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The Law
In Brief
The export of ethical rhino horn from South Africa to markets in Asia is legal right now. While we acknowledge that some are confused by various claims to the contrary that emanate from within the Department of Forestry, Fisheries and Environment, a careful review of current legislation and established practices is sufficient to prove the point.
The Province Decides. Not the National Government.
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Applications must be submitted to the provincial wildlife management authority.​
References
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​The decision to grant or deny an export permit must be made by that provincial authority, without influence by the national department.
TOPs, Part 3, para 8
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​​The Minister and department have no authority when an export permit application is for a privately owned specimen.
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Minister Creecy has confirmed that it would be a violation of law for her or DEFF to involve themselves in the decision. High Court decision only strengthens that position.
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Min. Molewa’s 2014 General Notice only obliges provinces to notify DEFF of an application to export horn. As per guidance from High Court, Minister Creecy, and the acting DG for the Department, that General Notice does not to alter or diminish the province’s sole responsibility & rights with respect to deciding the fate of the application.
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Hume v. Minister, Case No. 80690/2019, para 20, 21, 29
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Every Element of the Law Makes it Clear that Approval is the Only Permissible Outcome.
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The law requires the provincial management authority to render its decision in accordance only with the stipulated criteria, and in accordance with South African law and South African adherence to CITES.
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Any Appendix I specimens bred in captivity by captive breeding operations that are registered with their provincial wildlife management authorities and that are ‘marked’ appropriately are entitled to be traded as Appendix II specimens
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Export for commercial purposes (or any other purposes is allowed)
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Export permit is issued without any prior requirement for an import permit
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The legally permitted criteria for this decision are all overwhelmingly in favour of approving these applications when dealing with rhino horn.
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History of provinces granting export applications across broad spectrum of Appendix I specimens (including rhino) make it indefensible to deny these applications.
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A provincial official operating outside the clear scope of the law would be liable in their personal capacity, especially in view of recent correspondence from DFFE, court submissions by the Minister, and rulings by the High Court confirming that this remains a provincial responsibility.
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The Province Has But Twenty Days to Decide.
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The province is legally obliged to make its decision on the application within 20 working days (four weeks) or less.
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An additional 14 working days (three weeks) is possible if the applicant files an incomplete submission, but the issuing authority waives its right to such delay if it fails to request necessary supplementary material within the first three weeks following the application submission.
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DEFF’s right to share their thoughts (as per Min. Molewa’s 2014 General Notice) does not extend the 20-day deadline. And no province is obliged, or even permitted, to wait for any such thoughts prior to issuing the permit.
The Province May Only Base the Decision on the Legally Stipulated Criteria Listed Below, and Those Criteria Lead to Approval.
The National Environmental Management: Biodiversity Act, 2004: Threatened Or Protected Species Regulations, amended 23 February 2007, Part 3: Consideration of and decision on applications by issuing authorities, states in paragraph 8 that, “an issuing authority must consider and decide on the application within 20 working days and in accordance with this Part.”
The criteria that the provincial authority is allowed to consider within the twenty days it has in which to make a decision are spelled out in paragraph 10 of that Act, entitled, “Factors to be taken into account by issuing authorities when considering permit applications.” That paragraph explains that, “When considering a permit application, an issuing authority must to the extent applicable, take into account,” the factors that follow.
These factors are, therefore, the only factors that a permitting authority is allowed, by law, to consider, and any application that is favoured by the application of these factors must be granted.
Hover your mouse over (or click on) any of the coloured boxes below to see that every single one of the factors that an issuing authority is permitted by law to consider falls in favour of granting the permits we need to export rhino horn. There is, quite literally, no room whatsoever for disagreement about the outcome the law dictates.
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Any provincial official who ignored the law in this regard would be in obvious violation of their responsibilities. Such violations clear the way for officials to be held liable in their personal capacity for the damages caused by their refusal to implement the law.
Factors Permitted for Consideration Under RSA Law
There is literally no possible legal outcome for an application for an export permit for rhino horn from a registered captive breeding operation other than approval.
