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South Africa: Moratorium on Domestic Trade in Rhino Horn Temporarily Re-Instituted

On June 6, 2016, South Africa’s Department of Environmental Affairs (DEA) effectively, if only temporarily, re-instituted a 2009 ban on domestic trade in rhino horn and products derived from it.   This was due to the DEA appealing to the Constitutional Court a prior Supreme Court of Appeal ruling affirming a 2015 decision of the High Court that lifted a moratorium that had been in place since 2009.  (Moratorium on Rhino Horn Trade Reinstated as Minister Edna Molewa Files Application for Leave to Appeal to the Constitutional Court, DEA website.)

The temporary suspension of the appellate court’s ruling appears to be an automatic effect of lodging an appeal.  Under South African law, “unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal, is suspended pending the decision of the application or appeal.”  (Superior Courts Act 10 of 2013, § 18 (Aug. 12, 2013), University of Pretoria website.)  According to the DEA, “[n]o permits will be authorized … to trade in rhino horn and any derivatives or products of horn until the matter is finalized by the Constitutional Court.”  (Moratorium on Rhino Horn Trade Reinstated …, supra.)

Background

Although the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), which South Africa joined in 1975, has prohibited international trade in rhino horn since 1977, domestic trade remained legal in South Africa until 2009.  (ANDREW TAYLOR et al., THE VIABILITY OF LEGALISING TRADE IN RHINO HORN IN SOUTH AFRICA 28 (2014).)

In February 2009, South Africa imposed “a national moratorium on the trade of individual rhinoceros horns and any derivatives or products of the horns within South Africa.”  (National Moratorium on Trade of Individual Rhinoceros Horns and Any Derivatives or Products of Horns within South Africa, G 31899, GoN 148 (Feb. 13, 2009), DEA website.)  However, in response to a legal challenge put forward in 2012, the North Gauteng Division of the South Africa High Court (Pretoria), citing a lack of public consultation in the process of its issuance, lifted the moratorium in 2015.  (Kruger and Another v. Minister of Water and Environmental Affairs and Others ¶ 90.2 (57221/12) (Nov. 28, 2015), SAFLII [Southern African Legal Information Institute].)

On May 20, 2016, the Supreme Court of Appeals refused to grant the Minister of Environmental Affairs leave to appeal, essentially upholding the High Court’s ruling lifting the moratorium.  (Supreme Court of Appeal Judgment on Domestic Moratorium on Trade in Rhino Horn, DEA website (May 24, 2016).)

Now, the DEA is appealing the matter to the Constitutional Court.  The decision of the Constitutional Court, the highest court in the country on all constitutional matters and “any other matter … [that] raises an arguable point of law of general public importance which ought to be considered by that Court,” will be the last word on the matter.  (Constitution of the Republic of South Africa (1996, as amended), § 167, Constitutional Court of South Africa website.)

Rationale for the Moratorium

The DEA maintained that the moratorium had multiple objectives: to curb the flow of and reduce the demand for rhino horn and rhino horn products in the international market; to ensure compliance with CITES by closing the loophole leading to illegal trade in the international market that the domestic market had created; and to simplify policing and prosecuting of illegal trade in rhino horn and rhino horn products.  (Kruger and Another v. Minister of Water And Environmental Affairs and Others, supra, at ¶ 45.)

The High Court found no evidence to conclude that the moratorium helped stem the flow of rhino horn and rhino horn products into the international market; instead it noted that the level of rhino poaching in South Africa continued to climb upwards in the aftermath of the institution of the moratorium. (Id. at ¶ 88.)  The number of rhino poaching incidents, which was 100 in 2008, before the moratorium was imposed, steadily grew over the following years; for instance, in 2014, 1,200 incidents of poaching were reportedly recorded.  (Id.)

The South African rhino population is estimated to be around 20,000, around one-quarter of which are said to be privately owned.  (Ed Stoddard, South African Court Gives Green Light to Domestic Trade in Rhino Horn, REUTERS (May 23, 2016).)  The government is reported to have around 25,000 tons of rhino horn; an estimated 6,000 tons is said to be in private holdings.  (Id.)