The Select Committee was briefed by the Department of Environment, Forestry and Fisheries (DEFF) on the draft species list and regulations pertaining to threatened or protected terrestrial and freshwater species, with the list of species developed in terms of the National Environmental Management: Biodiversity Act (NEMBA).
The Department outlined various concepts related to the Act, such as species, species derivates and how endangered species were classified. The amendments made to the species list and regulations were explained to Members. There were changes to the species list related to new inclusions, the separation of sub-species and reclassifications. There were many new provisions for regulations related to matters such as consideration of risk factors, permit applications, captive breeding facilities, duty of care and compulsory genetic profiling.
Members raised concerns about the issuing of permits to officials which were valid until the employment of the officials was terminated, as this might provide loopholes leading to bribery or corruption. They were also worried about freshwater ecosystems, and expressed doubts over the capacity for implementation of the revised regulations and their enforcement.
They asked how various stakeholders and provinces had been involved in the amendment process, and sought details of the technical legalities of the regulations and the species list, the alignment between provincial legislation and national environmental legislation, and the road shows to raise awareness about protected and vulnerable species.
As a separate issue, Members wanted the matter of the conflicting scheduling of Select Committee and Portfolio Committee meetings to be addressed, as this led to the Ministers and senior officials having to run between the two meetings, or be absent for parts of the meetings.
The Chairperson welcomed Committee Members and the officials from the Department of Environment, Forestry and Fisheries (DEFF).
Apologies were submitted for Ms L Bebee (ANC, KZN), Ms M Mokause (EFF, Northern Cape), the Minister and Deputy Minister. Apologies were also extended for the Director-General (DG), Ms Nosipho Ngcaba, as she was currently with the Minister at a Portfolio Committee (PC) meeting. She asked if Members accepted the apology for the DG.
Clash of meetings
Ms C Labuschagne (DA, Western Cape) was concerned that meetings with the Department were scheduled for the same day with both the PC and Select Committee (SC), as this happened when regulations that were not going to the National Assembly were discussed, and they would have liked at least to have the DG present.
Mr T Matibe (ANC, Limpopo) agreed that the Minister having meetings with both the PC and SC at the same time had to be addressed administratively.
Mr A Cloete (FF+, Free State) also agreed with the Members, and said the Programming Committee had to be asked to address the matter.
Mr A Arnolds (EFF, Western Cape) said that he did not accept the DG’s absenteeism. and it had to be recorded.
The Chairperson said she agreed with the Members. The Programming Committee had to address the matter of both the PC and SC sitting on Tuesdays, as it did not allow the Minister to attend or caused the Minister to move between the two meetings.
Mr Shonisani Munzhedzi, Deputy Director General (DDG): Biodiversity and Conservation, DEFF, said the purpose of the presentation was to brief the Select Committee on the draft revised regulations pertaining to threatened or protected terrestrial and freshwater species, and the list of species developed in terms of the National Environmental Management: Biodiversity Act (NEMBA)
Giving a historic and strategic overview, he said:
- Nature conservation was a concurrent competence in terms of Schedule 4 of the Constitution.
- Conservation matters were regulated in terms of provincial ordinances.
- The Threatened or Protected Species (TOPS) regulations, 2007, provide a national approach to sustainable use of species that were threatened with extinction, or in need of national protection, while ensuring the survival of the species in the wild, thus ensuring the conservation of the species.
- The TOPS regulations address multiple issues including: unethical hunting practices such as hunting in confined spaces, or hunting of tranquilised animals or by means of bait; activities related to the management of damage-causing animals; hybridisation and spreading diseases as a result of translocation; activities threatening cycad populations; and registration of captive breeding and keeping facilities.
- NEMBA enabled the Minister to prohibit activities that may impact on the survival of species in the wild, and to regulate activities to ensure sustainable use of indigenous biological resources.
- The Minister was generally the issuing authority for TOPS permits for national organs of state, provincial conservation authorities and marine species.
- Members of the Executive Committee (MECs) were generally issuing authorities for TOPS permits for applications from private persons or facilities.
- NEMBA made provision for the Minister, upon mutual written agreement with MECs, to be the issuing authority on exceptional matters. The case of the domestic trade of rhino horns was made a national centralised responsibility upon the mutual agreement between the Minister and MECs.
- National and provincial authorities facilitated a process of alignment of legislation (repeal and new provincial acts).
- A Scientific Authority was established to assist in regulating trade in specimens of TOPS and species to which an international agreement regulating international trade applied to non-detriment findings, ensuring that trade did not negatively impact on the survival of species in the wild.
- TOPS regulations were invaluable for the protection of species involved in international trade.
- TOPS interfaced with agricultural mandates on game farms and related activities.
- There were increasing welfare considerations in conservation management and sustainable use.
The implementation considerations were the capacity for permit issuing, compliance monitoring and enforcement, compromised scientific capacity in provinces, poaching and illegal wildlife trade, and the role of TOPS in the biodiversity economy.
Key NEMBA provisions
Ms Magdel Boshoff, Deputy Director: TOPS Policy Development, DEFF, provided information on NEMBA, as the Committee had not received a specific briefing on it before.
Section 56 – enabling provision to list species:
(1) The Minister may, by notice in the Gazette, publish a list of-
(a) critically endangered species, being any indigenous species facing an extremely high risk of extinction in the wild in the immediate future;
(b) endangered species, being any indigenous species facing a high risk of extinction in the wild in the near future, although they were not a critically endangered species;
(c) vulnerable species, being any indigenous species facing an extremely high risk of extinction in the wild in the medium-term future, although they were not a critically endangered species or an
endangered species; and
(d) protected species, being any species which were of high conservation value or national importance, or required regulation in order to ensure that the species were managed in an ecologically
The Minister had to review the species list at least every five years, but was allowed to review the list before the five year mark.
- A person may not carry out a restricted activity involving a specimen of a listed threatened or protected species (TOPS) without a permit.
- A person may not import, export or re-export, or introduce from the sea, a specimen of a species listed in terms of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) without a permit.
- The Minister may, by notice in the Gazette, prohibit an activity that may negatively impact on the survival of a listed TOPS.
- The Minister may, by Notice in the Gazette, exempt a person or a category of persons from the restrictions contained in sections 57(1) and 57(1A).
(1) The Minister may make regulations relating to:
(b)(ii) the facilitation of the implementation and enforcement of sections 57(1), 57(1A) or any other notice published in terms of section 57(2);
(iii) The carrying out of a restricted activity involving a specimen of a listed TOPS;
(iiiA) the circumstances in which restricted activities involving specimens of listed TOPS may not be carried out;
- Restricted activity (defined in section 1):
This generally involves activities that have a direct impact on listed species, such as hunting, catching or killing; gathering or collecting; picking parts of, chopping off, cutting, uprooting or destroying; importing into or exporting from the Republic; having in possession or exercising physical control over; growing, breeding or propagating; conveying, moving or translocating; selling, buying, receiving or donating, or any other prescribed activity involving a specimen of a listed threatened or protected species.
- any living or dead animal, plant or organism;
- seed, egg or any part of an animal, plant or organism that was capable of reproducing or transferring genetic material;
- any derivative of such animal, plant or organism;
- any goods which:
(i) contain a derivative of an animal, plant or other organism; or
(ii) from an accompanying document, from the packaging or mark or label, or from any
other indications, appear to be or to contain a derivative of an animal, plant or other organism.
Any part, tissue or extract of an animal, plant or organism, whether fresh, preserved or processed, and includes any chemical compound derived from such part, tissue or extract.
Background to amendment process
- The TOPS regulations and species list were published in the Gazette on 23 February 2007 for implementation, and commenced on 01 June 2007.
- At the time of implementation of the TOPS regulations, NEMBA did not contain an enabling provision for the exemption of a person from any permit requirements for the carrying out of restricted activities.
- The species list was amended once in 2007, in order to remove a number of marine fish species and to include cycad species.
- The TOPS regulations had been amended on a number of occasions to clarify provisions;
align provisions with NEMBA amendments, in particular, the reference to “issuing authority”; exempt organs of state from the payment of permit fees; align provisions with veterinary legislation in respect of “green hunting”; and align provisions relating to cycads with the cycad prohibition notice.
- The substantial amendment process was initiated in 2010.
- Proposed amendments were published in the Gazette for public comment in 2013 (60 days) and 2015.
- The amendment process involved the inclusion of marine species, and later a separation of marine species from terrestrial and freshwater species.
- The TOPS regulations and species list for marine species were implemented in 2017.
- The draft amended regulations and species list for terrestrial and freshwater species were tabled for National Council of Provinces’ (NCOP) approval in 2017, but withdrawn to incorporate CITES Conference of the Parties (COP) 17 decisions, hosted by South Africa in 2016.
- The amendment process involved extensive stakeholder engagement through workshops.
Schematic lay-out of categories of species
TOPS had been split into two main categories -- threatened species (indigenous species only) and protected species. Threatened species were classified as critically endangered (CE), endangered (E) and vulnerable ( V). Protected species were classified as national importance of high conservation value, or requiring regulation to ensure an ecologically sustainable environment.
Ms Boshoff gave examples of the revised species list.
The critically endangered included the wattled crane, riverine rabbit, geometric tortoise and some cycad species. The endangered included the South Western black rhino, African wild dog, Cape parrot and Southern roan. Among the vulnerable were the cheetah, black-footed cat, Nile crocodile, South Central black rhino and sable. Protected were the blue crane, African rock python, elephant, white rhino, lion and leopard.
Species list – provisions
- The categories of species (invertebrates, fish, reptiles, birds, mammals and plants) were based on the International Union for Conservation of Nature (IUCN) red list criteria. The amendment involved inclusion and deletion of species, and horizontal movement of species.
- Specific exemptions and prohibitions applied to species individually.
- Some general exemptions applied to all listed species, for example, to members of the South African Police Service and members of the South African Revenue Service (Customs Division) from permit requirements in the official execution of their duties; to veterinarians to dart-listed animals; to persons who were the holders of CITES permits, in the case where a species was also included in the annexures of CITES (e.g. lion, leopard), excluding for rhino or cycad specimens; in respect of dead specimens, excluding dead specimens, or finished parts or products of lion, leopard, cheetah and African wild dog; elephant ivory and rhino horn; and freshwater fish species; and in respect of translocation of certain listed animal species (generally commercial game farm species), under specified conditions.
- Category of protected species. These were specimens of species that were also included in Appendix I of CITES, and which were not already included elsewhere in the list of TOPS.
- The purpose of the above inclusion was to give effect to the CITES requirement that specimens of species included in Appendix I may be imported for primarily non-commercial purposes only, such as for personal use. Whether a transaction was commercial, was determined in the country of import, but economic benefit may not be derived in the country of import.
- Selling of imported specimens not derived from captive breeding facilities registered with the CITES Secretariat was prohibited, whereas possession of imported specimens was regulated.
Lay-out of species classification
The lay-out of species classification was split into three categories -- invertebrates, mammals and plants. These were each further divided into subcategories of critically endangered, endangered, vulnerable and protected. An example of the species list and how to interpret it was given. During the road show, the public and provinces would be shown how to interpret the provisions.
Provisions of TOPS regulations
Ms Boshoff referred to regulation 2, and said the purpose of the TOPS regulations was to:
- regulate the permit system that applied to specimens of listed TOPS;
- provide for the compulsory registration of persons and facilities;
- regulate the manner in which specific restricted activities may be carried out;
- prohibit the manner in which specific restricted activities may be carried out (e.g. prohibited methods of hunting);
- provide for the composition and operating procedures of the Scientific Authority.
The following aspects were clarified in respect of the application of the TOPS regulations:
- the provisions do not apply to non-indigenous subspecies of listed species;
- if the scientific name of a species changes, the scientific name referred to in the TOPS list and TOPS regulations would continue to apply until the species list was updated;
- the provisions of the TOPS regulations would continue to apply to all specimens that fitted the description at the time of listing, even if a new scientific name was assigned to the particular species.
Reg. 3 prescribes additional restricted activities in accordance with section 1 of NEMBA, part (a)(x) of the definition for “restricted activity”. It had prescribed the darting of specimens, the release of specimens, and angling.
Reg. 5 prescribes the following kinds of permits:
- ordinary permits, valid for a maximum period of 12 months;
- standing permits, generally associated with registered persons and facilities, valid for a maximum period of 36 months; and
- permits issued to officials of issuing authorities, which were valid until the employment of the officials was terminated.
Reg. 8 and Reg. 9 specify the specific information to be submitted with an application for a permit -- for example, proof of payment.
Reg. 12-15 apply to risk assessments, restricted activities that would require a risk assessment (RA), RA reports, and persons to carry out a risk assessment.
Reg.17-19 specify the factors to be considered by the issuing authority when processing a permit application.
Reg. 20-27 specify requirements relating to decisions on permits, such as:
- the time frame for deciding an application and issuing a permit;
- compulsory refusal of a permit;
- compulsory conditions subject to which permits must be issued.
Reg. 28 and 29 relate to the area and period of validity of a permit.
Reg. 30 and 31 specify the circumstances for compulsory marking and DNA collection of specimens.
Reg. 32 to 34 prescribe requirements related to the possession of elephant ivory and rhino horn, and live rhinos.
Reg. 35 to 54, in respect of registration:
- specify the persons and facilities to which compulsory registration apply;
- provide for voluntary registration of game farms (linked to a certificate of adequate enclosure), and provide requirements relating to registration.
Reg. 55 and 56 relate to duties of holders of permits and registrations.
Reg. 57 to 64 specify requirements for the renewal, amendment or cancellation of permits and registrations.
Reg. 65 specifies that permits or registrations are not transferable.
Reg. 67 requires the establishment and maintenance of a register of all permits issued, and annual reporting by issuing authorities.
Reg. 68 to 71 apply to the recognition of associations and requirements for recognition.
Reg. 72 to 76 contain circumstantial prohibitions relating to the conveyance, hunting, catching, importing/ exporting/re-exporting of specimens, and trade in specimens included in Appendix I of CITES.
Reg. 77 to 84 contain restrictions on the carrying out of specific restricted activities, including:
- conveyance of live specimens between registered game farms;
- conveyance of live specimens with due regard to associated risks (ecological, genetic, pathogenic, social or financial);
- selling of live rhinos; and
- restricted activities involving freshwater fish species, with a focus on the protection of freshwater ecosystems.
Reg. 85-86 contain provisions relating to damage- causing animals (duty of care and management options).
Reg. 87 to 98 make provision for the membership of, and operating procedures for, the Scientific Authority (established in terms of section 60 of NEMBA).
Reg. 101 to 103 contain transitional provisions.
Reg. 104 and 105 prescribe offences and penalties.
Reclassification of species
Ms Boshoff described the re-classification of species based on the IUCN red list assessment at the time, such as:
- The Nile crocodile and black-footed cat from protected to vulnerable;
- The African lion and leopard from vulnerable to protected;
- New inclusions, such as sable, included as vulnerable, and specimens of CITES I species as protected;
- The inclusion of species such as blue wildebeest, blesbok and plains zebra as protected, to regulate hybridisation;
- The separation of sub-species. For example, the. black rhino was previously listed as endangered, but the two sub-species had now been separately listed as endangered and vulnerable respectively.
There were effecting exemptions from permit requirements, and the inclusion of additional prohibitions of restricted activities.
Changes in regulations
There were additional circumstances for compulsory risk assessments, and new provisions in respect of consideration of risk factors, such as:
- for the establishment of new captive facilities for listed large predators;
- the release of listed large predators or elephants in facilities other than a controlled environment.
- the deletion of provisions specifying issuing authorities (included in section 87A of NEMBA);
- revised time frames for consideration of applications and issuance of permits, with new time frames included relating to registration applications (capacity, complexity, additional considerations and processes).
New factors to be considered by issuing authorities when considering permit applications include:
- the findings of an environmental impact assessment (EIA);
- conditions of an environmental authorisation;
- any non-detrimental finding made by the Scientific Authority;
- any advice provided by the South African National Biodiversity Institute(SANBI), or how the breeding in captivity of a specimen of a listed TOPS to which the application relates, would contribute to the conservation of the particular species.
There was a new obligation in respect of permit holders to report on restricted activities carried out in terms of “open permits” issued for continuous carrying out of restricted activities during the validity of the permit.
There were also new provisions relating to captive breeding facilities:
- A permit must be refused for the breeding of listed large predators or rhino in captivity, unless the applicant could demonstrate how captive breeding would contribute to the conservation of the species;
- In-breeding was permissible if necessary for the conservation of a species, only in accordance with a conservation strategy;
- A compulsory condition was that no specimens of critically endangered species or listed large predators originating from wild populations may be introduced, except for conservation purposes.
New compulsory conditions applicable to rehabilitation facilities specify that:
- specimens may not be kept for a period that exceeds what was reasonably required for the rehabilitation of the specimens;
- steps must be taken to prevent the specimens from becoming accustomed to human activities or intervention.
A new compulsory condition applicable to a scientific institution was that a report of the research findings must be submitted to the relevant issuing authority upon completion of the research project.
There was an alignment of provisions contained in norms and standards applicable to the management of elephants, and to the marking of rhino specimens and trophy hunting of rhino.
Additional requirements for compulsory genetic profiling covered the translocation of a specimen from any particular property where it was kept together with a specimen of another species with which it was likely to hybridise.
There were new provisions relating to the refusal of registration of a game farm, permissible ports of entry and exit (alignment with CITES Regulations), the carrying out of restricted activities involving freshwater fish species, and to a duty of care to prevent or limit damage caused by damage-causing animals.
There were also provisions applicable to the Scientific Authority:
- The inclusion of new members, namely one representative for each of the following state entities: the national department responsible for agriculture; the Agricultural Research Council (ARC); the Council for Scientific and Industrial Research (CSIR); and tertiary institutions;
- A new provision that a provincial conservation authority may be represented by an official from another organ of state responsible for the protection of biodiversity within that particular province, if the particular provincial conservation authority does not have the necessary scientific expertise.
The next steps in the process would be the publication of the final draft TOPS regulations and species list in the Gazette for implementation. The regulations and species list would commence on a date to be determined by the Minister by notice in the Gazette. There would be road shows in all the provinces, and publication of the commencement notice in the Gazette. This would lead to the repeal of the 2007 regulations and species list, as well as all previous amendments -- these had been incorporated into the draft revised regulations and species list.
The Department was recommending that the Select Committee on Land Reform, Environment, Mineral Resources and Energy approve the draft revised regulations pertaining to threatened or protected terrestrial and freshwater species, and the list of species, developed in terms of NEMBA.
DDG’s closing remarks
Mr Munzhedzi said the TOPS regulations were very important for the delivery of the mandate of NEMBA. The amendment process did have certain provisions that would be amended in NEMBA, but the Department still thought it had anticipated enough of what could come through the process for these regulations to stand in the period going forward.
The amendments may not be substantive, but over the time from 2007 until now lessons had been learned. The process had involved the provinces, as the system allowed for quarterly meetings between the Minister and MECs, meetings with Heads of Departments responsible for environmental affairs and conservation, engagement with the DG, as well as with working groups that dealt with critical matters. There was always an interface to ensure that there was a seamless process of implementing the regulations.
Ms Labuschagne gave thanks for the presentation and the explanation of technical matters. She said in the previous Parliament it had been argued about the fact that only regulations came into the NCOP, therefore she would let that be.
The recommendation in the presentation said the Committee had to accept the list of species as well as the regulations, because the list of species was included with the regulations. As she understood, TOPS was part of NEMBA, but because it had been brought to the NCOP in the previous term, it had been taken back on the CITES matter. She wanted to know if the list, although it was going through a lot of consultation as stated by the Department, should not be passed by the NA as part of the NEMBA Bill.
She asked if the list would always be reviewed together with the regulations from now on. She referred to the link between the list and the regulations, and wanted these procedural matters to be sorted out so that the Committee knew the legal footing of the NCOP. She understood that the regulations had also gone out to the provinces for their input and wanted to know if the provinces had received the list.
On the exemptions given to the SAPS, considering the illegal trade and fraud, she asked whether there was there any other system that ensured those officials had proof that they had handed over the confiscated goods to relevant authorities, or was there a way in which people working in that position could be accredited.
As there were only certain ports for imports and exports, if someone took a chance through one of the other ports that was not identified, was there capacity to pick this up at the other ports? Did this not make it easier for people to go in a different direction, well knowing there were only certain identified airports that were doing importing and exporting?
Was there a list or number of the critically endangered species at the moment? If so, it had to be made available to the Committee. Was there a process or intention from the Department to amend the Marine Living and Resources Bill soon?
Mr C Smit (DA, Limpopo) said he had a situation himself where a neighbour in his town had started cutting down a camel thorn tree which was on the endangered or protected list. He had approached the neighbours and told them they could not cut it, as it was endangered, but he had been ignored. He then contacted various relevant authorities and they had come out and had a discussion with the person and left, but the neighbour had kept on cutting.
There were exemptions, such as cutting, but how would this be enforced and was there any punitive action in place to force authorities to take action when such matters were reported? It did not help that there were all these regulations and laws in place which were not enforced because of bribery, favouritism, or whatever the case might be.
He said freshwater fish ecosystems were one of the highly endangered ecosystems. At one end of the vlei nearby where he lived, mining prospect rights had been granted, but the other part of the same vlei was protected. What was in place to ensure because there was not a disjunction between departments, as approval had been given by the Department of Mineral Resources for mining rights for the vlei, yet it was protected as well? Where would coordination between the departments come in?
Growth was wanted in fresh water aquaculture for food security, but at this stage it was very difficult considering all the regulations and constraints for that industry to become viable and thrive. Was closed ecosystem farming being considered, because everyone had to work together to allow for a balance between the environment and economic viability?
On wildlife trade and the permit systems around the transporting of these animals, he said a farmer transporting an animal would need to get a permit from each province it had to journey through, and this became highly complicated and did not appear that provinces were working together on this. It seemed that there was no way that this process would become smoother and more economical.
He agreed with Ms Labuschagne on the permits of SAPS officials, which could become a loophole for trade, and he hoped it was controlled within the authority.
On the regulations and recent court judgments that were made about animal welfare, he asked how this was incorporated into the regulations because it seemed like the two judgments had been completely ignored, which was problematic.
The Chairperson welcomed the Department’s Minister, Ms Barbara Creecy, and Director General Ngcaba, to the meeting.
Ms W Ngwenya (ANC) said she would ask three questions. During the amendment process of the TOPS regulations, had the Department involved the stakeholders from all the provinces, and if not, why not? Did the Department have the capacity to implement the revised regulations? How would the revised regulations affect the people in rural areas who mainly had to feed themselves?
Mr Arnolds commented that as the DDG had said, the amendments presented were not substantive but remained important because there was an effect on the outcome of the Act. He wanted to know what the conflicts between different provinces’ legislation and the regulations were.
Mr Matibe said the Department had been able to outline critical issues for the NCOP. How was the Department dealing with capacity issues in the provinces? Serious issues had been raised in relation to capacity-related matters, such as permit issuing and compliance, which were critical issues that required a strategy to be addressed.
The compromised capacity in provinces had been indicated, but clarity was needed on which provinces were affected and what the challenges were.
He asked how prevalent ‘green hunting’ was.
He said he would persuade the Committee to approve the draft regulations to protect the terrestrial and freshwater species so that after that, the Committee could go to the provinces and do road shows.
What was critical from his perspective was that communities had to understand the list and the regulations, as community awareness was needed. There was awareness about rhinos being an endangered species, but awareness also needed to be created about all the other species on the list. Awareness in communities assisted enforcement.
Minister Creecy said the Department had really faced a difficulty this morning because a meeting had been scheduled with the Portfolio Committee as well. The Deputy Minister had been requested to attend, but unfortunately she was ill. It was hard for to be in two places at once, but they had tried their best.
DG Munzhedzi referred to the first question about the relationship between the regulations and the species list, and said the Department was very explicit in providing this, as they were interrelated. Ms Linda Garlipp, Chief Director of Law Reform and Appeals, DEFF, could further expand on the matter regarding what was primary and subordinate legislation, as well as the prescriptions for which one went where.
It was understood that there could be situations where there might not be a need for a change in the species list for whatever reason, but there would be a call for certain parts of the regulations to be amended and the species list would be unchanged. As Ms Boshoff had said, as much as the Act said the list had to be reviewed every five years, there may be compelling cases where such amendments had to be done before the five-year mark. If a certain case called for the Department to have unprecedented pressure that required certain interventions which could come in many forms, one of those forms was covered in the regulations, where certain prohibitions could be announced by the Minister to protect those species.
It may not be surprising if at some point the Department made changes to the species list without changing any aspect of the regulations, or employing certain tools pertaining to certain species without changing the regulations first. This had been done with rhinos and cycads, which did not have to wait for a change in the regulations, as there were provisions in the NEMBA.
On exemptions given to SAPS and customs officials, he said in line of duty the Department worked very closely with security and other partners such as the Defence Force, the National Prosecution Authority (NPA) and customs officials who were involved in efforts to protect these species.
Not long ago, there had been reports of species confiscated in Limpopo, as well as in other areas, by a specialised unit for endangered species of the SAPS. Confiscated items would have to be stored or held somewhere, and therefore these officials needed to be exempted so that they could discharge their activities. There was a requirement for activities to be recorded and for the Department to be notified.
In most cases, the agencies worked in conjunction with environmental inspectors in provinces, and therefore where the confiscated species or items were, it would be easy for them to discharge their duties without being constrained by requirements for permits.
The designated ports of entry and exits helped with the control, and those who were doing things illegally and moving things from one point to another would contravene the rules. However, there were obviously those who wanted to find illegal ways.
In the designated ports of entry and exit, customs officials knew which ones were designated for specific species, especially those that were CITES-listed, and in those cases they would know what to do. In some cases, there were “ears and eyes,” such as environmental management inspectors (EMIs) posted. The customs officials and other security agencies worked with the EMIs that were deployed to deal with monitoring and enforcement activities, which were well informed. There were training programmes and capacity development programmes that helped with the identification of specimens, as they could be concealed in many forms as well.
On endangered ecosystems, where species could be farmed, he said the DG and the Minister had been reflecting on the state of the environment at the PC meeting considering the National Biodiversity Assessment Report, which had been released by the Minister last year. The Report had indicated that there were critical biodiversity areas that warranted protection, and one of these was the freshwater ecosystems such as the vlei that Mr Smit had mentioned, and many others.
The designation and mapping of some of the areas was done through the SA National Biodiversity Institute as part of the legal requirement in NEMBA, which stated that periodically the state of biodiversity be assessed and reported on. This provided guidance to management authorities on what to prioritise and where. NEMBA did allow for the listing of specific ecosystems, but there were many other means, such as the protected area designations that were done, stewardship agreements, zoning done by municipalities, as well as many other tools that were explored by partners in local government and provinces.
He said Ms Garlipp would speak on the Marine Living Resources Act (MLRA), on the issue of negligence and enforcement. The Department was trying by all means to have a standardised approach across the board, and it did not necessarily mean that certain provinces may be stricter on certain aspects, because there were certain endemic species that could be found only in certain provinces, with the additional requirements they may impose, but nationally at least there was a standard on how to deal with species.
He clarified that when restricted activities were referred to, it was not saying that certain activities may not take place, but that they could be done only under specific conditions and that was where the permit conditions came in.
On the question about permitting and those involved in trading having difficulty moving items from one point to another, he said it was one area the Department was always addressing together with the industry, to the extent that the Department had established what it called the Wildlife Forum, which incorporates those involved in wildlife trade.
There were certain activities that called for self-administration. The issue was that if the country was going to protect species, there had to be rules adhered to, and the regulations that provided for the open/standing permit for activities that would be done over a long period detailed upfront what the practitioners in that space should know about, which made processes easier.
On the welfare court judgments matter, he said there was a case law dealing with discharging their duties which indicated that welfare considerations would have to be considered, especially in spaces where there were capture-related activities, which the Department had welcomed. The Department had included this in the National Environmental Management Laws Amendment Bill (NEMLA), and had sections to deal with the welfare of species. The duty of care part of TOPS did exist in restrictions, and it would be taken further together with the National Society for Prevention of Cruelty to Animals (NSPCA) to ensure that this happened. There was also coordination with the Department of Agriculture on certain aspects of this matter. The DEFF was therefore addressing the matter.
In response to Ms Ngwenya on stakeholder involvement, he said that in 2013 and 2015, publications had been issued for 60 days of comments, following what the law described, and many comments had been received from different people and organisations which had raised various issues. He had referred to the DEFF’s interface with provinces in the presentation, where either at the Ministerial level or at a technical level, input had been given on the regulations and the list. The provinces had an obligation to make sure the citizens in their provinces were aware.
The time between the approval and the effective date would be the time for the road shows, as well to allow for coverage across all provinces and stakeholders. He agreed with the Member that there should be a lot of awareness of the affected species and the regulations related to them.
Regarding capacity challenges related to enforcement and scientific services, he said where provinces required a certain input that they could not provide in a short period of time, the Scientific Authority also played a role to assist in that space. This did not take way from the fact that all the provinces needed to have adequate capacity to implement the regulations, because even the provincial ordinances, as they were now, had certain prescriptions which were covered in TOPS as a national framework. Implementing TOPS should be implementing what was in the interests of the province.
On the state of capacity in each province, he said this could be provided at a later stage through provincial assessments.
On “green hunting”, the provisions in TOPS regulations had technically out phased that kind of activity, and it would be difficult for hunters to do it.
Regarding a conflict of legislation and TOPS alignment, he said TOPS was a national regulation to ensure a standard approach across the board, but it did not take away from the ongoing process in the provinces concerning their different stages and uptakes in repealing past legislation and aligning with NEMBA and current provisions.
Ms Boshoff said that although the species list had been developed in terms of NEMBA, it was regarded as subordinate legislation. It had been submitted to the NA for noting, but there was no requirement that they approve subordinate legislation due to the definition of subordinate legislation in NEMBA, and the species list was being dealt with as such.
In the official handing over of confiscated specimens in terms of NEMBA, there were requirements for EMIs to deal with this. Generally, there would be a handover certificate as proof of the handing over as well.
If there was difficulty to conduct freshwater aquaculture while there were TOPS fish species on the list, it was not anticipated that this would hamper aquaculture because generally the fish species included were threatened with extinction, and were not involved in the aquaculture industry.
On the loophole possibly created for officials for bribery and corruption, in addition to the NEMLA Bill that was currently before Parliament that contained the well-being conditions, there was also was a broader NEMBA amendment process. The amendments proposed stricter penalties, especially where there were officials from permitting and enforcement agencies involved in wildlife trafficking, or organised crime.
Ms Boshoff referred to wildlife traders moving specimens between provinces and making the process easier, and said it was a good example of where the DEFF was bringing in exemptions under certain circumstances, because as proposed in the amended regulations, the registration of game farms was a strong tool to use. Whether it was movement within a province between registered game farms or from province to province, the proposal was if a species registration was on a game farm and registered to the game farm it was moving to, it would not require additional movement permits because upfront registration to have it on both farms had been provided.
It was also proposed to provinces, through the wildlife forum, how they could use their own requirements to reduce the administrative burden on permitting. For example, where the ordinances made provisions for exemptions, they could use those to permit where there was a TOPS permit for a restricted activity. They could use their exemption clause in terms of their provincial ordinances to say, if one has a TOPS permit, one did not also need a provincial ordinance permit, which would alleviate the burden.
On legislation conflict, she said there was currently a process under way in the Department to align the legislation, especially considering areas of conflict and duplication. The alignment process also hoped to identify areas of conflict. There may be areas where requirements were different, such as hunting requirements differing between provinces.
The meeting was adjourned.
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