Legalising SA Rhino horn trade: DEA still has the upper hand

2017-04-06 16:32
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Cape Town - SA's Minister of Environmental Affairs Edna Molewa says that while the DEA has noted a ruling by the Constitutional Court in favour of trading rhino horn domestically, the process will still need to take place within official DEA legislation.  

"The judgment does not mean that persons are allowed to trade (including selling, donating, or in any way acquiring or disposing of rhino horn) without a permit issued by the relevant provincial conservation department," Molewa reiterated following the ruling. 

The Constitutional Court on Wednesday, 5 April, ruled to set aside the moratorium on the domestic trade in rhino horn, dismissing the DEA's application for leave to appeal. 

NOTE: The ConCourt ruling in SA does not relate to the international trade in rhino horn for commercial purposes. Commercial international trade in rhino horn is still prohibited in terms of the provisions of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). 

Rhino horn trade still regulated

“Whilst we are studying the implications of the order handed down by the Constitutional Court, it should be noted that the court’s decision should not be construed to mean that the domestic trade in rhino horn may take place in an unregulated fashion,” Molewa says. 

Despite the moratorium now being lifted, the DEA says "it must emphasise that all domestic trade in rhino horn will be subjected to the issuance of the relevant permits in terms of the National Environmental Management: Biodiversity Act (NEMBA), 2004 (Act No 10 of 2004) and applicable provincial legislation. 

In terms of NEMBA, a permit is required to - among others possess instances - transport and trade in rhino horns as well as any derivatives or products of horn. 

READ: #ShockWildlifeTruths: DEA wants to 'clear its house' by selling rhino horn

Application forms applying for authorisation of the regulated activities must be submitted in the province in which the applicant intends to carry out the restricted activity (selling, trade in, buying, giving, donating or accepting as gift, possession, conveying, movement, transport etc), whereafter the DEA will facilitate the process in order to ensure it is handled within the boundaries of the law. 

The DEA has itself drafted regulations for the domestic trade in rhino horn to be legalised, a move which has caused an outcry from conservationists worldwide. 

In explaining their call to allow the local trade, the DEA says that "since the moratorium came into effect, the Department has strengthened its laws, regulations and systems to ensure no regulatory loopholes exist with regards to the possession of rhino horn as well as a possible future domestic trade in rhino horn."  

ALSO SEE: #ShockWildlifeTruths: 'Vague' rhino horn trade draft regulations questioned

Why the lifting of the moratorium?

The moratorium was implemented in terms of section 57(2) of the National Environmental Management: Biodiversity Act, 2004 (Act No. 10 of 2004) (NEMBA), and took effect on 13 February 2009.

From there, an original application challenging the moratorium was brought by Johan Kruger in 2012 and joined by John Hume in 2015. The rhino breeders were supported by Wildlife Ranching South Africa and the Private Rhino Owners Association of South Africa supported the application and told News24 at the ruling on Wednesday that poaching would be undercut by a regulated trade.

On 26 November 2015, the High Court set aside moratorium on the domestic trade in rhino horn with immediate and retrospective effect.

Pursuant to this judgment, the DEA Minister filed an application for leave to appeal to the High Court, which was dismissed. Thereafter, the Minister petitioned the Supreme Court of Appeal (SCA) for leave to appeal. 

The SCA in May 2016 dismissed the Minister’s application for leave to appeal with costs. No reasons were given for the order. The Minister subsequently applied to the Constitutional Court for leave to appeal the decision in June 2016. Wednesday's decision was the outcome of this application.

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