Department of Environmental Affairs clarifies that rhino horn may not be traded internationally
The Department of Environmental Affairs has noted with concern misrepresentation of facts on aspects associated with rhino horn trade. The department would thus clarify that the commercial international trade in rhino horn is and remains prohibited in terms of the international protocols that South Africa is party to, particularly the Convention on International Trade in Species of fauna and flora (CITES). Further clarity is provided that a set of draft regulations published for public comment in February 2017, are not meant to circumvent any CITES process as such will be tantamount to non-compliance.
The department wishes to place on record that the planned sale of rhino horn by private rhino owners is for domestic trade only. Domestic trade in rhino horn is subject to the issuance of the relevant permits in terms of the National Environmental Management: Biodiversity Act, 2004 (Act No 10 of 2004) (NEMBA), its regulations and applicable provincial legislation.
In terms of NEMBA a permit is required to among others possess, transport and trade in rhino horns and any derivatives or products of horn. The Constitutional Court judgment in April 2017 confirming the setting aside the 2009 moratorium on the domestic trade in rhino horn retrospectively 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. The Environmental Management Inspectors (EMIs) of both the Department of Environmental Affairs and provincial conservation departments monitor compliance with the relevant regulations and requirements.
Until further notice, application forms for permits to authorise the regulated activities must be submitted in the province in which the applicant intends to carry out the restricted activity (e.g. selling, trade in, buying, giving, donating or accepting as gift, possession, conveying, movement, transport etc.).
The Department has developed an electronic database that will capture extensive details on all individual rhino horns in private and government-owned stockpiles and all newly acquired horns (which will be entered into the database on a monthly basis).
In order to populate this database, the Directorate of Biodiversity Compliance and Enforcement in the Department (“the Directorate”) is conducting an audit of all existing stockpiles of rhino horn. To date:
- The Directorate has conducted audit inspections of government-owned rhino horn in all provinces and of privately-owned horn in two provinces.
- Six provinces have conducted audit inspections in respect of privately-owned horns. The Department is currently conducting ad hoc inspections to verify the provincial audits.
- One province is still in the process of inspecting privately owned rhino horn stockpiles. Once the inspections and audit are complete, Department will conduct ad hoc inspections to verify the information.
Through the audit, the Department intends to ensure that every horn is tagged with a micro-chip, that DNA testing has been conducted on the horn, and that all horn is measured, weighed, marked and captured on the national database. This will ensure that the Department has full and accurate information on the number of horns in South Africa at any given time and the registered owner of each horn. This is vital to prevent the smuggling of illegally-obtained horn out of the country.
The Department of Environmental Affairs is evaluating the comments received from members of the public and interested parties following the publication of the three draft notices relating to the management of the domestic rhino horn trade.
The notices were published for public comment on 8 February 2017 and related to 1. draft regulations to regulate / control the domestic trade in rhino horn; 2. the prohibition of the intentional powdering of shaving of rhino horn and the domestic sale and export thereof; and 3. the listing of the Eastern Black Rhino (Diceros bicornis michaeli) as a protected species in South Africa. The public had until 10 March to comment.
Once all comments have been considered and evaluated, the Department will set in motion the process for approval of the final legislation. Once approved, it will be published in the Gazette for implementation and to announce the commencement date.
Again, the department reiterates, that commercial international trade in rhino horn is and remains prohibited in terms of the CITES provisions and would not be authorised in terms of any domestic regulations.
The draft regulations include provisions relating to the regulation and requirements for the domestic trade in rhino horn, as well as export under very specific circumstances consistent with the provisions of CITES, namely for primarily non-commercial purposes – and only if specific stringent conditions or requirements can be met.
In this regard, the CITES Convention differentiates between international trade for primarily commercial purposes and international trade for non-commercial purposes, including personal purposes or purely private use.
Rhino horn is regulated in terms of CITES as an Appendix I specimen. This means that international trade is regulated in terms of Article III of the Convention. A key requirement is that an import permit must be issued before an export permit can be issued (Article III 2. (d)). Furthermore, an import permit can only be issued if the CITES authority of the state of import is satisfied that the specimen (rhino horn) is not to be used for primarily commercial purposes (Article III 3. (c)). Primarily commercial purposes are defined in a CITES Resolution adopted at the 15th Conference of the Parties, which requires that the terms “commercial purposes” should be defined by the country of import “as broadly as possible so that any transaction, which is not wholly ‘non-commercial’ will be regarded as ‘commercial’.
This is why the draft regulations require first and foremost that an import permit must be obtained and presented before the South African government can consider an application for an export permit. If an import permit cannot be presented, an export permit application will not be considered and a permit will not be issued.
In addition to the import permit, the draft regulations require that the country of import must confirm in writing that it has legislation in place that will ensure that the horn will not be used in contravention of CITES requirements. If this cannot be provided, an export permit will not be issued.
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