SOR Response to DEA Notice 74/2017 Domestic Horn Trade

Save Our Rhino
adshorhino@gmail.com

10th March 2017

The Minister of Environmental Affairs
Ms Edna Molewa

The Director -General
Department of Environmental Affairs

Attention: Ms Magdel Boshoff

DEPARTMENT OF ENVIRONMENTAL AFFAIRS – NOTICE 74 OF 2017

OBJECTIONS OF ACTIVIST GROUP, SAVE OUR RHINO, TO THE DRAFT REGULATIONS FOR THE DOMESTIC TRADE IN RHINOCEROUS HORN, OR A PART, PRODUCT OR DERIVATIVE OF RHINOCEROUS HORN.

Save Our Rhino (SOR), a pro-active South African group with a global membership of close to 20,000 individuals, has been active in creating awareness around rhino poaching as well as other conservation and environmental issues since 2009 – educating the public, publishing the latest news and taking part in various campaigns. As registered Stakeholders with the DEA, we also attend meetings, when invited to do so, participated in CoP17 and presented at the Committee of Inquiry, among other activities.

Eight years ago saw the start of a poaching epidemic which has crippled South Africa’s almost unblemished two decades of rhino protection. Just 261 mortalities were recorded during a 27 year period between 1980 and 2007. Since 2007, the country’s rhinos have been subjected to persecution, injustice and now disregard as the Minister continues to endorse commoditization of the country’s flagship species. We are of the opinion that the Minister is placing vested and minority private rhino owner’s interests ahead of ministerial responsibilities, biodiversity obligations outlined in the National Environmental Management Biodiversity Act 2004 (NEMBA) and disregard for the welfare of rhino species in neighbouring African countries, populations in Asia and indeed, pockets of captive-bred rhinos (such as those in zoos or sanctuaries) around the world.

As such, we wish to object strongly to the above notice. The International ban on rhino horn trade has been in place since 1977 and it is the duty of the Minister to see that this ban remains adequately enforced. Notice 74 of 2017 is supposedly about domestic trade of rhino horn, i.e. within the borders of South Africa, but contains a thinly veiled attempt to participate, or at the very least, allow for participation in international trade. Before such a far-reaching decision is finalised, we would appreciate the Minister supplying comprehensive answers to the following questions:

1. What is the DEA’s detailed description of “domestic trade”?
2. What studies were done to determine the existence of a market for rhino horn use in South Africa? Where can this data be accessed by the general public?
3. Which stakeholders were involved in the draft compilation of Notice 74?
4. Can the DEA provide proof of public input/participation before the draft of Notice 74?
5. What is the DEA’s definition of “personal use” and can the DEA provide study material used to determine this definition?
6. Should “personal use” within South Africa’s borders involve the medicinal use of rhino horn, how can the Minister justify this in the light of the Minister of Health publishing amendments to the Medicines and Related Substances Act, providing for the regulation of Complementary and Alternative Medicines (CAMs) by the Medicines Control Council (MCC)? This was to protect the public from bogus efficacy claims and potential harmful substances in certain CAMS. Allowing the sale of rhino horn in South Africa for medicinal purposes, would be in direct contravention of these health amendments.
The Minister and her advisors are exhibiting a gross lack of moral consciousness by endorsing the notion of commercially benefiting from a medically fallacious product, which is in effect the equivalent of peddling counterfeit or defective goods. In addition to contravening the Medicines and Related Substances Act as mentioned above, the Minister’s actions potentially also contravenes South Africa’s Consumer Protection Act, which prohibits unfair marketing and descriptions applied to goods which are likely to be misleading, fraudulent or deceptive in any way (section D, 29, b of the Consumer Protection Act of 2008). Can the Minister clarify how and why the draft of notice 74 is not in contravention of the above-mentioned existing pieces of legislation?
7. How was the quota of two rhino horns per person decided upon and is this per week, per month or per year? In fact, have any limits over a period of time been considered?
8. Who is going to benefit (financially or otherwise) from trading domestically in rhino horn?
9. How are foreign nationals going to be able to import rhino horn into their own countries when it could be illegal to do so?
10. Who is going to police rhino horn once it is exported? What is going to stop this horn from entering illegal markets?
11. How is this move going to stop poaching and protect wild rhino populations? Increasing trade of wild animal parts has frequently led to increased demand and increasing poaching.
12. Should the draft Notice be accepted, foreign nationals will be allowed to purchase rhino horns legally in South Africa and export said horns for “personal use”. Surely if “domestic trade” were truly the DEA’s intention, rhino horns should only be able to be bought and sold by registered South African citizens? Why is this not the case?
13. How is this legislation not going to undermine the efforts of bodies such as Interpol which are trying to crack down on the activities of international wildlife crime syndicates?

We urge the Minister to consider the following excerpt from NEMBA:

”Research:
50. (1) The Minister must promote research done by the Institute and other institutions on biodiversity conservation, including the sustainable use, protection and conservation of indigenous biological resources.
(2) Research on biodiversity conservation may include-
(a) the collection and analysis of information about-
(i) the conservation status of the various components of biodiversity;
(ii) negative and positive trends affecting the conservation status of various components; and
(iii) threatening processes or activities likely to impact on biodiversity conservation;
(b) the assessment of strategies and techniques for biodiversity conservation;
(c) the determination of biodiversity conservation needs and priorities; and
(d) the sustainable use, protection and conservation of indigenous biological resources.”

To try and legislate the export of rhino horn is a blatant attempt to try and circumvent CITES regulations. The Minister is reminded that South Africa is a signatory of CITES and that 73% of countries rejected even a limited trade of rhino horn trade at CoP17. We sincerely hope that the CITES Secretariat and other signatory countries see through this subterfuge, and will continue to do everything in our power to ensure this is the case. In the not too distant past, legal – and regulatory loopholes – were exploited by unscrupulous persons (amongst others, those who participated in the so-called “pseudo-hunts” for which South Africa has become (in)famous), whose illegal dealings stimulated demand and led to the increase in rhino poaching.

Furthermore, can the Minister supply proof (other than claiming a reduction in poaching stats) that the recommendations (as summarized in the statement hereunder) made by the members of the Committee of Inquiry (COI) have been implemented?
“The Cabinet also noted the trade mechanisms, but recognised, as indicated by the Committee, that it would not be possible to finalise the institutional design of trade mechanisms without engaging with, and obtaining agreement from, potential trade partners, and on obtaining agreement from government and various stakeholders on their respective roles in the management and control of any trade mechanism.”

With South Africa’s exceptionally poor track record in stopping criminal activities, how is allowing export through OR Tambo only supposed to stop the flow of rhino horn out of the country? The investigation carried out in Vietnam and presented at CoP17 last year by the Wildlife Justice Commission, indicated that at least 50% of poached rhino horns from South Africa were being sold in an area close to the Chinese border. If security at OR Tambo were sufficient, these horns would never even have left the country. What about our borders and ports? We fail to see how a rhino horn trading system will be adequately controlled when top officials in the NPA, Hawks and Police seem to be at loggerheads with each other or when a top official, allegedly on friendly terms with a foreign national implicated in the illegal rhino horn trade, is not investigated.

We find it lamentable that the public is supposed to comment on this issue when the DEA has been tardy in publishing information. Quarterly reports on the rhino poaching situation have not been forthcoming. Press releases have been postponed. Documents such as the full Committee of Inquiry recommendations report have not been published and despite requesting this document, we have still not received a copy. We believe the Minister has undermined the constitutional rights of the general public by intentionally restricting the following fundamental information required by all parties to make an informative, fair and unbiased objection to her proposal to domestically trade rhinoceros horn, or part, product or derivative as a commercial enterprise:

1. National and provincial poaching mortality statistics including an amendment to previous year end totals where outstanding incidents were not subsequently included.
2. Comprehensive research undertaken by the appointed Committee of Inquiry.
3. Research on biodiversity and conservation conducted by external parties and/or appointed internal authorities and/or organizations.
4. Proposed domestic trade mechanism and pricing model.
5. Verification of the number of private owners intending to trade rhinoceros horns and the number of rhinos currently held by private owners.
6. Declaration of quantity of rhinoceros horns in government stockpiles and confirmation of quantity of functional rhinoceros horn suitable for commercial purposes.
7. Results of the population census of rhinoceros in state owned reserves.

In the Minister’s own words: “The South African government promotes and endorses the principle of participatory democracy. This demands that whenever government makes a decision of this nature, we will always, as we have done, consult with the citizens of this country and ensure we make informed decisions.”

We believe that, because domestic trade is an issue of national concern, the requested information cannot and should not be classified as sensitive. Withholding such information is undemocratic, fosters a culture of secrecy, prohibits transparency of the Minister’s full intentions and prevents government accountability. In our opinion this contravenes participatory democracy of the Access to Information Act and prevents the public from exercising their full constitutional rights.

In closing, the poaching of South Africa’s rhinos under Minister Molewa has grown into an economic, political, environmental and security crisis. The Minister has had eight solid years to formulate a contingency plan, implement workable interim solutions and explore and endorse pro-active measures, which promote demand reduction and elimination, both within South Africa and horn consumptive countries.

In our opinion, the above reasons render the outlined intentions of the Minister, as chronicled in the Government Gazette on Wednesday, 8 February 2017, null and void until such information is released and sufficient time allowed for rigorous public scrutiny thereof.

Minister Molewa’s continued failure to act with due diligence and integrity in accordance with the South African Constitution (Section 24b, clause iii of the Constitution of the Republic of South Africa Act, 1996) has damaged credibility, nurtured hostility and reduced public confidence in the Department of Environmental Affairs as a whole. We implore the Minister to cease her pervasive non-compliance and non-performance in this matter and to act in a way that illustrates concern for all the citizens of South Africa affected by this decision, instead of pandering to a handful of individuals who stand to profit from it.

THE ADMINISTRATORS, SAVE OUR RHINO

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