UPDATE: Online auction of 264 rhino horn postponed due to legal challenge

2017-08-21 16:27 - Kavitha Pillay
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Cape Town - The Department of Environmental Affairs (DEA) confirms that the much-anticipated online rhino auction that was set to take place on Monday 21 August, following an urgent court application by organiser and rhino breeder John Hume, has been postponed until Wednesday 23 August at 2pm due to legal challenges.

"We are aware that the auction has been postponed," says Moses Rannditsheni, environment ministry spokesperson, who earlier confirmed with Traveller24 that the selling permit was issued "in error" by an official who “could have possibly regarded it as one of the other [environmental] permits”.

It has been reported that one of the auction officials says the permit was only received on Monday morning. The legal challenge caused the online auction to be delayed. The official website for the auction has also been updated with adjustments to the date and time of the auction.

SEE: #ShockWildlifeTruths: Rhino horn online auction pros and cons, readers respond

Hume applied for a permit for the sale of 264 rhino horn and on 10 August, "the selling permit was issued by an official in the DEA, in the belief that she had the delegated authority to issue a selling permit". However, the permit was not handed to Hume, says the DEA.

On Sunday 20 August, the Pretoria High Court ordered the DEA to issue the pre-approved permit.

SEE: UPDATE: DEA forced to oversee online auction of 264 rhino horn, going ahead due to permit 'error'

Rannditsheni explains that there are a number of other environmental permits that DEA officials are allowed to issue, adding that the DEA official who issued the permit in error “probably did not make a difference with this one … it was an oversight on their part.”

“I think they were unaware of their permission to issue this one [the permit for the rhino horn sale]”, Rannditsheni says, adding that for the rhino auction, “authority to issue the permit lies with the minister.”

The confusion on authority to issue permits within the DEA might have undermined both the minister and the department’s attempt to ban the online auction – however the high court ruling has indicated that the department must now be granted access to the online auction to do the necessary compliance monitoring.

Confusion around issuing permits

The domestic sale of rhino horn is legal following a Constitutional Court order in April 2017 upholding a 2015 High Court decision uplifting the 2009 moratorium on the domestic trade in rhino horn retrospectively.

DEA says in a statement that domestic trade in rhino horn is "subject to the issuance of the relevant permits in terms of the National Environmental Management: Biodiversity Act (NEMBA), its regulations and applicable provincial legislation". 

"However only the minister has the authority to grant permits for the sale of rhino horn in the seven provinces where the Members of the Executive Council (MEC’s) responsible for Environmental Affairs have agreed that the Minister should be the issuing authority for permits relating to trade in rhino horn," according to the department.

SEE: SA domestic rhino horn trade: Devil in the details?

On Wednesday, 16 August, Hume - the auction's organiser who runs the world's biggest rhino farm - brought an urgent application for the permit to be issued, with less than 48 hours’ notice.  The Minister opposed the application and at the same time applied to have the unauthorised permit set aside.

Rannditshen told Traveller24 that the department has learned a “big lesson” from this and “will look at tightening the permit issuing process internally to ensure this does not happen again”.

The ruling

On 20 August, the Court refused to set aside the permit on the basis that the application to set aside the unauthorised permit was not urgent. 

"On the issue of the delegation of powers within the DEA, the judge acknowledged that this was a complex issue that could not be decided on an urgent basis by an urgent court without consideration of legal argument to be heard in the ordinary course," says the DEA.

"We lost the case. We have to hand over the permit that was issued," said environment ministry spokesman Moses Rannditsheni.

The court ordered the Minister to hand over the original permit to Hume within 12 hours of the ruling. 

The permit was issued with the following conditions:

  • The permit holder can only sell rhino horn to a person who has a permit issued in terms of the National Environmental Management: Biodiversity Act, 2004 authorising him/ her to buy rhino horn from Hume (i.e. a buyer’s permit).
  •   The permit does not authorise international trade in rhino horn.
  •   The Department must be granted access to the online auction to do the necessary compliance monitoring.

"The Department wishes to reiterate that the commercial international trade remains prohibited by the Convention on the International Trade in Endangered Species of Wild Fauna and Flora (CITES). South Africa is party to CITES," adds the DEA.

Compliance monitoring

Despite its failed attempt to ban the auction by not issuing the permit approved in error, the DEA aims to follow its mandate of compliance management.

These are the requirements for the legal export of rhino horn:

  • The horn must have been subjected to DNA profiling
  •   The horn must be marked by means of a microchip and a ZA-serial number (as prescribed in the TOPS Regulations)
  •   The information of the owner of the rhino horn, and information relating to the markings of the rhino horn, must have been recorded in the national database
  •   A CITES export permit, which also needs to make provision for the export as a Threatened or Protected Species (TOPS) specimen that has to be endorsed at the port of exit prior to exportation.

MUST-SEE: SA rhino horn online auction ads indirectly targeting known hotbeds for illegal trade stokes DEA concern

Major concerns have been raised about the online rhino horn auction putting South Africa's domestic rhino horn trade parameters as set by CITES to the test, with the DEA stating that it does not allow rhino horn to be traded internationally.

Over and above the last-minute court attempt to stop the auction from taking place, last month the DEA issued a statement with a compliance warning, to make the parameters of the sale clear, saying "international trade in rhino horn is, and remains, illegal, and steps will be taken against any individual or group attempting to illegally move rhino horn purchased on the domestic market out of the country." 

‘Legislative provisions are in place’

On Friday, 18 August - before the urgent court application by Hume - Molewa issued a statement saying, "Legislative provisions are in place to ensure the domestic trade in rhino horn is strictly controlled and that the prohibition of the commercial international trade by the Convention on the International Trade in Endangered Species of Wild Fauna and Flora (CITES) is not violated."

ALSO SEE: #ShockWildlifeTruths: Rhino horn online auction pros and cons, readers respond

The current regulatory regime includes, among others, NEMBA, TOPS Regulations, Rhino N&S and provincial. 

Molewa says, "Additional measures are being taken to tighten legislation with regard to the domestic trade in rhino horn".

Draft regulations

Three sets of regulatory measures, issued in February have been made available for public comment. The DEA says notices related to, inter alia:

- draft regulations to regulate/ control the domestic trade in rhino horn;

- The prohibition of the intentional powdering or shaving of rhino horn and the domestic sale and export thereof; and

- The listing of the Eastern Black Rhino (Diceros bicornis michaeli) as a protected species in South Africa.

SEE: New trade ruling spells end for rhinos say conservationists

The Department is processing the comments received during the public participation process, and has subjected the draft regulatory measures to the cooperative governance system, after which the Parliamentary process for approval will commence, says the DEA.

Once approved, the draft regulatory measures will be published in the Gazette for implementation and a commencement date will be announced.

'Evaluation of each application on its own merits'

Molewa says in the statement, “The department’s responsibility encompasses the evaluation of each application on its own merits, making decisions based on information submitted by the applicant, taking into account existing legal requirements, and has the right to refuse or issue a permit with or without conditions."

SEE: SA rhino horn online auction ads indirectly targeting known hotbeds for illegal trade stokes DEA concern

Protection of rhino

Molewa states, "The department places value on the need to monitor the movement of the horns, and for this reason systems are in place to enable us to do that and such include the permitting system, marking requirements, maintenance of a national database for rhino horn, and the DNA profile of each horn."

The department is also working closely with the South African Police Services (SAPS), South African Revenue Service (SARS), Defence, Military Veterans, State Security Agency, the Department of Justice and Constitutional Development, National Prosecuting Authority, Correctional Services, alongside the, SANParks and provincial conservation authorities and other stakeholders to implement the Integrated Strategic Management of Rhinoceros Approach, which is focused on the protection of rhino. 

SEE: +40k tonnes of rhino horn in hand, DEA confident it can regulate domestic trade

Since the implementation of the moratorium on the domestic trade in rhino horn in 2009, the Department has introduced a number of legislative measures and mechanisms to control and manage rhino horn, populations and stockpiles in South Africa, such as implementing the "marking of Rhinoceros and Rhinoceros Horn and the Hunting of Rhinoceros for Trophy Hunting purposes in 2012".

A national database has since been established, as well as a genetic profiling system for live rhino and rhino horn.

SEE: SA sees 'slight decrease' in rhino poaching in 2017

"South African authorities have improved their ability to track the movement of rhino horn through the implementation of a national database and systems relating to the marking of rhino horn and genetic profiling," says Molewa.

"We have further improved our detection ability at ports of entry and exit by increasing awareness, human capacity, technology and skills. This is evident in the increased number of confiscations, arrests and convictions."

"The increase in the confiscation of rhino horn at points of entry and exit, and the arrest of alleged smugglers, is not an indication of an increase in illegal activities, but rather a demonstration of the country’s improved detection capabilities, as well as improved reporting, including reporting by other countries," adds Molewa.

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+40k tonnes of rhino horn in hand, DEA confident it can regulate domestic trade