Whereas the international trade in certain wildlife products is regulated by CITES, CITES’ signatories are able to determine whether or not they allow internal, domestic trade according to the laws of the country. Until 2009, South Africa had allowed a domestic trade in rhino horn, even though the international trade had been banned in 1977. Not everyone was pleased with the moratorium on domestic trade.
On 26 November 2015, a judge lifted the ban on the domestic trade in rhino horn in South Africa that had been imposed by the government in 2009, after finding that the state had not followed due process regarding public consultation before imposing the moratorium.
The ruling was delivered in the Pretoria High Court after two South African game breeders had fought a legal battle to try to overturn the moratorium. John Hume and Johan Kruger, who had launched the legal action, argued that it was their constitutional right to sell rhino horn, which they describe as a renewable resource. Shortly after the ruling was made public, the South African Minister of Environmental Affairs announced that the government would appeal the court’s decision. This meant that the judgement was suspended and the ban would remain in place until the appeal was heard.
On 20 January 2016, the South African High Court dismissed the government’s application to appeal the earlier ruling lifting the moratorium on the domestic sale of rhino horns. The Environmental Affairs Minister, Edna Molewa, appealed the ruling at the Supreme Court of Appeal, and then the Constitiutional Court. As a result, the ban was temporarily, upheld.
But in a surprising turn of events, in February 2016 – just days before the annual poaching statistics for the country were due to be announced – the Ministry published draft legislation that would lift the country’s domestic ban and allow a maximum of two horns per year to be exported by foreign nationals. The public had 30 days in which to comment.
Then, on 05 April 2017, Reuters news agency reported that the Constitutional Court had formally dismissed the appeal by the Department of Environmental Affairs to keep the domestic ban in place – effectively legalising South Africa’s domestic trade in rhino horn. As yet, Save the Rhino does not know when the trade will begin, or how permits will be issued.
Save the Rhino International has several questions about South Africa’s domestic trade:
- Who will the buyers be?
- Is it being considered for financial or conservation reasons?
- Why – given that judges had so far agreed with the challenge to the moratorium on domestic trade but based on a technicality (that the government did not follow due process) – hadn’t the South African government used this time to draw up a new moratorium that would be announced through all the correct channels and with an adequate notice period?
- Does South Africa have the funding, capacity or expertise to regulate a legal domestic trade and continue to police an illegal one?
- How would a domestic trade affect court cases against those accused of rhino horn trafficking?
Who will the buyers be?
South Africa does have Chinese and Vietnamese expatriots, who may be users of Traditional Chinese Medicine. And there may be investors keen to stockpile rhino horn in the hope that, one day, CITES allows a legal trade. But the demand for illegal rhino horn is primarily coming from China and Viet Nam, and we are concerned that buyers may intend to sell their horn onwards to those willing to pay the highest prices, even if that means smuggling it out of South Africa. When questioned by National Geographic about the likely destination for horns sold to Chinese and Vietnamese buyers, alleged rhino horn kingpin Dawie Groenewald replied: “Who cares what they do with it? If they want to take it illegally out of the country, it’s their problem.”
Is it being considered for financial or conservation reasons?
We can see that rhino owners – state and private alike – are haemorrhaging cash with the increased costs of security. But an opportunity to make money shouldn’t determine government policy, especially for a piece of legislation with huge ramifications beyond South Africa’s own borders. There is a real chance that the proposed changes could derail international progress in tackling wildlife, financial and cyber-crime, risking the long-term survival of rhinos for a short-term pay-out.
Why not issue a new moratorium and do it properly this time?
It seems strange that the South African government has not followed this simple course of action, given that it has fought the test case brought by Hume and Kruger through every stage of the court process so far.
Can South Africa properly manage a domestic trade?
If ownership of rhino horn is widened to investors, rather than simply game farm, reserve or park managers, there will be even more stockpiles to regulate and monitor, something with which the South African authorities have struggled. The potential for leakage into the black market destined for Asian countries is huge. According to the draft legislation, only one airport will be permitted as an exit point for traded horns and any foreign nationals seeking to export rhino horns would need the relevant permits, have the horns genetically profiled by a registered institution, and also require confirmation from their home country that legislature is in place to ensure that any CITES regulations would not be contravened. The two leading markets for rhino horn – China and Viet Nam – both have chequered histories when it comes to prosecutions against rhino horn traffickers and traders. Media outlets have drawn comparisons to weak trophy hunting legislation which, in the 2010s, was exploited by traffickers to launder rhino horn to Asian consumer markets.
How can prosecutions be brought against traffickers?
The challenge to the moratorium on the domestic trade has already delayed important prosecutions of alleged rhino poaching kingpins or traffickers, such as the cases against Dawie Groenewald and Hugo Ras. Were a domestic trade to be allowed, the defendents could argue that the rhino horns found in their possession were intended for local buyers, rather than being exported.
Given all these problems, and the unanswered questions, Save the Rhino does not support legalising the domestic trade in rhino horn in South Africa.
Photo credit Annelize Crawford