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In Brief

While the debate rages between the informed and the passionate regarding the advisability of employing legal trade in horn to destroy the illicit trade, that debate is largely irrelevant to the more immediate question of what must happen, at present, when an application to export horn is made. That question can only be answered from a legal perspective, as it is the law that mandates the behaviour of government employees tasked with considering such applications.

And the legal question has a clear answer: Those applications for export permits must, as a matter of law, be approved.

While we acknowledge that some are confused by various claims to the contrary emanating from within the Department of Forestry, Fisheries and Environment, a careful review of current legislation and established practices is sufficient to prove the point.

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Legal Summary

The relevant legal principles are as follows, with key references provided for each. Click on each reference to see a more complete explanation.

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

The province must make the decision whether to issue the permit or deny it.

References

Biodiversity Act, Section 87(A), Hume v. Minister Case No. 80690/2019, Creecy Affidavit 5 June 2019, DFFE Letter of 11 August 2020

The province must make this decision within 20 working days of receiving the application, and must issue the permit within a further 5 days.

The province must base its decision only on the criteria allowed under South African law.

Threatened or Protected Species Regulations, Part 3, 17(1) and Part 4 21(1)

Threatened or Protected Species Regulations, Part 3, 17(1) and 18(1)

The province is allowed to take into account only those specific factors listed in the Threatened or Protected Species Act.

The province's decision must be consistent with the rules of CITES, as reflected in South Africa's CITES Regulations.

Any attempt by the Minister, or her department, to influence that decision, or the timing of it, would be a Constitutional violation.

South African CITES Regulations, Part 1, Paragraph 2

Hume v. Minister Case No. 80690/2019, Creecy Affidavit 5 June 2019, DFFE Letter of 11 August 2020, DFFE Website

When all of the above is applied, several types of export permit applications must, as a matter of law, be approved.

Exports originating in a provincially recognized CITES Source Code 'C' captive breeding operation must be approved and subjected to Appendix II treatment, no matter what purpose the export is expected to serve. (No import permit required.)

CITES Regulations, Threatened or Protected Species Regulations, Part 3, 17(1) and 18(1)

Exports done when a South African resident is relocating to any other nation, and the horns form part of their legally obtained personal possessions, must be approved under CITES Purpose Code 'P', no matter what the source of the horn. (Import permit not prerequisite to export permit.)

CITES Regulations, Threatened or Protected Species Regulations, Part 3, 17(1) and 18(1)

Exports done when a non-resident acquires the horn legally in South Africa and wishes to return home with it, must be approved under CITES Source Code 'P', no matter what the source of the horn. (Import permit not prerequisite to export permit.)