Judge Francis Legodi of the High Court in Pretoria, South Africa yesterday set aside a moratorium on the in-country rhino horn trade, causing consternation in conservation circles worldwide. Two prominent wildlife farmers (including John Hume, the world’s largest rhino owner) had applied to the court to overturn the moratorium, which they claimed was irrational, unreasonable and a violation of their constitutional rights.
The moratorium was imposed in 2009 by the environment ministry because of its view that the domestic trade was providing a loophole through which poached horn was flowing into international trafficking networks. Supporters of the moratorium argue that because there is no substantive consumer market for rhino horn in South Africa, there is little incentive for South Africans to trade horn unless it is ultimately being sold on highly profitable Asian black markets.
Judge Legodi set aside the moratorium because of procedural errors made by the Department of Environmental Affairs (DEA) just prior to it coming into effect and not because he agrees with the wildlife farmers’ substantive arguments regarding the rationality, reasonableness and constitutionality of the moratorium.
In crude terms, the judge struck down the moratorium on technicalities, not because he found the rhino farmers’ core arguments to be valid.
In a 39-page judgment, Judge Legodi finds that the DEA had not advertised its intention to impose the trade moratorium in a national newspaper, as required by law, nor had it clearly advised the public that objections could be made against the moratorium prior to it coming into effect. He also finds that there is no compelling evidence that lifting the moratorium would cause rhino poaching rates to rise, as the DEA’s lawyers had asserted in court.
Significantly, Judge Legodi finds that the moratorium is not irrational or unlawful, nor necessarily unreasonable. He also finds that it is not unconstitutional to regulate trade in rhino horn.
The judgment can thus be seen as supporting the right of government to control the trade in privately-owned wildlife and wildlife commodities, and is not the legal breakthrough that pro-traders were hoping it would be.
Despite today’s decision, South African rhino horn owners are unlikely to be able to sell their stocks in the near future. The Department of Environmental Affairs (DEA) almost immediately announced its intention to appeal the decision, in which case today’s judgment will be normally be suspended until the appeal process is complete. Regulations requiring would-be sellers to apply for trade permits from conservation authorities before selling their horn are also still in force.
WildAid remains opposed to legalizing the trade in rhino horn because of the danger that this would stimulate runaway consumer demand for the product and drive an increase in poaching similar to the massive increase in poaching seen after the 2008 “one-off” sale of elephant ivory from African stockpiles.