trade on the wild population.

 

TRAFFIC was an NGO that had been working with the CITES Secretariat for many years. They analyse information relating to trade in various species. They had commissioned the study that was now being broadened to other areas in Africa.  The World Conservation Monitoring Centre analyses reports from the various groups that were sent to CITES included information on issued permits and the quota for lion bones. 

 

The Chairperson asked for further elaboration on the quota for lion bones. Did one use the TRAFFIC report and the other report (by the Scientific Authority) to determine the quota?

 

Ms Carroll answered that the DEA looked at the figures of bones, skeletons and carcasses exported and endorsed by officials at OR Tambo over the last 10 years, and also considered the TRAFFIC report, to arrive at the number of bones South Africa had put into the market over the last few years. The DEA did not want this demand to shift to the wild population where it could not be maintained. The DEA did not want to oversupply the market either. Therefore the decision was to maintain the figure and monitor what happened. It linked to the broader studies that had been agreed to in CITES studies that would focus on the rest of Africa, as well as what was driving the bone trade. The following went with management interventions as well, including how permits must be issued as well as DNA sampling.

 

The Chairperson asked what the bones were used for.

 

Ms Carroll answered that they were used in Chinese medicine for rheumatism and joint-related illnesses. Wine was also made from them. It was a replacement for tiger bone. The report that would be made available to the Committee would elaborate on this in more detail. 

 

She answered the question about key populations, saying that it was a scientific term under the International Union for the Conservation of Nature (IUCN) that was classified under key 1, key 2 and key 3. That was because not all populations were equally important for sustainable conservation of lions. Key 1 populations were critical for all ecological functions in terms of lion conservation. On state land as well as on private land, these populations would receive support in terms of all the interventions.

 

The plan was to have the National Integrated Permit System piloted in the second quarter of that year. Uniformity, compliance and enforcement were the most important. In the interim, there was a national database for the rhino horn stockpile, and a system to track permits for rhino because of the priority associated with this. MECs were responsible for private permits and the Minister for SANparks permits and other organs of state.

 

The assessments of the comments on all the documents on the leopard norms and standards and the rhino draft regulations would be submitted in the second quarter. The first meeting for that quarter would be on 18 July. After the initial process, the Minister would sign it off and then it would go through the National Council of Provinces (NCOP) process.

 

One rhino (therefore two horns) per year may be hunted. Export of that horn would be for non-commercial (as explained by CITES) purposes primarily. Export could be done only with an import permit, with strict provisions related to it.  

 

The Chairperson sought clarification on whether it was two horns per person per annum. Then there was the issue of commercial and private use. What CITES defined was commercial trade and there was to be none of that internationally. Where were the regulations being formulated? Sometimes people read into the regulations that taking the horn overseas was allowed. Why had this been opened? This could be interpreted as an opening in the ban of international trade.

 

Ms Carroll replied that they had received a lot of similar comments and they were seeking the best way to clarify the provision. Uniformity with regard to everyone addressing it in the same manner was needed. Because of CITES regulations, there was no need to address the issue, but the DEA had decided it needed mention, but because of all the comments they now realised clarification was necessary.

 

The Chairperson asked if it would do any harm to consider regulating domestic trade of rhino and not make reference to exporting horns. Some countries placed a complete ban on the import of rhino horns.

 

Mr Munzhedzi said the regulations were meant to deal with domestic issues. The international aspect had to be covered through CITES. Whatever South Africa did domestically was immaterial to what already existed. It was not the DEA’s competence to open international trade. That was a matter that must be clarified.  

 

The Chairperson said this created confusion. Maybe the reference in the regulation must be to CITES. If there was a complete ban for CITES Appendix 1, it was only for commercial, not for personal, use.

 

Ms Carroll replied that the DEA followed the procedures that were specified in the Convention. Appendix 1 stated that one needed an import permit first, and that the horn was exported. There was a strict definition that prohibited donating the specimen, or generating money from the specimen. Articles of that Convention put prohibitions in place -- for example, selling or donating to a circus. The import country could have stricter measures, such as not allowing certain specimens into the country.

 

The Chairperson asked if personal use was allowed provided one had an import permit.

 

Ms Carroll said the permit was needed, and linked to that was legal acquisition.  

 

The Chairperson wanted to make sure that if someone from China was buying rhino for personal use and China got a ban, then the horn could not be taken out. He said that the issue was unclear. When one talked about no international trade, many people and stakeholders assumed that that was for both commercial and non-commercial use. It should be clarified that it was not for South Africa to decide whether the horn was for personal or commercial use, and that it was up to international law and agreements.

 

Mr Hadebe wondered if it would do any harm if the entire draft regulation were scrapped.

 

The Chairperson said domestic trade would still have to be regulated. The lifting of the moratorium meant domestic trade must be allowed. The decision of the court was that domestic trade should happen.

 

Mr Munzhedzi said the interpretation was on the basis of the Chairperson’s question. It had nothing to do with the regulation or non-regulation, but on the fact that clarity was needed on the international aspect.  

 

Mr Carroll added that more was needed than the current national prevention legislation. Additional measures, especially around procedures and conditions, were needed. Information on captive lion breeding facilities was held by the provinces and could be available by following the Promotion of Access to Information Act (PAIA).

 

The Chairperson asked if the DEA did not have any information on the breeding facilities.

 

Ms Carroll replied that DEA did have the information, but they were not the issuing authority for the permits needed by the facilities.

 

The Chairperson said Mr Purdon’s question had not been around permitting, but around how many and where the facilities were.

 

Ms Carroll replied that there were just fewer than 300 such facilities, mostly in the Free State, North West and Limpopo. Who the owners were, and the exact location of the facilities, should be requested through PAIA.

 

The Chairperson asked her to not refer to PAIA when facing the Committee. He said that at the meeting the DEA should respond to questions and not refer Members to an additional bureaucratic process. If the DEA did not have the information, they could just say that the information was with the provinces.

 

Ms Frances Craigie, Acting DDG: Legal, Authority and Compliance Enforcement, DEA, replied that the DEA did have a project focussing on compliance monitoring at the breeding facilities, and that information could be made available.

 

The Chairperson re-iterated that PAIA must be left out of the discussions and that the DEA should provide the information that they had.

 

Ms Carroll replied to the question around the lion quota, saying that the Minister needed to make an informed decision relating to it, but it was not known when that would be communicated.

 

She said that the Scientific Authority was composed of a representative from SANBI, SANparks, two from the DEA (one for terrestrial and one for marine issues), a representative from each of the conservation authorities, a representative from the museums and a representative from the National Zoological gardens. Requirements were related to the mandate they had to fulfil. Scientific knowledge, as well as knowledge on CITES procedures and requirements, was needed.

 

The Chairperson asked if it was a structure, a body or a forum. How was it constituted and how did it operate?

 

Ms Carroll replied that the Scientific Authority had been established in terms of Biodiversity Act. Within NEMBA they had a mandate to provide guidance and advice on matters related to protected species.

 

The Chairperson asked if it was a board or a body or an institution. What type of authority was it? Did it have offices?

 

Ms Carroll replied that the Scientific Authority was not a formal structure, and that SANBI provided for the logistics and meeting space twice a year. It was a committee for making non-detrimental findings, monitoring trade, et cetera.

 

Mr Munzhedzi added that the representatives in the Scientific Authority were formally appointed by the Minister, in line with the provisions of the Biodiversity Act. They needed to provide the information to make decisions that were scientifically informed. They followed a process and would provide a report with recommendations.

 

Mr Purdon asked for the specifics on where the representatives were from to be repeated.

 

Ms Carroll repeated that information. She added that through the Threatened and Protected Species (TOPS) amendment, which had not yet been implemented, tertiary institutions and the Department of Agriculture, Forestry and Fisheries (DAFF) would be brought in.

 

She answered the concerns around consistency within the provinces relating to permission for trade by saying it would be addressed through the standard operating procedure. There was a permit issuing authority that went into compliance management to see if legislation had been consistently applied and if permits were issued correctly. If procedures were not followed, a Corrections Action Report would be sent to the provinces. This ensured standardisation that could be further enforced in the norms and standards. There would be standard operating procedures specifically for rhino horn.

 

The Chairperson asked for the provinces which were not in agreement to be mentioned.

 

Ms Carroll replied that it was KwaZulu-Natal, the Eastern Cape and the Free State. They were in the process of giving permission. She reiterated that CITES related only to international trade.

 

The Chairperson said that there was a resolution on local trade in ivory that departed from what she was saying.

 

Ms Carroll replied that that was linked to illegal international trade. In 2009, when the moratorium was put in place, there were various challenges already -- for example, pseudo-hunters -- and there was an increase in rhino poaching. That was why it had been decided that no movement should take place before measures were in place. Since then, a number of interventions had been implemented. Rhino poaching had been declared a national priority, a strategy was developed and implemented on their safety and security, norms and standards were developed, and the process around DNA profiling was started. Also, there had been a whole audit process on the rhino horn stockpile and the information was captured on a national database. Furthermore, the capacity at ports of exit and entry had been addressed. At that time, there was no directorate for biodiversity and it had been established as part of the processes mentioned. A biodiversity plan for rhino had already been developed. Only additional regulation was actually being done currently. In 2013, the DEA had done a feasibility study on the viability of uplifting the moratorium and had found that there were still some things that needed to be addressed, although the moratorium had never been intended to be for the long term. In the process, there would have come a time for the DEA to be ready to consider lifting the moratorium, but the court case had turned this all around.

 

The Chairperson was concerned, because that had not been part of the presentation. No case had been made for the moratorium and why it was there in the first place. The questions out there were why there were new regulations now, and the first to whom that should be explained was the Committee.  

 

The Chairperson mentioned the 2015 documentary, “Blood Lions,” which he had watched on a certain occasion with Mr Munzhedzi. Although the documentary had been done in a dramatic way, there were concerns around captive breeding. 

 

Ms Carroll said that the Department’s view on canned hunting was that there were existing provisions in TOPS for prohibited activities. Examples of that were not being allowed to hunt lions which were under the influence of a tranquiliser, or in a controlled environment. The problem was that the term “canned hunting” was not defined. Some understood that the hunting of lion that was bred in captivity was canned hunting, and did not take into account all the other provisions already in place. The DEA and the provinces regulated the activities of breeding, keeping and hunting lions. The DEA did not dismiss the concerns, but were looking into that. There was a project to see if lions were kept in compliance with permit requirements.

 

Mr Munzhedzi said there was no law in South Africa about canned hunting. The DEA’s legal regulations did not promote canned hunting.

 

The Chairperson asked about progress with the regulations that the DAFF was supposed to promulgate.

 

Mr Munzhedzi said he did not have an informed response, but the DEA had an interest in that and was aware of it.

 

The Chairperson said the matter must be followed up. There were concerns around the welfare of these animals. There were some instances where some hunters were not compliant and killed animals in a manner that was considered inhumane. There were welfare issues that were supposed to have been finalised by the DAFF. He asked if there was an idea on the number of leopards in the country.

 

Ms Carroll replied that according to Swanepoel et al, there were approximately 4 476 leopards. The range was within 2 813 and 11 632. Camera traps recorded leopards.

 

The Chairperson asked what the CITES listing for leopards was.

 

Ms Carroll replied they were under Appendix 1, and that there was a CITES approved quota of 150 animals that could be exported per annum. It must be kept in mind that the full quota had never been used. Fewer than 75 were hunted – the figure was between 35 and 45.  

 

The Chairperson made sure that this was in the wild.

 

Ms Carroll confirmed this and said there was no captive breeding and subsequent hunting of leopards as far as she knew.

 

The Chairperson asked Mr Munzhedzi why leopards were being hunted in the wild if the argument around lions was that the bones of captive lions must be used. He said the argument was not consistent.

 

Mr Munzhedzi replied the sustainable use of the hunting industry was a part of conservation. Only males that were past productivity would be hunted. The quota determination would not affect the number of species in the wild. The DEA did not see it as a contradiction.

 

The Chairperson replied that it was a contradiction, and that the animals in the wild must be as protected as possible.

 

Mr Munzhedzi said the hunting of lions in the wild was also regulated. There was no moratorium on that.

 

The Chairperson said he was aware of that, but said that the carcasses did not come from them. He had been told outside, during the tea break, that it was very easy to pass the test as a regulation for the hunting. A woman who was not a hunter had said she passed the test in a few minutes. It was not a robust system. He said this should be discussed on another day, and that a follow-up discussion was needed.

 

Ms Craigie said a lot of lessons had been learnt from the Kruger National Park. Through the Rhino Lab process, intensive protection zones had been rolled out. A sub-committee under Working Group 4 had been set up. The Rhino Lab initiatives were being rolled out through that process. A lot of training was also happening.

 

She said that no litigation had flowed out of the judgment yet, but that may still be coming.

 

The Chairperson asked what had happened to the cases that were prosecuted under the moratorium.

 

Ms Craigie said there would have been multiple chargers, not only charges under the moratorium. There would not have been permits for possession. Perhaps those charged would come out and ask for reduced sentences, but that had not happened yet. For cases that had not been tried yet, such as the well-known Groenewald case (with the over 1 800 charges), the DEA had looked at how many charges were affected by the moratorium, and there were not a lot. Those charge sheets had been reviewed. The reason the DEA went all the way to the Constitutional Court was because they wanted the moratorium rather to be set aside from the date of judgment and not back-dated it all the way to 2009.

 

The Chairperson said the actual implications, and the number of people charged as a result of the moratorium, were needed. A great deal of money was being spent. The Committee needed to be taken into confidence on the implications of the moratorium ruling.

 

Ms Craigie replied that the prosecuting authority was busy with that exercise. The Constitutional Court judgment had come out not that long ago.

 

The Chairperson said implications could not be talked about if they could not be quantified. What did the DEA say to the Constitutional Court about the implications?

 

Ms Carroll said the affidavits explaining the implications could be made available.

 

The Chairperson asked why it was not in the briefing. That was what the Committee had wanted to find out. He had called Mr Munzhedzi on the phone when he heard about the Constitutional Court appeal failing, and had asked why the DEA had gone all the way to the Constitutional Court when they could have addressed some of the things in the judgment instead. He had been told that the DEA was not happy with the retrospective application of the judgment because that had huge implications for some of the cases the DEA were dealing with. Subsequently he had been referred to the legal person and had been told during the annual performance plan (APP) briefing that the Committee would be briefed. As this was the referred to briefing, those implications should have been specified. The Committee deserved more information about the implications of the judgment and the reasons why the DEA had persisted in their argument. The Committee was not being unreasonable.

 

Mr Makhubele said the DEA may have failed to convince the court that there were implications, and that there were therefore no mitigating factors against the judgment.

 

Ms Craigie said it was difficult for her to respond in her acting capacity. The affidavits could be provided.

 

The Chairperson said he understood her position. The DEA must have felt strongly about the retrospective application to take the matter all the way to the Constitutional Court. The courts were there to assist in public administration. A waste of public money had occurred. The question on what it had cost the Department was deliberate. A follow-up discussion was suggested.

 

Ms Craigie responded that the cost had been in excess of R1.5 million. The figure did not include the applicant’s cost that the DEA should also pay.

 

The Chairperson said that may be a similar amount, or maybe even more.

 

Ms Craigie agreed this may be true. Perhaps the Prosecuting Authority could join the next meeting to give information on specific cases.

 

The Chairperson said that quite often a well-argued judgment from the court was not complied with. Even without grounds to appeal, the judgment had been appealed, using public resources. It was not only this case -- other cases had also been taken on review without solid ground. A follow-up meeting was needed.

 

Ms Craigie said the DEA would ensure the correct people would be there.

 

The Chairperson said that the intention was to make sure that the DEA did not find themselves in a similar situation. It was not the intention to make people look bad.

 

Ms Craigie said that what had made it difficult was that both the Court of Appeal and the Constitutional Court had not given reasons for dismissing the appeal.

 

The Chairperson said the case had been dismissed just from looking at the papers. It had been dismissed straight away. He asked if there were outstanding responses to the Committee’s questions.

 

Ms Craigie replied on the mistaken hunting of leopard, and said that any hunting of leopard would be investigated. The plan with the domestic trade issue of rhino horn was that it would have to leave the country from OR Tambo airport through a proper consignment process.

 

Ms Rose Masela, Head of the National Wildlife Information Management Unit, said she had come late for the meeting because of a meeting in the Great Fish nature reserve with the objective of seeking support and donor funds to assist in the offset of community-based projects that would address some of the factors that led community members to become involved in activities such as poaching. That affirmed what the DDG had said about transformation being taken seriously. A big part of the biodiversity economy and the integrated management system had to do with the active involvement of communities.

 

She replied to Mr Purdon on the timeframes for the Community Empowerment and Champions plan, that a date had been set for March 2018, but because of a resource challenge, it had been postponed for a year. Activities that would precede it had been identified. The Rhino Lab was very specific on timeframes. There had been good progress in international cooperation. Work with Mozambique was on-going and an agreement between Mozambique and private concessions had been signed. Affected communities would be benefiting from the operation of private concessions. The resettlement programme was on schedule. Quarterly meetings with Mozambique would be held soon. Contact points had been established. The collaboration with Vietnam was also in order and the DEA would come back and share that information.

The Chairperson said that feedback on all the consumer countries would be necessary when the DEA came back. He did not want to do injustice to her responses because of time. 

Ms Masela said that the briefing would include the impact on demand management. As there was more focus on the front line states, that would also be included in the briefing -- for example, the memorandum of understanding (MOU) to be signed with Zimbabwe.

Mr Munzhedzi said the follow-ups would be done. He said the rhino space had got its own dynamics and the DEA was concerned with making sure that policies, operations and interventions achieved what should be happening. Much had been invested in this space and it should indeed result in the desired outcomes. 

The Chairperson thanked the DEA. He knew that the Department had a lot of dedicated and competent men and women. The Committee wanted to make sure they were strengthened, and wanted to give them support and encouragement to continue doing a good job. However, the issues that needed work had to be raised. Something to assess was the integrated management system and whether it was having the desired impact. If the graph on poaching was going up or down should be discussed. Poaching levels were still high. Something drastic was needed to intervene. A serious deterrent was needed and it seemed that the DEA was not on the same wavelength. Legislation needed to be strengthened. Follow-up discussions on the Constitutional Court issue had been agreed on. Food for thought had been given regarding the hunting of leopards. The Committee found it necessary to rethink the current approach. The primary mandate for the DEA was to look after the animals and to see the species grow.

The meeting was adjourned. 

     

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