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Law Point 1

Provinces must receive & consider applications for international export permits, not the national government.

While we have seen some provinces express confusion on this topic in the past, the law is abundant and clear.

The first point of reference in this discussion must be the Biodiversity Act that first established jurisdiction and division of power between the Minister and the provinces.  That act vests all power in the provinces except those specifically carved out for the Minister.  The rights so carved out do not include the right to issue or deny permits for endangered animals owned by private individuals.  That right remains with the provinces. 

The first step in this process is in Section 87, which establishes jurisdiction over the rhino issue with,

87.   The purpose of this Chapter is to provide for the regulation of the issuing permits authorizing
(a) restricted activities involving specimens of –
(i) listed or threatened or protected species in terms of section 57(1)

 

The next section goes on to establish the concept of an ‘issuing authority’ that is tasked with determining an outcome for permit applications.  That section says,

88.      (1) A person may apply for a permit by lodging an application on the prescribed form to the authority.
           (2) An issuing authority may –

a)  request the applicant to furnish any additional information before it considers the application;
b)  
require the applicant to comply with such reasonable conditions as it may impose before it grants the application;
c)  
issue a permit unconditionally or issue it subject to conditions; or
d)  
refuse a permit.

The Act then specifically says the Minister is the ‘issuing authority’ when the specimen is located in a national protected area or otherwise belongs to government, and the MEC is the ‘issuing authority’ for all other export permit applications.
 
The language is very clear, and it is repeated and strengthened every time this Act is amended or addressed in regulations.  The most recent and relevant text is found in the 2013 amendment to the Act, reproduced here, with the language underlined in red where it makes the Minister the ‘issuing authority’ for specimens located in a national protected area or otherwise belonging to government, and underlined in green where it makes the MEC the ‘issuing authority’ for “any” export permit applications not explicitly assigned to the Minister.

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Despite the clarity of this language, one often finds provincial authorities who are confused, and who do not believe that this power is vested in the province, rather than in the national department.  They are, after all, so accustomed to taking instruction from the national body that it seems odd to find out that this is their responsibility.

Having said that, the view that this is a provincial responsibility, and not a national one, has been endorsed by the Minister in an affidavit, by her department in an official letter, and on their website (as well as orally), and even by the High Court, which comprehensively validated this understanding.

Minister Creecy's affidavit, submitted in Hume v. Minister, Case No. 80690/19, stated,

"The Minister is the appeal authority where the applicant for the permit is an organ of state and the Member of Executive Council (MEC) is the appeal authority in all other cases."

"The Director: Biodiversity Management, who took the impugned decision, is the delegated official of the MEC.  Thus the appeal lies with him or her and not me. (sic)"

"... the applicant was advised to approach the office of the MEC to deal with this matter."

"The Department of Environment, Forestry and Fisheries is an organ of state, it can only exercise powers or perform functions conferred by law (sic).  Otherwise, any exercise of powers or any performance or functions not conferred to it (sic) by law will be unlawful."

With those words, Minister Creecy confirms that the responsibility to decide upon the fate of an export permit application resides entirely with the province, and that any attempt by the national authority to inject itself into that decision would be "unlawful."

The same views can be found in the letter from the acting head of the department shown below, in which he states quite categorically, "Provinces issue these permits."

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The department's website states, "In terms of the South African Constitution the responsibility for the protection of fauna and flora, and consequently the control of the import and export of fauna and flora species, is vested in the provincial conservation departments.  Provincial nature conservation authorities have therefore also been designated as CITES management authorities."

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And, lastly, the High Court has weighed in on this issue, stating in the Hume case cited above, 

"Organs of the State and their Functionaries exercise no public power or perform no function unless conferred upon them by law."

"All administrative powers or functions must be sourced from the law.  In the absence of authority, organs of the state or their functionaries have no authority to exercise any public power or perform any public function."

"the Minister is the appeal authority where the applicant for the permit is an organ of state and the MEC is the appeal authority in all other cases."

With such an abundance of evidence, and such consensus across all stakeholders, there can be no further doubt.  Permits to export protected animal specimens must be submitted to the province, and the decision to grant or deny such permit rests with the province.

Provinces have 20 days in which to decide the fate of an export permit application, and only 5 more days in which to issue that permit.

This is one of those points that should not need its own lengthy discussion.  The law is clear.  The provinces know what it says.  It is grossly inappropriate for provinces to be missing this deadline with the soul-crushing regularity that is typical of this process.

The key language on this issue is found in the Threatened or Protected Species Regulations, Parts 3 & 4, as shown below.

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Part 3 tells us that, "the issuing authority must consider and decide on the application within 20 working days."  Note the word, "must."

The Regulations do, of course, make provision for extensions in specific circumstances.  Those extensions are limited to no more than a further 20 working days, and the province may not make use of that extension without providing reasons, in writing, PRIOR to the lapsing of the original 20 days.

Part 4 makes it clear that the province has no more than 5 additional working days in which to issue the permit  Note that the regulations do NOT allow for ANY extension to this time limit.

Legal Point 2

When deciding to grant or deny a permit application, provinces cannot employ any criteria except those provided in the TOPS regulations.

This is a surprisingly important point, largely because the politicized nature of the rhino horn discussion has led to provinces routinely straying beyond their legal mandate and incorporating legally impermissible personal policy preferences into the decision.

The key language on this point is found in the TOPS Regulations, Part 3, Paragraphs 17(1) and 18(1), which are shown below for ease of reference. 

Paragraph 17(1) says, "... the issuing authority must consider and decide on the application ... in accordance with this Part."  This language leaves no room for provincial authorities to apply their own tests to the application.  By law, their decision "MUST" conform to the instructions contained in Part 3 of TOPS.

 

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Paragraph 18(1) spells out the specific criteria that "must" be applied.  It is legally axiomatic that application of factors not on this list would constitute a violation of the law.

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In addition to the TOPS test outlined above, the province's decision must be consistent with CITES.  All of CITES.

To be clear, CITES by itself holds no legal weight in South Africa.  It is only through this country's CITES Regulations that the international rules find application.  Having said that, the very first clause in those regulations after the section on 'definitions' says,

"The export ... of specimens of species listed in the appendices to these regulations, other than in accordance with the provisions of CITES and these regulations is prohibited."

The legal effect of such language is to incorporate the entirety of the CITES Convention into South African law.  This is a surprisingly important point because of the contention repeatedly made by one particular bureaucrat within the national department that South African law does not implement CITES's exemption for captive bred Appendix I specimens under Source Code 'C'.

The specific language of this person's claim can be seen on the following slide, presented by him on numerous occasions.

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It is always awkward to accuse someone of lying.  Occasionally, however, one has no other option.  This is  such a case.  The man is lying.

The claim that South Africa is entitled to implement laws that take the protection of wildlife even further than CITES is: Correct.  All CITES signatories are entitled to implement more draconian legislation, if they so choose.

The claim that South Africa HAS done so is: a lie.

Recall the specific language of the CITES Regulations.  The regulations made no mention of incorporating, "all of CITES except Article VII, Paragraph 5" (which is the home of the Code 'C' clause).  Rather, the regulations incorporated ALL of CITES into South African law.

Ordinarily, having called this man a liar, we would offer him, or anyone else, the chance to prove us wrong.  Doing so should be a simple affair.  He could, for instance, identify the words, anywhere in South African law, that reverse the CITES Regulations' clear language incorporating ALL of CITES into the local legal regime.  Alternatively, he could identify the law or regulation that empowers a low-level bureaucrat to alter South African law to suit his personal agenda.

In this case, however, even that would be inadequate to defend his honour because the evidence against him is simply too comprehensive.  His claim that South Africa does not apply the Code 'C' exemption is nothing more than incompetent drivel.

The CITES trade database shows that South Africa doesn't merely 'implement' the Code 'C' exemption of Article VII, Paragraph 5.  It positively EMBRACES that exemption, even for rhino.

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The CITES trade database shows that South Africa has, in fact, "implemented" Code 'C' to export 22 million specimens of CITES-listed species, as you can see for yourself here.  Almost 32,000 of these specimens were Appendix I specimens - the most highly endangered.

These exports include such highly endangered species as leopard.  And tigers.  And chimpanzees.  AND RHINO.

The documents shown here are actual export permits issued by South African provinces.  The first is a permit to export three highly endangered species - cheetah, leopard, and chimpanzees - on the basis that they come from the Code 'C' operations that qualify to export because they are qualified captive breeding operations.  None were registered with the Secretariat.  And none of these exports in such highly endangered animals would have been legal if it were not for the Code 'C' exemption of Article VII, paragraph 5 that our nameless bureaucrat insists is not applied in South Africa.

 

The middle permit allowed the export of tigers on the basis of their Code 'C' origins.  That export, too, would never have been legal were it not for the Code 'C' exemption that is claimed not to exist.

 

And the last permit was issued to allow rhinos to be traded.  Internationally.  Because they were from a Code 'C' source.

Lest our bureaucrat try to argue that the rhino permit above was a once-off, rather than proof of a widespread practice, please note that we can provide literally hundreds of export permits issued by South African provinces for rhino to be exported as Code 'C' specimens, proving quite categorically that South Africa most definitely implements this section of CITES.  A small portion of this treasure trove is shown below.

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Perhaps the next argument will be that South Africa employs Code 'C' but does not grant Appendix II treatment to such specimens.  This, too, is easily proven wrong.  One need go no further than another glance at the CITES trade database.  In fact, it might be instructive for readers to do exactly that, for themselves. 

 

Click here.  When the page opens, click on the "Get report" button to download the data. 

 

This search was run for just the past ten years of South African exports, and only for specimens assigned the Code 'C' source designation this gentleman claims is not used in this country.  This search was also limited only to those exports that were for clearly declared "commercial purposes" (hence they carry the 'Purpose Code T' designation).  Once the information is downloaded from CITES, filter it to show just the Appendix I specimens exported.

CITES and South African law expressly prohibit international trade of any Appendix I specimens for "commercial purposes" unless they come from a captive breeding facility and are, therefore, covered under the exemptions of either Article VII, paragraph 4 ("Code D") or paragraph 5 ("Code C").  Thus, every single one of the more than 5,000 specimens traded here would have constituted a major transnational crime if they had not been covered by South African law under the paragraph 5 exemption. In other words, if they were not entitled to Appendix II treatment, then this very bureaucrat has been responsible for the single biggest wildlife crime spree in South African history.

This data includes leopards, alive and dead.  It includes tigers, alive and dead.  Cheetahs.  Jaguars.  Chimps.  Birds by the thousands.  South Africa has exported it all, for commercial purposes that would be illegal if it were not for the Code C exemption that was applied to every one of these trades and that this one bureaucrat claims does not exist.

He is simply lying.  South Africa DOES employ the exemption of Article VII, paragraph 5. Vigorously.  And that exemption DOES entitle Appendix I specimens to Appendix II treatment, both under CITES and under South African law.

The claim that South Africa does not employ Code 'C' to permit trade in specimens from conservation-oriented captive breeding programs is not just a lie.  It is the sort of foolish lie that is easily proven false.

Our country deserves better.

Law Point 3 - TOPS
Law Point CITES
Law Point - Minister Irrelevant

The Minister and department have no legal mandate to influence a Province's decision on a permit application. To attempt to do so would be illegal.

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Minister Molewa's 2014 General Notice Regarding International Trade in Rhinoceros

In 2014, Minister Edna Molewa issued the General Notice shown here.  In that notice, the Minister announced her desire to be copied on all applications received by a province to export rhinoceros specimens for international trade.

This announcement is quite helpful in that it is clear that such international trade is allowed, and it is the Provinces that issue the export permits.

Where the notice was less helpful was in the subsequent confusion around whether this demand gave the Minister a 'veto' right over  any Provincial decisions.

It does not.

The notice entitles the Minister to be notified of an application.  It entitles her to offer her opinion on that application.  It does not, and indeed cannot, shift control over that decision to the Minister.  It does not even give a province the right to delay their decision beyond the 20 days the law allows while they wait for the Minister to voice her opinion.

This is not a controversial opinion.  Indeed, everyone from the Minister to the High Court has been clear about these limits on the power she and her department are permitted to wield.

 

Specifically, these limits on the Minister's power, and the fact that she is Constitutionally prohibited from determining the outcome of an export permit application are laid out in a recent court judgment of December 2020.

That ruling made the point that,

"Organs of the State ... exercise no public power or perform no function unless conferred upon them by law."

And,

 

"In the absence of authority, organs of the state or their functionaries have no authority to exercise any public power or perform any public function."

In other words, since the law gives the Minister no power to influence the decisions of the Provinces, any attempt by her to do so would be invalid.

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With that in mind, the Court turned its attention to the question of export permits and said,

"The fact that the [Minister] requires the [Provinces] to submit all applications relating to authorisation of international trade in rhinoceros to the National Department for consideration and recommendation before making a final decision is of no consequence.  This is an internal measure to ensure that the Provincial Governments comply with the policy determined by the National Government to ensure that the approval of the application for an export permit by the Provincial governments comply with the international covenant and treaties for which the National Government is a signatory."

The Court's view in this case was not at odds with the stated views of the Minister herself, and of the Department.  Indeed, in a letter issued by the Department a month before this ruling, we see the exact same points made. Even some of the same language was employed.

That letter states,

"The notice does not change ... who is responsible for making decisions on applications relating to rhinoceros specimens....  Provinces issue these permits."

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The Minister is entitled to be told when an application for an export permit has been filed.  But she is not allowed to alter the legal decision of the Province with regard to that application.

Moreover, a Province may not delay the decision they are obliged by law to issue within a specific timeframe, simply because they are waiting for the Minister to offer her opinion.  Provinces remain bound by the time limits enshrined in law, and the Minister, if she wishes to opine, is obliged to do so before the Province's answer is due, or to see her opinion ignored.

An application to export rhino horn from a provincially recognized Code 'C' operation must, as a matter of law, be approved, even if the export is for commercial purposes.  The approval process must conform to the statutory time limits for provincial deliberation.

As demonstrated in the previous sections of this discussion, South African law reflects this country's CITES obligations in applying Appendix II treatment to specimens of Appendix I species when those specimens originate in a provincially recognized captive breeding operation - whether that operation serves primarily commercial or conservation purposes.

We have also seen that it is the province that must make a decision whether or not to issue an export permit, and they must do so based solely upon the criteria laid out in TOPS.

Thus, the only questions are:

  1. Do the specimens originate in a provincially recognized captive breeding operation; and

  2. ​Does this application satisfy the TOPS criteria?


 

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With respect to the first question, we can see from the certificate shown here that at least one (and, in fact four) of South Africa's private reserves have already obtained provincial certification as a captive-breeding-operation-for-conservation-purposes.

This leaves only the application of the TOPS criteria to the decision on awarding an export permit.

The permissible criteria for deciding to grant or deny an export permit are presented in TOPS Part 3, Paragraph 18, and are shown here.  Consideration of the factors shows that the applications described herein score perfectly on every single one of the factors.  Please view this page on a laptop to find, when you 'hover' your mouse above each factor, an explanation for how each of the factors is satisfied in this situation.

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When the rhino horn for which an export application is requested comes from a recognized captive breeding operation, and it more than satisfies each and every one of the criteria a province is permitted by TOPS to consider, then the only legally permissible outcome for that application is approval within the time limits provided in law.

Whether the Minister has offered her opinion, or not, is irrelevant to the province's obligations to act in accordance with the criteria and timelines permitted.

Legal Point - Captive App Approved

An application to export rhino horn that forms part of an individual's personal goods must be approved if their possession of that horn is legal, no matter what the source of that material.

This is quite straightforward. 

As we can see from the regulations shown here, the export of rhinoceros horn that forms part of a person's personal goods is explicitly provided for in South African law.

 

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In part, this is a straightforward implementation of the CITES rules on the international movement of personal goods.  Those rules, which appear in Article VII, Paragraph 3 of the Convention, state that,

The provisions of Articles III, IV, and V shall not apply to specimens that are personal or household effects."

In part, South Africa's practice of allowing this exemption to apply even to specimens purchased by visitors to the country reflects something more than what is found in the Convention.  South Africa has chosen to implement a more liberal set of rules for personal goods, albeit a set of rules that is still grounded in CITES.

To be afforded this right, a visitor simply has to obtain the horns legally in South Africa, and then export them for his own personal use, rather than for commercial sale in the destination country.  Such a right to export specimens of even Appendix I species in this manner was described and endorsed by the Department's Magdal Boshoff in a recent conference call.  She commented that,

"If someone buys a rhino horn in South Africa, and that person is not a South African citizen, it doesn't mean that it , at that stage, becomes a commercial international trade. When the person ... goes back to his country of normal residence and he displays the horn on his wall, for his own use, the purpose of the international trade is not yet commercial.  So it doesn't meant that that's commercial international trade."

A recording of her comments can be heard by clicking here.

Magdal Boshoff on Personal Goods Exemption

Perhaps most importantly, we can see all of this appropriately reflected in the records maintained by CITES, which show that this process has been applied regularly by South Africa.  More to the point, it has been applied very recently, and even to rhino.

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The image shown here is a screen grab from the CITES trade database (available here), documenting the export last year of 42 rhino horns, taken from the South African "wild" - the most highly regulated source possible - and exported legally into Belgium.  Why was this legal?  Because, as we can see from the Purpose Code 'P' that was assigned to this trade, it was for the "personal use" of the individual who had acquired them legally in this country.

With evidence like this,  it seems unlikely that anyone within the national department, or the provincial Management Authorities actually empowered to act on these export permit applications, would disagree.

Export permits for rhino horn acquired legally in South Africa and exported as part of an individual's "personal or household goods" are legal and must, therefore, be granted when legally applied for.

legal point-personal goods
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