A summary of this committee meeting is not yet available.
ENVIRONMENTAL AFFAIRS AND TOURISM PORTFOLIO COMMITTEE
13 May 1998
WASTE MANAGEMENT AND POLLUTION CONTROL POLICY AND ON ENDANGERED SPECIES PROTECTION BILL: BRIEFING
Documents handed out:
Submission on the Endangered Species Protection Bill
The Case for a National Endangered Species Trade Control & CITES Implementation Act
WASTE MANAGEMENT AND POLLUTION CONTROL POLICY
Ms. L Jacobsen briefed the committee on the topic. The Convention on Waste Management and Pollution Control was signed by South Africa in 1978, which includes resolutions to ban dumping waste in the sea. A committee was formed and over a period of three years had put together a protocol to replace the convention. This new protocol includes new ideas such as the polluter pays concept and widens the definition of sea dumping to include that of sea rigs and waste buried in the sea bed. Mrs Jacobsen's recommendation is that this protocol be ratified.
The Chairperson read the ratification and put it to the floor for discussion. Mr Mayana requested that the department report back to his department concerning their findings of pollution along the coast line.
ENDANGERED SPECIES PROTECTION BILL
Mr Richards then handed over to Mr P. Botha and Mr N. Snyman, who gave the presentation on item two on the agenda, which was the Endangered Species Protection Bill. Mr Botha started by giving out information on the ivory stocks and also gave out the attached documents. He then read through the Document titled " The Endangered Species Protection Bill, Submission to the Portfolio Committee: Environmental Affairs and Tourism".
He then introduced Mr Snyman who gave more details concerning the Bill. It has been five years to the day since the idea of this Bill came into being. It tries to focus on using the good things from previous legislation as well as new and relevant ideas. Problems lie with the fragmentation of the current legislation. Each province is in charge of their own legislation and enforcement which means officers pursuing cases of illegal trade cannot follow through into neighbouring provinces as it becomes out of the jurisdiction, whereas the traders do not have this problem. The idea is to make legislature National and therefore more effective.
This trade shifts large amounts of money around and not to the country's benefit. There is no control over ports of entry of which there is an estimated number of 700. The Bill seeks to make a set number of legal ports of entry which should make it far easier to police. While the species are in transit it is impossible for an officer to investigate them, the same applies when they are in quarantine. The Bill will be more specific, and does not aim for more but rather better legislation. It will provide more control without hampering legal trade. The Chairperson thanked the gentlemen and asked at what stage the legislation was. They replied that it was in its fifth draft and being circulated for comment.
Mr Smith (IFP) said that (1) the anomalies seemed strange and asked if CITES not provided for this? (2) He commented that inhibiting the entry points would not make a difference, those smuggling illegally would still do so. (3) He also asked whether the issue with quarantines provincial or not?
In answer: 2) It was addressed to a point but there was a need for congruency nationally, to enhance protection and so that all can work better without being blocked by legislation. 2) and 3) Were refused entry because of legislation . The Bill doesn't necessarily address the quarantine, rather the surrounding issues
Mr Mpehle (ANC) made the point that when the Bill was begun one needed a passport to cross provincial borders, does this have effect on the bill? The answer was that the bill was that it was partly old and partly new legislation.
The Chairperson posed the question of the bill seeming to contradict itself as to whether the provinces were working against each other. The reply was the 1st schedule was CITES and the 2nd schedule was a species list that applied to each province so that the provinces could still look after their own. Provinces should be able to have extra protection for their species over and above the bill's.
The question was raised as to where the number of 700 was taken from. A forum added up all encounters where illegal traders had been caught and that was how it came to 700. For example ski boats going out to trawlers.
Mr. Smith (IFP) wanted to know what the relationship between the Bill and the provinces own discretion was. The Bill would not be the prohibition of all trade only the illegal acquisition and disposal of species.
Mrs Mandela wanted to know if the bill gave officers the right to follow illegally traded species and return them to their country of origin. In answer to this it was said that it is very hard to prove that the species came from SA illegally, and jurisdiction doesn't go as far as international borders. Also Permit issuing is hard to control as it is not always researched correctly.
The Chairperson asked about money laundering and the answer was that control of that is always hard, and the bill can only streamline. Other questions that were posed were: 1) How do they manage information and know about movement of species? 2) How would the bill address the issue if transboundary "peace" parks
The answers were as follows: 1) Police networks have been made available but have to be careful not to implicate legitimate traders.
2) The International community (Cyril De Kiem) will focus on SA and bring it under formal control soon which will make it an ideal time for this bill.
The question was raised as to whether the Pangolin and the ordinary aardvark will be protected in the bill. These species are already protected under CITES appendices and are in the highest protection lists as well.
The Chairperson requested that questions from non-members be allowed, it was agreed and Jan Glazewsky commented: 1) Each of the four ordinances had their own schedules and this was an opportunity to make them the same.
2) Is the products of the species taken into account.
3) This could impinge on other ministries like for example the forestry act on bark and wood products, would this also fall under this legislation?
The answer is that 1) they are all being streamlined by the bill. A committee will be appointed to select species.
2) Species will mean any species listed and all derivatives of them. Concerning problems from the past where derivatives when manufactured became un-investigable.
A point was made that there is already a manpower problem in the police and to add this to them is too much. However this is too big a problem to be addressed immediately, the need is for better trained and informed police rather than more. Good legislation will make for better proficiency
Could volunteers and communities be involved in the policing as well was asked. The answer being that the bill allows for honorary officers to be appointed.
Mr Smith wanted to know if the provinces would now say that the matter was national and therefore out of their hands. Also, how can they be sure it will be National. In reply it was said that the bill will not exonerate the Provinces, it will only add to and amend their current responsibilities. There is a provincial schedule in that they all have specific issues that need to be addressed.
A question of penalties was raised, this is also an important issue and currently the fine is R200.00 for a first offence but they would like to include the value of the species into the fine.
The question of when the legislation is coming through was answered by as soon as possible, but probably not before the second semester.
The Chairperson suspended the third item on the agenda for the next meeting.
THE ENDANGERED SPECIES PROTECTION BILL
SUBMISSION TO THE PORTFOLIO COMMITTEE: ENVIRONMENTAL AFFAIRS
In South Africa, where the utilisation of natural resources represents a source of income to many and contributes significantly to the country's fiscus, it is alarming to discover that legislation enacted to protect wildlife and wildlife products is so fragmented and incomplete that wildlife authorities are often unable to act against suspected infringements.
Whereas the Central Government has accepted the responsibility for administering environmental issues, the provinces have carried the major responsibility for the conservation of fauna and flora, this has been the case since the formation of the Union of South Africa in 1910. This principle still applies today, however, with few exceptions, most functional areas of relevance to the conservation and use of biological diversity are set out in Schedule 4 of the Constitution, which describes functional areas of concurrent national and provincial competence. the legal base for the provincial activities were however unsatisfactorily and was only rectified by the promulgation of the Financial Regulations Act in 1957. This Act empowered the provinces to promulgate provincial ordinances pertaining to the preservation of fauna and flora and the regulation and control of hunting of game and other animals. Although the provinces are responsible for the establishment of nature reserves or protected areas, their main task was to regulate conservation matters throughout their domain and were therefore responsible for the regulation of amongst others transport of animals and plants, fresh water fishing and hunting on private land. Each province pursued its task, largely on its own, and this gave rise to a vast array of uncoordinated and even conflicting legislation. Each province has passed legislation applicable to, and that is one of the major problems, only to its own area of jurisdiction. Under the present political dispensation this tendency of creating own legislation remains. However, this legislation proved to be ineffective when dealing with illegal trade in rare and endangered species, as smuggling across provincial boundaries can not easily be checked. Although this system has worked reasonably well in the past within each province, management of living natural resources would be more effectively achieved under national legislation as this will counter the problems of trans provincial boundary law enforcement. As will be pointed out the fragmentation of legislation pertaining to nature conservation is a major stumbling block as far as effective law enforcement is concerned.
The wildlife laws of South Africa has been described by Fuggle and Rabie (1993) as a large plethora of statutes and ordinances which places a serious constraint on the effectiveness of wildlife law." This concern was supported on numerous occasions by the Endangered Species Protection Unit (ESPU) of the SAPS.
The problem of aligning legislation or even a single act governing nature conservation in South Africa has been a concern for some time. In 1991 the then Presidents Council was requested to make recommendations on an environmental management system and the report by that Council also dealt with the consolidation of the then four provincial nature conservation ordinances in a single Nature Conservation Act.
Another issue of concern is the implementation of international conventions such as for example the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) under the current fragmented legislation. For most practical purposes, provincial legislation forms the backbone of CITES implementation and enforcement in South Africa. Each of the previous four provinces have promulgated nature conservation ordinances which include provisions for the protection of species and the regulation of trade. It needs to be borne in mind, however, that these ordinances generally pre-date CITES and were initially developed with the protection of indigenous species and domestic conservation issues as their primary concern.
The White Paper on the Conservation and Sustainable Use of South Africa's Biodiversity, approved by Cabinet and Parliament in July and September 1997 respectively, has identified as one of its policy objectives (Policy objective 1.2) "Maintain and strengthen existing arrangements to conserve South Africa's indigenous biodiversity, both inside and outside of protected areas" Under this objective a number of steps to be taken by Government in order to achieve this objective has been spelled. One of these is "Government will facilitate the development of appropriate legislation to achieve uniform legal coverage for the protection of threatened species and the regulation of trade of all CITES-listed species, in addition to threatened species listed nationally and provincially."
South Africa has a proud and world renowned reputation regarding wildlife management. This achievement is, however, not entirely supported by adequate and appropriate legislation at national level.
South Africa's management of wildlife resources, in particular highly endangered megafauna, is amongst the best in the world. However, a study undertaken by the international trade monitoring organisation, Trade Record Analysis of Fauna and Flora in Commerce (TRAFFIC) published in 1996, raised many doubts about the effectiveness of existing laws and management structures to control the country' wildlife trade.
While South Africa's wildlife trade has steadily evolved from "a way of living" into a multi-million rand industry, the country's wildlife trade legislation has generally lagged far behind.
South Africa has a substantial volume of legislation regulating the conservation and use of living natural resources. However, effective nature conservation law enforcement is seriously hampered by an extremely high degree of fragmentation. Exacerbating the problem is a lack of national norms from which legislation for biodiversity can be harmonised. Further compounding the problem are the often inappropriate penalties imposed for infringing legislation, and the lack of capacity within government agencies to monitor infringements. These constraints have serious implications for the effective implementation of national policies relating to the conservation of living natural resources.
With respect to wildlife trade and the protection of endangered species, the responsibility for law enforcement is shared between a number of agencies. In South Africa, the key players include the law enforcement sections of the provincial nature conservation authorities, South African National Parks, Endangered Species Protection Unit (ESPU) of the South African Police Service (SAPS), South African Revenue Service: Customs and Excise and Department of Agriculture: Animal Health and Plant and Quality Control Service and the SPCA. The SAPS, provincial nature conservation authorities and SA National Parks being the traditional nature conservation law enforcement authorities. It is worth noting that each of these agencies have their own objectives and responsibilities, with protection of endangered species only in certain cases a major focus. As one can imagine it is difficult to identify the specific role of each of these organisations. This problem is not unique to South Africa but a common occurrence in many countries.
It would at this stage be appropriate to highlight some of the problems facing nature conservation law enforcement. Three basic types of offences can be distinguished) viz:
1. Violations of legislation or, more descriptive, violations committed through activities without permits or the contravention of permit conditions - Permit violations.
2. The illegal commercial exploitation of fauna and flora by illegal dealers - Illegal trade.
3. Illegal trade involving fauna and flora by organised crime syndicates -Organised crime.
The basis of nature conservation law enforcement is the issuance of permits which authorises the activities of an individual to conduct, possess, transport or trade in wild fauna and flora. The lack of a permit can be as insignificant as to attract a warning, or a spot fine, to a major investigation with fraud or laundering as the main issue for the investigation. The application for and resultant issuance of a permit can give the authorities a false sense of security in a system that is wide open to laundering. For example, permits for the possession of 20 breeding pairs of birds do not imply that there will be 20 or maybe 40 chicks available for export and creates an opportunity to launder wild caught birds through the system. Frequent irregular, accurate inspections and the keeping of records can not only prevent this type of violation but is the only way to detect violations as well. This law enforcement activity should be carried out in a highly visible way by officers of the issuing authority.
Violations of permit conditions and the lack of legal documents should be addressed during inspections. If the violations include cross-border trafficking the fragmented legislation and in particular the fact that provincial jurisdiction is limited to areas of authority of a particular province compounds the issue
This is a more organised violation of wildlife laws and is conducted by consenting parties on both sides which makes detection through traditional methods almost impossible. This trade is conducted by professional criminals in a closed network where introduction is normally by word of mouth. Detection can normally only be done by the infiltration of agents into the network through the use of various approaching techniques. Violators involved in the illegal trade will always be experienced handlers of the species or products involved with a good knowledge of the market. They can range from poachers, transporters to dealers who act as intermediaries to foreign markets. The use of "controlled deliveries" with all the specialised skills and equipment that it necessitates, can be very effective in the combating of the trade and apprehension of the network involved.
This third type of violation is predetermined illegal acts to collect, possess, transport and trade in wild fauna and flora. Organised syndicates will target specific areas, species etc. with an organisational capacity that by far surpasses the law enforcement infrastructure of most traditional law enforcement agencies.
This level of crime comprises a well developed criminal structure, well planned activities, a proper study of the market, and above all, is clouded in secrecy with various security blocks to protect the main players. Organised crime syndicates can only be detected by the penetration thereof by agents, the legal use of technical equipment and through the involvement of specifically appointed officers of the Attorney General. The recruiting and handling of agents is a highly specialised procedure which includes briefing and de-briefing procedures.
ORGANISED GATHERING OF INTELLIGENCE
Regardless of the type of violation addressed by a law enforcement officer the gathering of information and application thereof is of utmost importance. Gathering of intelligence needs to be co-ordinated, to prevent the mere re-active use by a single agency, to a national pro-active approach that will make the targeting of potential offenders possible. The gathering of intelligence is equal in importance to the investigation of violations and in a world where constraints on budgets and financial resources are becoming a bigger reality by the day, the focusing of investigations on the real threat is a necessity.
Problems associated with the provincial control of wildlife trade was first articulated in the 1991 Report of the Three Committees of the President's Council on a National Environment Management System. The report noted that provincial legislation aimed at dealing with the conservation of fauna and flora applied only within provincial jurisdictions, and therefore "was ineffective in dealing with illegal trade in rare and endangered species, as smuggling across provincial boundaries and even into independent states could not be checked". The report further recommended that the provincial legislation be consolidated into a "National Conservation Act'; the enforcement of which could be delegated to the provinces or regions.
The report by TRAFFIC was mentioned briefly earlier on in the presentation. In this report titled South Africa's Wildlife Trade at the Crossroads a detailed study was undertaken on the implementation of CITES in South Africa. The study highlighted the following problems as far as CITES in South Africa is concerned: (The conclusions can however be extrapolated to nature conservation in general)
*Ambiguity in the relationship between national and provincial legislation
*Inadequate coverage for all species on the CITES Appendices
*Inadequate provisions for comprehensive trade controls
*A wide discrepancy in penalties
One of the recommendations of the report was that national legislation should be developed as a top priority to ensure uniform protection of all CITES-listed species.
In 1992, the need for national trade controls was addressed by government officials, including those from the former Independent Homelands and Self Governing Territories, at a workshop. The objective of the workshop was "to investigate the viability of, and determine the principles to be applied in, aligned legislation pertaining to endangered species within southern Africa". One of the crucial issues identified at this workshop was the development of national endangered species legislation to address the problems of the alignment of legislation and the principles on which this should be based, and agreed that a so called 'Endangered Species Act' (ESA) should complement, rather than replace, existing national or provincial conservation legislation and regulations. During the workshop a detailed discussion ensued overt the nature of the legislation intended for the effective and efficient protection of endangered species in South and Southern Africa. During the discussion, there was perceived conflict between national and regional (in South Africa) issues pertaining to the protection of endangered species. It was agreed that endangered species, and not endangered populations, were at stake. However, strong arguments were made for regional considerations with regard to the protection of endangered plants/ animals. These considerations include:
*regional differences regarding populations, schedules, listings, implementation and enforcement of legislation, etc.;
*uniqueness of the situation in different regions;
*particular problems experienced in particular regions;
* regional autonomy (decentralisation); and
Ultimately the following principle for national legislation on the protection of endangered were adopted:
"ISSUES OF NATIONAL INTEREST SHOULD BE DEALT WITH ATA NATIONAL (CENTRAL) LEVEL, WHILE ISSUES OF REGIONAL INTEREST SHOULD BE DEALT WITH REGIONALLY".
The implication of this principle is that issues pertaining to the protection of endangered species should be dealt with nationally. This entails the drafting of national legislation, national review, evaluation of national co-ordination of enforcement, etc.
Legislation should also be enforceable in other words it should be clear, understandable, unambiguous, realistic, practical, relevant and a true reflection of the situation in the field. It should ensure that any enforcement officer, anywhere in South Africa, should be able to enforce the law without hesitation.
A major problem identified, was the issue of separate jurisdiction. This makes it very difficult for law enforcement officers to enforce the law in other regions (where they do not have jurisdiction), to conduct cross-border operations, etc.
National legislation should ensure that enforcement officers are empowered to enforce the law throughout the country.
Legislation should be clear, understandable and unambiguous. It is accepted that legislation is formulated according to certain criteria, pertaining to language, structure, format, etc. However, in order to ensure the effective and efficient enforcement of the ESA, ambiguities and other problems associated with legal jargon, should be eliminated as far as possible. The administrator/enforcement officer and any literate member of the public should be able to understand fully the law and all its implications.
The task of drafting a preliminary Bill to address this issue was given to an official from the Natal Parks Board. The draft was circulated to all the participants for comments.
At a follow-up workshop in November 1993, the original draft, as well as the possibility of including the implementation of CITES as regulations under the Environment Conservation Act was discussed. It was decided, however, that the power to establish such regulations was lacking under the Act and it was agreed to delay any further action on the development of national controls until after the April 1994 national elections. Subsequent to this workshop the Environment Conservation Act was amended to allow the Minister to promulgate regulations under this act to administer international agreements.
At several meetings of the subcommittee on Fauna and Flora of the Committee on Environmental Co-ordination established in terms of the Environmental Conservation Act (73 of 1989) the Department of Environmental Affairs and Tourism was requested to take up the issue of a national act on the protection of endangered species. This was done with the assistance of a legal expert and the person originally tasked with the drafting of the bill.
For any legal dispensation to be effective and enduring, it should be socially and economically relevant. South Africa is a developing country and its wildlife law must respond appropriately to its development needs and the apparent dilemma of conserving natural resources while at the same time recognising the subsistence needs of the indigenous people.
Since then, 1992, there has been a measure of progress on some of the recommendations. For example DEAl has produced the second draft of an "Endangered Species Protection Bill" in an attempt to rationalise the protection of endangered plants and animals throughout the country. The Bill, provides legislative controls, administrative and regulatory procedures on trade in endangered species; it incorporates the provisions of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and provides schedules of endangered species at international, national and provincial level.
One of the concerns expressed in the report by TRAFFIC was the lack of national norms and standards within which national legislation can be developed. The process of developing the policy on biodiversity conservation as set out in the White Paper, mentioned previously, to my provides the ideal foundation on which any national legislation can be based. The current Bill is an example of legislation to implement the policies aimed at protecting the conservation of biodiversity.
1.President's Council, 1991. Report of the three Committees of the President's Council on a National Environmental Management System. Government Printer
2.Fuggle, R.F. and Rabie, M.A., 1992. Environmental Management in South Africa. Juta and Co, Ltd
3.White Paper on the Conservation and Sustainable Use of South Africa's Biological Diversity, 1997. Government Printer.
4.Bodasing, Ashish and Mulliken, Teresa A., 1996. South Africa's Wildlife Trade at the Crossroads. TRAFFIC Report.
5.Report on the Workshop on the Alignment of Nature Conservation Legislation pertaining to Threatened Species in the ECOSA (SATBVC) Region. 12-13 May 1992. Zithabiseni Holiday Resort, KwaNdebele.
The case for a National Endangered Species Trade Control and CITES Implementation Act
Presented to the Parliamentary Portfolio Committees on 13 May 1998, Cape Town
South Africa has always been a focal point for the world. Until recently, this focus was directed at a political regime and a system of government that was abhorred by the observers. Upon the abolishment of the system of apartheid, this focus remained and in some instances became intensified.
The performance of the new government came under renewed scrutiny as did the systems and programmes that it started to develop towards a new and fairer dispensation for all the country's inhabitants.
The conservation ethic transcends political , religious and geographical boundaries or at least it should. The preservation of all life forms is an indication of respect and responsibility towards Creation.
South Africa has always been credited for its efforts in nature conservation and many outstanding achievements in this regards have been acknowledged by the international community. The protection of species of wildlife will always attract attention especially when animals such as rhino and elephant are involved. Over the last few years South Africa has become involved in controversial issues relating to its intended use of elephant and rhino products on the basis of sustainable utilisation of species with a view to realise much needed currency.
At the recent Conference of the Parties of the Convention on the International Trade Endangered Species of wild Fauna and Flora, South Africa's request to be allowed to trade in these species met with limited support.
Continued criticism which is levelled at South Africa is directed at its failure to apply the provisions of the Convention adequately. The primary and underlying concern in this regard stems from the fact that South Africa does not have proper legislation in place that will adequately cater for the provisions of the Convention.
There are many dynamic processes under way in South Africa currently. New environmental and nature conservation legislation is being created right at this moment.
The proposals and ideas that are tendered herewith are directed towards these processes.
There is an increasing awareness all over the world of the importance for conserving all entities that form part of the natural web of life. It is clear that all forms of life are interdependent in some form or the other. The importance of conserving nature and its resources extend beyond the mere realms of demonstrating some form of responsibility.
To this end, South Africa has demonstrated a willingness to participate with the rest of the world by being party to 22 international conventions which range from the Convention relative to the preservation of Fauna and Flora in their natural state (1933) [See D J Devine and M G Erasmus in International Environmental Law Environmental Management in South Africa Fuggle R.F. and Rabie M.A. Juta & Co., Ltd. 180] to the International Convention on Biological Diversity 1993. One of the conventions to which South Africa became a party to on 13 October of 1975, is the Convention on Trade in Endangered Species of Wild Fauna and Flora (CITES).
South Africa's participation to this treaty has been the subject of some criticism from international quarters as to the manner in which the provisions of the Convention are being applied or in some instances, are not being applied at all. One of the main concerns is that the Convention is not wholly encompassed within national legislation as prescribed by CITES.
Another criticism which has often been levelled at South Africa is that the country is considered to be an entrepot for the illegal trade in endangered species. Whereas such criticism in all probability arise from the good infrastructures that exists within the country ie. road airports and harbours there is a degree of truth in the fact that nature conservation legislation is lacking in some respects regarding efficient controls
In May of 1992 an interprovincial agreement was reached which included members from the former Transkei, Venda, Boputhutswana and Ciskei states to draft a national enactment aimed at protecting endangered species (ESPA).
2.Congruent causal factors interrelating towards the extinction of species and loss of biodiversity
Upon considering the underlying causes for the loss of biodiversity [McNeely et a Conserving the World's Biological Diversity IUCN WWF and World Bank 1990] and the extinction of species, [Frankel 0. H. and Soule M.E. Conservation and Evolution Cambridge University Press. Cambridge 1981] the following common denominators are identified as being congruent in their respective impacts upon these phenomena. Habitat loss, the alteration thereof or destruction features as the principal cause. Varied forms of pollution follow in order of significance and the remainder are listed as being overexploitation, predation by alien species and climatic changes which in turn may be caused to some degree by the alteration of the habitats.
Human activity may be regarded as being fundamental to these causes which is brought about by the ever-expanding human population and consequent demand for food and space. Vitousek et al (1986) estimate that 40 percent of the net primary terrestrial productivity is directly consumed, diverted or wasted as a result of human activity. [op cit. n 4]
3.The Global Biodiversity Strategy [Guidelines for Action to Save, Study and Use Earth's Biotic Wealth Sustainably and Equitably 1992 (joint project by World Resources Institute, the World Conservation Union and the United Nations Environment Programme UNEP)]
The international Convention on Biological Diversity was opened for signature in Rio de Janeiro in June 1992 which South Africa signed in June 1993. Two of the stated objectives of this Convention are relevant to the context of this discussion. These are the conservation of biodiversity and the sustainable use of biological resources.
The Convention commits South Africa to Legally protect threatened species and populations and (to) promote their recovery [Towards a policy 'or the Conservation and Sustainable use of South Africa's 7icaf Diversity Department of Environment Affairs and Tourism 1996 9.] which leads to a parallel Convention albeit somewhat different in context yet perfectly within the realm of this discussion.
The Convention on the International Trade in Endangered Species of Wild Fauna and Flora(CITES) 'CITES [R. F. Fuggle and Rabie M.A. eds. Environmental Management in South Africa Juta Ltd Kenwyn 1992]; as its objective the protection of all endangered animals and plants in the world. t seeks to do this by regulating the commercial exploitation of endangered species.'
The Convention came into force on 13 October 1975 in South Africa. Ever since then, the south African management authorities have been subjected to a degree of criticism for the manner in which some of the provisions and resolutions of the Convention are being implemented. By far the most comprehensive and objective report in which these shortcomings were disseminated and recommendations furnished to rectify the problems, emanated from the offices of the Trade Analysis of Fauna and Flora in Commerce (hereafter TRAFFIC) East/Southern Africa. [8 Ashish Bodasing and Teresa Mulliken South Africa's Wildlife Trade at the )ads: CITES implementation and the need fora National Reassessment (hereafter) TRAFFIC EAST/SOUTHERN AFRICA South African National Office Johannesburg 1996.
In the foreword '.0 the report, two eminent conservationists, Dr John Hanks – Chief Executive of the World Wildlife Fund and Dr John Ledger, Director of the Endangered Wildlife Trust collectively comment that 'South Africa's management of wildlife resources, in particular highly endangered megafauna, is amongst the best in the world. However, the results of this detailed study raise many doubts about the effectiveness of existing laws and management structures to control the country's 'wildlife trade' (author's emphasis).
The report stated in the executive summary thereto that 'The superficial and patchwork nature of CITES-implementing legislation has resulted in: 'Varying and discretionary interpretation, and therefore implementation, of the Convention's requirements, including a failure to ... enforce permit requirements for all three CITE'~ Appendices" . and "Wide variations in penalties for violating import and export controls with penalties for some offences so low .. as to provide little disincentive to illegal trade." [op cit. n 7 vi]
Another comment of specific relevance to the discussion which follows, relates to 'Unlimited ports of entry and exit for wildlife trade such that wildlife can be imported or exported with little chance of inspection, especially through borders with other members of the Customs Union . .., thereby increasing the potential for illegal trade,'
The report inter alia recommends [loop cit. n 7 vii] 'The development of national legislation to effect uniform legal coverage for the regulation of trade in all CITES-listed species...
4.1CITES - the current situation and system in South Africa
The first contentious issue and subject for criticism on the manner in which CITES is being implemented in South Africa is the fact that there is no clear distinction made between the Management Authority and the Scientific Authority. Article IX.1 of the Convention requires Parties to designate one or more Management Authorities and one or more Scientific Authorities [de Klemm,C. (1993) Guidelines for Legislation to implement Cites. IUCN, Gland, Switzerland and Cambridge, U.K. 22]
Scientific Authorities have an essential role to play as, under Articles Ill and IV, their advice is required before Management Authorities can issue or reuse a permit.’ [op cit n1] In South Africa the responsibilities of receiving applications for CITES permits, the subsequent assessment of the application and the eventual issuance of the permit is vested in the provinciaI nature conservation organisations.
the majority of these organisations have in their employ some highly qualified scientists many of whom are responsible for authorising CITES permits in any event on account of their positions of seniority within these organisations. It has therefore been considered expeditious to have these two Authorities resorting under one roof in a manner of speaking The author fears that this situation will continue to prevail for an interim period at least as funding and manpower precludes an immediate change to the current situation.
There is some degree of recourse in this issue however. In the section dealing with the National Endangered Species Protection Committee to the proposed Act, provision is made for the Minister to call upon any person to advise and to assist in any manner related to the provisions of the Act. By way of suggestion, it will be possible for the Department of Environment Affair, and Tourism to appoint what may be termed a 'CITES expert' who ideally would be a person who has a special interest, knowledge and expertise in relation to a specific species. The Department may then consult such Expert for the purposes of Article IX. of CITES.
A practical example of such an arrangement existed until recently in the case of the IUCN plant specialist, Mrs Cynthia Giddy. Author and acclaimed Cycad (Encephelartos ) expert, most if not all of the former four provincial nature conservation agencies relied and called upon Mrs Giddy for guidance('~ and advice in this regard Mrs Giddy has recently retired but to the best of the author's knowledge, she still assists various departments when called upon to do so.
The proposed legislation will therefore continue to empower the Director General to act in the capacity of Management and Scientific Authority with appropriate powers of delegation in the light of the facts above.
Another problem associated with the current system of CITES administration is that each provincial nature conservation organisation currently issues permits in the role of Management Authority. Without derogating from the efficiency of any organisation in this discussion, communications with the Secretariat in this regard in the recent past, (the author deals with certain CITES permit issues in the course of his duties) indications are that there have been problems associated with this arrangement. Whereas the legislation does not provide for this eventuality directly, it is suggested that when an organisation fails to meet CITES requirements adequately, that the Director General uses his discretionary powers and to authorise such organisation to issue only certain categories of CITES permits for an interim period or until the problems have been resolved.
In the TRAFFIC report [op cit n5 3] express concern is recorded as' Further decentralisation (of CITES responsibilities) could conceivably result in South Africa having some nine institutions functioning as CITES permit-issuing authorities, operating independently and without the benefit of national legislation or a coordinated administrative strategy.' Although this deviates slightly from the context of this discussion it is suggested that it is incumbent upon the Department of Environment Affairs to ensure that any newly constituted organisation and its employees responsible for these duties be adequately trained before they are expected to become involved in a complex issue that which is CITES implementation. In as far as the comment by TRAFFIC relates to the possible lack of legislation, it is trusted that the proposed Act may become a reality whereby such fears may be allayed.
4.2CITES in law
In his authoritative work on Guidelines for Legislation to Implement Cites [op cit n 6] de Klemm distinguishes between self-executing and non-self-executing provisions in a treaty. Self-executing provisions are those which are directly applicable by a Party without a need for any additional legal instrument. Non-self-executing provisions can not be implemented until specific legislation has been adopted for that purpose.
The main non-self-executing provisions of CITES appear in Articles 11.4 and VIII.1. Article 11.4 requires that Parties do not allow trade in specimens of species included in the Convention Appendices except in accordance with the provisions of the Convention. As a result, Parties are under the obligation to take measures prohibiting trade in CITES specimens whenever the conditions laid down by the Convention have not been complied with.
This general rule is supplemented by Article VIII.1 which requires that Parties take appropriate measures to enforce the provisions of the Convention and to prohibit trade in specimens in violation thereof.
Whereas the scope of Article VIII.1 allows for discretion as to the type of measures to be taken to enforce the Convention, there are two categories of measures which must be taken under that Article.
The first requirement is that measures must be taken to penalise trade in specimens in violation of the Convention, or the possession of specimens so traded. ~r both (Article VIII.1(a)); and secondly that measures have to be taken to confiscate such specimens or to return them to the State of export (Article Vlll.1(b)).
de Klemm concludes These obligations must be considered the very keystone of the Convention since without effective penalties it is obvious that enforcement will be impossible. As, however, in most if not all legal systems, criminal penalties may only be imposed by an Act of Parliament or an equivalent instrument, the Convention provides a clear obligation for Parties to enact appropriate legislation. The failure to do so constitutes a violation of the Convention.
Thus, the mere ratification of CITES without the adoption of appropriate implementation legislation can never be sufficient to ensure an effective enforcement of the Convention. If only because penalties for violations of the provisions of CITES can only be imposed by national legislation.'
5.Strategies for the future
5.1CITES implementation policy
The need for a formal policy towards the implementation of CITES is indicated. Every department or nature conservation authority that is designated as a Management Authority or Scientific Authority or both, must be compelled to adhere to such policy.
5.2The creation of a national database
The Department of Environment Affairs and Tourism is designated as the principal authority for the administration of CITES. It follows therefore that a national database should be housed in the offices of that department. Some of the advantages that will arise from such an arrangement are rapid retrieval of details pertinent to Appendix I traders. Defaulters will be listed and the current practice of applying for a CITES permit to more than one province will be stopped effectively.
5.3.1Nature Conservation Law Enforcement officers
Nature conservation officers need to become more proficient in their understanding of criminal procedure, rules of evidence and law enforcement procedures in general. Technikons must be requested to address these aspects in greater detail in the curricula of the nature conservation diploma courses.
5.3.2CITES administration officials
Intensive training in the provisions of CITES is required for administration officials. Manuals or computer programmes that are linked to the central database in 6.2 above will greatly enhance individual capacity to discharge these functions efficiently.
Apart from the dramatic issues that receive a great deal of attention in the media especially if such events relate to the more visible species such as elephant and rhinoceroses conservation of other endangered species receive scant exposure.
As the success of any strategy as proposed towards improved control of trade in endangered species is concerned is dependent on public support the people need to be informed. The creation of awareness campaigns that will extend to a large sector of the population is advocated here.
5.5The implementation of a national enactment
The proposed Act is in the hands of the Department of Environment Affairs and Tourism awaiting final editing before it is submitted to Parliament. Provided that the basic principles contained therein remain intact it may serve to resolve a number of the problems that have been outlined in the preceding text.
The ultimate measure of the success of the proposed legislation will be an ever-diminishing list of species appended thereto, as the reasons and causes for having to place them there in the first instance are resolved.
Finally, this is not a treatise of total prohibition, it should rather be seen as an injunction against the misuse and abuse of nature's bounty.
ENVIRONMENTAL AFFAIRS AND TOURISM PORTFOLIO COMMITTEE
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