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Submission to the high-level panel on the management, breeding, hunting, trade, handling and related matters on Elephant, Lion, Leopard and Rhinoceros.

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Disclaimers

Please note that this Submission is non-exhaustive and does not represent all the responses to the issues and matters raised herein. We reserve the right to provide any further or additional information on aspects raised herein.

We are submitting so as to be able to record our initial high-level views and resources; however, our Submission is by no means a complete one in relation to the topics, objections or matters that may be raised.

We wish to note upfront that we believe there are various issues with the contents, processes, and related matters in respect of the Panel generally, as well as the Call for Submission. Consequently, our Submission does not constitute a waiver of any rights we may have, including but not limited to challenging the Department, the High-Level Panel/ Advisory Committee or otherwise, or take any other action we deem fit in respect thereof.

Specifically, we believe that insufficient time and notice has been provided for us to provide complete comments. The entire process on this Call for Submissions has been done during a declared National State of Disaster and lockdown of the country. During this time, particularly as NGOs, we have experienced major strain on our resources and capacity to deal with matters.

The views expressed herein are those of the two organisations and do not necessarily represent those of every individual director, member, employee, representative, volunteer, affiliate or others of either EMS and/or ALRSA.

We have attempted to be as comprehensive as possible, given the time, resources and other relevant factors and constraints, however we may not have responded or included each and every relevant consideration. Accordingly, it should be noted that different persons have provided input and we have tried within these constraints to collate this input as effectively, consistently, and practicably as possible.

We have further attempted to reference as footnotes or hyperlink the resources relied upon for this submission. Should you require any further information in respect of these or the Submission more generally, we are happy to provide these.

We reserve any and all rights, remedies and actions available to us.

Organisational Background and Declaration of Interest

This Submission comes from two registered South African non-profit organisations which have a substantial interest in the issues to be considered by the Panel. We have, for years, consistently expressed interest in these issues to DEFF, other government departments, NGOs, the South African public and other stakeholders – both privately and within the public domain. We have furthermore requested engagement with and feedback from the relevant authorities in respect thereof. We have provided various formal submissions, sent letters, emails, and other correspondence, attended presentations and meetings, and otherwise engaged on these matters (where such engagement has been possible). Some examples of these have been included herein (see for example Appendix I), however this is not an exhaustive list. Both organisations are interested stakeholders and representatives of vulnerable populations within South Africa, including human as well as nonhuman animals. Both organisations have, within their core focus, concepts of social justice and appreciate the need for intersectionality in their approaches.

EMS Foundation

The EMS Foundation (South Africa) was established in November 2014. As our Foundation was established for public benefit purposes we are a Not for Profit Organisation (NPO) (registration number: 168-304NPO) and Public Benefit Organisation (PBO) with section 18(a) status. (PBO Reference Number: 9300 53286).

Our key purpose is to alleviate and end suffering, raise public awareness and lobby and empower, provide dignity and promote the rights and interests of vulnerable groups, particularly children, the elderly and wild animals.

The EMS Foundation is a South African based social justice NGO with the purpose of achieving lasting solutions, alleviating and ending suffering, raising public awareness and providing dignity through supporting and sustaining humane solutions, interventions and research for the protection of children, the Aged and wildlife.

Animal Law Reform South Africa
Animal Law Reform South Africa (“ALRSA”) is a non-profit company and a registered NPO (Number 238-234 NPO).

ALRSA is composed of compassionate legal professionals and envisages a society and legal system that adequately protects both humans and nonhuman animals.

We work on connecting three core focus areas: Animal well-being, Social Justice and Law. We focus on a few key areas that we believe will bring about the most change. These focus areas include: Legislative and Policy Reform; Litigation and Legal Services and Education and Research.

Networks, Fora and Involvements

In addition to our individual organisational work, each of EMS Foundation and ALRSA are founding members of the following relevant bodies:

  1. Wildlife Animal Protection Forum South Africa8
  2. Pro- Elephant Network9
  3. ALRSA is a member of the Lion Coalition10

Our individual members, founders and directors of our organisations have collectively decades of experience working on matters relating to law; human rights; animal welfare; conservation; international and foreign relations and various other relevant experience.

We are thus extremely well placed to not only make this Submission but to engage on matters in respect of the High Level Panel. We welcome the opportunity to make such Submission and look forward it being properly considered by the Panel, and the Department more broadly.

We look forward to engaging further on the issues contained herein.

EXECUTIVE SUMMARY

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The Submission is divided into five focal Sections, with numerous parts, paragraphs, components and appendices. It is voluminous and deals with a number of issues impacting on the four subject species of the Panel, the Panel itself, the Department and related matters.

However, the fundamental and underlying issue which runs throughout the Submission can be traced back to the interpretation of Section 24, Chapter 2 of the Bill of Rights in the South African Constitution.11 As the supreme law of the land, the lex fundamentalis, all law must be consistent with it and it seeks to establish a society based on democratic values (human dignity, equality and freedom); social justice; and fundamental human rights.

The Bill of Rights is the cornerstone of democracy in the country and the state must respect, protect, promote and fulfil the rights in the Bill.

Despite its aim to protect the environment and human rights, the approach adopted by the DEFF to interpreting one of its key terms, the ‘sustainable use of natural resources’ has been detrimental to both of these aims. The notion of ‘sustainable use’ has been utilised to justify rampant and harmful use and takings of animals (as “natural resources”), including overuse, and the failure to consider the welfare of animals or nature. Animals, including wild animals, are considered to be objects rather than legal subjects capable of holding legally enforceable rights. The welfare of wild animals has also been divorced from their management, with continued lack of constitutionally mandated intergovernmental co-operation between those organs of state charged with a (limited) mandate animal welfare and those mandated with environmental management.

EMS and ALRSA strongly submit that the current interpretation of “sustainable use”:

  •   is ecologically unsustainable;
  •   is non-compliant with constitutional values;
  •   is inconsistent with rulings of South African courts;
  •   does not reflect the majority of the South African public’s views;
  •   is anachronistic and diametrically opposed to the international trend towards eco-centric philosophies of law (e.g. Earth Jurisprudence) that seek to regulate human beings in accordance with the understanding that we are all members of a community of life from which we derive our wellbeing;
  •   is harmful and exploitative;
  •   raises a plethora of other issues (some of which have been included in this Submission, whichis non-exhaustive);

  is inconsistent with goals of reducing inequality; and

  fails to recognise the rights and cultures of indigenous people and local communities in SouthAfrica.

We call for the Minister, the Department, and in its work the High Level Panel, to correct its approach to section 24 of the Constitution in a manner which considers animal welfare, non- consumptive use, and promotion of internationally accepted thinking – requiring a shift from considering animals as simply natural resources to be utilized, to considering their intrinsic value and the value they bring to the current and future citizens of the country, communities, and other stakeholders. We align ourselves here with the submission on the constitutional issues raised submitted by The South African Institute for Advanced Constitutional, Public, Human Rights and International Law (“SAIFAC”), a centre of the University of Johannesburg. That submission recognises that the notions of ‘conservation’ and ‘sustainable use’ should be interpreted in terms of what it terms an ‘integrative’ approach rather than the existing ‘aggregative’ approach.Without dealing with this issue as a fundamental start, the remainder of the issues to be deliberated on by the Panel, including specific matters related thereto, will not receive due and proper regard.It has never been more important than now, in the wake of a global pandemic affecting the entire population of human and nonhuman animals, to reconsider our approach and future.

As the Department’s Deputy Director-General: Biodiversity and Conservation, Mr Shonisani Munzhedz stated during UNEP World Environment Day 2020 webinar “The COVID 19 Pandemic has put nature into sharp focus as we recognise the need to take better care of nature so that nature can in turn take care of us.”We believe that we cannot simultaneously aim to take care of nature (and accordingly ourselves and the future) while continuing and promoting exploitative and harmful practices to it.

As a starting point, we hereby call on the Department to re-examine its current understanding of Section 24. It should do so not only in relation to the species-focus of the Panel, but wildlife more generally.

Furthermore, and as highlighted throughout the Submission, we call on the Department to comply with broader constitutional values and rights, legislation and other principles. These include, amongst other issues:

  1. Transparency: greater transparency in respect of actions taken by the Department generally and the Panel. These include but are not limited to in respect of processes, functioning, collaboration, particularly when these impact on the South African public, our heritage and our future. At a fundamental level this requires an acknowledgement and proper implementation of the Constitutional principle that the public has a right to all the information held by the State, except in the very limited circumstances where that information is protected by law. Effect must be given to that right by the Department in its application of the laws and in its day-to-day functioning Access to information from the Department is essential for members of the public to be able to exercise their section 24 right to have the environment protected;

2. Public Participation: genuine, meaningful, open public participation and transparent decision-making. It should not accept merely participation by selected groups and individuals that share entrenched belief systems that represent colonial thinking. Public participation must include all relevant stakeholders, and should not end with submissions. There should be explicit acknowledgment of submissions, and after an open process, there should be feedback, further engagement and responses provided. It should not merely be a “tick the box” exercise and requires accountability and interaction.

For ease of reference, the focal Sections can be broken down as follows:

  •   Section I deals with Constitutional and Overarching Considerations. These form the fundamental basis of our Submission and which are summarised to some extent in this Executive Summary above.
  •   Section II sets out non-exhaustive and Selected Objections to and Issues with the High Level Panel specifically. These include but are not limited to its Composition, Functioning, the Call for Submissions and ToR and additional relevant factors. In summary they are that:o the public participation process associated with the nomination of the Panel members and the call for submissions does not meet the standard of meaningful public participation prescribed in section 2(4) of the National Environmental Management Act, 107 of 1998 (NEMA) for the following reasons:
    •   the whole of the period for public submissions has fallen within Lockdowns declared in terms of the National Disaster Act which has placed serious constraints on all stakeholders’ ability to respond to the call for submissions;
    •   the Original Call for submissions and indeed the extension notice were published at a time when information was rapidly emerging about the origins of the COVID-19 pandemic, and this continues to be the case. Despite this, none of the documents published make any reference to the pandemic. It has therefore not been possible to make proper submissions on the very important implications of the COVID-19 pandemic for wildlife policy formulation, particularly policy on intensive breeding and trade, other than that it is clear that a precautionary approach is required;
    •   TORs for the Panel were never gazetted and were not circulated until very late in the process, well after the call for nominations for members of the Panel and the establishment of the Panel, and nearly half-way through the period for public submissions. There was no public consultation on what their scope should be. The TORs are by no means comprehensive nor indicative of specific issues, requirements and other factors which we believe should be included. This hampered the ability of stakeholders both to make proper nominations for the Panel and to respond to the call for submissions;
  •   key stakeholders, of whom the Department maintains a database, were not advised of any the published documents per email, as is the usual practice;
  •   as a result, the period for public submissions was inadequate, despite its extension and the public has been significantly prejudiced;

– the current composition of the Panel is such that individuals with a vested interest in consumptive and exploitative models of conservation and sustainable use heavily predominate, leading to the likelihood that other models will not be adequately considered, if at all. Panel members were not required to disclose their interests. The panel does not include a veterinarian or any experts in animal welfare or protection; animal law, human rights and environmental law; zoonotic diseases; indigenous science and traditional knowledge systems and other important disciplines;

– it is completely unclear how the Panel will function and how it will engage stakeholders in future;

– All of the species which the Panel is mandated to consider are subject to existing regulation (laws, Biodiversity Management Plans, Norms and Standards) developed with the input of experts in the individual species. Given that the Panel is tasked with reviewing these instruments and is dealing for four separate, iconic species, it is essential that there should be adequate input by scientific experts with specific expertise in the four species. In addition, final regulations relating to the trade in rhino horn, a subject which the Panel is expressly required to consider were published on 3 June 2020, during the period for public submissions;

– all spheres of government have a Constitutional obligation to cooperate with one another by informing one another of, and consulting one another on, matters of common interest and by co-ordinating their actions and legislation with one another.12 It is unclear to what extent this is taking place particularly since DALRRD has since last year embarked on a process of amendments to agricultural legislation designed to facilitate and develop an international game meat industry expressly involving lion, rhino and elephant. There is also no indication of how the Panel will consult or coordinate with provincial governments which have concurrent competence on environmental protection in terms of the Constitution, or with other national government entities which are stakeholders;

– it is unclear to what extent the Panel is interacting with the Parliamentary Portfolio Committee on Environmental Affairs for Environmental Affairs (“PPCEA”) whose on the Colloquium on Captive Lion Breeding for Hunting in South Africa which was adopted by the National Assembly in December 2018. The report resolved that the Department should initiate a policy and legislative review of the lion bone trade and captive breeding industry “with a view to putting an end to this practice”. The Terms of Reference for the appointment of the HLP do not refer at all to the PPCEA, and require the HLP to “provide policy positions” on the breeding and hunting of captive bred lions, and the trade in lions bones and leopard skins;

– engagements with other stakeholders on issues related to the call for submissions are taking place without the knowledge or participation of EMS Foundation or ALRSA, including a multi-stakeholder engagement with respect to the lion bone trade held in December 2019 to develop a guideline on dealing with welfare matters in decision- making and the development of an MoU with the NSPCA13 on welfare matters relating to conservation.

  •   Section III sets out non-exhaustive and Selected Broader Concerns relating to the Department more generally and matters which have an impact indirectly on the Panel and which are of relevance to the Submission and the Panel.
  •   Section IV sets out non-exhaustive Specific Feedback on Terms of Reference (More particularly, some of the actions to be considered by the Panel such as hunting, trade and related matters. It also provides feedback on the four subject species. More specifically, some key factors in relation to them, including practices which we are of the view should be prohibited, problems with existing legislation and key factors that must be considered by the Panel.
  •   Section V includes certain Concluding Notes and Requests to the Department. More specifically, these are broadly framed under the following headings:
    1. Revision of policy framework in light of Section 24
    2. Correction of the deficiencies in the composition of the Panel and the process adopted
    3. Respond to stakeholders and requests for information
    4. Transparency
    5. Participation
    6. Other High Level Conclusions and Requests

SECTION I: CONSTITUTIONAL AND OVERARCHING CONSIDERATIONS

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PART A: BACKGROUND

  1. We note that as per the Extension Statement (emphasis added):“The panel is guided primarily by the Constitutional Mandate in the Bill of Rights, especially in terms of section 24 which provides for our environmental rights, but also considering all elements of the Bill of Rights, including the foundational values of dignity, achieving equality and advancement ofhuman rights and freedoms, the necessity for transformation and restitution.”
  2. As an integral part of our Submission we reject the Department’s current approach to Section 24 of the Constitution, specifically as it pertains to the interpretation of the terms ‘conservation’ and ‘sustainable use of natural resources’ when applied to wild animals. We will focus on the notion of ‘sustainable use’ in what follows given it covers many of the critical issues.
  3. On ethical and legal grounds, we submit that the Department continues to misinterpret these terms. Should the Minister, the Department and the Panel continue to rely on an interpretation that is exploitative and harmful, we request a formal legal opinion to be provided as to why the Department believes this is correct and the legal basis for this.
  4. Section I of this Submission provides a high level analysis of and commentary on government’s current usage and approach to sustainable utilisation. It encompasses themes present throughout our Submission, which are not only grounded in science and law but reflect public sentiment within South Africa and internationally.
  5. It calls for a new interpretation and a change to current policy and legislation.

PART B: SAIFAC SUBMISSION

SECTION I: CONSTITUTIONAL AND OVERARCHING CONSIDERATIONS

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PART A: BACKGROUND

  1. We note that as per the Extension Statement (emphasis added):“The panel is guided primarily by the Constitutional Mandate in the Bill of Rights, especially in terms of section 24 which provides for our environmental rights, but also considering all elements of the Bill of Rights, including the foundational values of dignity, achieving equality and advancement ofhuman rights and freedoms, the necessity for transformation and restitution.”
  2. As an integral part of our Submission we reject the Department’s current approach to Section 24 of the Constitution, specifically as it pertains to the interpretation of the terms ‘conservation’ and ‘sustainable use of natural resources’ when applied to wild animals. We will focus on the notion of ‘sustainable use’ in what follows given it covers many of the critical issues.
  3. On ethical and legal grounds, we submit that the Department continues to misinterpret these terms. Should the Minister, the Department and the Panel continue to rely on an interpretation that is exploitative and harmful, we request a formal legal opinion to be provided as to why the Department believes this is correct and the legal basis for this.
  4. Section I of this Submission provides a high level analysis of and commentary on government’s current usage and approach to sustainable utilisation. It encompasses themes present throughout our Submission, which are not only grounded in science and law but reflect public sentiment within South Africa and internationally.
  5. It calls for a new interpretation and a change to current policy and legislation.

PART B: SAIFAC SUBMISSION

  1. We refer to the Submission to the HLP as made by The South African Institute for Advanced Constitutional, Public, Human Rights and International Law (“SAIFAC”) of the University of Johannesburg attached hereto as Appendix III.
  2. The SAIFAC Submission recognises that the environmental right (Section 24) requires a change in the approach of the South African legislature and executive towards animals. That has been expressly recognised by the Constitutional Court which has recognised the ‘intrinsic value of animals as individuals’ as well as the importance of adopting an ‘integrative approach’ to understanding the relationship between conservation and animal welfare. This submission focuses on elaborating upon what is required by this integrative approach and contrasting it with an alternative aggregative approach which represents the Department’s current understanding of how it approaches its tasks in relation to animals.

3. More specifically, it states:

“The aggregative – or ‘consumptive use’ – approach essentially focuses simply on broad, collective environmental goals, such as the long-term survival of a species or protection of biodiversity. These goals are also usually understood from a perspective of how humans can benefit economically from achieving them. In doing so, the aggregative approach regards individual animals in a purely instrumental way – they are merely means for species survival which is a means for self-interested profit maximisation. Animals should not be depleted entirely in the short-term as this will prevent the use of them in the longer-term. This approach, it is argued, is deeply flawed for two mains reasons.

First, in instrumentalising animals, it fails to recognise their intrinsic value as individuals – which is required by the new constitutional framework. Secondly, the approach is self-defeating: although, it purports to aim to achieve long-term sustainability, it promotes attitudes of pure self-interest in relation to animals. Given behavioural problems of freeriding, short-term thinking and a lack of enforcement capacity, the approach lays the ground-work for the destruction of species, as has been evidenced by the rhino poaching crisis. It also harms humans by failing to recognise the interconnection between ill- treatment of animals and harms to humans. It also fails to account for the relationship between individuals and the collective.

To address these shortcomings, it is necessary to adopt the ‘integrative approach’. Foundational to the integrative approach is the notion that an attitude ofrespect must be adopted towards individual animals that make up a species and the components of biodiversity. The integrative approach, as its name suggests, focuses also on the relationships between individual animals and the environment more generally, including their connection to human beings. The goal is not simply to exploit nature for our economic benefit – it is to live within relationships of respect with other humans, animals and the environment. The integrative approach is deeply consonant with the ethic of ‘ubuntu’ that is a central feature of African philosophical systems and the development in South Africa of a post-colonial approach towards animals.

The integrative approach recognises the intrinsic value of animals. Through requiring respectful treatment of animals and recognising the interrelationship between animals and humans, it also advances the well-being of humans. Through not instrumentalising animals, it avoids the problems of encouraging free-riding and short-term approaches to wildlife. It also will inevitably improves the realisation of collective goals such as longterm species survival, given its encouragement of respect to individuals.

The submission ends with a consideration of possible changes in policy required by the integrative approach. The DEFF needs to recognise that it clearly has a mandate to deal with animal welfare considerations. Moreover, the integrative approach will require prohibitions against all forms of exploitative behaviours towards wild animals and the four species in particular. The integrative approach allows for humans to benefit from the animals who co-inhabit South Africa with us in a range ofways: apart from the economic benefits oftourism, there are opportunities for education, filming and research consonant with an ethos of respect.

The integrative approach will require a change in the way the government – and some in the private sector – have approached animals as simply a resource to be utilised for their own ends. Instead, the lives of animals will matter as well as their needs. That will require a change to some of the practices South Africa has adopted. The South African Tourism Services Association, for instance, has led in this sphere through providing guidelines to its members about animal interactions that meet the requirements of the integrative approach.

The HLP and the DEFF have an important choice: to continue with the status quo – which is not consonant with our Constitution – or to take South Africa in a different direction, laying the ground- work for a sustainable and humane future.”

  1. We echo the sentiments of the SAIFAC Submission – particularly, on the constitutional framework that should guide the work of the HLP. We note that in recent years, the Constitutional Court, Supreme Court of Appeal and High Court have provided guidance on the framework to be adopted in interpreting the environmental right in relation to wild animals. These statements, in our view, demonstrate the need for a shift in the approach the Department has adopted in the past which has not adequately reflected the constitutional change that is required.
  2. Theyrequirearejectionofthe“aggregativeapproach”andanembraceofthe“integrative approach”.
  3. We agree with and incorporate from the SAIFAC Submission that:“Decision-making concerning the environment must take account of animal welfare and must have regard to the intrinsic value ofanimals. These are the clear legal consequences ofthe recent court decisions and the DEFF is required to adhere to them. The same is true for any recommendations of the HLP – they take place within a constitutional framework and must therefore demonstrate they have internalised the changes that are required by the Constitution in the approach of the government to wild animals.”

PART C: OTHER SECTION 24 CONSIDERATIONS

1. In addition to the considerations relating to the term “sustainable use”, we are of the view that the current policy and actions of the Department fail to adequately consider and implement other elements of the guaranteed right to environment including but not limited to the following phrases (non-exhaustive):

  1. “for the benefit of present and future generations…” (i.e. encompassing the ideas of intergenerational equity as one issue – on which there are substantial resources)
  2. “through reasonable legislative and other measures” (in this regard see portions of the Submission relating to problems with the current regulatory framework, and more specifically self-regulation);
  3. c. the broader environmental injunction that practices should not be harmful to one’s “health or well-being”;
  4. d. “ecologically sustainable development” – with a particular recognition that this is not just sustainable development but has the qualifier ‘ecologically’.

2. As indicated in the WAPFSA Letter and reiterated herein:

  1. “The Department has consistently only promoted their own narrow interpretation of section 24 of the Constitution – essentially only focusing on “sustainable utilisation…and development” without taking into account the remainder of the section of the Constitution, nor the spirit of the Constitution itself, nor its values. We reject this interpretation.”
  2. “Further to the above disregard for statements and adopted reports of the legislative branch of government, the Department seems to also have disregard for the judiciary. In terms of statements made by both the Constitutional Court as well as the Supreme Court of Appeal, the integrative approach14 must be considered in conservation.15 “
  3. In August 2019, the High Court16 confirmed that welfare must be considered as integral to conservation. More specifically, the court said that: “In addition and from an environmental perspective the treatment of lions in captivity as an environmental issue and its relationship with the commercial activities that arise from the operations of lion breeders in this case the export of lion bone) is inextricably linked to the constitutional issue of what may constitute the elements of the right to an environment and the right to have it protected for the benefit of this and future generations that Section 24 of the Constitution articulates.17 (emphasis added)
  4. Yetthedepartmenthasconsistentlystatedthatwelfareisnotwithinitsmandate.In light of this judgment, the Department is required to change its stance and consider welfare as an integral part of its mandate. The Department is also required to consider and apply the “integrative approach” which has been adopted by the highest court in South Africa (namely that the individual interests of animals as well as their welfare must be considered).

3. Given the Statements made in the Extension Statement, as well as the aforementioned statements from the highest courts in South Africa, we are of the view that an interpretation of section 24, in particular of “sustainable utilisation” which does not consider the individual interests of the animals impacted is unlawful, unacceptable and subject to challenge.

PART D: CONSTITUTIONAL RIGHTS AND VALUES MORE BROADLY

  1. As aforementioned, the foundational values of the Constitution include dignity, equality and freedom.
  2. There is a growing body of research and resources that incorporate these values and the achievement thereof, together with an ethos of respect for nonhuman animals.
  3. We note that recent research shows, for instance, the highly racialised and discriminatory practices in the hunting industry18 as well as the exploitation of poor black workers who often have to deal with wild animals with very little safety and minimal pay.19
  4. Currently, around the world, thousands of people are calling for an end to racial injustice, inequity and oppression.
  5. As mentioned in the SAIFAC Submission, the current “aggregative approach – “…has really been a continuation of the colonial attitude to the environment as well as the ethos inculcated by the apartheid government.
  6. The wildlife sector in South Africa is an example of anti-constitutional values, with blatant inequality in the ownership and management of wild animals, wildlife operations and land on which these animals live and are utilised.
  7. It is clear that there is an interlinkage between the oppression of nonhuman animals and human animals and this is a subject which is increasingly being developed,20 and has come to the fore during the COVID-19 pandemic.21 The answer is not to widen the oppression of non-human animals but to end it and change the relationship between humans and non-humans.

PART E: TRANSFORMATIVE CONSTITUTIONALISM

  1. We submit that the Panel should take due consideration and application of concept of “transformative constitutionalism”, that the Constitution in South Africa was not designed simply to entrench the status quo: rather, it was enacted for the purpose of fundamentally transforming society.
  2. More specifically, we refer to the work of Professor David Bilchitz in this regard,22 which asks a critical question as to whether transformative constitutionalism requires the recognition of animal rights.
  3. All around the world, countries are starting to change their approach towards animals, as well as the environment more generally. This has been recognised through developing jurisprudence, court decisions, policy and legislative considerations. South Africa has the opportunity to lead the way in this regard. We refer to Section III of this Submission, Part F for more specific examples of this.

PART F: A SOCIAL COMPACT WITH THE ENVIRONMENT AND WILDLIFE

  1. Addressing the weaknesses in the wildlife trade system has policy implications. Moreover, achieving the National Development Plan’s Apex Priorities and sustainable development are not just simply about growing the economy. All social compacting goals depend upon ecological preservation, ecological integrity and ecological sustainability. Failure to include these ‘bigger picture’ context issues within our policy and priority framework will move us away from our sustainable development and National Development Plan goals.
  2. Humanityisatriskofoversteppingearth’splanetaryboundaries.Partofthereasonisthatwe have collectively failed to value the ecological systems (and the individuals that comprise them) on which our survival ultimately depends. Instead of conserving that which has been entrusted to us, we have over-exploited terrestrial and marine ecosystems. The upshot is that we have created impending climate tipping points, the probability of which is ‘too risky to bet against’. The stability and resilience of our planet is in peril. These ‘big picture’ issues need to include a review of policy related to the wildlife trade and wildlife in general.
  3. On the ground, our government’s “sustainable use” policies are translating into a war against wildlife. We urgently need new, ethics-based approaches to wildlife conservation. But the way conservation is practised in South Africa has become part of the problem. The trade, sale and hunting of South Africa’s wild animals is driven by commodification, commercialisation and profit rather than by robust science, ethics or compassion. The threats wild animals are facing are powerfully linked to South Africa’s current uncompassionate conservation policies of overt consumptive use and inadequate policing and enforcement measures.
  1. Wild animals, which suffered under colonialism and apartheid, now continue to be victims under “sustainable use” policies. Government agencies hide behind a flawed approach to this concept. A consequence is that it has become an alibi for profit-making, exploitation and gratuitous violence against wild animals.
  2. In the South African context, Section 24 of the Constitution enshrines the right to an environment not harmful to health or well-being. In so doing, it places ecological sustainability at the centre of its approach to how environmental policy should be designed. Ecological sustainability is, therefore, the key to realising this right.23 Development projects should support this key concept and development considerations must be weighed against this criterion, with a further emphasis on inter-generational equity.
  3. In other words, development decisions have to be informed by the imperative of ecological sustainability and resources can only be utilised if they do not violate this imperative or undermine the ability of future generations to live in a healthy natural environment. This is fundamentally different to the way in which the South African government is currently interpreting this critical right. To date, the Department has been managing the environment based on reductionist models inherited from the extractive colonial and apartheid eras that essentially viewed the natural environment as a type of farm where public power was used to promote and protect the interests of a small part of the population.
  4. Exploitative and cruel practices such as captive lion breeding for human interaction, canned hunting and the lion bone trade have been rationalised under the banner of ‘sustainable use’. Currently the mantra of ‘sustainable use’ is repeated constantly and goes unquestioned in the context of sustainable development, which includes the international trade in endangered species. The question as to whether the ‘use’ is actually sustainable under real world conditions is never asked. This needs to change and it needs to change urgently, given the extraordinary threats to biodiversity.
  5. The promotion of international trade in wildlife (other than for in situ conservation purposes) is inconsistent with the State’s role as custodian of the environment and of biological diversity, and with the environmental right in section 24 of the Constitution. Section 24 has been improperly reduced to a mere catchphrase―’sustainable use’―and an approach to it that incentivises the objectification of the natural order and the living beings that are integral to it, which in turn leads to their commodification.
  6. Environmental policy has typically been guilty of reducing the country’s natural resources to a mere ‘faunal biological resource’ and the unethical exploitation thereof has been glibly reduced to ‘sustainable use’, which in turn became a byword for attempting to justify rapacious extraction and exploitation. This has led to a range of highly problematic policy positions from defending the captive lion breeding industry to promoting a global return to trade in products such as rhino horn and ivory.24
  1. ‘Sustainable use’ policies are located within a wider context of: the illegal trade; damage to South Africa’s reputation and tourism potential; the danger of pandemics due to zoonotic overspill and South Africa’s role through ineffective biosecurity control; and South Africa’s conservation position within the international community. South Africa’s ‘sustainable use’ policies cannot be allowed to condone criminality and governance shortfalls and damage the country’s tourism reputation.
  2. A lack of clarity as to what this concept of ‘sustainable use’ actually means, and how it should be uniformly understood and operationalised is a divisive fault line and ultimately destructive for collective efforts to protect wildlife. It also speaks to the broader notion of how we view and respond to our living planet. It is our view that, given the increasingly evident effect of humanity’s environmentally destructive systems of production and consumption, a highly precautionary stance should inform the interpretation of ‘sustainable use’ (Leach et al., 2013; Wiersema, 2015).
  3. Essentially, South Africa’s approach to environmental management is crudely consequentialist – if the ends are deemed to justify the means, even inherently cruel, immoral and unsustainable practices have been justified. A more thoughtful policy paradigm, one that places ecological sustainability at the forefront of any economic decision, needs to be put in place to address environmental challenges―an integrative approach over an aggregative approach25. Species are composed of individual animals, birds and reptiles that each have a unique role in contributing to ecological functionality. If we treat them with respect, and work to preserve and extend their ecosystems, the planet―and humanity―can flourish. Professor David Bilchitz makes the critical point that unless animals are respected individually and unless it is understood that each individual plays a critical role in the functioning of the species and the landscape, then starting from the species level will result in conservation collapse.26 Animals are not species; they are individuals which together constitute a species.
  4. A useful point of departure is also to locate environmental policies within an overarching framework of ‘Doughnut Economics’, in which we reach a ‘safe and just’ space characterised by justice and ecological sustainability instead of endless resource extraction.27 South Africa needs to move away from the model that has entrenched global oligopolies at the expense of local, artisanal production.28 A new economic model has to place far higher and more realistic value on irreplaceable biodiversity. Not everything has a dollar value, but if one has to be attributed, it needs to be informed by the true opportunity costs of foregoing that biodiversity. Moreover, our accounting systems cannot continue to allow polluting and environmentally destructive producers to offload negative externalities (the divergence between private returns and social or environmental costs) onto those who can least afford to bear them – the poor.29
  1. If we are to halt the sixth mass extinction, we require at least half of the world’s land to be conserved under protected areas.30 Ecological recovery is remarkable if natural systems are protected from extraction. The biggest threats to most wildlife species at present are habitat destruction and fragmentation. Local communities need to be incentivised through carbon credit schemes that pay community members directly to conserve and restore ecosystems and the biodiversity that they contain. The larger the contiguous area conserved, the greater the ecological benefit. In other words, ecological functionality tends to improve exponentially with contiguous scale expansion. Elephants, for instance, if given enough space, can reach threshold densities from which they then disperse. This produces patch heterogeneity – uneven impacts across a landscape – and regenerative vegetation growth in a dynamic system. Carbon efficacy is vastly improved in a dynamic system versus one that is managed to maintain a static aesthetic state. South Africa needs to move away from seeing conservation as a matter of farming the wild, and – rather – truly wilding the farm.31
  2. In South Africa, this means that we stop treating the 21 million hectares of land under 9,000 private wildlife ranches as a conservation success story. Our objective should be to drop the fences between these fragmented reserves where viable and restore ecological functionality on a scale previously unimagined. We also need to increase the number of UNESCO World Heritage Sites to keep them exempt from exploitation.
  3. Instead of viewing wild animals as a commodity from which some kind of short-term economic rent can be derived, South Africa requires a policy that views wild animals as integrally connected to the country’s conservation and tourism reputation, possessing both inherent biodiversity value and long-term economic value. Aside from the fact that there is a strong case to be made for some wild animals like elephants to be granted non-human personhood,32 wild animals generate far larger photographic tourism/wildlife watching revenue over a lifetime than being shot once for a trophy. Moreover, if we valued carbon sinks properly, and the ecological functionality required to optimise them, then the incentives would be loaded in favour of abandoning the current, fragmented and short-term model in favour of the long-term model that creates value through connecting landscapes through creating corridors.
  1. It is critical that the new conservation model for South Africa emphasises the importance of creating migratory corridors between currently fragmented properties. Elephants and lions are both migratory. Giving them space in which to exercise their natural movements will greatly reduce the problems currently created by the imposition of fences in arbitrary places (especially for elephants). These problems currently result in extensive translocations of elephants (a practice that has been ongoing since the end of the Kruger and KZN culls of the 1990s) and the more effective method of immuno-contraception to keep population growth figures reduced.
  2. Building protected corridors provides an opportunity to do conservation differently. In any given corridor project, local community buy-in is paramount as a first step. Community members need to be active participants and co-owners of the project. Buffer zones need to be created on which conservation-compatible agriculture can be practiced and local schools and clinics built and staffed. The produce from this organic farming should be sold into the tourism value chain to local lodges, which should be incentivised to buy food from local community partners wherever possible. Moreover, employment in ecotourism – which currently accounts for one in every seven jobs in South Africa – should be predominantly from local communities. If talent is not currently available, upskilling opportunities should be made available by the tourism industry. Paying guests could even contribute a day of their safari to impart relevant skills in the local schools. This kind of model reflects an integrative worldview rather than a piecemeal aggregative sustainable use view. Responsible ecotourism must be built on empowering local communities and building truly intact, functional ecosystems. Children in South Africa that have previously been excluded from the domain of conservation need to be included in the irrefutable benefits of being integrally connected to nature from a young age. This generates stewardship through inclusion instead of resentment through exclusion.
  3. Protection of South Africa’s wild life heritage has to become the mandate of all citizens rather than something left to a select few. Trophy hunting, captive big-cat breeding, farming wild animals, the trade in bones, ivory,33 rhino horn (all wild animal parts) and live animals all needs to be terminated and replaced with new policies reflecting the principles outlined above.

PART G: TOWARDS A NEW APPROACH

1. A more inclusive Regime

  1. The environmental right should, in our view, be understood to include a consideration of the inherent value, worth, and rights of nature and nonhuman animals; a broad consideration of the term “conservation” which would include all animals’ well-being and not simply that of humans; and one which would ensure the benefit of this understanding for future generations (rather than simply ensuring that wild animal populations are at a certain level due to practices such as intensive breeding).
  2. It would consider, for conservation or sustainability purposes, only those wild animals actually living in the wild, in natural circumstances (and perhaps wild animals being rehabilitated for a return to the wild). It would also factor in considerations relating to those communities and persons that live in close contact with free-roaming wild animals, and involve such communities in efforts to protect them, involving such persons in the benefits of this alternative approach, while minimising human-wildlife conflict. As a final point it would recognise the interconnectedness of human, animal, and environmental interests, and build on the integrative approach.34
  3. Asanalternativeand,asabareminimum–thenewapproachanduseofthistermwould consider the welfare of nonhuman animals (and nature more generally) as of great importance and seek to avoid egregious abuse and cruelty.
  4. For more examples on developing jurisprudence, court decisions, policy and legislative considerations, we refer to Section III, Part F of this Submission.

2. Example from Tourism Industry (SouthAfrica) 

Aside from the fact that the highest courts in the country have recognised this approach, an important voice in the tourism industry has also welcomed this approach and is an illustrative example of how same may be adopted in future policy and decision-making

b. The Southern Africa Tourism Services Association NPC (“SATSA”), the “Voice of Inbound Tourism”35 recently embarked on a comprehensive research initiative to develop a long-term vision for South Africa’s tourism industry with regards to animal interactions in tourism; to design and agree on a framework to guide attractions, operators and tourists; to develop high-level suggestions for legislative intervention and regulation; and ultimately to position South Africa as an ethical tourism destination.

c. This research resulted in a Guide and Tool to evaluate activities relating to animal interaction. 36Importantly, SATSA adopted as a guide the integrative approach we have discussed above.

REQUEST

Based on the issues highlighted in this Section I, to be read in the context of and with regard to the Submission, as our first request from DEFF, we request that the Department revise its policy framework in light of the approach to section 24 that we have outlined above.

The Department needs to undergo a serious process of reform of its policy documents and framework in light of what the Constitution requires. This transformation has not happened as yet and is long overdue.

The work of the HLP is necessary to re-align departmental policies relating to the four species that have been focused on with the Constitutional imperative to adopt an integrative approach towards the environmental right which we have outlined above.

SECTION II: SELECTED OBJECTIONS TO AND ISSUES WITH HIGH LEVEL PANEL – COMPOSITION, FUNCTIONING AND OTHER MATTERS

____________________________________________________________________

Below follows a non-exhaustive list of issues we wish to raise relating to the High-Level Panel – including the processes, contents and other actions and omissions in respect thereof:

PART A: SUBMISSION PROCESSES, CONTENT AND RELATED MATTERS

1. COVID-19,LockdownandNationalStateofDisaster

  1. Due to the global COVID-19 pandemic, a National State of Disaster was declared by the Minister of Cooperative Governance and Traditional Affairs, on 15 March 2020. This National State of Disaster was extended on 5 June 2020 to 15 July 2020.
  2. The President of South Africa announced a lockdown of the country beginning on midnight Thursday 26 March 2020.
  3. Notably,theOriginalCallforSubmissionswasreleasedonthe27March2020,the first day of the South African lock down period.
  4. ThiseffectivelymeansthattheentireprocessoftheCallforSubmissionshasbeen done during a National State of Disaster and a lockdown of the entire country.
  5. As you are aware, there are severe restrictions as to what can be done during this time. In addition to the legal restrictions, the time has caused severe hardship for a large portion of the population. These hardships have been at an organisational level as well as a personal level.
  6. This is especially relevant for non-profit organisations, who are impacted particularly hard by the pandemic. This has been specifically noted by the Department of Social Development.37
  7. However, on the issues of the High Level Panel in particular, and given the general lack of representation of the Panel (see Part B of this Section below) – the input of these organisations is critical.
  8. We are of the view that a public call for submissions on such an important issue which impacts the South African public, tourism, our economy at large, our constitutional rights and various other areas has prejudiced us (and others) during this time.
  1. The fact that the Original Call (sans Terms of Reference) was published on the first day of lockdown, and the entire comment period as well as the Submission Date has fallen within the lockdown period – is extremely problematic.
  2. While we note that an extension was granted, we believe it is important to note that multiple organisations including each of the EMS Foundation and ALRSA requested extensions, which were at first rejected. ALRSA was only informed of the extension via email on 25 May 2020.
  3. We also note that none of the Media Statements nor the ToR mention COVID-19 or the need to respond specifically to this issue in their deliberations/ discussions.

2. Illegible/UnacceptableCopyforPublicCommentPublished

  1. The original draft released was essentially illegible – this has been attached as Appendix II to this Submission for reference.38 This is unacceptable as a Government-issued document on which comments are requested from the public.
  2. We note that this was subsequently replaced with a clearer version – although the date of which this was done is unclear.

3. ToR/LackofRealSubstance

  1. As aforementioned, the gazetted version of the Original Call did not have the Terms of Reference attached. Thus, the context upon which the High Level Panel was required to deliberate on the submissions was unknown, creating much uncertainty as to what submissions were required.
  2. We are not sure as to whether the versions circulated in newspapers similarly did not have the ToR. However, if this was in fact the case, this is problematic from various perspectives.
  3. In addition to the above concerns, it should be noted that while the ToR provide a basic understanding of some of the issues to be considered, they are by no means comprehensive nor indicative of specific issues, requirements and other factors which we believe should be included.
  4. Importantly, even with the extension (which was originally denied), the ToRs were only received by certain stakeholders via email around the 22 April 2020.
  1. The fact that the Original Call (sans Terms of Reference) was published on the first day of lockdown, and the entire comment period as well as the Submission Date has fallen within the lockdown period – is extremely problematic.
  2. While we note that an extension was granted, we believe it is important to note that multiple organisations including each of the EMS Foundation and ALRSA requested extensions, which were at first rejected. ALRSA was only informed of the extension via email on 25 May 2020.
  3. We also note that none of the Media Statements nor the ToR mention COVID-19 or the need to respond specifically to this issue in their deliberations/ discussions.

2. Illegible/UnacceptableCopyforPublicCommentPublished

  1. The original draft released was essentially illegible – this has been attached as Appendix II to this Submission for reference.38 This is unacceptable as a Government-issued document on which comments are requested from the public.
  2. We note that this was subsequently replaced with a clearer version – although the date of which this was done is unclear.

3. ToR/LackofRealSubstance

  1. The fact that the Original Call (sans Terms of Reference) was published on the first day of lockdown, and the entire comment period as well as the Submission Date has fallen within the lockdown period – is extremely problematic.
  2. While we note that an extension was granted, we believe it is important to note that multiple organisations including each of the EMS Foundation and ALRSA requested extensions, which were at first rejected. ALRSA was only informed of the extension via email on 25 May 2020.
  3. We also note that none of the Media Statements nor the ToR mention COVID-19 or the need to respond specifically to this issue in their deliberations/ discussions.

2. Illegible/UnacceptableCopyforPublicCommentPublished

  1. The original draft released was essentially illegible – this has been attached as Appendix II to this Submission for reference.38 This is unacceptable as a Government-issued document on which comments are requested from the public.
  2. We note that this was subsequently replaced with a clearer version – although the date of which this was done is unclear.

3. ToR/LackofRealSubstance

  1. As aforementioned, the gazetted version of the Original Call did not have the Terms of Reference attached. Thus, the context upon which the High Level Panel was required to deliberate on the submissions was unknown, creating much uncertainty as to what submissions were required.
  2. We are not sure as to whether the versions circulated in newspapers similarly did not have the ToR. However, if this was in fact the case, this is problematic from various perspectives.
  3. In addition to the above concerns, it should be noted that while the ToR provide a basic understanding of some of the issues to be considered, they are by no means comprehensive nor indicative of specific issues, requirements and other factors which we believe should be included.
  4. Importantly, even with the extension (which was originally denied), the ToRs were only received by certain stakeholders via email around the 22 April 2020.

e. It is unclear what date they were published on the Department’s website and whether these were published at all in Newspapers (as required) and if so, when this was done.

4. Timing

  1. In the Extension Notice, the Department indicates that “the panel advertised a two- month window of opportunity for such submissions”.
  2. However, this is simply not the case without any information of substance on which to comment (such as the ToR).
  3. Notably, even with the extension and the subsequent circulation of the ToR to only certain stakeholders, this does not constitute a two month window period.
  4. The public has therefore been significantly prejudiced in preparing these submissions.

5. Extension Statement and Notice

  1. We note that in the Media Statement with the Extension that it appears to indicate that the Original Government Gazette included the Terms of Reference.
  2. If one clinks on the hyperlink of the Extension Statement entitled: “The original Notice No 221”, it includes the Terms of Reference with the Gazette.
  3. This is misrepresentation as the ToR were not included with the original government Gazette.
  4. The Extension Statement further seems to indicate additional issues that are not contemplated in either the Original Call for Submissions, the subsequent call with the Terms of Reference, nor other communications in respect of the Panel. As these were only published in May, these issues were additional to the Original Call (which did not contain neither the ToR nor the additional matters provided for in this Extension Statement).
  5. We note that the Extension Statement provides:

i. “The panel recognises, and is conscious, that much attention has already been paid to aspects of the terms of reference, to different degrees and with different outcomes, and that there exists an evidence base in both science and practice in many of the areas of concern”

We wish to note that it is not only “attention” that has been paid for aspects of the terms of reference, but rather that there exists substantial regulation – which has been promulgated through formal channels in relation to aspects of the ToR. One such example includes the Norms & Standards for the Management of Elephants. In addition to this, both EMS Foundation and ALRSA have commented on and made public submissions in respect of proposed amendments to such regulation. We have dealt with this in further detail in Section II, Part D below).

  1. “The panel will draw on these resources, other relevant reports and this will inform the engagement with the public. In addition, the panel’s approach is to facilitate an engagement that is premised on the terms ofreference but, within reason, allow for innovative and informed recommendations that will lead to a balanced, inclusive report to the Minister.To this end the panel is aware that there may be imperatives such as transformation, restoration, and rewilding as processes for our rural landscapes, but also a need to ensure a vibrant and inclusive wildlife economy.”We support many of the sentiments expressed herein. Notably, that “wildlife economy” should not be viewed through a narrow lens of sheer economic value for consumptive use. Non-consumptive utilisation such as eco-tourism as well as alternative considerations of value should be foregrounded. We have made statements in this regard throughout our Submission and in particular, have called for a new and more inclusive approach in respect of section 24, as further set out in Section I of this Submission.
  2. “Thriving populations of elephant, lion, rhino, and leopard may serve as symbols and flagships for this.”Here we would like to note that only wild, free-roaming populations should be considered in the context and use of “thriving populations”. Captive populations, particularly captive bred should not be considered in the context of a healthy population count.
  3. “Given this context, the panel would appreciate both specific and broad submissions, which will enable diverse voices to be heard and internalised by the panel during the process. Furthermore, the panel encourages submissions from all interested and affected parties, in order to enrich the deliberations in such a manner as to allow consideration from multiple perspectives, such that we ensure broad relevance and applicability of the recommendations of the panel, and that they are informed by the rights, values, aspirations, and ambitions of the people.”
  4. Please refer to refer to Public Opinion section of our Submission, as well as our requests for broad and genuine public participation.

PART B: PANEL COMPOSITION, FUNCTIONING AND OTHER MATTERS

1. Constitution of the Panel

  1. We understand that three persons originally part of the Panel have subsequently resigned and have not been replaced. At least two of these persons were representatives concerned with animal welfare.
  2. However, with such persons now absent from the Panel, no animal welfare related representatives and experts exist. We note that not even the NSPCA is represented on the Panel.
  3. In this regard, we refer to the email from the HLP to the EMS Foundation dated 21 May 2020 wherein it was confirmed that the following members have resigned:
  1. Karen Trendler

“the chairperson of SANParks Ethics and Animal use and care Committee, working group member of the SABS code of Practice for Translocation and Capture of African Herbivores, Code on Zoo Standard and animal experimentation. She’s of NSPCA and Lion Coalition she’s a wildlife rehabilitation expert with experience of wildlife welfare ethics and trade nature conservation, and training in wildlife management.”

  1. Aadila Aagjee 1. “

the head of the wildlife project for the Centre for Environmental Rights. Her specialities are environmental legal matters, litigation, legal regulations for welfare of wild animals and compliance, legislative review, animal rights and welfare legislation.”40

  1. Mr Mavuso Msimang

“a previous winner of the WWF-SA Living Planet award, Public Service by United Nations Economic Commission for Africa award and award in Excellent Services rendered to Conservation and Prestigious Fred Packard by the IUCN World Commission on Protected Areas. Chairman of WWF-SA Social, Ethics and Transformation Committee and Corruption Watch. His a specialist in nature conservation, institutional development, tourism development and community development.”41

  1. As indicated in the WAPFSA Letter and reiterated herein:
    1. “We are disappointed and deeply concerned with the selection of the Committee as well as the Department’s lack of transparency and clarity in respect of the selection thereof.”
    2. “The Committee is predominantly composed of persons directly involved in the use and exploitation of wildlife (including hunting, breeding, testing, killing and otherwise). Such persons have deeply vested commercial/financial and other interests in the outcome of the Committee’s deliberations. We are of the view that such persons cannot be considered to be independent of these interests and will thus attempt to influence the outcome in accordance with such. For example, more than a few of those selected have a direct interest to ignore the parliamentary instruction to review legislation with a view to shutting the industry down (more on this below);”
    3. “There has been no requirement for the Committee members (as far as we are aware) to declare or disclose all of their personal/organisational or other interests and involvements that may have an impact on the issues to be deliberated by the Panel. Such interests must be disclosed as a matter of public interest; the rule of law; to ensure transparency and adherence to constitutional values, among other reasons. These interests and/or involvements could (and are likely to) severely compromise the Committee as well as the future of environment, wildlife, international relationships and other issues in the future. Any actual, perceived or potential interests or conflicts thereof and involvements must be disclosed as well as evaluated in order to properly determine whether a Committee member should be entitled to serve on the Committee;”
    4. “A copy of the rubric and other criterion considered and utilised when selecting the Committee. Furthermore, an explanation of why this criterion was utilised by the Department.”
    5. “Reasons for why the Committee was constituted in the way it has been.”
    6. “While there are a few representatives of selected communities, there is no clear indication of how other communities will be represented and their interests taken into account;”
  2. The following groups/experts that are essential to the Panel do not appear to be or are not adequately represented at all:
  1. A veterinarian
  2. A climate change specialist
  3. A Virologist (more specifically a COVID-19 expert/ zoonotic disease expert)
  4. A tourism expert (more specifically an expert with thorough knowledge of eco- tourism)
  5. A legal expert with experience and knowledge of animal law, human rights and environmental law
  6. A specialist in “Just Transition”
  7. An expert/s in Indigenous science and traditional knowledge systems
  8. Experts in Nature’s rights. As the primary stakeholder in issues around ecological sustainability, Nature requires representation. (For more on this, please see Section III, Part F of this Submission).
  9. An animal welfare and protection expert (to represent the interests of animals’ themselves, and not merely broadly, their “wellbeing”)
  1. Moreover, and as mentioned herein, as the Panel is set up to deal with specific species, it is absolutely critical that species-specific experts are appointed, at the very least one for each of the subject species. However, we are of the view that even one expert for each of the subject species is problematic, as with a single person, there is more likelihood of bias. In order to prevent such an instance, ideally there would be at least three persons on a type of sub-committee in relation to each of the four subject species. We have dealt with this comment further in Part D below).
  2. Unfortunately, based on the issues deliberated by the Panel and the importance thereof to the South African public, it is critical that experts with intimate knowledge of the various issues impacting on a particular species are appointed. This is even more relevant where there already exists regulation which has been done in consultation with species experts, in terms of public participatory processes (such as the Norms and Standards for Elephants, as referred to below).
  3. As indicated in the WAPFSA Letter and reiterated herein:
    1. “In our Nominations Letter, we put forward extremely qualified candidates who collectively have decades of experience and extensive qualifications in their respective fields of ethical conservation management, biodiversity policies, wildlife trade, legislation, animal protection, economics and welfare species-specific expertise.”
    2. “As we mentioned in our Nominations Letter, our candidates were/are committed to ensuring the relevant objectives and principles are adhered to, in terms of existing legislation as well as the interpretation thereof by our courts.”
  4. “Not only was each and every one of our nominations unsuccessful, but the following outlines a list of our grievances”
  5. “We never received any communication from the Department acknowledging our Nominations Letter;”
  6. “No reasons were provided for rejection of any of our nominations;”
  7. “No reasons were provided for how the selection for those admitted to the Committee were given;”
  8. “At the very least, we expected to see a public document detailing the methodology by which Committee members would be selected, how balance and independence would be achieved, conflicts of interest avoided and so forth. Such document was not provided and remains so today;”
  9. “A number of persons selected for the Committee have substantially less experience than our candidates;”
  1. “We understand that the Committee has been set up because of (inter alia) a number of policy and other concerns raised by the Animal Protection sector over a number of years, as well as several interventions and submissions relating to lack of engagement with all relevant stakeholders, in particular animal protection organisations and NGOs. Yet, these same groups are still not adequately represented on the Committee, which is weighted heavily in favour of animal use and exploitation.”
  2. All of these statements remain relevant and are resubmitted here.

2. Concern relating to Institutional Bias and HLP Bias

  1. Ourexperienceoverthelastseveralyearshasbeenthatourcarefullyresearchedand argued submissions on the four species under review are simply ignored. When we see the outcome of consultation processes, there is no evidence that our submissions, or those of other similar non-governmental organizations, have been taken into consideration.
  2. As per the Creecy Response, the Minister held what she calls multi-stakeholder meetings about the captive big cat industry – a subject we have intimately involved with, have significant expertise in, and have been engaging DEFF, the Ministry and Parliament on for years, but we were not invited to this meeting.
  3. It is incorrect and unfair of DEFF or the Ministry to take the position that the animal protection movement is adequately represented by only the NSPCA in ‘multi- stakeholder engagement sessions’.
  1. While the NSPCA has certain legislative powers (including from the SPCA Act42 and in respect of the Animals Protection Act (“APA”)43), they are by no means a representation of the animal protection, environmental protection nor human rights movement within South Africa.
  2. The NSPCA, as a publicly funded NGO also has various capacity and resource restraints and are not able to represent the entirety of the animal protection movement in South Africa, which is composed of hundreds of organisations.
  3. We wish to note herein, that between EMS and ALRSA alone, we have garnered the support and following of thousands of South Africans over years, and we hold different values and expertise and pursue different avenues to the NSPCA.
  4. We have previously on many occasions called for additional organisations to be represented in matters, actions and engagements under the Departments jurisdiction to reflect the actual status quo of animal welfare organisations in South Africa.
  5. We have ourselves been responsible for co-ordinating efforts with various stakeholders within the NGO realm in South Africa and continuously engage with multiple organisations, individuals, youth and members of the public. This is part of the reason for the establishment of the Wildlife Animal Protection Forum of South Africa.
  6. It is simply not sufficient to include only one animal welfare organisation with constraints in these critical matters, and allege that there has been sufficient engagement with the entire sector.
  7. DEFF and the Minister constantly make sweeping statements about the benefits of sustainable use, trophy hunting and the wildlife trade legal trade and livelihoods. Worryingly, they are totally dismissive and/or unaware that most of these assumptions are contested.
  8. It is apparent to us that an institutional bias has become entrenched within DEFF, the Ministry, the South African National Biodiversity Institute (“SANBI”) and some provincial conservation authorities.
  9. These bodies exhibit a consistent bias is in favour of those who promote and profit from consumptive uses of wildlife (e.g. farmers of wildlife such as lions and hunters) and the trade in live wild animals or body parts, and against organizations and individuals who advocate for the welfare of animals and human-wildlife interactions that are not detrimental to the animals. Organizations that promote consumptive uses of wildlife for commercial purposes (under the misleading rubric of “sustainable use”) are given extensive opportunities to engage with government and influence policy (as one example through DEFF’s Consultative Wildlife Forum). On the other hand, representations from organizations who do not promote consumption of wildlife, such as ours, are ignored.
  1. The composition of the High Level Panel appointed to advise the Minister is a clear example of this institutional bias. It is clear from the composition of the panel that the Minister wishes to be advised on how to promote consumptive uses of wildlife, and trade in wildlife and wildlife body parts (e.g. rhino horn, elephant ivory and lion bones) and as a result it is a foregone conclusion that that panel will make strongly pro-trade recommendations.
  2. A forum or other channel to enable organizations that favour ethical, humane and non-consumptive interactions with wildlife and a transition to ecologically viable forms of society to communicate regularly with policy makers must be established as a matter of urgency to rectify the imbalanced manner in which government sources and considers information. By ignoring well-founded criticisms of current policies, government is shutting the door to feed back that would enable it to remedy defects in current policies and regulatory systems.
  3. Wearefurthermoreoftheviewthatsomekeyassumptionsalreadyexistinrespectof the Panel and the matters to be deliberated on by them.
  4. As indicated in the WAPFSA Letter and reiterated herein, in the Department’s press release dated 3 December 2018, the following assumptions appear in respect of the Panel:
    1. the captive breeding and trophy hunting industries and the lion bone trade should be allowed to continue;
    2. the captive breeding industry has a conservation value; and
    3. the most recent Non-Detriment Finding for lions and the Interim Report of the Scientific Authority for CITES on the lion bone quota are scientifically sound.
  5. Similar assumptions to these appear in the ToR and are inherently problematic and unacceptable. These support our statement above that the findings of the Panel appear to be a foregone conclusion.
  6. Further, this in addition to the overarching assumption that the current interpretation by the Department of Section 24 is correct, constitutionally valid and not problematic, which we have also challenged in this Submission, particularly Section I.

3. Functioning of Panel

a. As indicated in the WAPFSA Letter and reiterated herein:

  1. “No other information as to the functioning of the Committee has been provided. In fact, the terms of reference are vacuous, at best;”
  2. “It is not at all clear what the Committee is meant to achieve, how it intends to do so and other relevant considerations one would expect to be set out clearly and transparently for a matter that is so important to the South African public and other relevant stakeholders;”

iii. “There is no clear indication as to how the Committee will work with experts, NGOs, other governmental departments or other relevant stakeholders. Furthermore, to what extent the input of such stakeholders will be given due and proper consideration;”

  1. There are a number of other matters that are relevant but unclear in the context of the functioning of the Panel, the procedures in respect thereof, and the evidence and other information sought to be utilised and/or relied upon by them.
  2. In this regard, we refer to the PAIA44 request made by the EMS Foundation in relation to the Panel, dated 25 May 2020.
  3. An example of some (non-exhaustive) matters on which we require clarity include:
    1. Willthedeliberationsandotherminutes/recordsofthePanelmeetingsbe released?
    2. What is the voting and other functioning of the Committee?
    3. Will the information/documentation upon which the Report/ Panel recommendations be released?
    4. What are the requirements in respect of (iii) above? For example, peer review?
  4. The Panel is set up as an Advisory Committee, however the following remains unclear:
    1. AspertheExtensionStatement,wenotethatoutputofthePanelappearsto be a Report.
    2. Will this Report be publicised?
    3. WilladraftReportbemadeavailableforpubliccomment?
    4. To what extent will the Minister and the Department rely on the Panel and their suggestions?

PART C: PANEL, COVID-19 AND ZOONOTIC DISEASES

1. COVID-19 considerations

  1. OfparticularrelevanceandimportancehereisthattheCOVID-19pandemicislargely believed to have been caused as a result of the consumption of wildlife. Yet, the aspects to be discussed, debated and reported by the Panel do not appear to include the consumption of wildlife.
  2. The Terms of Reference of the High Level Panel do not address the issue of diseases potentially spreading from wildlife and do not propose ways to prevent, monitor or mitigate the risks.
  3. As the consumption of wildlife, and particularly the subject species of the Panel is a critical issue, it is concerning to not see this issue being raised. In addition, and as we have highlighted above, there is no Virologist or expert on zoonotic diseases on the Panel.

2. Zoonotic Diseases

  1. Zoonoses are diseases transmissible between animals (domestic and wildlife) and humans. Around 75% of emerging infectious diseases are zoonotic (Taylor et al., 2001; Woolhouse and Gowtage-Sequeria, 2005). In aggregate, zoonoses have high impacts on human health, livelihoods, animals and ecosystems.45
  2. The current global health crisis makes it clear that we are all inter-connected and that zoonotic spillovers are a result of human actions towards non-human animals and the way we interact with them. The exploitation of wildlife by humans through hunting, trade, habitat degradation and close contact between the two, increases the risk of virus spillover.46
  3. Trade is a key reason for human contact with wildlife47. When the trade is legal, it is regulated domestically and internationally by institutions whose mandate does not include protecting public health. Furthermore, the so-called legal trade is de facto purely regulated and intrinsically linked to the illegal trade, as highlighted by two reports, “The Extinction Business” 48 in 2018 and “Breaking Point” in 202049.
  4. According to infectious disease experts, the emerging of infectious zoonotic disease outbreaks have increased dramatically in the last 30 years and the most likely causes are anthropogenic commercialisation drivers such as: Increased number of farmed animals – including wild animals; increased hunting, increased trade in and transport of wild and domestic animals and increased agricultural activities and expansion of agricultural land50 with consequent degradation of eco-systems.
  1. Reducing the risk of zoonotic spillover events from wild animals to people requires maintaining wild animals in secure and intact wild habitats and minimizing wild animal- human interaction, including by severely limiting the use and trade of wild animals, particularly for sale as luxury meats in large urban wildlife markets. We define wild animals as non-domesticated species captured from the wild or bred in captivity; a particular focus is required for mammals and birds as these have been the sources of past zoonotic outbreaks. We define the wild animal trade as the legal and illegal commerce of such live wild animals, as well as of their parts and derivatives. We are not advocating for restrictions on the movement of animals for non-commercial trade (e.g., conservation, sanctuaries).
  2. It is internationally recognised that all species react to unsuitable conditions and when stressed and immune-compromised they become a vehicle for pathogens and the ideal environment for the emergence and spread of infectious diseases which can then be transmitted to humans. Good welfare conditions are not possible for commercially- farmed wild animals. Poor welfare among groups of animals increases the risk of disease, and therefore zoonosis.
  3. More worryingly, animal farming is a system which allows the same or better production at lower costs, therefore welfare and wildlife farming are contradictory concepts. In terms of welfare, the more controlled the environment is, the more the physiology of the animal stresses.51 We will never be able to predict how the transmission will cross a species. So, whenever we try to farm domestic or wild animals for economic benefits, we expose humanity to pathogens that are and can be extremely dangerous for humans.52
  4. Wildlife farms can also contribute to the spread of infections and diseases to domestic farmed animals, to humans and to other wildlife. This is a threat to conservation and to traditional cattle farming and consequently also to those communities relying on a few animals for food. Farmed wildlife have shown to be carrying ticks, a carrier of the Borrelia bacteria; a number of skin diseases are caused by farmed animals, both domestic and wild. Of additional concern is Tuberculosis, which affects a large number of humans and nonhumans and it is currently making victims in South Africa and in countries where we export wildlife to. TB, for example, is the first cause of human death in China.
  1. In the case of the big cat breeding industry, the slaughter of animals and export of bones involves serious food health and safety violations. Individual lion ‘slaughterhouses’ are operating outside of South African law and are not compliant with food safety law and/or occupational health legislation especially given that many lions might be affected by bovine Tuberculosis.
  2. Veterinarians who have assisted this industry in the slaughtering of captive predators need to be investigated for contravening veterinary codes of conduct which regulate the discipline in terms of protecting the health, avoiding the suffering of the animals and in terms of acting in the interest of people of South Africa and their health and welfare. In a sense, this makes them complicit in this abhorrent practice and trade. Since many big cats are bred purely for their bones, they can be neglected, starved, inbred and left to barely survive with their deformities, often in conditions where they develop diseases and infections. DEFF has not acted sufficiently to the welfare violations pervasive throughout the industry.
  3. The number of farmed animals should be reduced, not increased, as part of transformative changes for sustainability.53 This would mean lower risk of zoonosis, efficient land use, less harm to climate, improved biodiversity and cleaner land, water and air. Ultimately, it would mean initiating that transformative process to honour the Sustainable Development Goals54 South Africa committed to. The Minister should support measures to implement the above changes in the interest of the environment and the people.
  4. Global and national action to curb the wildlife trade is one of the most effective strategies to prevent future pandemics, and is necessary to reduce animal suffering and protect biodiversity.55We therefore call upon South Africa to support and champion a permanent ban on wild animal markets that could become sources for future pandemics and to commit to end the international trade in wild animals and their products that could aid in the spread of zoonotic diseases at the G20 Leader’s Summit this November 2020. To fulfil South Africa’s commitment and demonstrate that this is a global problem requiring a global solution, we further urge South Africa to develop a national plan to ensure that our own contributions to the wild animal trade do not contribute to this global problem.

m. Protecting wildlife, biodiversity and animal welfare needs to be part of a global and national pandemic prevention strategy. We recommend that the South Africa Government take the following actions:

  1. Support, and urge other G20 countries to support, an immediate and permanent closure of wild animal markets.
  2. Commit at the G20 to end the international trade in wild animals and wild animal products that could contribute to the spread of zoonotic disease and ask global institutions and bodies and their national parties to put in place mechanisms to develop, facilitate, and implement this ban.
  3. Curb the import and domestic trade in wild animals and wild animal products that could contribute to the spread of zoonotic disease in South Africa.
  4. RemoveallwildanimalsfromSouthAfrica’slivestocklistorclassifications.

PART D: EXISTING REGULATION OF MATTERS TO BE CONSIDERED BY PANEL

1. Existing Laws/Regulations/ Policies and Other Documents

  1. TheTermsofReferencenowprovidedindicatethattheHighLevelPanelhasbeen constituted to review existing policies, legislation and practices relating to the management and handling, breeding, hunting and trade of elephant, lion, leopard and rhinoceros.
  2. Giventhattherearefourkeyandmajorspeciesimplicatedbythematters;aswellas the fact that it relates to various actions in respect of them (ranging broadly from breeding, to management, to hunting, to trade, hunting and “related matters”), we do not believe that the panel is properly equipped to make decisions in respect of all of these issues. (In particular see Part B of this Section II)
  3. Existing legislation and plans developed under existing legislation already form the basis upon which these species should be managed. We submit that decisions relating to each of these species should only be made upon the recommendations of a panel of species-specific experts and in accordance with other relevant legal principles and processes.
  4. Themanagementofelephants,bothincaptivityandinthewild,isalreadyregulatedin terms of the National Norms and Standards for the Management of Elephants.56 There is significant overlap between the “policy positions” that the HLP is required to provide in respect of elephants, including the keeping of elephants in captivity, the
  5. hunting of elephants, population management, “impacts and benefits”, and handling and well-being.
  1. Black Rhinoceros are managed interms of a Biodiversity Management Plan, as are White Rhinoceros,58 whilst hunting, marking of rhinoceros and rhinoceros horn is regulated in terms of Norms and Standards.59 There are also significant overlaps with the tasks of the HLP in relation to rhinoceros. Furthermore, new final regulations on trade in rhino horn have been published (but have not commenced).60
  2. Similarly, lion is managed in terms of a Biodiversity Management Plan, which considers wild lions, managed wild lions and captive lion populations. 61
  3. The preparation of these regulatory tools followed legal processes, with submissions from the public upon publication of drafts in the Government Gazette, as well extensive consultation with species specific experts, prior to the finalisation of the relative legal instruments.
  4. It is unclear why, and we submit that it is inappropriate that a separate HLP is necessary to consider species-specific issues, which are better evaluated by a team of species experts. It is also unclear whether the HLP intends to consult with species experts, and it is submitted that any of the tasks of the HLP cannot be undertaken without significant input from these experts.
  5. Further, any recommendation or action of the HLP that conflicts with the existing legislation must be fully explained and justified.
  6. In addition to the concerns raised above, we wish to emphasise the fact that calls for public submissions on draft regulation in respect of the four species have previously been made. Each of ALRSA and EMS Foundation have (as organisations and through our networks) made submissions in respect of: (i) Elephants; (ii) Rhinos; (iii) Lions and (iv) Leopards. In this regard, we refer to Appendix I wherein previous submissions have been included (non-exhaustive). Not only have we not received responses to some of these submissions (nor acknowledgement of receipt), but it is unclear to what extent these submissions were even considered and if so, to what extent.
  7. Accordingly, we wish to state that the specific comments contained in our previous submissions, apply equally to matters to be deliberated on by the Panel, with the necessary contextual amendments. We have not repeated all of these herein.

PART E: INTERACTION BETWEEN PANEL AND OTHER GOVERNMENT DEPARTMENTS, BODIES, STAKEHOLDERS AND REGULATION

  1. Panel and DALRRD
    1. It is unclear to what extent the Panel will co-operate and take advice and liaise with the Department of Agriculture Land Reform and Rural Development (“DALRRD”).
    2. In particular, we note major issues in relation to jurisdiction over wild animals in South Africa, and particularly those in captivity.
    3. In this regard, we refer to issues in the Fair Game Report highlighting concerns as to welfare and other overlap, loopholes and problems.
    4. We further refer to Section III, Part A of our Submission below, which deals in further detail with some overarching concerns on animal welfare, wellbeing and the agriculturalization of wild animals.
    5. It is imperative that there is sufficient, proper and documented co-ordination with DALRRD on these matters.
  2. Provincial Considerations
    1. As mentioned in the Fair Game Report, there are substantial issues with the current content of the regulation and enforcement thereof, as same applies to wildlife.
    2. As the Constitution provides for concurrent jurisdiction as between the provinces and national government and as between the provinces themselves on issues that fall within the ambit of the Panel’s deliberations, it will need to be clearly determined how the HLP will deal with these issues and concerns.
    3. Thefollowingremainsunclear:
      1. How are the relevant provincial bodies involved in the Panel?
      2. Is the goal to have uniform legislation across the provinces and to what extent will this form part of and result from the Panel?
      3. What processes will Government put in place for permitting in relation to the subject species, and specifically for restricted activities?

3. Panel and Portfolio Committee

a. It is unclear to what extent the Panel will work with the Legislature, and in particular, the Parliamentary Portfolio Committee for Environment, Forestry and Fisheries (“PPCEFF”).

b. As indicated in the WAPFSA letter of 24 November 2019, and the letter from Cullinan & Associates on behalf of the EMS Foundation, there have from the outset been serious concerns about the composition of the HLP as well as the lack of transparency surrounding the establishment of the Panel. As indicated in Section II, Part A above, the Terms of Reference have only recently been made available to some stakeholders.

c. Further, as also indicated in the WAPFSA Letter, it is unclear how this High Panel is dovetailing with the report of the PPCEA on the Colloquium on Captive Lion Breeding for Hunting in South Africa which was adopted by the National Assembly in December 2018. The report resolved that the Department should initiate a policy and legislative review of the lion bone trade and captive breeding industry “with a view to putting an end to this practice”. The PPCEA also found that there “was an overwhelming consensus for the need to bring an end to the controversial aspects of captive lion breeding industry in South Africa.”

c. The Terms of Reference for the appointment of the HLP do not refer at all to the PPCEA, and are in fact contrary to the report of the PPCEA, by requiring the HLP to “provide policy positions” on the breeding and hunting of captive bred lions, and the trade in lions bones and leopard skins.

d. The indicative policy position is in direct contravention of a Parliamentary resolution to work towards ending the captive breeding of lions, ignores the intrinsic value of wild animals in favour of commoditising all wildlife, an approach in conflict with current constitutional jurisprudence regarding conservation and welfare of wild animals, and demonstrates a lack of understanding that human survival depends upon the preservation of the intact ecosystems of which wild animals are a part, not on the farming of wildlife.

4. Panel and Other Government Departments/Policies

  • It is unclear how the Panel is coordinating with other National Departments (not just DALRRD as aforementioned in Paragraph 1 above), but other relevant Departments on which matters to be considered by the HLP will be included in the processes and considerations factored in.
  • These include but are not limited to at a National level: i. DepartmentofTourism;ii. DepartmentofInternationalRelationsandCooperation; iii. Department of Justice and Constitutional Development; iv. DepartmentofHealth;v. SouthAfricanPoliceServices;
  • National Planning Commission;
  • and others.

c. As aforementioned, it is unclear how the High Panel is coordinating with the Provincial Departments.

SECTION III: SELECTED BROADER CONCERNS AND CONSIDERATIONS

____________________________________________________________________

In this Section III, we have set out below some of our broader concerns relating to the Department and Minister more generally, which is by no means a complete list and we reserve the right to amend and update this at any time. It is meant to be illustrative rather than comprehensive.

In addition, it includes certain matters for consideration as these pertain to matters to be deliberated on by, or are relevant to the Panel. These include developments from foreign and international jurisdictions as well as legal and policy progression

We have not necessarily repeated the specific considerations referred to in the Previous Sections herein, but these find equal application, where appropriate, in this Section III.

PART A: BROADER WELFARE, AGRICULTURE, CO-ORDINATION AMONG GOVERNMENT

1. DALRRD Considerations

  1. The Constitution provides that everyone has the right to have the environment protected for the benefit of present and future generations, through reasonable legislative and other measures that promote conservation as well as securing ecologically sustainable development and use of natural resources (section 24).
  2. Section 3 of the NEM:BA is entitled “State’s trusteeship of biological diversity” and this section requires the State to manage, conserve and sustain South Africa’s biodiversity and its components and to implement the Act to achieve the progressive realisation of the rights in section 24 of the Constitution. Further, as organs of state, the respective departments have a Constitutional duty to coordinate their actions, policies and laws and to ensure transparent, accountable and coherent government (section 41 of the Constitution).
  3. Of particular concern is the lack of intergovernmental coordination of legislation and policies between DEFF and Department of Agriculture, Land Reform and Rural Development and (“DALRRD”) with regard to the “agriculturalisation” of wild animals.
  4. As indicated in the WAPFSA Letter, these concerns were raised in 2019 in relation to amendments62 made by DALRRD to the Animal Improvement Act (“AIA”) which, we were informed, were passed without any consultation between DALRRD and DEFF, despite the fact that effect of the amendment was to bring several species of wild animals within the ambit of the AIA, in particular white and black rhino and lion.
  1. Further concerns were raised when DALRRD published a draft amendment to the Meat Safety Regulations made under the Meat Safety Act, 40 of 2000 (“MSA”)63 in February 2020. The intention of the amendment is to bring a large number of wild animals, including white and black rhino within the ambit of the MSA.
  2. We believe that, despite statements to the contrary, the combined practical effect of these legislative steps by DALRRD is to enable and legitimise the development of a game meat industry in South Africa, and particularly to develop an export market for game meat.
  3. The Panel does not appear to be constituted in such a way that deals with this nor the plethora of issues relating to the agriculturalisation of wildlife and various other pressing matters. This is highly concerning considering that the DALRRD is effectively promoting a game meat industry to include expressly three of the four listed Threatened or Protected Species with which the Panel is specifically concerned. In addition, due to the broad nature of the proposed amendments to the MSA, if promulgated in its current form, it will include all four subject species within the ambit of the Panel.
  4. The farming of lions for their bones, of rhinos for their horns and prevalent hunting practices, are all symptoms of the same fundamental issue. In application, our legal system treats animals as property or commodities and does not recognise the reality that they are not objects but beings with the inherent right to exist and to play their part within the ecosystems within which they evolved.
  5. South African common law classifies wild animals as unowned (res nullius) until someone acquires ownership by capturing or killing them. The common law situation has been changed to some extent by the Game Theft Act, 105 of 1991 which provides that the owner of land is the owner of game animals (which are defined) on that land provided that the land is adequately enclosed with a fence that can contain that species of game. (In essence this game is treated as having been captured by the landowner). However, the net effect is that in the eyes of the law animals remain property and are incapable of having any rights (just as slaves once were).
  6. Treating wild animals as commodities also entrenches an exploitative relationship between humans (who have rights) and animals (who have none). This promotes unethical behaviour instead of engendering respect for wildlife and all aspects of the natural world that sustains us. It also means that as wild animals become rarer, it will become increasingly profitable to remove them from the wild and farm them (as has already occurred with several species). This is not only undesirable from an ecological perspective, it also exposes the animals to cruel commercial farming practices.
  7. The animal welfare implications of the amendments to agricultural legislation are also deeply concerning. The welfare of wild animals has historically been very inadequately

protected. This is because environmental authorities within all spheres of government have consistently denied that they have a mandate to deal with welfare at all. On the other hand, agricultural authorities continue to devote few or no resources to wild animal welfare. The Animals Protection Act is seriously outdated and is entirely inadequate to deal with the welfare consequences of expanding and promoting the wildlife breeding and trading industry.

l. Legal and ethical considerations aside, the amendments to the AIA and MSA are likely to endanger the genetic health of wild populations since weak enforcement of laws means that there is high possibility of genetically manipulated specimens coming into contact with wild populations. They are also likely to cause and raise a plethora of other issues which need to be properly considered and dealt with.

m. Despite the clear overlap in mandate involved in the recent inclusion in agricultural legislation of the very species of wild animals that the Panel is mandated to consider and protect, there is no indication in the Terms of Reference that the Panel will seek to co- ordinate with DALRRD.

2. WelfareandWell-beingofwildanimals

  1. The welfare of wild animals remains hugely problematic in terms of both its content and enforcement. While we understand that some of this may have been a driver for the Panel, without a deep understanding and knowledge of the law, legal systems and regulatory and policy aspects, this will not be properly dealt with.
  2. We understand that the Department is intending to respond to Constitutional jurisprudence about welfare being intertwined with conservation (and therefore a relevant consideration in decision-making regarding wild animals) by inserting new provisions into the NEM:BA with regard to “well-being”, although this has not happened yet and there is no indication of when or if the amendment will be made.
  3. The proposed amendment allows the Minister to prohibit “any activity that may negatively impact on the well-being of a faunal biological resource.’’ It also allows the Minister to make regulations regarding the well-being of a faunal biological resource.
  4. Both EMS and ALRSA object to wild animals being described as faunal biological resources for the reasons set out in Section I, and otherwise in this Submission.
  5. It is impossible to consider the well-being of an individual animal in any meaningful way when that animal is regarded as a mere “resource”. “Well-being” is defined in the proposed amendment as “a state where the living conditions of a faunal biological resource are conducive to its health’’. This an unnecessarily restrictive and vague definition of well-being. It is not even clear whether this definition includes a consideration of the social and psychological factors that are essential to an animal’s well-being, for example, relationships between animals and group dynamics

f. The proposed amendments to NEM:BA are therefore wholly inadequate to protect the welfare of wild animals or to give effect to recent jurisprudence regarding wild animal welfare.”

3. Failure by Department to give due regard to Parliamentary Resolution

  1. In addition to the above failures to consult or be consistent in messaging by the Department and/or the Minister, the Department has actively failed to take into account and/or give due regard to concerns and resolutions of legislative bodies, legislative provisions and otherwise.
  2. For example, Resolutions of the Parliamentary Committee of Environmental Affairs relating to the shutting down of the Captive Lion Breeding Industry arising from the “Colloquium on Captive Lion Breeding for Hunting in South Africa: harming or promoting the conservation image of the country, held on 21 and 22 august 2018”64 have not yet been given effect to by the Department. The resolutions (not a complete list) from the Colloquium included (emphasis added throughout):
    1. “TheDepartmentofEnvironmentalAffairsshouldasamatterofurgencyinitiate a policy and legislative review of Captive Breeding of Lions for hunting and Lion bone trade with a view to putting an end to this practice and that the Minister of Environmental Affairs should submit quarterly reports to the Portfolio Committee on the progress of this policy and legislative review.
    2. TheDepartmentofEnvironmentalAffairs(DEA)shouldconductanaudit of captive lion breeding facilities throughout the country to ascertain the conformity with the current TOPS regulations and other applicable legislation in light of ongoing and increasing disquiet about the CLB Industry and should ensure that the current breeding facilities comply with legislation. The Department should indicate whether it is aware of private lion and cheetah cub petting and walking farms in the country, and further state the courses of action it had pursued against violators of TOPS Regulations dealing with CLB.3. The Department of Environmental Affairs and Department of Agriculture Forestry and Fisheries should present a clear programme of work on how they intend to address animal welfare and health issues that had been raised during the Colloquium, which straddle the mandates of the two departments, outlining clear timeframes for achieving this.
  3. Not only has the Department failed to give effect to these resolutions, it has actively pursued the promotion of legal trade.65
  1. As referred to in this Submission, the composition of this Committee as well as the wording of the Terms of Reference actively undermines the explicit instruction to review existing legislation “with a view to shutting the industry down”.
  2. On 22 October 2019 the EMS Foundation made a presentation to the Parliamentary Portfolio Committee of Environment, Forestry and Fisheries (“PPCEFF”), where it alerted the Committee that the Department had ignored its earlier resolution. It appeared to the EMS Foundation that the majority of members of the PPCEFF was unaware of the resolution from the abovementioned parliamentary report of 2018.
  3. We are of the view that the establishment of the HLP is not the appropriate mechanism to consider these extremely important welfare issues, particularly because the Department will continue to claim that recommendations relating to animal welfare concern are out of its powers (at it has done consistently).

PART B: GENERAL TRANSPARENCY, ACCOUNTABILITY

1. Lack of Transparency and Accountability

  1. The public has a legitimate interest in knowing whether or not the State is complying with its Constitutional obligations to take reasonable measures to protect the environment and conserve wildlife for the benefit of present and future generations.
  2. However, instead of giving prompt access to relevant information such as hunting permits and quotas, investigating the allegations, and making their findings public, the Department has consistently frustrated attempts to obtain this information.
  3. Section 32(1) of the Constitution guarantees the right to any information held by the State. Section 32(2) of the Constitution mandates the enactment of national legislation to give effect to the right in section 32(1).
  4. The Promotion of Access to Information Act (“PAIA”) has been enacted in compliance with this section. Chapter 4 of PAIA enumerates the specific grounds on which access to a document may or must be refused. These provisions constitute a limitation on the right guaranteed in section 32(1). Although this limitation can probably be regarded as constitutionally acceptable, these provisions must be narrowly construed. In the absence of a ground for refusing the information, PAIA and the Constitution require that access must be given. The Courts have held that “[u]nder our laws, the disclosure of information is the rule and exemption from disclosure is the exception. The default position in respect of access to information held by the state is that of disclosure.” (M & G Media Ltd v President of the Republic of South Africa and Others [2013] 2 All SA 316 (GNP)). (emphasis added)
  5. Accesstoinformationservesasanintegralgatewayforcivilsocietyorganisationsand communities to access information relating to a range of rights and issues. Furthermore, the realisation of section 24 of the Constitution is dependent on the ability of individuals, communities, civil society organisations and others to access information about the state of the environment.
  1. The objects of PAIA expressly include that procedures and mechanisms must be developed to allow the public to obtain access to records of public bodies as “swiftly, inexpensively and effortlessly as reasonably possible” as well as “generally, to promote transparency, accountability and effective governance of all public …bodies”.66
  2. Further,section2principlesofNEMA,whichserveasguidelinesbyreferencetowhich DEFF is required to exercise any function relating to the protection of the environment, incorporate the principles that “the participation of all interested and affected parties in environmental governance must be promoted”,67 that “decisions must take into account the interests, needs and values of all interested and affected parties”68 and that “decisions must be taken in an open and transparent manner, and access to information must be provided in accordance with the law”.69
  3. WAPFSA, and the EMS Foundation have over the years, submitted numerous information requests and substantive correspondences to the Department, to which no substantive responses have been received.
  4. These requests for information include information relating to hunting permits and quotas, which are imperative to the legitimate interests of the public, to determine the lawfulness of hunting, breeding and trading operations in the country, and the scientifically sound evidence for allocating “off-takes”.
  5. In the great majority of cases where EMS requested information from the Department pertaining species with which the Committee is concerned, it was either refused or transferred to provincial environment departments (from which virtually no responses at all were received) in violation of the objects of PAIA.
  6. EMS Foundation’s experience over many years has been that 78% of the PAIA requests submitted to provincial environmental departments are not responded to, resulting in a deemedrefusal in terms of section 27 ofPAIA. This strongly indicates thatPAIAprocesses are abused bythosedecision makersand thatPAIAitself is inadequate as a legislative measure to give effect to the Constitutional right to information.
  7. As indicated in the WAPFSA Letter and reiterated herein, the Department has in the past failed to consider not only NGOs and other civil society organisations, but the will of many active people in South Africa. Further, The Department has consistently only and/or predominantly engaged with those who benefit from the commercialisation of animals and have no real concern for their individual interests nor wellbeing.
  1. For example, the Minister informed EMS Foundation on 9 June 2020 via their attorneys that the Department had “convened a multi-stakeholder engagement session in December 2019 in an attempt to implement the Court’s decision in the NSPCA’s 2019 case regarding the setting of export quotas for lion bones. EMS was not invited or aware of the “engagement session” despite being one of the most vocal and high profile wild animal welfare NGOs in South Africa with special expertise and interest in captive bred lions. The EMS has engaged with the Department regarding captive breeding of lions, the export market, CITES and related subjects on numerous occasions in the preceding years, participated in the Colloquium in 2019 and published a ground-breaking report on the lion bone industry in 2018.70
  2. The Minister also informed EMS on 9 June 2020 that is had been collaborating with the NSPCA, SAPA “and other organisations” to develop a guideline on the consideration of animal welfare matters in decision making and was developing a Memorandum of Understanding (“MoU”) in that regard. Needless to say, EMS was not consulted in this process. It is also difficult to understand how such an MoU is going to address the very complex issue of wild animal welfare with input only from the NSPCA.
  3. We question whether and how such an MoU can have a real and tangible impact on decision-making. Instead, appropriate wild animal welfare requirements should be incorporated explicitly into the law.
  4. Furthermore, comments have been submitted in terms of formal public participation processes (such as in respect of the draft elephant norms and standards, domestic rhino horn trade, and CITES regulations), but the extent to which these comments have been considered has not been known, with no comments and responses report being made available to the public.
  5. Ofgraveconcernalsoisthefactthatnewfinalregulationsrelatingtotradeinrhinoceros horn were published on 3 June 2020.71 The regulations differ in material respects to the draft published in 2018 and on which our client commented. Yet the ToRs for the HLP indicate that rhino horn trade is one key aspects of rhino conservation which the HLP is required to consider, including whether or not there should be trade at all. It makes very little sense for regulations to be published at this point in a final form, unless they are regarded as a fait accompli.
  6. Ifthereisadangerthatrelevantlaws,policiesandprotocolsarebeingflouted,whichwe have reason to believe is the case, then that is all the more reason for hunting, breeding and trading to be conducted in a transparent and accountable manner, if at all.
  1. To enable the public to exercise their constitutional rights, it is imperative that the HLP is transparent in its recommendations, policy positions, reasons for any findings, and that these documents are made available to the public for scrutiny.
  2. Please also refer to the #TipsforBarbara Letter72 and Continuous Correspondence73 for further concerns, which include (but are not limited to) lack of transparency and accountability and lack of access to information.
  3. In addition to the aforementioned matters, we note that in respect of our submissions as well as other submissions received on public call for comments processes, there has been no information as to:
    1. Submissions made – by whom and the contents of these
    2. The responses to such submissions by the Department.
  4. We note that in experiences with other Government Departments in these processes, generally responses to suggestions/ comments/ queries are provided and there is transparency as to other submissions.
  5. We have thus made requests in Section V of this Submission in relation to the HLP (among others).
  6. We experience enormous difficulties in accessing State-held information that should be in the public domain. In our experience, DEFF and all the provincial nature conservation agencies have a culture of secrecy in connection with wildlife and the wildlife trade and do whatever they can to obstruct public access to information.
  7. Overthepastfewyearswehavemademanyrequestforaccesstorecordsheldby DEFF and the provincial nature conservation authorities. Since most of these organs of state provide this information on request as they should, we are forced to make formal applications for information under PAIA. Our requests are either ignored, or refused, often on the basis that the documents include confidential information of third parties (i.e. of the wildlife breeders and traders). This is unlawful.
  8. Wehavetakenlegaladvicefromseniorcounselwhichhasconfirmedthatwhenan individual makes an application to government for a permit, the applicant is effectively stepping into the public sphere and cannot claim that the information submitted is confidential. The importance of this is particularly clear when one is dealing with indigenous wild animals, which the State must conserve in its capacity as trustee of biological diversity, and in order to give effect to section 24 of the Constitution. Furthermore, even if a record contains some information that PAIA permits the State to keep confidential, the record must still be provided with the confidential information redacted.

aa. One of the most immediate and effective interventions that the Minister could make to strengthen the regulatory system would be to facilitate the external monitoring of the wildlife trade system by organizations such as ours by making the system transparent.

2. Recommendations

We recommend that the Minister:

  1. direct the DEFF and all provincial Nature Conservation departments to ensure that their information officers give immediate access, on request, to all records relevant to all international trade in wildlife (i.e. CITES and non-CITES trade) including applications for permits, permits and permit conditions, records of decision-making processes, and reasons for the decisions, and amend their PAIA information manuals accordingly;
  2. establish an on-line system to enable the public to access this information over the internet; and
  3. require DEFF and all provincial conservation authorities to implement procedures that enable and facilitate public participation in decision-making processes concerning the international trade in wildlife (e.g. giving interested or affected organizations and individuals an opportunity to make submissions to the decision- maker before a final decision is made).

PART C: CONCERNS RELATING TO TERMINOLOGY, VIEWS AND RELATED MATTERS

1. Inappropriate Language/Terminology Used by the Department and Minister and the Provinces

  1. The type of language and terminology used across policy documents, legislation, regulations, documents and other statements produced by DEFF, the Ministry, their representatives and the provinces in relation to wild animals is unacceptable, insensitive and needs to urgently change to reflect: a much more caring position which indicates a duty of care and recognition of sentience; Constitutional Court judgments; and the overwhelming knowledge that humans have on the sentience of nonhuman animals.
  2. The current terminology compels that if an animal is not economically valuable as a resource, then the well-being of that animal does not matter. Such a legislated situation is abhorrent and not justifiable. Conservation, all-round biodiversity and healthy welfare are independent from and inescapably precede any economic use.

c. The kind of terminology used by the DEFF takes place against the backdrop of the commodification of wild animals (who usually “pay their way” with their lives) and a deeply ingrained marginalization of “the Other”. Animal suffering seems, therefore, not to be on their agenda and indeed, through its use of terminology it is advocating endless exploitation of animals, concealing ethical issues and real suffering behind its raw commercialism.

  1. The specific use of desensitized and detached language and terminology serves to codify, objectify, control, convert, erase, and disembody living beings. It plays an important role in legitimizing and sanitizing the unspeakable so that there is a deliberate collective forgetfulness about the main actors—who is being traded, where they come from—and the devastation that is being unleashed on wild animals through trade and commercial activities. Hence, sterile scientific terminology such as “game,” “wildlife products,” “wildlife production,” “off-takes,” “quotas,” “harvest,” “high value natural resource,” “damage causing”, “wild sourced inputs,” “specimens,” “derivatives,” and “derived products” are endlessly used when referring to sentient living beings.
  2. Given that DEFF’s primary mandate is conservation, it is obliged, first and foremost, to holistically protect by all means, our natural heritage and healthy biodiverse environment, before any economic development can ever be considered.
  3. The recently introduced words “faunal biological resources”―supposedly to allay our concerns in relation to welfare address and to address the recent court jurisprudence on the importance of animal welfare, do not reflect the intrinsic value or sentience of wild animals and are in contradiction with the need to protect or consider their welfare and protection – the very raison d’être of the amendments to NEM:BA.
  4. In addition, DEFF has introduced the word “well-being” when referring to faunal biological resources” ’instead of “‘welfare” and “protection”. Welfare and protection are normative terms that have common, accepted guidelines in law, while “well-being” is open to too much interpretation, adaptation and exploitation, and will not pass legislative muster.
  5. This kind of utilitarian language does not reflect the values of the South African Constitution or sentiment expressed by the Constitutional Court on this matter.
  6. The recent Constitutional Court unanimous and landmark judgment handed down on 8th December 2016 by Justice Sisi Khampepe (with Nkabinde ADCJ, Cameron J, Froneman J, Jafta J, Madlanga J, Mhlantla J, Musi AJ and Zondo J concurring): National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development and Another (CCT1/16). This Judgment not only elevated the welfare and protection of non-human animals to a constitutional concern, but also significantly related their welfare and protection to biodiversity and the constitutional right to have the “environment protected … through legislative and other means” in section 24 of the Constitution.
  1. The Constitutional Court emphasised that constitutional values dictate a more caring attitude towards fellow humans, animals and the environment in general and that this obligation was especially pertinent because of South Africa’s history. Of particular interest is that the Constitutional Court held that:
    1. The rationale behind protecting non-human animal welfare has shifted from merely safeguarding the moral status of humans to placing intrinsic value on animals as individuals.
    2. Non-human animals are sentient beings capable of suffering and experiencing pain.
    3. Non-human animals are worthy of protection.
    4. Guardianship of the interests of non-human animals reflects constitutional values and the interests of society at large.
    5. The protection of non-human animals safeguards the moral status of humans and the degeneration of human values.
  2. It is particularly significant that the Judges concurred with and highlighted their support for the judgments of other Courts which have held that canned-lion hunting is “abhorrent and repulsive”.
  3. In the judgment, the Constitutional Court made the following important declarations which necessarily impact directly on the Department’s policies, regulations and legislation:
    1. Humans and animals have a storied relationship, one that is a part of the fabric of our society, homes and lives. Animals have shifted from being “mere brutes or beasts” to “fellow beasts, fellow mortals or fellow creatures” and finally to “companions, friends and brothers.”
    2. To protect these voiceless companions, individuals have time and again stepped in when animals are mistreated.
    3. More recently, Cameron JA’s minority judgment in Openshaw recognised that animals are worthy of protection not only because of the reflection that this has on human values, but because animals “are sentient beings that are capable of suffering and of experiencing pain”. The High Court in South African Predator Breeders Association championed this view. A unanimous Full Bench found that canned hunting of lions is “abhorrent and repulsive” due to the animals’ suffering. On appeal, the Supreme Court of Appeal did not dispute this finding.
    4. The Supreme Court of Appeal in Lemthongthai explained in the context of rhino poaching, that “[c]onstitutional values dictate a more caring attitude towards fellow humans, animals and the environment in general”. The Court concluded further that this obligation was especially pertinent because of our history. Therefore, the rationale behind protecting animal welfare has shifted from merely safeguarding the moral status of humans to placing intrinsic value on animals as individuals.

v. Lemthongthai is also notable because it relates animal welfare to questions of biodiversity. Animal welfare is connected with the constitutional right to have the “environment protected . . . through legislative and other means”. This integrative approach correctly links the suffering of individual animals to conservation, and illustrates the extent to which showing respect and concern for individual animals reinforces broader environmental protection efforts. Animal welfare and animal conservation together reflect two intertwined values.

  1. It goes without saying that the Minister and her Department are obliged to act in accordance with this judgment and our environmental legislation needs to be in synergy with these constitutional imperatives. This must include a change in the use of derogatory language and terminology.
  2. WenotethattheDepartmentconsistentlyreferstothe“biodiversityeconomy”and similar terms where the pure economic aspects of wildlife in particular are emphasized. This is apparent from the “game changer” website74.
  3. Notably, there are important objectives and aims of the biodiversity economy such as “contribution towards the reduction of poverty in rural areas through the development and capitalisation of resources and hidden skills currently available in areas where the poorest South Africans live, thus incorporating marginalised communities into the greater biodiversity economy”
  4. The website indicates that “If we support this sector there turns will be endless.”
  5. However, absent from this is the consideration of alternatives to achieve such aims as well as the failure to consider living beings.

2. Other Views Expressed by the Department and Minister and the Provinces

a. As indicated in the WAPFSA Letter and reiterated herein, The Minister of the Department, Barbara Creecy (the “Minister”) made a public statement on Twitter75 that:

It is not the Animals that we need to worry about, it’s the people. After all animals have been looking after themselves for hundreds of thousands of years. If we want to address these issues we need to focus our energy on the people”.76

  1. This and other statements by the Minister as well as the Department show the blatant disregard for the intrinsic value of animals or any other worth besides their commodification. It further indicates a complete lack of knowledge and understanding of the interconnectedness of species – on biological, environmental, societal, political, legal and various other issues one would expect the Minister in charge of this portfolio to have.
  2. The former Minister of the Department, Edna Molewa, indicated similar sentiments when she indicated that if the captive lion breeding industry was shut down, lions would have “no value”.77
  3. On the 29th October2019 at the opening of 3rd annual conference of the Global Wildlife Programme in Pretoria78, the poaching of charismatic species such as the elephant and rhinoceros, prevents sustainable rural development since it reduces the tourism potential of natural habitats.”the Minister seemed intent on only referring to the economic value of wildlife. She said that “
  4. Please refer to our #TipsforBarbara Letter for more information on this.

PART D: CURRENT REGULATORY FRAMEWORK

1. Issues with Current Regulation/Regulatory Framework & Enforcement

There appears to be a complete lack of concern for anything relating to the wildlife itself. Furthermore, without any mention of individual animals but rather the promotion of “the biodiversity economy” – indicating that the Department appears to be of the view that animals only have economic value – a sentiment which we submit is not representative of the majority of South Africans. It is also not Constitutional in light of statements by the Constitutional Court.

  1. The below are some non-exhaustive issues with the current regulatory framework, in addition to those which have already been raised above.
  2. We wish to raise these as they should be adequately communicated to the members of the Panel and require expert legal analysis and legal expertise.

c. As indicated in the WAPFSA Letter and reiterated herein, as well as the #TipsforBarbara Letter and Continuous Correspondence for further concerns, which include (but are not limited to):

i. inadequacy of existing legislation;
ii. inadequacies and proposals for law reform.

2. Fair Game Report79

  1. We refer to the 2018 Report entitled “Fair Game” in which a number of gaps, shortfalls and issues were identified with the current regulation of wildlife. We have included certain of these herein, which is by no means a complete list.
  2. They concluded that: “The improvement of animal welfare laws and their consistent implementation, compliance, monitoring and enforcement is an urgent Constitutional imperative.”
  3. Certain identified issues include but are not limited to:
    1. “entrenched jurisdictional divide, the outdated and at times inadequate laws that are inconsistently applied and enforced, the judicial treatment of animal cruelty cases, and the focus on economic progress, welfare of wild animals is not currently a priority in South Africa.”
    2. specific issues identified with regard to (non-exhaustive):
      1. Animals Protection Act (offences and potential loopholes; inadequacies of implementation; APA is unsuited to wild animal protection);
      2. PerformingAnimalsProtectionAct;
      3. NEMA80; NEMBA81 and TOPS82;
      4. Provincial legislation; and
      5. Self-regulation.
  1. In addition, reform measures were proposed including but not limited to:
    1. Immediate, medium, and long-term measures to standardise the application and enforcement of conservation and welfare laws are required to give adequate effect to the existing provisions.
    2. Asanimmediatefirststep,clarificationofthelegalmandateforthewelfareof wild animals and the updating of laws and closing of loopholes in the system is necessary.
    3. Simultaneously, investment in compliance, monitoring and enforcement capacity (including well-trained officials) together with a standardised and transparent permit system are essential.
    4. Short-termreformofthepermitsystemwithanumberofproposals.
    5. Long-term reform of the permit system requires an integrated electronic national permit database, including permits, compliance inspection reports and audit reports. This is critical as the lack of any cross-referencing across provinces has allowed for the dubious practice of obtaining permits in one province where these have been refused in another. All provinces should have real-time access to the nationwide details of all applications, approvals and denials. In addition, significantly increased capacity for an adequate number of trained officials, regular welfare inspections and consistent enforcement, including through funding from increased permit application fees and fines, in addition to government funding to the NSPCA in its performance of its crucial public function, is required.
  2. More specifically, in relation to the welfare of wild animals. We have not re-iterated all of these herein, however we wish to note that despite this Report coming out nearly two years ago and making recommendations – much of these have not been dealt with. We seek clarity from the Department as to what actions have been taken in response to the Fair Game Report.

3. Animals Protection Act(APA) and the Performing Animals Protection Act(PAPA)

  1. Both the Animals Protection Act, 1962(“APA”) and the Performing Animals Protection Act, 1935 (“PAPA”)83, provide the foundation of animal welfare and protection legislation in South Africa and fall under the scope of DALRRD.
  2. There is an urgent need to amend the APA because it is hopelessly out of date, not protecting animals and not aligned with (non-exhaustive):
  1. SA’s constitutional and democratic order;
  2. Advancements in the scientific and ethological understanding of animals;
  3. The promulgation of more progressive policies and laws in other countries;
  4. Strong scientific evidence reflecting the link between violence perpetrated by humans against humans and humans against animals – in a country beset by so much violence against people and animals, government bodies should be promoting humane and non-violent methods of engaging with wildlife.

c. South African animal welfare and protection organisations are all in agreement that there is an urgent need for legislative reform because:

  1. DALLRD has no jurisdiction to investigate cruelty or take action against cruelty.
  2. There are critical weaknesses with the APA and PAPA in terms of (but not limited to):
    1. Interpretation;
    2. Application;
    3. Administration;
    4. Locus standi;
    5. Enforcement, investigative and trained personnel provisions.
  1. Generally, there is inadequate protection for wildlife in the current animal protection legislation, particularly in relation to: hunting, ‘culling’, predators in the canned hunting industry, so-called “damage causing animals” (traps etc.), animals in captivity, and the issue of res nullius.
  2. Lack of synergy with other relevant pieces of relevant legislation, particularly environmental legislation which urgently needs to be aligned with animal protection legislation and vice versa.
  3. At the very least permits for the movement of wild animals and the permits allowing animals to be kept need to be substantially more specific in terms of welfare and protection requirements and must include conditions which facilitate welfare inspection.

4. Issues with species-specific regulation

a. We have highlighted above in Part II, regulation in existence that specifically relates to species. Particularly, we have queried how the Panel will interact with and impact on such current regulation.

b. We further note that there are some positive aspects of current regulation (such as the recognition of elephants as sentient in the existing Norms and Standards), as well a number of issues with the current regulation which provide for legal loopholes; uncertainty/inconsistency; confusion and potential exploitation.

5. Self-regulation

  1. Another major issue which must out of necessity be addressed during this process is the reliance of wildlife industry on self-regulation.
  2. This is why bodies such as the South African Predators Association (“SAPA”) have set their own Norms and Standards which they believe are adequate. For example, their “Norms and Standards for the Hunting of Captive Lions in South Africa”84 and “Norms and Standards for the Management (Welfare, Breeding and Keeping) of Captive Lions in South Africa Ranch & Working lions”.85
  3. It is worth noting that SAPA members have been implicated in animal cruelty and egregious practices. 86
  4. A prominent example includes Walter Slippers – who not only once, but on various occasions had problems with his lions – including “evidence of shocking animal neglect and cruelty”.87

6. Enforcement

  1. There are major issues with the enforcement of the current regulation, particular in so far as it relates to animal welfare as well as the permitting.
  2. For example: the “DEA reported that of the 227 breeding facilities inspected in the Free State, Limpopo, North West and Eastern Cape, nearly 40% (88 facilities) were non-compliant with, among others, the Threatened or Protected Species (TOPS) Regulations…. In the Free State of the 111 facilities inspected, 62 were found to be in non-compliance with TOPS Regulations. Most facilities were also found to be operating with expired permits. All permits were however renewed without providing reasons for renewal. 88
  3. It is insufficient to consider “policy positions” and crime-targeted species management recommendations without due consideration of the status and capacity of enforcement agencies, including national and provincial environmental management inspectors, the South Africa Police Services and the capacity of the courts to handle wildlife crime matters.

d. It is imperative that specific attention is given to significantly improving wildlife crime enforcement and prosecution capacities.

PART E: PUBLIC OPINION

1. Wildlife Conservation and Public Sentiment

  1. International surveys clearly indicate how citizens around the world are increasingly concerned about animal treatment, welfare and management within and outside the European Union (“EU”).89
  2. Scientificevidenceanddatacollectedduringinvestigations,surveys,polls,aswellas public consultations, are crucial when legislation and policies are formulated. At the same time, progressive policies in certain countries, will have a positive influence on the progress and growth of others and their code of practices.
  3. US polls, EU surveys and public consultations from many other countries ― which form the base of the tourists who come to South Africa ― support an increase in the protection of biodiversity and Africa’s so-called “iconic” species. They also support the implementation of bans, including trophy hunting, ivory, rhino horn, big cat breeding and the wildlife trade.
  4. These positions partially reflected at the Convention on the International Trade in Endangered Species (CITES Convention of the Parties CoP 18), where countries around the world were represented and voted.
  5. The results of a US poll on policies in Botswana showed that 75% of respondents think it is important to protect elephants from trophy hunting. An overwhelming 78% percent of respondents did not support culling practices. Furthermore, 73% percent of respondents believed that trophy hunting badly impacts on the reputation of countries considered leaders in wildlife conservation90.
  6. Among the most controversial practices, the following are perceived by a large portion of the public as abhorrent: elephant culling; elephant capture; turning iconic animals into food; trophy hunting of vulnerable and iconic species; captive rhino breeding; rhino dehorning; management practices which include trapping and killing; the issue of so-called “problem animals”; captive breeding of big-cats for bones; trading baby animals as pets, to zoos and circuses.
  1. Social media is a powerful tool that can galvanize public support for conservation action. In a letter published in Science researchers used an example of animal abuse in the context of the illegal wildlife trade to highlight the power of social media in bringing public attention to conservation issues.
  2. Raising awareness of endangered species as well as the promotion of wildlife conservation is spread across the world via social media platforms.
  3. Social media in all its various formats has done wonders to connect people around the world and expand dialogue on just about any topic you can think of including conservation and wildlife issues.
  4. The emerging social media platforms are a promising means of strengthening public awareness. Quantitative methods have been used to analyse the spread effects of social media news. Concise but lively news is powerful for improving public environmental education. Traditional publishers have the power to influence public response in social media. Multifaceted public perception should be guided for reducing misunderstanding.
  5. Many young people stare at screens instead of being out in the wild but others use technology to form a global community of conservationists. The rise of social media has allowed a new generation to connect with those who share their interests. Young people who are interested in conservation and nature are connecting on social media platforms. Groups such as A Focus on Nature in the United Kingdom connect, support and inspire young people who are interests in nature. `
  6. Social Media has further highlighted these negative reactions. Studies assessing online public sentiment in relation to iconic species and biodiversity loss have been undertaken. One study focused on social media data and other online data sourced from conservation science, using natural language processing methods. The study concluded that the public is strongly concerned about worrying trends relative to wildlife, the environment and the current biodiversity loss. The study highlighted how this, in turn, can be used by decision makers to develop adequate conservation actions that can help reverse the biodiversity crisis.91
  7. Social Media has also been the platform for public outrage in relation to the killing of specific animals, with the support of celebrities and Ministers.92
  1. In recent years, following the expose of wildlife issues, zoos had to temporarily close, business had to be suspended and people have been fired.93
  2. Internationallythereisanincreasingnumberofpeoplewhoareactivelychallengingthe killing of endangered wildlife for pleasure and profit. They are educated, progressive and they travel. Many among them are conservationists, scientists and journalists.94
  3. The Captive Lion Industry alone has, between mid-2016 and June 2019, had over four million signatures, only via English language petitions, a number that should certainly highlight the proportion of the concerns from the general public towards this topic.

2. Examples

a. Below is a sample list of petitions specifically tailored to shut down this controversial industry and the trade in captive lions and other Big Cats. The general public seems to be particularly concerned about the link this trade has with the illegal market and the abuse of big cats worldwide, as a consequence of South African exploitative policies. This list of petitions is only a brief compilation emerging from a quick internet research and it is not exhaustive:

  1. “LION FARMS ARE REAL AND WHAT HAPPENS TO THEM WILL MAKE YOU SICK” April 2019 Petitioner: Care 2 Team Recipient: The Parliament of South Africa Signatures 120.000
    https://www .thepetitionsite.com/187/703/535/lion-farms-are-real-and-what- happens-to-them-will-make-you-sick./
  2. “SOUTH AFRICA PERMANENTLY REVOKE ALL PERMITS AND LICENCE TO MR STEINMAN AND THE PIENIKA LION FARM” Petitioner: EMS Foundation, Ban Animal Trading, Future 4 Wildlife Recipient: DEA, DEFF, North West Province May 2019 Signatures: 51.000
    https://www .thepetitionsite.com/816/404/962/south-africa-permanently-revoke- all-permits-and-licence-to-mr-steinma n-and-the-pienika-lion-farm/
  3. “TELL SOUTH AFRICAN AUTHORITIES TO BAN CRUEL CAPTIVE BREEDING OF LIONS FOR PROFIT” May 2019 Petitioner: The Humane Society – South Africa Recipient: South African Authorities Signatures: 82.000 https://action.hsi.org/page/42430/action/1?locale=en-US
  4. “BAN THE SOUTH AFRICAN LION BONE TRADE AND THE TRADE IN ENDANGERES SPECIES AND THEIR BODY PARTS” 2016 Petitioner: Global March For Elephants, Rhinos, Lions Recipient: Department of Environmental Affairs, DEFF Signatures: 429.000 https://www.change.org/p/ban-the-south-african-domestic-trade-in-rhino-horn-and-stop-south-africa-from-wanting- totrade-internationally-with-endangered-species-or-species-parts/u/24424076
  1. “END LION FARMING IN SOUTH AFRICA” 2018 Recipient: President Cyril Ramaphosa Signatures: 216.000 https://www.thepetitionsite.com/takeaction/459/538/794/
  2. “HUNDREDS IN CAPTIVITY, 13 IN THE WILD – SAVE THE WHITE LION” 2018 Petitioner: Global White Lion Protection Trust Recipient: CITES, IUCN, South African Government Signatures 25.000 https://whitelions.org/save- the-white-lion-petition/
  3. “SAVE MUFASA THE WHITE CAPTIVE LION” 2018 Petitioner: Carel Zietzman and Associated Recipient: The Minister of environmental Affairs, The Parliament of South Africa Signatures: 395.000 https://www.thepetitionsite.com/894/071/669/save-mufasa-the-white-lion/
  4. “STOP THE EXPLOITATION OF CAPTIVE BRED LIONS AND THE EXPORT OF LION BONES” 2017 Petitioner: LION AID, CAMPAIGN AGAINST CANNED HUNTING, BORN FREE and other 31 organizations Recipients: South African Government, High Commission of South Africa in London, SA Embassies Signatures: 19.000 https://www.change.org/p/south- african-government-stop-the-exploitation-of-captive-bred-lions
  5. “SOUTH AFRICA, BAN THE EXPORT OF LION BONES” 2018 Petitioner: H. Freya Recipients: Government of South Africa Signatures: 57.000
    https://www .thepetitionsite.com/909/472/313/south-africa-ban-the-export-of-lion- bones/
  6. “CALLING FOR AN IMMEDIATE BAN ON SOUTH AFRICA LION BONE TRADE” 2018 Petitioner: EMS Foundation, Ban Animal Trading Recipients: South Africa’s Parliamentary Portfolio Committee on Environmental Affairs Signatures: 193.000 https://www.thepetitionsite.com/684/142/325/calling- for-an-immediate-ban-on-south-africa%E2%80%99s-lion-bone-and-body-parts- trade/
  7. “URGE THE SOUTH AFRICAN GOVERNMENT TO END THE BREEDING AND KEEPING OF BIG CATS FOR COMMERCIAL PURPOSES” 2018 Petitioner: BORN FREE FOUNDATION Recipient: South Africa Authorities Signatures: 4000; https://www.bornfree.org.uk/lion-farming- petition
  8. “BAN THE CAPTIVE LION TRADE AND THE ABUSE OF BIG CATS IN SOUTH AFRICA” 2017 Petitioner: Four Paws South Africa Recipient: South African Government. Signatures: 50.000 https://help.four-paws.org/en-ZA/stop- lion-hunt
  1. “WE OBJECT TO THE PROPOSAL OF A 800 LION SKELETON EXPORT QUOTA” 2017 Petitioner: Future 4 Wildlife, Expose Illegal Trapping South Africa Recipient: DEA, CITES, IUCN, SAPA, PHASA Signatures: 118.000 https://www.thepetitionsite.com/959/052/321/we-object-to-the-south-african-dea- proposed-lion-bone-quota/
  2. “BAN TRADING IN RHINO HORN AND TIGER BONES IN CHINA” 2016 Petitioner, Katie Jones Recipient: Chinese Government Signatures: 312.000 https://www.change.org/p/ban-trading-rhino-horns-and-tiger-bones-in- china?recruiter=317834323
  3. “DEMAND CHINA TO REINSTATE THE BAN ON RHINO HORN AND TIGER BONE” 2016 Petitioner: Amanda Lallie Recipient: The Government of China Signatures: 9.000 https://www.thepetitionsite.com/958/270/005/demand- china-reinstate-the-ban-on-rhino-horn-and-tiger-bone/
  4. “SOUTH AFRICA, NO MORE CANNED HUNTS!” 2016 Petitioner: The Animal Rescue Recipient: South African Government. Signatures: 61.000 https://theanimalrescuesite.greatergood.com/clicktogive/ars/petition/CannedHunti ng
  5. “SOUTH AFRICAN GOVERNMENT, BAN THE CRUEL BREEDING OF BLOOD LIONS” 2016 Petitioner: Zareen Khan Recipient: Minister of Environmental Affairs, Edna Molewa; DEA Signatures: 241.000
    https://www .change.org/p/south-african-government-please-ban-the-cruel- breeding-of-blood-lions
  6. “BAN THE EU TRADE IN TIGER AND TIGER BONE” 2018 Petitioner Four Paws International Recipient: The European commission Signatures: 189.000 https://help.four-paws.org/en/ban-eu-tiger-trade
  7. “BAN THE IMPORT AND EXPORT OF TIGER BONE WINE AND THE CAPTIVE BREEDING OF TIGERS” 2018 Petitioner: Nyack Clancy Recipient: UN Trade Commission, CITES Signatures: 105.000https://www .thepetitionsite.com/549/207/509/ban-the-import-and-export-of- tiger-bone-wine/
  8. “STOP TIGER FARMING IS CHINA” 2016 Petitioner: Marina Kaufman Recipient: Government of People’s Republic of China Signatures: 208.000 https://www .change.org/p/government-of-people-s-republic-of-china-stop-tiger- farming-in-china
  9. “STOP ALL TIGER FARMING AND SALE OF TIGER’S BODY PARTS” 2016 Petitioner: Sue Lee Recipient: Government of China Signatures: 37.000 https://www .thepetitionsite.com/245/555/935/china-stop-all-tiger-farming-sale-of- any-tigers-body-parts/

xxii. xxiii. xxiv.

xxv . xxvi. xxvii.

“STOP THE FARMING AND MURDERING OF TIGERS, GLOBALLY

2016 Petitioner: Born Free Foundation Recipient: Governments of China, Lao PDR, Vietnam, South Africa, Czech Republic Signatures: 42 organizations
https://www .bornfree.org.uk/tiger-farming

“UKUTULA, STOP BREEDING AND MISLEADING TOURISTS AND VOLUNTEERS” 2017 Petitioner: International Organization for Animal Protection Recipient: Ukutula, Minister Edna Molewa, DEA Signatures: 124.000 https://www .oipa.org/international/ukutula-appeals/

“KALAHARI RESORTS, STOP EXPLOITING LION AND TIGER CUBS”

2016 Petitioner: Mary Elisabeth Lynn Recipient: Kalahari Resorts, Minister of Environmental Affairs Signatures: 8000 https://www.change.org/p/kalahari-resorts- stop-exploiting-lion-tiger-cubs

“STOP ABUSING TIGER AND LION CUBS” 2016 Petitioner: Mary Elisabeth Lynn Recipient: Kalahari Resorts, Minister of Environmental Affairs Signatures: 140.000 https://www.thepetitionsite.com/261/178/419/kalahari-resorts-stop- abusing-tiger-and-lion-cubs/

“BAN SOUTH AFRICAN LION FARMS THAT RAISE CUBS TO BE KILLED” 2017 Petitioner: Lauren Lewis Recipient: The Department of Environmental Affairs Signatures: 18.000 https://worldanimalnews.com/sign- petition-ban-south-african-canned-lion-farms-raise-cubs-killed/

“FIND THE CAPTOR WHO ABANDONED A LION CUB IN A CAGE”

2018 Petitioner: Care2 Team Recipient: Netherlands Authorities Signatures: 116.000 https://www .thepetitionsite.com/726/247/405/abandoned-tiger-cub-found-in-a- cage-find-his-captor/

PART F: NOTABLE DEVELOPMENTS IN JURISPRUDENCE, FOREIGN, ENVIRONMENTAL AND ANIMAL LAW AND THOUGHT SYSTEMS

1. Introduction

  1. As we have referred to throughout this Submission, we believe that a change in overall approach is required by the Department. We have set out some specific proposals in the South African context – particularly in Section I as well as by inclusion of the SAIFAC Submission as Appendix III. More specifically, in relation to an alternative interpretation to include the integrative approach.
  2. In this Part, we build on that by setting out some relevant and emerging thoughts from around the world, indicating a necessary and global shift in thinking towards nature, the environment and animals more generally.

c. Whilethemattersaredistinctandhavevaryingconsequences,theyareimportantfor broader understanding. Moreover, to some extent the below mentioned aspects have been incorporated to varying degrees in legal systems around the world.

2. Earth Jurisprudence and Rights of Nature

  1. In applying the South African legal system (with the exception of customary law) the Department considers all of Nature, other than human beings, as objects rather than legal subjects capable of holding legally enforceable rights.
  2. Most of Nature is defined as property that the owner has the right to buy, sell and use, with minimal restrictions. Even though wild animals are defined as unowned (res nullius) they may be owned by the person that legally captures or kills them, or in the case of some species, encloses them within a game-proof fence capable of containing them. This provides a legal basis for treating wildlife and their body parts as commodities, and for regulating and promoting the commercial exploitation of wildlife and “wildlife products” as if they were inert manufactured objects, with little or no regard for their wellbeing.
  3. The difficulty with the legal approach described above is that it is based on a thoroughly discredited, mechanistic understanding of the Universe which originated in Europe during the 16th and 17th Centuries. The Universe is not a machine composed of discrete inert components as was believed during the so-called “Age of Enlightenment”.
  4. Earth is a complex, self-regulating system comprising myriads of relationships which sustain all forms of life. It is now scientifically indisputable that wildlife (including the species that the Panel is called upon to advise on) are sentient beings with their own agency, relationships and emotions and that they play vital roles in the ecosystems within which they evolved. Treating wildlife as property and granting the humans or juristic person who own them the right to exploit them as commodities has been directly compared to slavery. Human slaves were once legally defined as property and consequently could not hold rights. As with slavery, such laws legitimise and facilitate the treatment of wildlife in ways that are deeply exploitative, cruel and ecologically unsustainable.
  5. It is apparent from the policies of the Department that it regards wild animals as property or commodities and does not recognise the reality that they are not objects but beings with the inherent right to exist and to play their part within the ecosystems within which they evolved.
  6. It is clear that the legal, administrative, and economic measures taken to date protect wildlife, both in South Africa and globally, are inadequate and must be strengthened. The health of ecosystems on which we and all other species depend is deteriorating more rapidly than ever and there has been a catastrophic decline in the wildlife populations as well as an acceleration in the loss of biological diversity. As Sir Robert Watson, the chairperson of the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) notes “we are eroding the very foundations of our economies, livelihoods, food security, health and quality of life worldwide.”
  1. Despite this, in recent years the South African government has sought to intensify the commodification, commercial exploitation, hunting and trade in wildlife and their body parts. It has justified this on the basis that it is promoting its approach to “sustainable use” (i.e. consumptive uses that can be maintained indefinitely). However, in our view this policy is at odds with the State’s constitutional mandate to promote conservation and prevent ecological degradation,95 and to be a trustee of biological diversity96. There could hardly be a more important role given the catastrophic decline of ecosystem functioning and loss of biodiversity globally which must be reversed in order to maintain human wellbeing and rights, prevent pandemics, maintain food security and mitigate climate change. Yet the critical role of maintaining and enhancing the ecological systems that sustain life has been made subservient to short-term exploitation of the environment in a manner that undermines long-term sustainability.
  2. DEFF’s approach is anachronistic and diametrically opposed to the international trend towards different philosophies of law such as an eco-centric one(e.g. Earth Jurisprudence) that seek to regulate human beings in accordance with the understanding that we are all members of a community of life from which we derive our wellbeing. Consequently, maintaining the health and integrity of the ecological communities that sustain life (including the whole “Earth Community”) must take precedence over the short-term commercial interest of a minority of the individuals of one species.
  3. The United Nations Harmony with Nature programme97 tracks the development of this rapidly growing global movement and further information can be obtained from the Global Alliance for the Rights of Nature.98
  4. In 2008 Ecuador became the first country to recognize rights of Nature in its Constitution. Other countries that have recognised rights of Nature in their legislation include Bolivia and Uganda, while other countries such as New Zealand have enacted legislation recognizing specific rivers, mountains and ecosystems as legal persons capable of holding rights. Many courts have also recognised aspects of Nature as legal persons, including the Atrato River (in a judgment of the Constitutional Court of Colombia) and the Colombian Amazon (Colombia Supreme Court in the case of Future Generations v Ministry of the Environment and Others decided on 5 April 2018).
  5. Applying an Earth Jurisprudence approach, recognising the rights and complying with the duties set out in the Universal Declaration of the Rights of Mother Earth99 would be enormous beneficial to lions, leopards, elephants and rhinos as well as to humans (who would benefit not only from being able to interact with these magnificent creatures but also from the consequential increase in ecosystem health). For example, applying this approach would mean that parties could go to court to uphold the rights of these animals:

i. to life and to exist;
ii. towaterasasourceoflife;

iii. to wellbeing and integral health;
iv. to not have their genetic structure modified or disrupted;

v. to habitat and to play their roles within ecological communities; and vi. to live free from torture or cruel treatment by human beings.

l. We humans would have a legal duty to recognize and promote the full implementation and enforcement of those rights, to ensure that the pursuit of human wellbeing contributes to the wellbeing of the whole Earth community, and to establish and apply effective norms and laws for the defence, protection and conservation of those rights.

  1. In practice this would mean that humans would be required to respect the freedom of lions, leopards, elephants and rhinos to live wild in suitable habitats and would only be entitled to restrict that freedom in very limited circumstances (e.g. fencing to prevent poaching). The killing of these animals for commercial reasons would be unlawful (although a killing in self-defence would be justifiable as it is in relation to human beings). Captive breeding for non-conservation purposes and the trading of lion bone, rhino horn and trophies would be prohibited.
  2. This approach involves “balancing what is good for human beings against what is good for other species…” and we submit that the Department (and the HLP) should be considering not only the rights of human beings, but also the rights of wild animals in making any determinations regarding their management, and determining which practices are sustainable. This requires an explicit balancing of interests: for example, an animal’s right to life and to fulfil its ecological role should outweigh the commercial interest of a human that wishes to kill it in order to sell its pelt.
  3. We strongly urge the HLP and the Department to embrace and apply the eco-centric Earth jurisprudence approach that is rapidly gaining traction around the world rather than persisting with the failing anthropocentric approach to wildlife. This will benefit current and future members of the Earth Community both human and other than human.

3. Additional Developments and Emerging Thoughts in Environmental Law

a. In addition to the Rights of Nature movement, there is a movement to consider the welfare of animals within a broader context.100

  1. This movement recognizes that environmental law should adapt in order to account for the intrinsic value of animals.101
  2. We will not cover this concept in detail; however, there are several resources worth looking at.102
  3. Additional Developments and Emerging Thoughts in Animal Law
    1. Relatedly, Switzerland and Germany are countries on the forefront of granting animals constitutional protections.103
    2. Other countries, including India, Brazil, Slovenia, Austria, Luxembourg, and Egypt also have constitutional provisions that recognize and include animals.104
    3. Other statutes and constitutions have recognized that animals are sentient.105
    4. There are a number of other examples that are representative of a positive shift in legal systems (including in legislation as well as court decisions) from around the globe insofar as they relate to the recognition of animal sentience; elevating the status of animals and other protections granted.
    5. A recently published article highlights some examples of these, in various foreign jurisdictions.106 We are happy to provide further resources and research on the topic.
  1. Sacred Sites107

a. Sacred Natural Sites have been recognized around the planet as “ecologically and spiritually pieces of the web-of-life that fulfil a critical role on Mother earth. They can be biodiversity hotspots, or individual elements such as source waters, wetlands, rivers, lakes, waterfalls, estuaries,oceans, reefs, bays, trees and forests, caves, mountains, soil systems or open planes. They carry the original templates for the continuity of Life, the source codes for a healthy planet. The Indigenous Way recognises that, like organs in a living body, the sites are interconnected and fulfil vital and varied roles supporting the health of the whole organism of Mother Earth (Gaia), including the global ecosystem.

Protecting one Natural Sacred Site helps protect them all; whereas damaging one damages all.”(ASSEGAIA Declaration, Davos, presented during the World Economic Forum, 2020.)

  1. In line with leading new paradigm conservation models, South Africa has been recognized as housing critically important biodiversity regions as part of the global ecosystem, with more than one site already identified as a “Sacred Natural Site” by the ASSEGAIA Alliance for Sacred Sites, an international body of experts in this field, including the White Lion Heartlands, at the epicentre of UNESCO’s Kruger to Canyons Biosphere.
  2. By definition, ‘sacredness’ is associated with protection of the highest order: something to be set aside to be consecrated and venerated in its pristine state. The sacredness of these sites was defined by their inherent natural significance, which was honoured and recognised as sovereign and sentient by ancestral precedent, which spoke for them and their consecration. Many such sites were recognised by the indigenous communities who, as a result, acted as the sites’ custodians. While the custodians linked the wellbeing of the human communities to these natural sites, thus inherently dependent on the pristine nature and physical health of the site, the site itself had intrinsic value over and above the cultural importance placed on them by those human communities.

6. Indigenous Knowledge and involvement108

  1. In order to remedy this, Indigenous capacity and local knowledge regarding the conservation of wild animals should be recognized, respected, recorded, developed and play a significant role in determining the management practices and policies for wildlife in South Africa. Indigenous and local communities play a key role in protecting ecosystems. Many animals are regarded by Indigenous and local communities as sacred and, as custodians of biological diversity, communities have taken responsibilities for their well-being and sustainability.
  2. However, many laws, including the laws relating to wild animals in South Africa, and specifically those currently under review by the Panel, directly undermine Indigenous peoples and local communities, and their approaches to conservation and sustainable use. While communities govern and manage integrated territories, land and seascapes, the State tends to view each type of resource and associated traditional knowledge through a narrow lens, drawing legislative borders around them and addressing them in isolation, essentially compartmentalizing otherwise interdependent aspects of social- ecological landscapes.
  3. One clear example is the historic delineation between matters of wildlife management and matters of welfare. Another is the delineation between Indigenous knowledge and wildlife management. This fragmented nature of the law is compounded by the fact that such a compartmentalized approach is implemented by government agencies focusing on particular issues such as biodiversity, forests, agriculture, or Indigenous knowledge systems, without considering a systemic ecosystem approach to conservation and wild animal management, which is the Indigenous Way.

SECTION IV: SPECIFIC FEEDBACK ON TERMS OF REFERENCE AND SPECIES

____________________________________________________________________

PART A: INTRODUCTION AND GENERAL ISSUES ACROSS SPECIES

  1. Introduction
    1. We have not repeated issues previously raised or as mentioned in other Parts and sections of this Submission, however, these should be read in where appropriate based on the relevant subject matter.
    2. AswehavementionedinSectionIIabove,wewishtoemphasisethefactthatcalls for public submissions on draft regulation in respect of the four species have previously been made. Each of ALRSA and EMS Foundation (as organisations and through our networks) have made submissions in respect of: (i) Elephants; (ii) Rhinos; (iii) Lions and (iv) Leopards. In this regard, we refer to Appendix I wherein previous submissions have been included (non-exhaustive). Not only have we not received responses to some of these submissions (nor acknowledgement of receipt), but it is unclear to what extent these submissions were even considered and if so, to what extent.
    3. Accordingly, we wish to state that the specific comments contained in our previous submissions, apply equally to matters to be deliberated on by the Panel, with the necessary contextual amendments. We have not repeated all of these herein.
  2. General Issues / Comments ApplicableBelow are some issues which apply to one or more of the subject species and have been included in this General Section of comments on the ToR. We have divided these into “Components” for ease of reference.

Trade

Component I: Trade – South Africa’s Wildlife Trade is Inappropriate

1. It is difficult to overstate the importance of reversing the catastrophic decline in populations of wild species which is now underway. We are now in the Sixth Period of Mass Extinction (the Fifth such period occurred approximately 65 million years ago). Globally, populations of vertebrate species declined by 60% between 1970 and 2014.109 The planetary boundary or threshold for biodiversity loss has been exceeded by a huge margin, meaning that humanity is at risk of experiencing non-linear, abrupt environmental change within continental to planetary-scale, which are likely to have catastrophic impacts on human civilizations.110 Wildlife trade is exacerbating the decline in healthy and viable wild populations of many species.

  1. Theinternationalwildlifetradeandthecaptivebreedingandfarmingofwildanimalsfortrade is dangerous because it is increasing opportunities for zoonotic spillover and of future pandemics like the Covid-19 pandemic, as well spreading animal diseases. Trading, slaughtering and consuming wild animals (particularly in cruel and the unhygienic conditions found in China’s “wet markets”) is a major vector for the transmission of diseases from animals to humans (i.e. zoonotic diseases) and the means by which novel infectious diseases arise which can cause pandemics like the current Covid-19 pandemic.
  2. In these circumstances, the trade in wild animals is inappropriate, counter-productive, unethical and fundamentally unsustainable. Furthermore, oversight by CITES authorities is lax and the welfare of the animals being traded is ignored.
  3. It is inherently difficult and costly (and probably impossible) to regulate the international trade in endangered wildlife and wildlife body parts that is permitted by CITES sufficiently well to prevent illegal trade and animal welfare abuses. Further, the trade (with the limited exception of the translocation of animals to promote in situ conservation) does not benefit conservation and usually increases the demand that drives the illegal trade and on-going ecological harm. A ban on this international trade (with a limited exception to enable the movement of wild animals for in situ conservation purposes) would yield the best conservation outcomes at the lowest cost because it is easier and more effective to enforce a ban than regulate a permitting system.
  4. The true nature of SouthAfrica’s legal wildlife trade, it’s intimate relationship with illegal trade and criminal networks, and severe enforcement, oversight and verification issues has been laid bare in two recent report, The Extinction Business: South Africa’s Lion Bone Trade and Breaking Point: Uncovering South Africa’s Shameful Live Wildlife Trade with China. These reports are just the tip of the iceberg. It can no longer be ‘business as usual’. There is an urgency to address this issue and Covid-19 has sharpened that focus.
  5. It is not practicable to manage a commercial trade in wild species without facilitating illegal trade, and consequently the current pro-trade policies of DEFF will have the effect of increasing illegal trade in wildlife. This is one of the reasons why the Report calls for a prohibition of the international commercial legal trade and sale of wildlife and their body parts, and bans on the live trade of wild animals, and captive breeding and farming of wildlife for trade (other than for in situ conservation purposes).
  1. The promotion of international trade in wildlife (other than for in situ conservation purposes) is inconsistent with the State’s role as custodian of the environment and of biological diversity, and with the environmental right in section 24 of the Constitution.
  2. The Convention on International Trade in Endangered Species (“CITES”) establishes minimum conditions that must be complied with under international law but are insufficient to ensure an adequate level of protection for endangered species. The South African State’s constitutional duty to take reasonable legislative and other measures to prevent ecological degradation and promote conservation, means that the State should mean that a higher standard is required locally than is required by CITES.
  3. Now that DEFF is aware that the existing regulatory system is facilitating trade in contravention of CITES, and of the potential dangers which this trade poses, a failure to impose a moratorium on wildlife trade until the regulatory deficiencies have been rectified amounts to condoning illegal trade.
  4. The Minister has promised that an investigation will be undertaken into the Reports ‘allegations’. It is clear that DEFF oversight and enforcement is much to be desired and in fact part of the problem. They therefore cannot investigate themselves. A credible, independent third party needs to be appointed to conduct and lead a forensic investigation into the permitting system and the transgressions. We are willing to cooperate and work with this independent party.
  5. In the meantime, at the very least, a moratorium on South Africa’s wildlife export trade must urgently be put in place. It is an appropriate first-step response to addressing the expansive systemic problems. Given the degree and nature of the failings of the current system, it would be irresponsible to continue exporting wild animals until the independent investigation has been completed and the problems addressed.
  6. Indeed, based on our research and findings, what we are calling for is:
    1. Abanonthelivetradeofwildanimals,includingcaptive-bredanimals,exceptinthecaseof translocations that benefit conservation in the wild (i.e. in situ conservation).
    2. A ban on the captive breeding and farming of wild animals for trade.
    3. A ban on the international and local trade in wildlife body parts.
    4. A ban on the consumption of wildlife body parts (for food or medicine) where there is a risk of the transmission of zoonotic diseases and strictly regulated the production, trade and consumption of meat from wild animals to ensure that animal welfare and food safety are not compromised.

13. At the international level South Africa must advocate for the revision or replacement of CITES with a treaty that bans the international wildlife trade and ensures that the welfare of wild animals being translocated for in situ conservation purposes, is protected.

Component II: Dispelling Myths Surrounding Wildlife Trade Bans

  1. Wildlifetradeisanindustrywhereafewwealthypeoplehaveconvincedmanygovernments that the world cannot function without it. Those making a rigorous case against the wildlife trade are deliberately side-lined and often labelled as uneducated and simply ignorant of the industry’s nuances. Proponents of wildlife trade claim bans are ineffective at protecting wildlife and are detrimental to rural communities’ food security and livelihoods.
  2. Essentially, their stance is that wanting to protect wildlife through trade bans harms both wildlife and people. At least, that is, if you believe the myths perpetuated by wealthy industry leaders aiming to protect their profits. All too often propaganda from wildlife trade advocates states wildlife trade bans simply do not work. They argue that conservation severely lacks funding and resources around the globe, and it is, therefore, unrealistic to assume bans can be properly enforced. Unenforced bans will only lead to more illegal and unsustainable trade.
  3. To the uninitiated, this may seem like a valid argument against bans. However, in reality, bans are much better suited to protecting wildlife than regulated trade specifically because of the lack of resources available for conservation. Enforcing trade regulations requires vastly more resources, knowledge, and expertise than enforcing trade bans.
  4. Recent history also shows how effective bans can be in protecting vulnerable species. Hunting, fishing, and trade decimated many of North America’s wildlife species throughout the 19th and 20th centuries. Human pressure nearly eliminated humpback whales from coastal waters and gray wolves from mountains and plains. Luckily, the United States passed its most important piece of conservation legislation in 1973, the Endangered Species Act (ESA). The ESA prevents the “taking” of any federally protected species and restricts the destruction of crucial habitat. Taking in this context means “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Put simply, the ESA is legislation banning wildlife trade of certain species in the United States. But the ESA is so much more than a piece of legislation to species like humpback whales and gray wolves, it is their saving grace.
  5. The success of elephant ivory and rhino horn bans demonstrates the United States is not an outlier. The 1989 CITES ban on international ivory trade was followed by a boom in elephant populations in many African countries. Even countries where elephant populations continued to decline showed a slower rate of decline.
  6. Rhino breeders think criminalizing the international rhino horn trade threatens wild rhino populations, but that opinion is not backed by science. Population studies show black rhino numbers reversed a downward trend and started growing shortly after China banned rhino horn trade in 1993. Who would have thought such blunt instruments could work wonders for the world’s biodiversity?
  1. It is easy to point to examples of wildlife trade bans positively impacting conservation but there is still the myth that bans adversely impact food security for the world’s impoverished communities. However, the unfortunate reality is there is no longer a sustainable level of wildlife consumption that meets human needs. Economic assessments detail what has long been known but consistently pushed aside, there is a stark imbalance between what nature can supply and what humans demand. Even studies often cited to support continuing wildlife trade for food security do nothing more than prove wildlife consumption is unsustainable.
  2. This is where nuance comes into the wildlife trade argument. If wildlife trade and subsequent consumption is continually promoted as a food security benefit, there will be no wildlife left to support our own species. As the number of humans grows and the number of wildlife declines, communities that rely on wildlife consumption will become increasingly food insecure.
  3. Allowing wildlife trade to continue is simply kicking the can down the road and will only make the future worse for impoverished people. Wildlife trade bans force the world to have the uncomfortable discussions about lack of infinite growth on a finite planet.
  4. Even so, the food security argument is often just a façade for increasing the profits of wealthy industry leaders. For instance, South African officials stated they are extending their West Coast rock lobster fishing season because the COVID-19 pandemic is putting an economic strain on fishers in an industry that sends 90% of their catch to China. Research shows African countries’ increasing exportation of fish stock to China is adding to food security concerns and poor communities are likely to be hit the hardest as prices increase on the continent.
  5. It is interesting wildlife trade proponents think bans will destroy livelihoods of the worlds impoverished, yet there are concrete examples of legal trade depleting resources and increasing food costs for poor communities. It seems what wildlife trade proponents really mean is bans will negatively impact the livelihoods of a few wealthy industry leaders. But the idea of protecting wealthy industry leaders in the hopes of benefiting the rural poor is akin to trickle- down economics. It simply does not work.
  6. Those wishing to ban wildlife trade are not ignorant or unrealistic. Rather, wildlife trade opponents are pragmatic and opting for the best solution on a finite planet. Bans require less funding and resources than regulations and have a history of successfully protecting biodiversity. On the other hand, legal wildlife trade is currently contributing to food scarcity and further impoverishing communities. Bans can help reverse that trend.

Component III: A Systemic Problem: Why the CITES Wildlife Trade System is not fit for purpose

1. Since 2016 the EMS Foundation and BAT began to focus on:

  •   Understanding the mechanisms of the legal trade in endangered species and how the flaws in the outdated CITES (Convention on International Trade in Endangered Species of Wild Fauna and Flora) legal trade monitoring and regulation system enable illegal trade;
  •   Addressing supply-side drivers, supply-side economics and the validity (or not) of the ‘sustainable use’ model;

 Understanding the current problems of the CITES system in South Africa and more generally.

  1. Over and above the empirical evidence to support a Moratorium on South Africa’s international wildlife trade presented in the EMS Foundation and Ban Animal Trading Extinction Business reports: South Africa’s Lion Bone Trade and Breaking Point, which provided detailed information about the types of transgressions there is also an urgent need to address the CITES trade system more broadly as it is not fit for purpose.
  2. The Convention on International Trade in Endangered Species (“CITES”) establishes minimum conditions that must be complied with under international law but are insufficient to ensure an adequate level of protection for endangered species. The South African State’s constitutional duty to take reasonable legislative and other measures to prevent ecological degradation and promote conservation, should, in our view, entail that the State must meet a higher standard than required by CITES.
  3. DEFF has been made aware that the existing regulatory system is facilitating trade in contravention of CITES, and of the potential dangers which this trade poses. A failure to impose a moratorium on wildlife trade until the regulatory deficiencies have been rectified amounts to condoning illegal trade.
  4. CITES is the United Nations Convention that is supposed to regulate the international trade in endangered flora and fauna. It was drafted in 1973 and came into force in 1975. Today CITES has 183 signatories who are Parties to the convention. CITES lists ~1,000 species on Appendix I (no commercial trade allowed) and over 34,000 species on Appendix II (trade restrictions are applied). CITES uses a ‘direct’ listing model, meaning the default position is unrestricted trade. Because of the global decline in wildlife populations this means the number of listed species is rising constantly, making enforcement ever more difficult and costly for national governments. CITES listings depend heavily on the availability of reliable trade and shipment data, but its data collection system is completely out of date.
  5. Since 1975, the CITES trade system has been left to expand and to grow unrestrained, to the point where there are too many species and individuals in the trade, not enough control and too few resources. So, it is not only the use of wildlife that has a high risk of being unsustainable in countries where there is ‘weak wildlife trade regulations’, it is also the global trade regulator itself that is extremely weak and failing.
  6. Instead of protecting the natural world using the precautionary principle, the reality is that CITES is a trade convention and since the 1970s the trade approach has taken precedent. It is therefore incumbent upon governments, agencies and organisations supporting and driving the wildlife trade to demonstrate that the system administering and monitoring this trade is fit for purpose for the species it is there to protect.
  7. Given the people and businesses that want to maintain a trade in wildlife consistently use the statement that they ‘comply’ with all the CITES trade permit rules, it is imperative to take into account the ability of this system to comprehensively monitor trade and the movement of these animal body parts etc. There is a growing body of irrefutable evidence that the CITES trade permit system is not fit for purpose and, in many instances, held in contempt by representatives of agencies who use it.
  1. For the CITES (or any) system to be relevant in preventing illegal trade, the legal trade monitoring system needs to be completely transparent and provide the ability to track individual items from origin to destination, without any loopholes, gaps or opportunities to launder illegal items into the legal market. Such systems readily exist; for example, spare parts in the aviation industry are tracked with this level of diligence. And when it comes to the CITES regulation system, we are not talking about grains of rice or tyres―we are talking about sentient beings caught in the trade.
  2. CITES has a trade and permit system that is completely useless in reconciling even the most basic import and export data. Items are not identifiable, not tracked and even quantities recorded are completely ambiguous (such as ‘10 units’ of ivory, which is less than meaningless). Many countries do not require import permits, making reconciliation and auditing impossible. Permits are mostly paper based and generally not reconciled with customs documents such as lading bills or air way bills.
  3. When asking representatives of some of the most well-known global conservation organisations why they have enabled this sorry situation to persist, sadly too many responses took the form “We know the system isn’t great, but it is all we have”. Whilst this pattern of response may be attributed to mediocrity, more worryingly was that, when pushed, some admitted that they don’t say anything that would upset the CITES secretariat or the parties as they “don’t want to be uninvited” to the working group meetings in Geneva or uninvited to the Conference of Parties, robbing them of the status of ‘having a seat at the table’. To clarify, only signatories (governments) have an automatic invitation to CITES meetings and working groups; the conservation NGOs are invited by the ‘grace and favour’ of the formal stakeholders.
  4. The volume of research, undertaken over many decades, including the EMS/BAT Extinction Business Series, has repeatedly shown deep flaws in the CITES trade and monitoring system. This coupled with the fact that species threatened by the trade can wait as long as 19 years for so-called ‘protection’ thus putting them at risk of extinction. CITES is a toothless regulator.
  5. The CITES trade database provides deeply flawed data. A quick scan of the records demonstrates that vast and consistent data discrepancies are clear in many cases, and that the true volume of many traded endangered species is simply unknown. This is alarming, considering the reason that all of these species are included in CITES is because they are vulnerable to over-exploitation, and extinction. There is often a substantial mismatch in species and volumes between export records and import records, indicating that neither dataset is complete nor reliable. How is trade supposed to be reconciled and monitored with such flawed data? Any permit system that is this useless is counterproductive and frankly dangerous―it creates the illusion of traceability and control. There is also no way to systematically verify if animals caught up in the trade have been taken from the wild or are captive-bred.
  1. A UCT paper published in 2015111, which analysed the trade data for Appendix I and II species exported out of 50 African countries (and 198 importing countries) between 2003 and 2012, outlined the prevalence of documentation discrepancies in CITES trade data. The data represented 2 750 species and 90,205 CITES trade database records. The findings were that: Only 7.3% were free from discrepancies Trade monitoring was getting progressively worse in 2012 than it had been in 2003.
  2. Of extreme concern is that even after 44 years of operation the CITES system cannot provide global trade analytics for a massive legal trade in endangered species and as a result has no evidence that the sustainable-use model is working6. The reasons for this include, but are not limited to:
    •   Other than for a handful of the 183 signatory parties, the CITES trade permit system is still a 1970s standalone paper-based system that cannot be integrated with customs and, as a result, permit verification and shipment validation is impossible and legal trade data collected is effectively useless.
    •   Trade data are submitted to the CITES trade database only once a year. If trade data is submitted at all (many signature countries don’t lodge information), it is often lodged 1-3 years late.
    •   The CITES regulator is impoverished, with core funding being US$4.7 million annually (to monitor and manage a global legal trade valued at 100s of billions annually).
    •   No legal trade trends, patterns or analytics are ever presented at the CoP meetings.
    •   Other than token CITES permit contributions, industries, companies and traders that profit from the legal trade make no financial contribution to the CITES regulator to help manage and monitor the trade to prevent laundering of illegal products into the legal marketplace.
    •   Currently, supply-chains are opaque and insufficient resources are being invested in verification of the supply chain. As such the profits made from the trade in endangered species are tainted profits.
  3. Given that the CITES regulator is effectively impoverished, the lack of a modern, electronic permit system that integrates with customs and provides transparent monitoring from source to destination enables a massive illegal trade in endangered species:
    •   The illegal trade was valued by the World Customs Organisation8 to be between US$91- 258 billion annually. This means that the illegal trade is estimated to be worth up to 80% of the value of the legal trade.
    •   Furthermore, the report8 states this illegal trade is growing at 2-3 times the pace of the global economy.
  1. The loss of control of managing the legal trade in endangered species due to the flawed CITES direct-listing model (which makes unrestricted trade the default) and as a result the loss of control of the escalating illegal trade was predicted in 1981 at CITES CoP3 when a submission to consider a reverse-listing model was proposed. The predictions made in the 1981 submission have all come to fruition. The illegal trade cannot be tackled until the loopholes in the legal trade in endangered species are closed. Governments are focussing solely on the illegal trade and do not address the flawed legal trade model, and as a result any real chances of successfully tackling the extinction crisis associated with trade are being undermined.
  2. There is no desire by the States Parties to reflect on the effectiveness of the Convention. Of concern is that in its 44 years of operation at the time of the 18th meeting of the Conference of the Parties, only one attempt was made to do a systematic review of the effectiveness of the Convention, namely in 1994, or 19 years after the Convention entered into force. 112
  3. In addition, nearly 36,000 species are currently listed for trade restrictions in CITES, making enforcement impossible. It is therefore necessary to change the CITES Articles to switch to a reverse listing approach. A reverse listing approach would mean the default position is that a species cannot be traded and those who wish to trade would bear the burden of proof that the trade is ecologically and biologically sustainable.
  4. It is abundantly clear that there are severe systemic issues in the global CITES permit and trade monitoring system. Whilst these issues have been known for decades, they have not been resolved. This despite the fact that the legal trade in wild animals is enormous and that most of the counties in the world have signed on to the treaty.
  5. CITES establishes minimum conditions that must be complied with under international law but are insufficient to ensure an adequate level of protection for endangered species. The South African State’s constitutional duty to take reasonable legislative and other measures to prevent ecological degradation and promote conservation should mean, in our view, that the State must meet a higher standard than required by CITES. CITES is the lowest common denominator ―as South Africa our legislation needs to ensure a progressive, transparent, suitable and trustworthy regulatory framework and one also based on protection and ethics as outlined in the ‘integrative approach’ discussed in section 1 of this submission.page82image2393288016
  6. Given that the trade in flora and fauna was confirmed as the second biggest threat to species survival in the May 2019 IPBES Report which states that up to 1 million species are potentially facing extinction, and given the overwhelming evidence that this trade system is not fit for purpose, it would be irresponsible to allow the wildlife trade from South Africa to continue. Therefore, a moratorium on all new trade, must immediately be put in place until the system is decisively fixed.
  7. The main legal instrument for implementing CITES in South Africa are the CITES Regulations113 which are applies in conjunction with the Threatened or Protected Species Regulations, 2007114 (“TOPS Regulations”). Both sets of regulations are made under the National Environmental: Biodiversity Act (“NEM:BA”). The CITES Regulations and the TOPS Regulations should be revised to give effect to the recommendations in this memorandum. A detailed analysis of these Regulations and how they should be amended is beyond the scope of this memorandum. However, by way of example, these regulations should be amended to provide that:
  •   permits may only be issued to parties that meet specified “fit and proper person” criteria in order to facilitate the exclusion of undesirable individuals and organizations; and
  •   applicants for permits may be required to provide financial security for the repatriation of animals that are exported on the basis of false information or to unsuitable destinations.

24. As a CITES States Party, there is an opportunity for South Africa to take the lead on addressing policy, regulatory and legislative gaps and address the fatally flawed CITES system by prioritising, adopting, implementing and supporting ethical values and practices, including:

  •   A consistent, globally Integrated, tamper-proof, traceable, transparent, interoperable and real-time data capturing and electronic permit system115―Via Cost Recovery.
  •   A Reverse Listing approach to ensure enforcement.116
  •   A transparent and consultative review of the provisions of the treaty.
  •   Industry/traders (exporters and importers) contributing to the costs through levies.
  •   Transparency, accountability and access to information is key and will also enable civil society to concentrate its limited resources on the analysis of information and engagement with institutions rather than on court battles to obtain the underlying information.
  •   Holistic and transparent oversight and traceability throughout the entire life cycle and supply chain, from origin to final destination
  •   A review and interrogation of the over-generalised ‘sustainable use’ model.
  •   Independent vetting, verification and auditing to investigate transactions anddiscrepancies.
  •   Retrospective digitisation of all permits and public access to these.
  •   Accountability and consequences for transgressions for ‘authorities’, traders, agents and breeders.
  •   A National Strategy for illegal wildlife trade and laundering which also includes tackling legal trade loopholes.
  •   Trained independent investigators and analysts.
  •   Establishment of an anti-corruption multi-stakeholder forum with in the sector.
  •   Establishment of a stakeholder forum with animal protection organisations.
  •   Ensuring that parliamentary instructions re captive lion industry are complied with.
  •   Genuine and effective animal welfare and protection policies, measures and legislation developed and implemented in conjunction with legitimate animal protection organisations.117

25. Parallel to the above, it is also our recommendation that South Africa should take the lead to advocate for a comprehensive Global Agreement to tackle the dangerous, inhumane and indiscriminate trade in wild animals. A number of global precedents already exist that can be drawn on, including for example, the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction. Considered impossible only a decade before it entered into force in 1999, this Convention recognised the need for a more humanitarian, preventive and precautionary approach. It consequently marginalised Protocol II118 of the 1983 Convention on Certain Conventional Weapons (CCW) which was problematic because, similar to CITES, it only imposed some restrictions without effectively dealing with the issue. To date, over 80% of the world’s countries are States Parties with 164 States having formally agreed to be bound by the total ban.119 The ban on anti-personnel landmines creates a model and a strategy that could be used to establish a new legally binding international agreement for universal adherence to, and implementation of, a comprehensive and complete ban on the wildlife trade. Such an agreement would replace CITES and have as its fundamental guiding principle that the trade in wild animals is inappropriate, counter-productive, unethical and fundamentally unsustainable.

Hunting

Component IV: Trophy Hunting – Generally

  1. Trophy hunting is the killing of wild animals for recreation with the purpose of collecting trophies such as horns, antlers, skulls, skins, tusks or teeth for display.120
  2. The word trophy means a memorial of victory in war, spoils taken from the enemy as a token of victory and power. Trophy hunting, like colonialism, is about power and has its roots in imperial practices of control and annexation. This is the locale of the pro-gun hunting lobby.
  3. The gratuitous killing of wild animals for pleasure and profit under the guise of conservation is highly contested and refutable.
  4. According to a critic of trophy hunting, the World Wide Fund for Nature’s Saliem Fakir, “the continued promotion of hunting is being justified by rather erroneous cost-benefit analysis”. He said industry stalwarts had skilfully manipulated political language to paint a righteous face on the industry.
  5. Trophy hunting of elephants and apex predators should be completely abandoned for ecological and judicial reasons.121
  6. The long-term damage caused by trophy hunting activities outweighs any possible perceived short-term gain. The negative evolutionary effects of trophy hunting on wild populations deplete populations and threaten the tourism industry. It is also incompatible with South Africa’s attempts to position itself internationally as a destination for ecotourism.
  7. Apart from the ethical and compassionate issues, hunting is a “consumptive use” practice that has significant environmental impacts and interferes with many ecosystem processes. It influences genetic diversity and composition of species, population size, density, distribution, structure, dynamics, behaviour and the condition of habitats. It also exerts negative impacts on other animal species, plants and ecosystems. Genetic studies of wild populations in which trophy hunting takes place have shown that body weight and horn size have declined significantly.

120 A Sheikh Pervaze and Bermejo F Lucas, “International Trophy Hunting,” Congressional Research Service (Congressional Research Service, 2019), https://crsreports.congress.gov.
121 Katarzyna Nowak et al., “Trophy Hunting: Bans Create Opening for Change,” Science 6464 (2019): 434–35, https://doi.org/10.1126/science.aaz4023; Chelsea Batavia et al., “The Elephant (Head) in the Room: A Critical Look at Trophy Hunting,” Conservation Letters 12, no. 1 (2019), https://doi.org/10.1111/conl.12565; Chelsea Batavia et al., “Trophy Hunting: Values Inform Policy,” ed. Jennifer Sills, Science 366, no. 6464 (October 25, 2019): 433.1-433, https://doi.org/10.1126/science.aaz4023.

  1. Trophyhuntingdisturbsthesexoragestructuredisruptingthematingsystem,thefertilityand survival of certain sectors of the population and the offspring sex ratio. The removal of even a few targeted individuals could have dire consequences.
  2. A recent study (2016) found that a reduction in hunting quotas over the study period resulted in a 62% increase in the total population and a 200% increase in adult male density in the study area. It also found that trophy hunting on the park boundary lowered survival rates.122
  3. Trophy hunting is not pro-poor, nor is it pro-wildlife and does not develop sustainable local economies. Non-consumptive, ethical wildlife ecotourism, on the other hand, is a sustainable strategy which protects wildlife and meets human needs.
  4. The idea of killing to conserve has, however, been repeatedly exposed as fallacious at best and neo-colonially destructive at worst.123Painting South Africa’s private ownership model as a conservation success story ignores the very serious problems associated with private ranching,124 such as habitat fragmentation, the persecution of apex predators and the extreme tail risks associated with selective and intensive breeding.125 Beyond this, questions must be raised about the quality of work for labourers on wildlife ranches and whether the conversion of farm land to ranch land has simply served to perpetuate inequality of land ownership and an exclusionary economy.126
  5. The claim typically advanced against bans is that they can produce unintended negative consequences for biodiversity conservation.127 Trophy hunting proponents are of the view that revenues generated by the practice support conservation and rural livelihoods in ways that are currently irreplaceable at the appropriate scale.128 Those opposed to the practice tend to do so on ethical and conservation grounds. For instance, it is morally reprehensible to kill a wild animal for fun, especially those that are long-lived, intelligent and self-aware (like elephants).129 Appropriate moral repugnance cannot be reconciled with the assertion that science supports the practice.130 This is especially the case given the extensive evidence of poor governance in jurisdictions that allow and support trophy hunting.131 Moreover, alternative conservation activities exist that eschew a colonial practice of extraction in favour of more ecologically sustainable and dignifying activities.132 These can potentially be scaled but not without global policy support. Efforts by Safari Club International (SCI) to defend the right to hunt arguably impair such support and unduly skew weakly governed African countries’ policy positions.133

13. Trophy hunting extraction in sub-Saharan Africa is unsustainable. In the context of the sixth extinction, policies that support the extraction of wildlife as a means of ‘conservation’ must be exposed for the contradictions that they are. Most importantly, jobs (rural livelihoods) purportedly supported by hunting could be more than compensated for by non-consumptive ecotourism, a fundamentally more ecologically sustainable practice that provides more jobs with higher quality and greater security. While it remains true that some areas currently allocated to trophy hunting may not be conducive to photographic tourism, this does not constitute an argument in favour of hunting. Rather, it constitutes a call for the rapid implementation of alternatives, including conservation subsidisation from international governments to ensure that entire ecosystems remain intact and functional. It is also critical to note that some areas previously considered ‘marginal’ and unamenable to photographic tourism have been remarkably successful with the latter.134

  1. Seven African countries feature in the top 10 exporters of CITES-listed trophy items between2008 and 2017. A total of 37,933 elephants were killed by trophy hunters in that decade, along with 14,008 lions and 8,307 leopards. The average elephant trophy fee in 2019 for an African elephant was $45,013, while a male African lion sold for an average of $33,747.
  2. Excessive recreational hunting during the colonial era rendered a number of species on the verge of extinction across the continent.135 A public relations campaign, mostly conducted by SCI, has attempted to rebrand trophy hunting as a conservation tool. This view is hard to reconcile with the fact that over 100,000 African elephants were illegally killed between 2011 and 2013, mostly for their ivory.136 A large portion of these elephants were slaughtered in the Selous ecosystem in Tanzania, the majority of which was allocated to hunting. Due to habitat fragmentation, destruction and prey base depletion, African lions are also dwindling in number –an estimated 20,000 remain in the wild. Poaching for body parts is emerging as a new threat.137
  3. There is simply not enough empirical data to show that South Africa’s wild lion population is not under threat. Large predators are in decline globally, with growing concern over the impacts of human activity on conservation status and range of many populations. The global lion population has declined by 43% in just 21 years (three generations), with high threat levels across the species’ broad geographic range. There are only 2,376 lions in South African national parks (this includes the private reserves).Instead of making arguments to kill them we should be insisting that our government does everything in its power to protect them. Habitat loss and hunting (which includes poaching) are the greatest threats to wildlife populations. Lions are under increasing threat from poaching – and South Africa’s support for the lion bone trade is impacting negatively on wild populations, here and elsewhere in Africa.
  4. Trophy hunting, like poaching, artificially selects the biggest and strongest animals (largest tusks and thickest manes), weakening populations’ genetic health and variation.138 Therefore, while revenue may be forthcoming in the short term from such extraction, the longer-term effects are that population growth dynamics are negatively affected. Moreover, some elephants are now being born without tusks, a destructive genetic adaptation. Elephants, too, are increasingly reproductively successful with age, with older bulls suppressing musth onset in younger bulls and preventing delinquent behaviour associated with early musth onset.139 When trophy hunters eliminate these older bulls, they destroy elephant family integrity (through trauma and removal of the discipline and knowledge transfer functions executed by patriarchs) and force matriarchs to mate with younger bulls they would otherwise not have selected, thereby skewing reproduction patterns.140 The idea that trophy hunters only eliminate ‘surplus’ animals is patently untrue. Repeatedly in southern Africa, the biggest and strongest male lions (in their reproductive prime) are shot.141 Younger lions entering the pride often execute infanticide on their predecessor’s cubs, thus reducing numbers and further weakening the gene pool.142
  1. Clearly, the incentives that drive trophy hunting (selecting the strongest) are fundamentally at odds with the conservation imperative (preserving the strongest). Beyond the negative ecological effects, the practice remains rooted in colonial modes of extraction.143 In exchange for repatriating an African trophy, wealthy (mostly white western males) hunters pay large sums of cash to wealthy tour operators. In the process, especially in open ecological system, hunters are extracting the very same creatures that photographic tourists are paying to see. In the long run, sustainable photographic tourism, a major employer in otherwise slow-growing and non-labour-absorptive economies (most of sub-Saharan Africa), will be undermined by the continuation of trophy hunting.
  2. Lindsey and others show that a minimum of 1,394,000km2 is set aside for hunting in sub- Saharan Africa, exceeding the land encompassed by national parks. They note, nonetheless, that there are a number of problems associated with the industry that limit its conservation benefits.144 These are almost entirely governance related. Setting appropriate scientific quotas – and enforcing them – invariably does not happen in sub-Saharan African countries. Almost every academic paper that supports trophy hunting as a potential conservation tool provides the caveat that it can only work if it is well governed.145 The caveat is hardly ever fulfilled, which suggests that the fundamental nature of this extractive industry is incongruent with good conservation governance.
  1. Economically, the problem with simply demonstrating that trophy hunting provides largerevenues, many jobs, and protects land that might otherwise be converted to a worse ecological use (such as crop production or livestock grazing) is that it fails to convey the hidden costs (ecological, social and economic) of trophy hunting.
  2. Lindsey and others, in 2007, estimated that trophy hunting supported 16,000 jobs in sub- Saharan Africa.146 A study by van der Merwe and others in 2014 attributed 31,436 jobs in South Africa to hunting through the multiplier effect – other industry jobs that are sustained through hunting such as agriculture, manufacturing and so forth.147 They claim that these jobs would not otherwise exist. A 2018 study estimated that trophy hunters contribute $341 million per year to the South African economy and support more than 17,000 employment opportunities.148 The authors also reference a study by Safari Club International (SCI) from 2015 that estimates that 53,400 jobs are supported through trophy hunting in southern Africa (across eight countries, with South Africa boasting 12,742).
  3. A 2009 IUCN report concurs with an estimated total of 15,000 hunting jobs across the eight biggest hunting jurisdictions in Africa, but concluded that ‘the hunting sector uses up a lot of space without generating corresponding socio-economic benefits.’149 A 2019 paper by Chardonnet – also published by the IUCN – notes that Tanzania’s vast hunting landscapes (100,000km2) only account for 4,300 jobs – ‘the vast surface areas of hunting reserves do not have a significant socio-economic impact.’150
  4. The problem with simplistic analyses supporting hunting is that they ignore the ecological costs of wildlife ranching and fail to recognise that trophy hunting and non-consumptive ecotourism are increasingly mutually exclusive. They also tend to ignore the poor quality of jobs on hunting establishments and how this perpetuates a colonial and apartheid-era power dynamic.
  5. One of the ironies associated with the increase in private ‘game’ ranching in South Africa is that ‘game’ rancher tolerance towards free-ranging wildlife has significantly decreased – there is a conflict of interest between wealth and wildlife conservation, and game ranching comes at a significant cost to conservation.151 For instance, the ‘propensity to erect predator-proof fencing in response to conflict raises further concerns, as it can fragment habitat and significantly alter interactions between species, leading to detrimental impacts on ecosystem functions.’152 The majority of trophy hunting in South Africa takes place on private ranches. One estimate suggests that there are in the region of 9,000 of these ranches, covering an area of some 21 million hectares.153 Fragmented private pockets of wildlife ranches do not contribute to intact ecological functionality. For defenders of the status quo, increased wildlife numbers are cited as a conservation success story. But numbers mean relatively little if what they represent is ultimately harming ecological sustainability instead of promoting it.
  1. Regarding employment, trophy hunting fails to provide high quality jobs and perpetuates negative historical socio-economic relationships that sub-Saharan African countries are trying to shed. Job security, for instance, has evidentially diminished in South Africa’s evolution of conversion from other forms of agriculture to wildlife ranching. ‘Trophy-hunting farms can be seen as non-state spaces where farmers re-assert their authority and sovereignty over land and natural resources. State making through enclosure and settlement is a violent process, and privatisation of wildlife intensifies this violence as it concentrates power in the hands of land and wildlife owners’154, the very opposite of the transformation agenda articulated when South Africa entered democracy in 1994. Further wealth concentration in the hands of the already privileged entrenches inequality and simultaneously contributes to local communities’ negative attitude towards wildlife, as it can symbolise oppression associated with white privilege.
  2. A classic example of entrenched white privilege is the Associated Private Nature Reserves (APNR) in South Africa, bordering the world-renowned Kruger National Park (KNP). The six private reserves each comprise a number of different private owners and farms. By 1996, these reserves had almost no elephants left as they had been hunted to near extinction. The fences were dropped in 1993 – before the end of apartheid – on the premise of creating ‘ecological unity’ between the APNR and the KNP itself. Commercial hunting, in the 1996 agreement, was not mentioned at all. Animals under public custodianship (KNP) now move freely between the APNR and the KNP. Far from creating ecological unity, however, they are treated as res nullius (nobody’s property) in the APNR and are hunted. South African National Parks (SANParks) has never addressed this problem.155 In 2019, the APNR approved the commercial trophy hunting of 47 elephant bulls. These animals are part of the country’s national heritage but are permitted to be shot by foreign trophy hunters for the benefit of a small number of wealthy white landowners. Tellingly, governance breaches in the APNR abound. How much money actually accrues to local communities remains unknown due to a lack of transparency in the industry.
  3. Let us now grant, for the sake of the argument, that trophy hunting in South Africa supports 17,000 employment opportunities. Across 21 million hectares of private ranching land, that amounts to a labour absorption figure of 0.00080952 per hectare. To the contrary, non-

consumptive ecotourism generates superior revenue to other land use activities such as

hunting and game sales.156

  1. According to a 2019 study, 90,000 jobs are estimated to be currently attributable to non-consumptive use of biodiversity in South Africa.157 If the 21 million hectares currently allocated towards consumptive trophy hunting were re-allocated towards non-consumptive tourism, the labour absorption rate would presumably improve to 0.00428571 (more than five times the hunting provision and support 90,000 jobs instead of only 17,000). Applying the same calculation to Tanzania, 42,857 jobs could be created through converting hunting landscapes to ecotourism. Ecotourism has the additional benefit of ‘equitable wealth distribution, community upliftment and sustainable land use and biodiversity conservation.’158
  2. A further and final consideration is that the long-term economic potential of photographic tourism depends on ecological sustainability and intact landscapes, therefore providing an inherent conservation incentive that is largely absent from the trophy hunting model. A trophy male lion might fetch $33,000 but its lifetime value to photographic tourism may be as high as $2 million.159 Moreover, trophy hunting and photographic tourism are increasingly mutually exclusive. Photographers have, on occasion, witnessed wild animals being shot by trophy hunters.160 Even the knowledge that hunting occurs in the same vicinity is sufficient to deter many tourists with non-consumptive preferences from visiting countries that practice trophy hunting.161
  3. Trophy hunting is a morally repugnant activity that cannot be reconciled with science. Contrary to the view that banning trophy hunting imports would have negative socio- ecological consequences, it seems clear that such a ban will open an overdue conversation on the importance of implementing and scaling up alternative activities. The data is also unequivocal that hunting supports relatively few jobs per hectare when compared with non- consumptive ecotourism. The labour absorption figure for the latter is likely five times larger than that of trophy hunting. For South Africa alone, this means that land currently allocated to hunting could provide 90,000 jobs instead of only 17,000 (excluding multiplier effects). Moreover, the quality of hunting jobs is highly questionable, and the evidence suggests that South Africa’s conversion of agricultural land to game ranching has worsened job security and deepened inequalities. This is the very opposite of community empowerment, which non- consumptive tourism is better able to accomplish.

Component V: Trophy Hunting Economics – Community Benefits from Trophy Hunting: Realities Vs Pretence

  1. Itisgenerallyacceptedthatthegreatestthreattowildlifeandnatureconservationistheever- increasing footprint of the human population that is set to double by 2050. This has led to habitat loss, degradation, and fragmentation, as well as so-called “human-wildlife conflict”. Trophy hunting acts as an added threat to wildlife already under intense pressure from people.
  2. Weakgovernance,corruption,lackoftransparency,lackofacriticalmassofscientificdata, illegal activities, greed, current government policies, and poor monitoring and enforcement are some of the concerns around trophy hunting in Africa that hamper ethical conservation and prevent communities from receiving ethical and sustainable benefits, and these require urgent action and reform.
  3. In the APNR, current and historical mismanagement, breaches of the Greater Kruger Hunting Protocols, and sometimes even negligence during trophy hunts, reflect not only badly on the hunting fraternity, but also on the photographic safari or eco-tourism sector in the Greater Kruger National Park and South Africa as a whole. Examples include:a. Early 2005, an elephant hunted in the Klaserie was shot 21 times before it succumbed. b. In June 2005, an American hunter wounded an elephant in Balule, but only killed it 24hours later.
    c. In March 2006, a lion, one of a well-known pair known as the “Sohebele brothers”was shot and wounded in the Umbabat, but the hunter was unable to kill the animal, as its brother refused to leave the scene. The hunter later repeatedly drove a tractor at the lions in an attempt to separate them but failed. The lion was killed by rangers only the following morning.d. Later that month, a large, one-tusked male elephant was shot and wounded by a Spanish hunter in the Umbabat, believed to have fled into the KNP and was not found since.e. March 2013, an elephant was shot in the very close proximity to Ingwelala’s eastern boundary. The wounded animal ran directly south towards Motswari Lodge and was followed by the hunting party, who continued to fire 20+ shots before it was finally killed in the close proximity to the lodge with many guests. Motswari Lodge was never informed that this hunt was to take place and was caught completely off guard. The effect on their guests and staff was devastating.f. In June 2018, an incident of non-compliance in the hunt of the male lion in Umbabat, a pride male of approximately 6 years old. It’s a contravention of the hunting protocol, which stipulates that pride males under the age of 8 years cannot be taken.g. In August 2018, a scheduled elephant hunt conducted in Balule led to the illegal killing of a collared male elephant. Mpumalanga Tourism and Parks Authority (MTPA) laid criminal charges and the warden was subsequently convicted.

h. In December 2018, a young elephant was shot multiple times in Balule in front of photographic safari tourists staying at a neighbouring property.

These incidents reflect a long history of non-compliance with the Greater Kruger Hunting Protocol.

  1. The proposition that trophy hunting is imperative to the future of conservation and to generate local community benefits has generally been developed and accepted without compelling empirical support. A lack of reliable information on its economic significance is also apparent within South Africa’s trophy hunting industry.
  2. The total number of foreign hunters South Africa receives annually is about 9,000 (2015 – DEA), killing around 54,000 animals per year and providing 5,000-6,000 jobs.
  3. As is evident from the figures in this table, there is no consensus on the gross annual revenue from trophy hunting in South Africa and estimates range from US$ 100 million in 2005, to US$68 million in 2012, and US$120 million in 2015.
  4. We also need to question the accuracy of some of the data obtained using wide ranging methodologies. Often the only data from grey literature is available or provided by trophy hunting associations, who have a vested interest in the industry and therefore the potential for bias is huge.
  1. The significance of the economic benefits associated with trophy hunting however needs to be compared to the benefits of the whole tourism spending and other economic aspects of South Africa as a country.
  2. In 2017, the total contribution (direct and indirect) of the tourism sector in South Africa was US$31 billion or 8.9% of South Africa’s GDP, according to the World Travel & Tourism Council.
  1. The tourism sector directly supports 726,500 jobs and this number is expected to increase to 980,000 by 2028. The total contribution of the sector to employment, including jobs indirectly supported by the tourism industry, was 1.5 million jobs in 2017 or 9.5% of total employment. This means nearly 1 in every 10 working people in South Africa is dependent on tourism for their livelihood.
  2. Various people have calculated the trophy hunting income as a percentage of this tourism revenue for South Africa, which is about 1.3%. So, economically speaking trophy hunting can be considered as a marginal activity, but one that requires a lot of protected space.
  3. With about 8,000-9,000 arrivals per year, South Africa has one of the highest numbers of foreign trophy hunters in Sub-Saharan Africa, but in contrast receives 10.4 million foreign tourists per year (2017). This means that for every trophy hunter, South Africa receives 1,200- 1,300 ordinary tourists.
  4. By 2028, international tourist arrivals in South Africa are forecast to increase to 14.6 million (World Travel & Tourism Council, 2018). The annual growth in tourist numbers over one year is about six times larger than the total annual economic value of all trophy hunting tourists in South Africa (Murray, 2017).
  5. At present, trophy hunting takes place in some sections of the APNR, namely, the Timbavati, Klaserie, Umbabat and Balule. They justify trophy hunting as a means of generating revenue for the reserve’s operating budget, which includes security and anti-poaching, however this affects all reserves in and around Kruger. The APNRs that allow trophy hunting have three funding streams, photographic safari tourists, hunters and landowner levies.
  6. In 2016, the Timbavati generated 61% of its revenue for the reserve’s upkeep from trophy hunting, claiming that 46 trophy hunters yielded more revenue per capita than the 24,000 photographic tourists.
  7. However, in the face of reducing trophy hunter numbers, they make up for revenue shortfall by increasing the visitor’s conservation and landowner levies – they obviously found strength in numbers to readdress the imbalance and at the same time making an extremely good case against trophy hunting.
  1. In 2018, the photographic safari tourists outnumbered their hunters by 1,000:1. Hence, bychanging their conservation levy model from a “per stay” to a “per day” model and by increasing the fee from R160 to R328 per person, the Timbavati now creates more than half of their operating budget from eco-tourism, whilst its environmental footprint remained more or less the same.
  2. They will further increase the conservation fee to R368 per person per day this year, boosting their eco-tourism income further. This conservation fee is now also more in line with that for KNP, which is ZAR372 per person per day.
  3. This clearly demonstrates that trophy hunting is not absolutely essential for the upkeep of the reserves.
  4. The Timbavati further justifies their consumptive wildlife use by the substantially growing wildlife numbers on their reserve since 1998, which they establish by annual aerial census. Their infographics show a more than 145% growth in overall animal population and 240% growth in elephant population.
  5. Although the wildlife numbers may well have grown over this 20-year period, this two-point approach is however fundamentally flawed. Wildlife numbers fluctuate as a result of environmental changes and hence we need to look at population size as a trend over a period of time.

page96image2412845568page96image2412845872In this case, if we look at the precipitation in the Kruger in the decade preceding 1998, there were four drought years, three with pronounced below-average rainfall (1991, 1992 and 1998), which could have had major implications for wildlife numbers.

22. In this case, if we look at the precipitation in the Kruger in the decade preceding 1998, there were four drought years, three with pronounced below-average rainfall (1991, 1992 and 1998), which could have had major implications for wildlife numbers.

23. It is also important to note that in 1997 KNP started closing down artificial waterpoints principally to naturally control elephant numbers without resorting to culling, with over half of its water holes now closed down. Elephants will naturally move into areas where water is more freely available, such as the Timbavati, where almost all lodges have artificial waterpoints.

  1. Furthermore, it is around the same time when the fences between Kruger NP and most of the private nature reserves came down.
  1. It is unclear as to why have they cherry picked 1998, as a starting point against which to measure changes in wildlife populations. This baseline was obviously significantly impacted by the severe droughts in the Kruger with 1998 an exceptional El Niño year, impacted by the closure of water holes and the dropping of the fences, and therefore shows a misleading wildlife population growth trend as represented in these infographics
  2. It is widely accepted that the creation of incentives for local communities to engage in wildlife conservation, the sharing of conservation benefits, and establishment of mitigation measures, is essential to reduce poaching, human-wildlife conflict, agricultural encroachment on wildlife habitat, and to ensure the sustainable and ethical management of any wildlife area.
  3. One of the objectives stated in the Greater Kruger Hunting Protocol for trophy hunting is “to support social investment initiatives within communities as per reserve specific programmes” (October 2018). It continues that “hunting within the GKNP reserves are guided through the following principles…., including the commitment to local community involvement and empowerment, contributing a percentage of proceeds to identified community development programmes”.
  4. With a lack of transparency of financial and employment figures from trophy hunting in the APNR, we can only guestimates the true revenue from hunting. There is a general decline in the number of trophy hunters in South Africa, partly due to issues such as bad press from canned lion hunting, airlines banning trophies, Safari Club International putting a stop to canned hunting, and a general global decline in the number of trophy hunters.
  5. The Timbavati states that they received 46 hunters in 2016 dropping to 21 in 2018. However, they still have one of the highest numbers of trophy hunters compared to the other APNRs, and anticipate the number for 2019 at 29 hunters.
  6. However, if all four APNRs receive on average 20 hunters per year, this would equate to 80 hunters in 2018. Using the income stats from DEA presented earlier, trophy hunting in the APNRs would therefore generate less than 1% of the total hunting gross revenue received annually in South Africa, i.e. about US$1.2 million annually for all APNRs combined. Even if we use the Professional Hunter’s Association South Africa (PHASA) rather generous average spending per trophy hunter in South Africa of US$20,000, the total maximum income would still not be more than US$1.6 millio
  7. How much of this money does actually trickle down to community level and where is theevidence? Who are these Kruger local communities? How many people live in these communities?
  8. From the report Ending Wildlife Trafficking by Hübschle and Shearing (2018), the local Kruger community is estimated at a population of around 2.3 million people. However, we need to be cognisant when referring to local communities, as these constitute by no means a homogeneous group of people.
  9. It is generally accepted that rural communities living in or near wildlife areas rarely benefit adequately from trophy hunting activities (e.g. Lindsey, 2008). Again, little empirical data is available for South Africa to quantify these community benefits.
  10. The trophy hunting APNRs claim that some of their revenue is invested in community outreach programmes, as prescribed by the Hunting Protocol, but there is no transparency in terms of how much money eventually reaches down to community level.
  11. No doubt some money is invested in socio-economic projects, supported by the APNR as a whole, including the photographic safari lodges. A SANParks report on the economic impact of the Greater Kruger Protect Area Network states that limited quantitative data from two private reserves indicate a direct financial investment of ZAR 2.1 million in 2016, but this is consumptive and non-consumptive combined. Some of these projects include the Timbavati Environmental School, Balule Black Mambas and Bush Babies, and the Klaserie Eco-Children programmes.
  12. In addition, to financial and in-kind contributions from the ANPRs to these community development projects, donations are also made by tourists and philanthropists.
  13. SANParks report (2016) goes as far as to say that “social investment does not appear to be a legitimate component of reserve operations and aspect of reserve strategy/management plan”.
  14. The Timbavati states e.g. on their website that for 2019 the revenue earned from hunting two bull buffalos will be donated to the local neighbouring communities, but they don’t specify how much the contribution is. Is it the total spending per hunter or just the permit fee? The other three ANPRs don’t publicly allude to any kind of monetary contribution to communityprojects.
  15. Segage (2015) concludes that “the Timbavati Nature Reserve is yet to contribute towards localeconomic development, because its practice is devoid of community development principles”.
  16. A study by Spencer & Goodwin (2007) into the impacts of private sector and parastatal enterprises in and around Kruger National Park demonstrates that isolated efforts from individual tourism companies have little tangible impact on the majority of people living in these highly populated rural communities. However, the impacts can be substantial for thefew people who directly benefit from these projects.
  17. We know from letters sent by SANParks in February 2018 to the APNRs in response to theirrequested “off-takes” (letters obtained through the PAIA process), that SANParks commented on various non-compliance issues relating to the Greater Kruger Hunting Protocol for all four APNRs.
  1. SANParks specifically asked for further information from Balule and Umbabat on thefollowing governance issues relating to local communities: “Report on how revenue generated through off-takes was spent. KNP cannot comment on the revenue report received, since it is not clear from the report how the various [APNR] sub-regions, or the [APNR] as an entity, regulate and monitor income generated as result of the animal off-takes. It is also not clear towards which conservation, management and socio-economic activities the revenue generated is being directed.”
  2. However, LEDET and MTPA are ultimately responsible for verification of these issues and thus enforcement of legal agreements, like the Hunting Protocol is absolutely vital. The debacle among others with Skye shows that this is not being done.
  3. Realistically, a marginal industry like trophy hunting can never make a meaningful contribution to a 2.3 million large local population, which continues to grow.
  4. The private reserves bordering the Kruger also offer photographic safari opportunities to tourists in many upmarket lodges. The Timbavati for example received 21,000 photographic tourists against 21 trophy hunters.
  5. The eco-tourism sector in the Greater Kruger is a growing industry.
  6. The Association of British Travel Agents (ABTA) annual travel trends now talks aboutsustainability and responsible tourism going mainstream in the international holiday market, including more focus on environmental governance, welfare of animals and social enterprise projects. All boxes ticked by the photographic safari industry.
  7. There are many examples of great socio-economic community initiatives within the Great Kruger, for example:
    •   SANParks charging a 1% community levy on top of the cost of accommodation and activities to uplift communities in and around the Greater Kruger.
    •   The newly established Tourism Conservation Fund is set up to address the non- inclusion of South Africa’s rural neighbouring communities into the tourism and wildlife economies at scale with voluntary contributions from the tourism industry.
    •   The Singita Community Culinary School that offers commis chef training for graduates from the local community.These kinds of initiatives make a huge difference in some people’s lives. However, realistically for tourism to make a significant contribution to a local community of 2.3 million people is by job creation, which is a more meaningful way of uplifting communities.
  8. Unemployment in the local municipalities neighbouring the ANPRs and in particular youth employment is high, some figures indicate unemployment up to 50-65% (SANParks, 2016). According to the report, the five APNRs collectively employ 983 people on a permanent basis, of which the vast majority are local, plus 98 outsourced employees (primarily for security).
  9. A SANParks report (2016) states that consumptive tourism operations have relatively minimal employment needs.
  1. IUCN/PACO research shows that photographic safaris or eco-tourism creates 39 times more jobs than the trophy hunting for the equivalent surface area (2009). It would therefore make sense to increase the eco-tourism footprint within the APNR to uplift local people through employment and skills development.
  2. Economist Dr Ross Harvey (2018) looked at the potential damage to Brand SA as a result of the captive predator breeding industry. He concluded that the opportunity costs and negative externalities associated with the predator breeding industry may, along with other threats facing wild lion survival, undermine South Africa’s brand attractiveness as a tourism destination. The losses would be significant, especially as much of this tourism revenue currently aids conservation objectives in large wilderness areas, such as the Kruger National Park and the KZN reserves.
  3. The negative publicity around trophy hunting in general and the on-going irregularities in the APNR, like the recent Skye lion hunt in Umbabat and the Balule elephant hunt, can cause serious reputational damage in exactly the same way as the captive predator breeding industry. It can bring the profitable and successful photographic safari tourism sector in the APNRs and Kruger itself in disrepute.
  4. These are only two of the recent examples that got into the public domain. The lack of transparency and openness by the trophy hunting industry generally means that many more transgressions and illegal activities may be taking place, but these are kept out of the public space.
  5. The reputational damage that trophy hunting does to the income of the upmarket photographic safari lodges and local communities is the main reason why the Sabi Sand chose to ban trophy hunting on their reserve. They now raise all their income from the gate fees, bed nights and levies.
  6. Furthermore, in the ANPR, where consumptive and non-consumptive wildlife use is combined, hunting may indirectly generate negative net conservation outcomes, by reducing wildlife populations, removing individual animals most highly prized by photo tourists, and/or driving wildlife to flee or hide from humans.
  7. The economic value of iconic species for the photographic safari industry should not be underestimated.
  8. Dereck Joubert worked out the value of a lion as a trophy and compared that to the lifetime value for photographic safaris (US$ 15,000 and US$ 2 million respectively, excluding the cascading economic effects), meaning a lion alive is worth 130x more than a dead one.
  9. The Sheldrick Wildlife Trust did a similar exercise valuing an elephant poached for its ivory and its tourism value (US$21,000 raw value and US$1.6 million respectively), meaning an elephant alive is worth 75x more than its tusks.
  10. As Balule warden Craig Spencer said to the Mail & Guardian in 2016: “It’s not a great policy to burn your furniture to heat your house”.
  11. Why would we risk our well-established, successful, growing and highly valuable eco-tourism sector on the western boundary of Kruger for trophy hunting, which is worth a fraction of the overall tourism sector?
  1. Rejecting trophy hunting as a conservation and community development tool is often seen as an impossibility, but it’s not, quite to the contrary, it can actually open up much-needed space for innovation and creativity.
  2. In addition, trophy hunting is believed to have little scope for sustained future growth, so even a small effect of trophy hunting deterring growth in other tourism sectors may overwhelm its own economic benefits (Murray, 2017), especially considering its poor track record in terms of governance.

Component VI: Hunting Kruger Animals: Trophy Hunting of Elephants, Lions, Rhinos and Leopards in the APNR

  1. The Internet is littered with boasts of mainly white men from Europe and the USA who seem to get a perverse thrill from killing “Kruger animals”, from what they often offensively refer to as the “Dark Continent”, and as symbols of domination and prowess, distastefully decorating their walls with what remains of their lifeless bodies.
  2. Alarmingly SANParks seems to think that this is okay – and appears to be promoting it. Nothing has changed since 2009, when UDM Leader, Bantu Holomisa said of SANParks: “It is a pity that they seem to be advocating mowing down animals rather than conserving them.”
  3. Why is SANParks allowing largely rich people in areas adjacent to national parks like Kruger (such as the Association of Private Nature Reserves – APNR – on the western boundary of the Kruger) to pay for their levies and the privilege of owning property next to Kruger, through the trophy hunting of, what clearly includes, Kruger animals?
  4. Trophy hunting is not conservation, it is not an ecological act and killing for fun is not a human right. Trophy hunting has no place in the modern world, and will never be morally defensible. It is a cruel, abusive, exploitative and learned activity, where the animal hunted is an involuntary conscript and the animal’s subjective experience is ignored. Trophy hunting is nothing more than a deliberate, violent form of so-called “recreation” that turns complex and sentient beings into mere commodities.
  5. We must stop thinking of wild animals as “resources” and “game,” and see them as sentient beings that deserve our wonder and respect. As for hunters, it’s long past check-out time. Wild animals in and from protected areas in South Africa are not simply government property or a “natural resource” to do with as bureaucrats please. They are sentient creatures deserving of care and respect. That wild animals have intrinsic value is already recognised in a number of national wildlife policy documents and international conservation agreements.
  6. Is SANParks is intent on killing our heritage, along with our reputation? This poses a direct threat to ecotourism and community livelihoods. Hunters shoot an animal once, but tourists with cameras can harmlessly shoot it a thousand times. Instead of promoting hunting as a preferred activity, SANParks should rather be empowering communities through non- consumptive, non-violent tourism.
  7. Wildlife in protected areas should be held in trusteeship on behalf of the people of South Africa and private individuals should not be able to hunt such wildlife for profit in adjacent private or communal land.
  1. Although the Protected Areas Act prohibits hunting in the Kruger National Park, wild animals from the KNP are being trophy hunted. SANParks took the decision to remove the fences with the APNR in 1996. The 1996 agreement was concluded before the current suite of national environmental management legislation was enacted and even before the commencement of the Constitution. It is now disregarding its mandate and responsibility to protect them by allowing hunting to take place in the private areas adjacent to it.
  2. Wild animals – including, lions, leopards, rhinos and elephants―that move across imaginary human boundaries are being killed for profit and pleasure by a few people benefiting from an agreement which allowed the fences to be taken down.
  3. The main tenet of the agreement was to “create ecological unity”. Surely this means it must be managed according to national park principles and not for trophy hunting purposes. Those who wanted to support trophy hunting should not have been allowed to be party to the agreement. But there was no public participation around the agreement’s formulation. Any agreement between the private reserves and Kruger that allows animals on the “wrong side” of the invisible fence to be trophy hunted, should be deemed illegal, as due process was not followed when this agreement was drawn up.
  4. It simply cannot be proved that trophy killings in the Associated Private Nature Reserves are of animals that are the property of the reserves. They are a national heritage and the owners of those properties should not have the right to decide on the future of this heritage.
  5. The National Environmental Management: Protected Areas Act, 2003 sets out the purpose of a national park which includes protecting the area “if the area is of national or international biodiversity importance or is or contains a viable, representative sample of South Africa’s natural systems, scenic areas or cultural heritage sites; or protecting “the ecological integrity of one or more ecosystems in the area”. A national park’s purpose may also include preventing exploitation inconsistent with the protection of ecological integrity of the area.
  6. The practice of allowing private hunters to kill animals that may or may not have originated in a national park is inconsistent with the purpose of protecting an area that is of national biodiversity importance, perhaps the most important national park in South Africa.
  7. A long history of trophy hunting irregularities and non-compliance exists in the APNR.
  8. If hunting is to be allowed at all, which we do not support, it must at least be done in a fully transparent manner where all stakeholders are allowed input into the granting of trophy hunting and other killing or removal requests and permits and to monitor compliance with therelevant legislation.

Recommendation: An immediate moratorium on commercial hunting in all the private reserves adjoining the Kruger pending an independent investigation.

Component VII: Failure to comply with directions of the Portfolio Committee on Environmental Affairs

1. On 12 November the Portfolio Committee on Environmental Affairs said in a press release that:page102image2414157728page102image2414158016

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“[T]he other matter which concerns the committee is the agreement between the Kruger National Park and Association of Private Nature Reserves (APNR) concluded in 1996. We believe that this agreement needs to be revised to ensure that there is sharing of benefits arising from the collapse of the fences in the western boundary of the Kruger National Park in the interest of the broader society. The committee believes that issues of transformation and beneficiation should be taken into account in this agreement. In this regard, the committee has directed SANParks to develop a concept paper on this matter for discussion with the committee in October/November 2018. The committee will hold public hearings to determine the best way forward after its engagement with SANParks.”

  1. This position was confirmed when the final Report of the Portfolio Committee on Environmental Affairs on the Colloquium on Captive Lion Breeding for Hunting in South Africa, dated 8 November 2018 was published on 13 November 2018. The report states at paragraph 9.4 that“[T]]he agreement between the Kruger National Park and Association of Private Nature Reserves (APNR) concluded in 1996, should be revised to ensure that there is sharing of benefits, arising from the collapse of the fences in the western boundary of the Kruger National Park in the interest of the broader society. The Committee is of the view that issues of transformation and beneficiation should be taken into account in this agreement, and hence it has directed SANParks to develop a concept paper on this matter for discussion with the Committee in November 2018, with the aim of holding public hearings to determine the best way forward after its engagement with SANPark
  2. SANParks has failed to comply with Committee’s directions. SANParks was to develop a concept paper, not an agreement, and this paper was to be for discussion with Parliament during November, not implementation. Following the development of the concept paper, Parliament was to hold public hearings to determine the best way forward. These have not yet been held. Instead, SANParks concluded the proposed agreement on 5 December 2018, directly contravening a directive from Parliament.

Component VIII: GLTFCA Cooperative Agreement

  1. The GLTFCA Cooperative Agreement signed on 5 December 2018 (“the 2018 agreement”) cannot ensure fair, transparent and accountable governance of trophy hunting and benefit sharing in the Open System of the Kruger National Park (KNP).
  2. We do not dispute that a new Cooperative Agreement is necessary to protect the integrity of ecosystems in the area and to facilitate their effective management. The 1996 agreement pre- dated and was not aligned with the rights in the Constitution, the principles set out in the National Environmental Management Act, 1998 (NEMA) and the objectives of the National Environmental Management: Biodiversity Act, 2004 (NEM:BA).
  3. Wealsosupportsomeofthefeaturesofthe2018agreement,particularlytherequirementthat all the areas within Greater Kruger are in time declared as statutory Protected Areas under the National Environmental Management: Protected Areas Act, 2003 (NEMPAA)and that each

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is subject to an approved Management Plan under that Act (See paragraph 6.1.6 of the

agreement). This requirement should be included in any new Cooperative Agreement.

  1. NEM:BAprovidesthattheStateisthetrusteeofbiologicaldiversityforthebenefitofall South Africans. Consequently, all South Africans have an interest in how wild animals are protected and/or used. SANParks failed to recognize this in concluding the 2018 agreement without full public consultation on its terms, and moreover in complete violation of yourdirective, which would have created the space for such consultation.
  2. SANParks’ duty as a public body, the Management Authority of the flagship national park inSouth Africa and the trustee of the biodiversity within the park is to take the legislative and other measures necessary to promote conservation and secure ecologically sustainable use of natural resources that form part of the ecosystems in the park. It is not fulfilling this duty by allowing an elite group of private sector entities to benefit disproportionately from hunting of animals that are part of the heritage of all South Africans. The benefit to the KNP of the dropped fences is not so great that it should take a complacent attitude to the regulation of hunting in the Open System or agree to a governance structure that is so obviously inadequate in the face of ongoing abuse and exploitation of the system;
  3. The 2018 agreement does not make any effective improvements to the way in which consumptive use of animals and benefit sharing is regulated, which has been shown to be inadequate in the past; and the 2018 agreement does not make decision-making in respect of consumptive use of animals and benefit sharing transparent and accountable. Our reasons for saying so are as follows:
  4. The 2018 agreement is made between SANParks and the individual representative bodies of private and communally owned reserves that are open to the KNP. These reserves together with the KNP constitute “Greater Kruger”.
  5. TheagreementestablishesaJointManagementCommittee(JMC)whoseoverallfunctionis to drive and coordinate the implementation of the agreement (paragraph 10.2). The JMC consists of four SANParks representatives and one representative from each of the reserves (there are 14 reserves which are parties to the current agreement) but SANParks exercises half of the votes at the JMC.
  6. The JMC is responsible for developing and monitoring compliance with the “JMC Instruments” applicable in the Greater Kruger area to promote the objectives of the agreement.
  7. The governance structure created by these provisions is not materially different to that of the 1996 agreement.
  8. The 2018 agreement identifies the following as being necessary instruments which should be prioritised for finalisation by the JMC: “Sustainable Resource Use Protocol (hunting, animal off-takes)”; “Responsible Tourism Best Practice Guidelines”; and “Socio Economic Guidelines: Marketing, Branding and Social Investment”.
  9. The exact terms on which hunting and benefit sharing will be conducted in the Open System, including determining whether the quotas are sustainable, allocating quotas between reserves, monitoring of compliance and other critical issues, will be determined by an opaque body on which civil society is not represented and from which it has no clear right to information .

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These terms are of interest to all South Africans and should either be made explicit in the main agreement or, where that is not practical, should be determined in a transparent manner with full public consultation.

  1. In concluding the 2018 agreement without proper public consultation, certain assumptions have been made that ought to have been interrogated. Crucial issues such as how to maximize the benefits to surrounding communities from the Open System, whether trophy hunting will confer greater benefits to surrounding communities and to conservation in the long term than eco-tourism-based alternatives or whether trophy hunting is in fact a sustainable practice, do not appear to have been considered by SANParks in concluding this agreement.
  2. A new hunting protocol was drafted in October 2018 and will come into effect from 1 April 2019. It is a further example of how SANParks has ignored Parliament’s directive regarding the process to be followed in reviewing the regulation of hunting and benefit sharing. The new draft hunting protocol was not the subject of a full public consultation and does not differ materially from previous protocols. It will therefore not change the way hunting and benefit sharing is regulated or make the process of regulating hunting and benefit sharing more transparent.
  3. Compliance by the representative bodies with protocols adopted by the JMC, including hunting and benefit sharing protocols, is not mandatory. The current agreement only requires that Parties “shall endeavour to manage the relevant portion of the Greater Kruger in line with JMC Instruments” (paragraph 6.1.2) and “as well as endeavour to manage the ecosystems in line with JMC Instruments[ (Paragraph 6.2.1).
  4. Paragraph 6.2.2 requires Parties to adhere to “ethical, sustainable and responsible resource use and offtakes including in respect of hunting and consumptive and non-consumptive natural resource use…” These terms are not defined in the 2018 agreement and are vague. For example, for many people trophy hunting, or any kind of hunting of wild animals, can never be ethical.
  5. There are no penalties or sanctions for non-compliance with the protocols. It is true that compliance with the protocols must be monitored by the JMC, of which SANParks is a part, but the agreement should allow SANParks to apply a sanction where a reserve fails to comply with a protocol, such as suspending all hunting in that reserve. SANParks is not the issuing authority for permits to hunt and therefore does not have ultimate control over whether hunting takes place in a reserve or not. There is no way for SANParks to enforce the terms of the agreement. In other words, it is “toothless”.
  6. In February 2018 KNP sent a letter to Umbabat Private Nature Reserve in response to their ‘off-take’ requests. KNP’s letter indicates that at the time it was being asked to comment on these trophy hunting requests the KNP had no clear information on how the reserve reported on revenue generated and was unable to monitor whether the income was being directed towards conservation, management or socio-economic activities.
  7. The 2018 Agreement and current hunting protocol will not do anything to make the regulation of benefit-sharing more transparent or the reserves more accountable in this regard.
  8. NEM:BA provides that the State is the trustee of biological diversity for the benefit of all South Africans. Consequently, all South Africans have an interest in how wild animals are protected and/or used. This is particularly the case where the animals originate in a protected area of national, regional and even global importance. If these animals are to be hunted in the Open System then a high degree of transparency is necessary in the regulation of such hunting. The 2018 agreement does not provide for this.
  1. Despite the fact that the Preamble to the 2018 agreement records that “the Parties will seek to cooperate with such bodies as Other Stakeholders [which is defined to include non- governmental organisations]within the parameters of this Agreement” (paragraph R), the agreement itself makes no specific provisions at all for such cooperation.
  2. There is no specific provision in the agreement for any information held by the JMC (which will include audit reports, meeting minutes and the JMC Instruments themselves) to be made available to civil society organizations or other interested persons.
  3. Meetings of the JMC are not open to the public. Civil society stakeholders may attend only if invited.
  4. The JMC has no legal personality and it is not clear whether it is public body and subject to the stricter access to information provisions in the Promotion of Access to Information Act, 2000 (PAIA). Even if it is a public body, public bodies in the conservation sphere have a culture of refusing information to NGOs even where the information is not protected by an law, and of delaying the provision of information without good reason, both of which have the effect of frustrating the efforts of civil society to monitor compliance with applicable laws, policies and agreements. The 2018 agreement merely perpetuates this problem.
  5. The effect of this is that the activities of the JMC and the reserves are not subject to public scrutiny. This is important because there is evidence that non-compliances with hunting protocols and procedures developed between SANParks and the reserves are common, and serious. On the same day as the KNP wrote the letter to Umbabat referred to above, it also wrote to Timbavati setting out a similar list of serious non-compliances with the protocols and policies and gaps in the information which Timbavati should have provided to enable KNP to oversee the killing of animals effectively. Recent incidences reported in the media including the Umbabat Lion Hunt and two unlawful elephant hunts in Balule Nature Reserve are further evidence of this. The large sums of money involved and lack of effective deterrents means there is very little incentive for trophy hunters to comply with laws and policies. Making provision for effective public scrutiny of hunting and the allocation of benefits would play an important role in improving compliance.
  6. The 2018 agreement fails to regulate hunting and benefit sharing within the Open System in an effective, transparent and accountable manner as required by the Constitution, NEMA and NEM:BA.
  7. SANParks must be required to cancel the 2018 agreement in the interim and begin the process of drafting a new agreement which addresses the points set out above. In doing so, it must be required to conduct a transparent and accessible process which allows for meaningful participation by any interested parties.

PART B: ELEPHANTS

1. Introduction

  1. As we have mentioned in Section II above, we wish to emphasise the fact that calls for public submissions on draft regulation in respect of the four species have previously been made. Each of ALRSA and EMS Foundation (as organisations and through our networks) have made submissions in respect of: (i) Elephants; (ii) Rhinos; (iii) Lions and (iv) Leopards. In this regard, we refer to Appendix I wherein previous submissions have been included (non-exhaustive). Not only have we not received responses to some of these submissions (nor acknowledgement of receipt), but it is unclear to what extent these submissions were even considered and if so, to what extent.
  2. Accordingly, we wish to state that the specific comments contained in our previous submissions, apply equally to matters to be deliberated on by the Panel, with the necessary contextual amendments. We have not repeated all of these herein.
  3. We incorporate by reference herein the SAIFAC Submission as it pertains to elephants, insofar as same is applicable and does not conflict herewith.

Component I: Mediocrity is the Elephant in the Room: Elephant Protection and Management

  1. Elephants are highly intelligent, sensitive and social creatures that have their own intrinsic worth, a worth that needs to be protected. They have complex social systems and qualities beyond our understanding. There is substantial scientific research in this regard.
  2. Elephants are extremely important to South Africa, not only to our tourism industry and the economic benefits they bring (through eco-tourism and other non-consumptive uses) but to the people of our country, our heritage and the various cultures represented in our rainbow nation. In addition to this, they are also a major component of biodiversity, in their own right and as change agents.
  3. Elephants face a multitude of threats including but not limited to poaching and habitat loss, but also are targets for trophy hunters and can be classified in law as “damage causing animals” which status removes various protections for them.
  4. Recently,SouthAfricahasreceivedalargeamountofnegativeattentionandscrutinydueto its wildlife policies. For example, in respect of the lion bone trade which has received international criticism. We have seen how these policies have had negative effects on “Brand South Africa”162 and will still need to see how these negative effects will materialize in the coming years. In addition, we have received a large amount of criticism for our policies relating to rhinos. South Africa must correct this and show both the South African people and international community that wildlife and particularly, elephants deserve our consideration and protect
  1. The two highest courts in our country have both recognised the importance of animals. Our Constitutional Court indicated that animals have intrinsic value as individuals. 163 They further affirmed the fact that animal welfare and animal conservation together reflect two intertwined values.164 The Supreme Court of Appeal has made it clear that ‘constitutional values dictate a more caring attitude towards fellow humans, animals and the environment in general’. We do not believe the approach of these courts is not adequately recognized in the Norms and Standards.
  2. In addition, the scientific knowledge about elephants and ethical approaches to their treatment clearly indicate that one cannot accept forms of exploitation such as hunting, keeping in captivity for display, elephant-backed safaris and the like. As the Constitutional Court has held, any utilization must be married with respect for the intrinsic value and welfare of elephants. Certain uses of elephants are only abuses and cannot be squared with these holdings.
  3. Accordingly, based on this, we assert that certain practices with regard to elephants need to and must be outright prohibited. For example, on the issue of culling any decision must go through a committee made up of relevant stakeholders and such decision cannot be pre- approved through a Management Plan that only needs to be updated every ten years. This is contrary to public morals and ethics, science, and others. This issue has been heavily debated. It will be damaging to our brand as a country and affects all those who live in South Africa.
  4. The commodification of these nonhuman animals must end and we need to focus on their intrinsic worth, their value to the people of our country and the country itself, their value to ecosystem and other animals. If we need to look at their monetary value, let us consider this in light of eco-tourism and the benefit they bring to the country alive, in their natural habitats, living their lives as they choose.
  5. Inrespectofissuesregardingelephantmanagement,outofnecessity:
    1. there must be complete transparency in all regards;
    2. consultation with all relevant stakeholders must occur, particularly communities;
    3. there should be mandatory reporting on issues;
    4. enforcement must be done properly and uniformly, with the relevant oversight and sanctions for non-compliance and deviations;
    5. all involved in elephant decisions must take into account the relevant factors and use the most humane methods possible;
    6. accountability is crucial.
  1. The global negative human imprint on the natural world has become impossible to ignore. The near-extinction of many land animals including the Elephant in their natural habitats, the destruction of forests in the developing world, the decline of insect life in areas of intensive agriculture in developed countries and more recently the increasingly evident scourge of plastics in the oceans.
  2. The Kruger National Park is listed as one of the last best wild places in the world today to see Elephants, more than sixteen million tourists visited South Africa in 2018. A legacy that all South African’s have been bestowed with, each year approximately nine hundred and fifty thousand people visit the Kruger National Park. Tourism remains a key driver of South Africa’s economy and contributes significantly to job creation, this sector also contributes nine percent to the country’s gross domestic product.
  3. The Kruger National Park is densely populated with Africa’s largest herbivore, the Elephant, they are extremely important to South Africa not only to the tourism industry and the economic benefits they bring through eco-tourism but to the people of the country, their heritage and the various cultures represented in their rainbow nation.
  4. During the time of the global pandemic COVID-19 when countries closed their borders, when airlines were grounded and when citizens from around the world were locked-in to their homes, many wildlife reserves in South Africa offered online virtual safaris. The popularity of these tours was unprecedented, the beauty of South Africa offered an uplifting experience to hundreds of thousands of people who had no real access to nature. South Africa has a truly unique heritage, one that should be protected and nurtured for generations to come.
  5. In order to protect these valuable wildlife ‘assets’ and our collective heritage, the South Africa government needs to pay careful attention to the communities that live closest to the Elephant. The Elephant remains the second most popular species in Africa to see and experience. Unfortunately there has been no lifestyle improvement for these communities in the post- apartheid years, they have certainly never financially benefitted from the prolific legal wildlife trade policies nor have their lives been uplifted by trophy hunting they have not been offered the opportunity of experiencing the wildlife in the Kruger National Park.
  6. A common, non-scientific, negative sentiment is often expressed which is that South Africa has too many Elephants, we believe instead that there might not be sufficient space for our Elephant. We must remember that Elephants are a major component of biodiversity in their own right and that they act as change agents. Elephants are often accused of being responsible for the unsustainable loss of large trees in protected areas such as the Kruger National Park. Scientists have recently established that maintaining Elephant numbers at a pre-determined carrying capacity level did not prevent the loss of large trees.
  7. Managers of Elephants in areas such as the Kruger National Park should ensure that migratory corridors remain as open as possible. Managers should reduce the density of artificial water points so that Elephant impact is not spread more evenly across the landscape. Intermittent natural water sources encourage seasonal movement patterns among megaherbivores. This provides important plant refugia within large, open systems which increases overall biodiversity.
  1. Unfortunately, through the legal access of PAIA, it has come to our attention that nineteen Elephant were culled in the Kruger National Park in 2019. This is contrary to public opinion, morals and ethics and science, this is an issue that has been heavily debated. The publication of this particular culling will be damaging to brand South Africa and will affect the country’s conservation reputation and its appeal as tourist destination and importantly by default the culling of nineteen Elephant will affect all those who live in South Africa.
  2. The scientific knowledge about elephants and ethical approaches to their treatment clearly indicates that one cannot accept forms of exploitation such elephant-backed safaris or any type of human interaction with Elephants. As the Constitutional Court ruled, any utilization must be married with respect for the intrinsic value and welfare of elephants. Certain uses of elephants are only abuses and cannot be squared with these holdings.
  3. SATSA is a non-profit, member driven association representing the South Africa’s tourism sector. SATSA announced in January 2020 that it would publish guidelines discouraging all human wildlife interaction, including petting big cat cubs, walking with predators and Elephants and riding of Elephants. These guidelines are in-line with global trends. Tourists are spoilt for choice and they have become very discerning and will not support organisations where animals are hunted, culled or exploited.
  4. Other practices that must be prohibited outright as a matter of urgency is the use of elephants in circuses and zoos. We do not need to reiterate the various problems with this practise. Many countries and jurisdictions around the world have banned this outdated embarrassing abuse of Elephants. When the opportunity is provided for Elephants to be retired to the wild the South African government should be encouraged support such a decision.
  5. In August 2019, in Geneva at CoP18 it was decided that the trade of wild-caught Elephants to zoos may only take place if approved by the CITES Animals Committee, in consultation with the IUCN African Elephant Specialist Group, an expert group that has publicly stated that it does not believe there to be conservation benefits to wild caught Elephants being sent to captive facilities.
  6. The Breaking Point Report released by the EMS Foundation and Ban Animal Trading South Africa has exposed the inadequacies of the legal live wildlife trade permitting system in South Africa as well the processes supposedly overseen by CITES and nature conservation representatives. It has been proposed that a moratorium is placed on all trade of wildlife and wildlife parts until an investigation can be completed. We support such a moratorium.
  7. South Africa should therefore not support applications to allow for the export of Elephants for purposes of captivity. Besides the horrors that have been exposed in the report, how can humans treat one of the quintessential symbols of South Africa in this way? In the wild, Elephants move across different habitats and walk long distances every day, actively interacting with the environment and other animals and peers, how can South Africa allow Elephants to be kept in inadequate enclosures in zoos where they, deprived of their physiological and psychological needs, face a lifetime of misery?
  1. The commodification of these nonhuman animals must end and we need to focus on their intrinsic worth, their value to the people of our country and the country itself, their value to ecosystem and other animals. If we need to look at their monetary value, let us consider this in light of eco-tourism and the benefit they bring to the country alive, in their natural habitats, living their lives as they choose.
  2. In South Africa has received a lot of negative attention in the local and the international media recently. Lammie, the Elephant at the Johannesburg Zoo with was offered the opportunity of being rewilded by Elephant experts. Thousands of people around the world have agreed with this opportunity and have been signing petitions and taking other actions.
  3. Various welfare and conservation organisations in South Africa have spoken out against the imprisonment of Lammie. Instead of taking up the opportunity to offer Lammie freedom in the wild, the zoo management make a decision to capture two wild Elephants and to relocate them to the zoo.
  4. Trophy Hunting does not connect to the African culture and the division between the indigenous culture of hunting for food and, on the other side, the colonial heritage and culture of hunting for power and supremacy has been indicated as one of the major factors fuelling poaching of iconic animals in South Africa.
  5. African communities feel depredated of their heritage for the good of a few rich foreigners. The revenues generated by such hunts don`t effectively reach these communities, nor any other benefit. The South African government should finally address this issue which has been increasingly exposed by researchers and conservationists.
  6. Botswana has recently reintroduced trophy hunting of Elephants―the international outcry and the damage this has caused to their country is plainly evident.
  7. In summation we would like to see the end to the abuse and exploitation of elephants for profit. This includes (but is not limited to) elephants as the subject of trophy hunts; in zoos; in circuses; as ivory (or any other products) and in other human-elephant interactions (such as elephant back riding, feeding and walking with elephants, etc.). Of course, this does not preclude marketing South Africa as a prime destination to view elephants in a respectful manner.
  8. The two highest courts in South Africa have both recognised the importance of animals. Our Constitutional Court indicated that animals have intrinsic value as individuals. They further affirmed the fact that animal welfare and animal conservation together reflect two intertwined values.
  9. The Supreme Court of Appeal has made it clear that ‘constitutional values dictate a more caring attitude towards fellow humans, animals and the environment in general’. We do not believe the approach of these courts is adequately recognized in the Norms and Standards.

Component II: Elephants in Captivity – General

Elephants are highly social and have the largest social network of any mammal yet studied other than humans. There is a vast amount of research on elephant biology and behaviour which show that humans and elephants share the same attributes – once thought unique to humans.

The susceptibility of elephants to Post Traumatic Stress Disorder demonstrates that among all species, elephants are extremely vulnerable to suffering in a captive setting.

Whatwehavelearnedaboutelephantsmeansthatweareconfrontingveryrealethicalissues in relation to our current policies and legislation that affects them.

Globally there is huge concern for the well-being of elephants in captivity, particularly in relation to abuses attributable to the captive elephant industry, including:

Capture of juvenile elephants from wild family groups.

Cruel training and controlling methods – which typically involves the use of physical and psychological punishment.

The conditions in which elephants are kept.

Thesafetyofpeoplehandlingthem.

Several high profile cases illustrate these concerns, particularly in relation to ‘training’.

The captive elephant industry has a history of cruel, abusive and domination training and deaths of handlers.

The use of elephants in the elephant back safari industry is not only highly detrimental to elephants, but it also increases the risk of injury for personnel as well as the general public.

In SA the training and keeping of elephants in captivity persists without adequate monitoring or control.

As far back as 2005 a number of local and international animal protection organisations warned that South Africa can ill afford a rapidly growing captive elephant industry sliding out of control – but this is precisely what has happened.

Once captured, elephants used in the elephant back safari industry and circuses are subjected to absolute control, social and physical deprivation, and in many cases, psychological and physical violence.

Early trauma, chronic stress, and deprivation are common to elephants in captivity. The added stress and trauma exerted by such practices as beating, negative reinforcement, chaining, physical abuse, and social isolation further undermine elephant well-being that transmits laterally (among other elephants) and vertically (across generations). The experience of elephants in captivity is equivalent to that of many human prisoners and victims of torture.

  1. The elephant back safari industry, circuses and zoos employ a “dominance-based free contact” approach to elephant control. This involves a variety of tools and methods that cause intense distress, pain, and injury and are employed to limit elephant behaviour and movement.
    1. Bullhooks—wooden poles with a curved metal hook at one end—are used to inflict pain on sensitive areas of the elephants for the process of “breaking,” which is grounded in physical and emotional coercion to obtain absolute control.
    2. Typically,thebreakingprocessbeginswiththeremovalofinfantsfromtheirfamily units followed by bodily immobilisation, beating, and starvation/deprivation until the elephant accepts the trainer as his or her “master”.
    3. Negativereinforcementtechniquesareapartofregulartraining(e.g.bullhookbeatings for poor performance, displays of resistance, and/or unapproved socialisation with other elephants).
    4. The power handlers exert over the elephants is psychologically corrosive because they play the dual role of the agent of captivity/abuse and of attachment/survival so the relationship always involves the potential for repeated trauma, fear, and harm.
  2. Well-documented South African insight into the elephant ‘training’ methods: the “Tuli elephant case”, where 30 juvenile elephants, between the ages of 2 and 5, were kidnapped from their families and abused for use by zoos, circuses and the elephant-back safari industry. It showed the weaknesses in the Animal Protection Act, which, for example, does not outlaw the beating and restraining of wild animals. The elephant owner was not barred from owning, handling or selling elephants and the light nature of the conviction sent a message to wild life dealers and elephant ‘trainers’ that, in South Africa, abuse of animals is encouraged.
  3. As far back as 1999 the magistrate in the Tuli case admitted that the Animal Protection Act was confusing and urged that it be re-drafted to bring it in line with international legislation and best practice relating to animal welfare and protection. This has not happened. WHY?
  4. Almost every elephant in captivity in South Africa, has been taken from the wild as babies or juveniles, kidnapped and forcibly removed from their families.
  5. No legislation exists in South Africa that governs the methods used in training elephants.
  6. In South Africa, the elephants in captive facilities are predominately managed in direct contact systems with only the two zoos managing their elephants in protected contact systems. In short, direct contact management occurs when the elephant and the handler share the same space without any barrier between them whereas protected contact management occurs where the elephant and the handler are separated by a fixed barrier. With direct contact handling, the manner of training or management requires dominance at varying levels depending on the facility, management & handlers. It has been shown that direct contact handling is very dangerous and injuries or deaths to elephant handlers in South Africa occur in direct contact handling. With direct contact handling comes associated risks such as injury and/or death for the handlers and guest. The statistics clearly highlight this risk and when handling elephants in direct contact it is not a case of if an incident will occur, it is, when will it occur. Naturally, the longer that elephants are handled in direct contact the sooner an incident will more than likely occur.
  1. Information about elephants in captivity in South Africa, including statistics, records on individual elephants, their movement, locations, overall audit census, etc. is not known or kept by national or provincial government, including by DALLRD or by DEFF.
  2. In August 2019 the EMS Foundation undertook a census of elephants in captivity in South Africa. There are 95 elephants in 21 captive facilities. Since 2014 there has been an 86% decrease in the number of facilities offering riding of elephants. This is largely due to the dangers involved to clients and handlers and global public pressure.
  3. The captive elephant industry obtains licences for their activities through the Performing Animals Protection Act―i.e. training, display, riding, interaction etc.―through PAPA and permits issued by conservation authorities.
  4. There is lack of clarity in terms of which government department―DALLRD or DEFF―is responsible for the keeping and ‘management’ of elephants in captivity. Neither the DALLRD the DEFF or the provincial conservation authorities are taking responsibility for the protection and welfare of elephants in captivity or elephants supplied to the industry.
  5. The reality is that government has dropped the ball in terms of the protection, welfare and interests of elephants in captivity.

Component III: Elephants in Captivity – Indaba

On 6 September 2019, an international Indaba and Panel Discussion with national and international elephant behavioural specialists was convened in South Africa, to discuss the issue of elephants in captivity and to develop a framework as well as policy guidelines for dealing with elephants in captivity.

The Indaba was the first consultative gathering of elephant specialists and elephant interest groups in Africa specifically dealing with elephants in captivity, the role Africa has in sending elephants into captivity and what we need to do to get them out of the metaphorical room.

The overwhelming message was that elephants belong in the wild and must be returned to the wild in all cases where this is a legitimate possibility. Given what we know about who elephants are and the conditions under which they thrive, there is no reason to keep them in captivity.

The Indaba and Panel discussion brought together a number of key international and local elephant experts, specifically on elephants who find themselves in captivity or who are captured for captivity. These experts were from diverse disciplines, including natural scientists, ethologists, ecologists, lawyers, researchers, NGOs and practitioners and comprising a body of expertise from scientific, conservation, legal, welfare, protection, rights, social justice, economic and advocacy communities. It brought together a total of some 120 participants including elephant specialists from South Africa, Kenya, Zimbabwe, the USA, Britain and Europe; animal protection organisations, practitioners, management consultants, researchers, students, lawyers, representatives of the captive elephant industry and members of the public.

South African government representatives of the province of the Western Cape, CapeNature, SANParks and the Department of Environment, Forestry and Fisheries, although invited to attend and participate as Panellists, did not send any representatives. This highlights the dismissive position that state environmental agencies take towards ethical and welfare concerns for the wild animals they have oversight and responsibility for, despite key constitutional and high court judgments which demand that they act differently.

6. The aim of the Indaba was to:

  1. Lend urgency to the issue of elephants in captivity.
  2. Reflect and take cognizance of the shift in public sentiment about elephants in captivity.
  3. Highlight Who elephants are.
  4. Place the plight of captive elephants, including the methods of ‘training’ into the public consciousness.
  5. Share the findings of an updated review/audit of captive elephant facilities in South Africa.
  6. Discuss the need to rehabilitate and re-wild and the framework and protocol developed in South Africa for this.
  7. Probe the capture and sale of young elephants from Zimbabwe and Namibia to zoos and circuses in China, Pakistan, the USA and others.
  8. Investigatethepolicyandlegislativecontexts,includingtheinterpretationofthe concept of ‘sustainable use’.
  9. Interrogate the convergence of issues coalescing around Africa, elephants in captivity, legislation, CITES regulations and resolutions, including the question of ‘appropriate destinations’, and loopholes within CITES in relation to the international trade in elephants into captivity.165
  10. j. Examine potential legal interventions in relation to captive elephants.
  1. Topics presented were discussed and debated under the following themes:
    a. Who elephants are and why they are not suited to live in a captive environment.
    b. New scientific paradigms, epigenetics and neuroscience which dictate thetransformation of conservation into self-determination and compel the reframingof how elephants are approached including within the social justice movement.
    c. Ecosystems need elephants and elephants need ecosystems: keeping elephants inthe wild, not captivity.
    d. Stress experienced by elephants in captivity, including in reserves and whereelephants have been rehabilitated and re-integrated. e. The value of elephants: Rands and sense.f. The value of elephants for society and conservation strategies that reconcile conservation and human wellbeing goals.g. Latest data on elephants in zoos worldwide.
    h. Policy contexts including trade, ‘sustainable use’ and the CITES ‘acceptabledestinations’ issue.
    i. An analysis of legal interventions in relation to captive elephants.
    j. The policy framework of sustainable use in relation to animal welfare andelephants and legal challenges to it.
    k. Challenges and opportunities for animal welfare in Zimbabwe’s legal and policyframeworks with regard to the capture and sale of Zimbabwe’s young elephants. l. Zimbabwe’s live elephant captures for export to Dubai, Pakistan and China.
    m. Animal welfare considerations that decision makers need to bear in mind inrelation to keeping elephants in captivity.
    n. Current status of captive elephants and the captive elephant industry in SouthAfrica.
    o. Reintegration and rewilding of elephants from captivityp. Thewayforward.
  2. Indaba Summary Conclusions and Recommendations

a. Elephantsareakeystonespeciesandareanessentialcomponentofecosystems. If one takes the keystone out of an arch it collapses. They are ecological engineers upon which many other species depend. Without elephants, the integrity of a dynamic ecosystem disintegrates. Elephants engineer proper functionality in the wild. Elephants also help to mitigate climate change, so the protection of their wild spaces is ever more urgent.

  1. Elephants are sentient beings who live socially complex lives through relationships which radiate out from a mother-offspring bond through families, clans, and sub populations. Independent males form long-term friendships. ‘Elephants communicate through more than 300 gestures, complex speech and glandular secretions. They contemplate, negotiate, collaborate, plan and are aware of death. They care about their lives.
  2. Elephants are big eaters and need an eclectic diet. In nature they roam across long distancesanddifferenthabitatsandspendalmostthree-quarters of their lives acquiring necessary and different nutrients. The physical activity and mental stimulation involved in the search for food items across large landscapes constitutes the very core of an elephant’s interest and survival.
  3. Elephants share with humans the same brain, same consciousness and the same vulnerability to trauma. They can experience psychological and social breakdown. Trauma spreads from parent to child, neighbour to neighbour. Symptoms include depression, fear, panic, flashbacks, nightmares, aggression, infanticide and violence against others and self. Trauma also profoundly undermines their immune system and physiological functions.
  4. Humanactivity,fromfencing,noise,tocapture,confinementandcrueltrainingis having an increasingly negative effect on the welfare of elephants.
  5. In confinement, captive elephants lack the very foundation of elephant life.
  6. Holding elephants in captivity causes them enormous stress and constitutes cruelty.
  7. The capture of baby and young elephants causes post-traumatic stress (PTSD) that can last decades.
  8. Capturing wild elephants and removing them from their families is totally unacceptable.
  9. Elephants suffer when confined.
  10. In captivity elephants are less aware, move slowly and droop. Those who have worked with elephants have noted depression and sadness.
  11. There is an epidemic of PTSD among elephants in captivity.
  12. Confinement even in the best facilities constitutes cruelty.
  13. Captivityissimplyunsuitableforelephants.
  14. There are currently 1770 elephants worldwide in captive facilities, of which 84% are in zoos. Most of these are in the United States, followed by China, Germany and Japan. Just under 100 facilities hold a single elephant.
  15. There is no conservation-education value to the use of elephants in zoos.
  1. The law has a duty to protect elephants in zoos and in captivity because there are serious welfare concerns.
  2. Theway‘sustainableuse’ofwildlifeisusedintheSADCregionistofocusonthe species as a whole and allow for the sacrifice of many individuals. This allows individuals to be objectified and exploited rather than respected and well stewarded.
  3. Conservationdecisionscannotbedivorcedfromwelfareconsiderations.
  4. An integrative approach needs to be employed in policies and legislation to properly interpret ecological sustainability and the use of natural ‘resources.’ This kind of approach will integrate respect for individuals and the whole species thereby advancing their conservation.
  5. Respectforelephantswillensuretheirlong-termsurvival.
  6. Policiesandlegislationmustbedevelopedthataregoodforbothhumansand elephants.
  7. TherearealreadyseveralprojectsinAfricathatarerehabilitatingandreintegrating elephants, including captive elephants, back into the wild. Effective and verified protocols and procedures have been developed. These programmes need to be urgently supported and expanded.
  8. Keeping elephants in captivity and reducing them to mere objects is eroding our own humanity.

9. At the close of the Indaba, each delegate was asked to write down the one closing thought or policy recommendation given the science that had been presented. The overwhelming consensus from panellists and delegates was that:

  1. Thereisacriticalmassofindisputablescientificdataandresearchonwhoelephants are.
  2. Since humans now know so much about them it can no longer be acceptable to allow elephants to be kept in captivity.
  3. No new elephants should be placed in captivity.
  4. Elephants currently in captivity should be reintegrated into the wild wherever possible or, if not, be placed in as free and natural environment as possible.

Component IV: Questioning South Africa’s Continued Support of the Elephant Ivory Trade

1. In the year 2020, the illegal killing of African Elephants for commercial trade in ivory remains the greatest threat to the survival of the species.

2. The African Elephant Coalition is made up of thirty-two African countries. They are all outspoken in their unwavering support of protecting one of Africa’s greatest wildlife assets.

This coalition has gained worldwide recognition and the support of many countries who previously supported the ivory trade.

  1. Unfortunately there is a well-documented, marked increase of Elephant poaching in SouthAfrica. In 2012 two Elephants were killed for their ivory in South Africa’s flagship Kruger National Park. In 2015 twenty-four Elephants were killed for their ivory. In 2016 forty-six Elephants were killed for their ivory. In 2017 sixty-seven Elephants were killed for their ivory. In 2018 seventy-one Elephants were killed for their ivory, and according to Minister Creecy the Minister for the Environment, Forestry and Fisheries, thirty-one Elephants were killed in the Kruger National Park in 2019. These figures demonstrate the intentional targeting by organised criminal syndicates of Elephants in eastern South Africa, specifically in the region bordering Mozambique.
  2. The Elephant Trade Information System (ETIS) was established to monitor the illegal trade in ivory in collaboration with the CITES Secretariat. The seventh ETIS report was prepared for CoP18 which was held in Geneva in August 2019. The Secretariat concurred with the results of the analysis contained within the report.
  3. Of concern is that South Africa has been listed as a Category C Country. South Africa is a region that exhibits particular characteristics which merit careful tracking going forward. Considerable quantities of ivory have entered the international trade emanating from South Africa, these include one large-scale shipment of 2478 kg to Vietnam in 2017. According to the report, of real concern is that quantities of ivory are entering the country from neighbouring countries for export from South Africa. This report highlights the fact that South Africa is possibly being targeted because authorities are not able to control the illegal flow of wildlife parts from its air transport hub.
  4. Despite the report from ETIS and the updated assessment by the CITES programme called Monitoring of Illegal Killing of Elephants (MIKE) on the 10th May 2019 which confirmed the fact that poaching continues to threaten the long-term survival of the African Elephant, a handful of Southern African countries continue to support the ivory trade.
  5. In 2019 The EMS Foundation submitted a request under the Promotional of Access to Information Act (PAIA) no.2 of 2000. In response the Department of Environment, Forestry and Fisheries revealed that the national stockpile held by governments was an amount of seventy-seven tonnes. The definition and description of this ivory was questioned by the EMS Foundation―nearly 77 tonnes. There is also justified concern for the security of the stockpile, as there have been reported raids on stockpiles of ivory and rhino horn, the majority of this ivory is held by South Africa National Parks.
  6. At CITES CoP18 held in Geneva in August 2019, South Africa, Botswana, Namibia and Zimbabwe proposed that they be allowed to lift restrictions on Appendix II listings to allow trade of registered government-owned stockpiles of so called “clean ivory”.
  7. This controversial proposal was made despite the spike in Elephant poaching in Southern Africa most especially in Botswana and despite the fact that it has been proved that the one- off sales of ivory took place in 1997 and 2008 resulted in increased poaching. The amended proposal was overwhelmingly defeated with only 23 countries in support. South Africa’s name was subsequently mentioned in the media confirming their official reservations to this specific decision made in Geneva.
  1. CITES ended the international trade in ivory in 1989. Many countries continued to allow thedomestic trade in ivory. Attempts to pass off illegally imported ivory, derived from poached Elephants as having been obtained in a legal way domestically have prevailed. Consequently the poaching of Elephants has never ceased.
  2. Wildlife conservationists and wildlife activists have continued to lobby governments against their policies in the domestic trade in ivory and as a result of this on the 6th July 2016 a near total ban on the commercial trade in African Elephant ivory went into effect in the United States of America.
  3. On the 31st December 2017 China banned the Elephant ivory trade.
  4. Hong Kong, a major market for Elephant ivory, will end sales of ivory by the end of 2021. Inaddition to shutting down the ivory market their plan also includes harsher penalties forsmugglers.
  5. Singapore will ban the domestic ivory trade from September 2021, the ban will mean that thesale of Elephant ivory and ivory products, and public displays of Elephant ivory and ivoryproducts will be prohibited.
  6. The United Kingdom was the largest exporter of legal ivory, exporting more than 370% moreivory than the next higher exporter. Legal ivory means carved or worked ivory. The seizures of illegal ivory products by the UK Border Force illustrated that while a legal market existed an illegal market was disguised. In 2018 the United Kingdom instituted the world’s toughest ban on ivory which eliminated all sales of ivory. It has been proved that it is near impossible to discriminate between old and new ivory. If a sophisticated first world country has admitted to the fact that they are unable to regulate the legal trade in ivory, we have to question how Minister Creecy proposes to successfully regulate such a trade in South Africa.
  7. The bold actions by so many countries show a firm commitment to ending the scourge of Elephant poaching and the tragic impact it is having on wild Elephant populations.
  8. Japan has subsequently become the world’s largest domestic ivory market remaining today. According to the Environmental Investigation Agency (EIA) who has analysed the official import statistics and has calculated that Japan has imported tusks from 328 000 Elephants since 1950 mainly to produce ivory hanko. Online Japanese ivory retailers including Rakuten, Mercari, Yahoo!, AEON and Ito-Yokado have banned Elephant ivory sales. The African Elephant Coalition and thirty-seven US Congressmen have sent Japanese politicians requesting the ban on their domestic ivory sales.
  9. The European commission is considering further restrictions on the ivory trade across the EU, based in part on the UK’s Ivory Act.
  10. Australia announced in Geneva at CoP18 that it would soon ban the domestic trade in Elephant ivory. New Zealand is presently in a consultative process with regard to reviewing their domestic ban on the ivory trade.
  11. Ivory stockpiles have been publicly destroyed in Kenya, Gabon, Zambia, China, Ethiopia, Chad, Sri Lanka, the United States of America and the Philippines.
  1. Elephants are sentient beings who live socially complex lives through relationships which radiate out from a mother-offspring bond through families, clans, and sub populations. Independent males form long-term friendships. ‘Elephants communicate through more than 300 gestures, complex speech and glandular secretions. They contemplate, negotiate, collaborate, plan and are aware of death. They care about their lives.
  2. Elephants are big eaters and need an eclectic diet. In nature they roam across long distancesanddifferenthabitatsandspendalmostthree-quarters of their lives acquiring necessary and different nutrients. The physical activity and mental stimulation involved in the search for food items across large landscapes constitutes the very core of an elephant’s interest and survival.
  3. Elephants share with humans the same brain, same consciousness and the same vulnerability to trauma. They can experience psychological and social breakdown. Trauma spreads from parent to child, neighbour to neighbour. Symptoms include depression, fear, panic, flashbacks, nightmares, aggression, infanticide and violence against others and self. Trauma also profoundly undermines their immune system and physiological functions.
  4. Humanactivity,fromfencing,noise,tocapture,confinementandcrueltrainingis having an increasingly negative effect on the welfare of elephants.
  5. In confinement, captive elephants lack the very foundation of elephant life.
  6. Holding elephants in captivity causes them enormous stress and constitutes cruelty.
  7. The capture of baby and young elephants causes post-traumatic stress (PTSD) that can last decades.
  8. Capturing wild elephants and removing them from their families is totally unacceptable.
  9. Elephants suffer when confined.
  10. In captivity elephants are less aware, move slowly and droop. Those who have worked with elephants have noted depression and sadness.
  11. There is an epidemic of PTSD among elephants in captivity.
  12. Confinement even in the best facilities constitutes cruelty.
  13. Captivityissimplyunsuitableforelephants.
  14. Therearecurrently1770elephantsworldwideincaptivefacilities,ofwhich84% are in zoos. Most of these are in the United States, followed by China, Germany and Japan. Just under 100 facilities hold a single elephant.
  15. There is no conservation-education value to the use of elephants in zoos.
  1. The law has a duty to protect elephants in zoos and in captivity because there are serious welfare concerns.
  2. Theway‘sustainableuse’ofwildlifeisusedintheSADCregionistofocusonthe species as a whole and allow for the sacrifice of many individuals. This allows individuals to be objectified and exploited rather than respected and well stewarded.
  3. Conservation decisions cannot be divorced from welfare considerations.
  4. An integrative approach needs to be employed in policies and legislation to properly interpret ecological sustainability and the use of natural ‘resources.’ This kind of approach will integrate respect for individuals and the whole species thereby advancing their conservation.
  5. Respectforelephantswillensuretheirlong-termsurvival.
  6. Policiesandlegislationmustbedevelopedthataregoodforbothhumansand elephants.
  7. TherearealreadyseveralprojectsinAfricathatarerehabilitatingandreintegrating elephants, including captive elephants, back into the wild. Effective and verified protocols and procedures have been developed. These programmes need to be urgently supported and expanded.
  8. Keeping elephants in captivity and reducing them to mere objects is eroding our own humanity.

9. At the close of the Indaba, each delegate was asked to write down the one closing thought or policy recommendation given the science that had been presented. The overwhelming consensus from panellists and delegates was that:

  1. There is a critical mass of indisputable scientific data and research on who elephants are.
  2. Since humans now know so much about them it can no longer be acceptable to allow elephants to be kept in captivity.
  3. No new elephants should be placed in captivity.
  4. Elephants currently in captivity should be reintegrated into the wild wherever possible or, if not, be placed in as free and natural environment as possible.

Component IV: Questioning South Africa’s Continued Support of the Elephant Ivory Trade

1. In the year 2020, the illegal killing of African Elephants for commercial trade in ivory remains the greatest threat to the survival of the species.

2. The African Elephant Coalition is made up of thirty-two African countries. They are all outspoken in their unwavering support of protecting one of Africa’s greatest wildlife assets

This coalition has gained worldwide recognition and the support of many countries who previously supported the ivory trade.

  1. Unfortunately there is a well-documented, marked increase of Elephant poaching in SouthAfrica. In 2012 two Elephants were killed for their ivory in South Africa’s flagship Kruger National Park. In 2015 twenty-four Elephants were killed for their ivory. In 2016 forty-six Elephants were killed for their ivory. In 2017 sixty-seven Elephants were killed for their ivory. In 2018 seventy-one Elephants were killed for their ivory, and according to Minister Creecy the Minister for the Environment, Forestry and Fisheries, thirty-one Elephants were killed in the Kruger National Park in 2019. These figures demonstrate the intentional targeting by organised criminal syndicates of Elephants in eastern South Africa, specifically in the region bordering Mozambique.
  2. The Elephant Trade Information System (ETIS) was established to monitor the illegal trade in ivory in collaboration with the CITES Secretariat. The seventh ETIS report was prepared for CoP18 which was held in Geneva in August 2019. The Secretariat concurred with the results of the analysis contained within the report.
  3. OfconcernisthatSouthAfricahasbeenlistedasaCategoryCCountry.SouthAfricaisa region that exhibits particular characteristics which merit careful tracking going forward. Considerable quantities of ivory have entered the international trade emanating from South Africa, these include one large-scale shipment of 2478 kg to Vietnam in 2017. According to the report, of real concern is that quantities of ivory are entering the country from neighbouring countries for export from South Africa. This report highlights the fact that South Africa is possibly being targeted because authorities are not able to control the illegal flow of wildlife parts from its air transport hub.
  4. Despite the report from ETIS and the updated assessment by the CITES programme called Monitoring of Illegal Killing of Elephants (MIKE) on the 10th May 2019 which confirmed the fact that poaching continues to threaten the long-term survival of the African Elephant, a handful of Southern African countries continue to support the ivory trade.
  5. In 2019 The EMS Foundation submitted a request under the Promotional of Access to Information Act (PAIA) no.2 of 2000. In response the Department of Environment, Forestry and Fisheries revealed that the national stockpile held by governments was an amount of seventy-seven tonnes. The definition and description of this ivory was questioned by the EMS Foundation―nearly 77 tonnes. There is also justified concern for the security of the stockpile, as there have been reported raids on stockpiles of ivory and rhino horn, the majority of this ivory is held by South Africa National Parks.
  6. At CITES CoP18 held in Geneva in August 2019, South Africa, Botswana, Namibia and Zimbabwe proposed that they be allowed to lift restrictions on Appendix II listings to allow trade of registered government-owned stockpiles of so called “clean ivory”.
  7. This controversial proposal was made despite the spike in Elephant poaching in Southern Africa most especially in Botswana and despite the fact that it has been proved that the one- off sales of ivory took place in 1997 and 2008 resulted in increased poaching. The amended proposal was overwhelmingly defeated with only 23 countries in support. South Africa’s name was subsequently mentioned in the media confirming their official reservations to this specific decision made in Geneva.
  1. CITES ended the international trade in ivory in 1989. Many countries continued to allow thedomestic trade in ivory. Attempts to pass off illegally imported ivory, derived from poached Elephants as having been obtained in a legal way domestically have prevailed. Consequently the poaching of Elephants has never ceased.
  2. Wildlife conservationists and wildlife activists have continued to lobby governments against their policies in the domestic trade in ivory and as a result of this on the 6th July 2016 a near total ban on the commercial trade in African Elephant ivory went into effect in the United States of America.
  3. On the 31st December 2017 China banned the Elephant ivory trade.
  4. Hong Kong, a major market for Elephant ivory, will end sales of ivory by the end of 2021. Inaddition to shutting down the ivory market their plan also includes harsher penalties forsmugglers.
  5. Singapore will ban the domestic ivory trade from September 2021, the ban will mean that thesale of Elephant ivory and ivory products, and public displays of Elephant ivory and ivoryproducts will be prohibited.
  6. The United Kingdom was the largest exporter of legal ivory, exporting more than 370% moreivory than the next higher exporter. Legal ivory means carved or worked ivory. The seizures of illegal ivory products by the UK Border Force illustrated that while a legal market existed an illegal market was disguised. In 2018 the United Kingdom instituted the world’s toughest ban on ivory which eliminated all sales of ivory. It has been proved that it is near impossible to discriminate between old and new ivory. If a sophisticated first world country has admitted to the fact that they are unable to regulate the legal trade in ivory, we have to question how Minister Creecy proposes to successfully regulate such a trade in South Africa.
  7. The bold actions by so many countries show a firm commitment to ending the scourge of Elephant poaching and the tragic impact it is having on wild Elephant populations.
  8. Japan has subsequently become the world’s largest domestic ivory market remaining today. According to the Environmental Investigation Agency (EIA) who has analysed the official import statistics and has calculated that Japan has imported tusks from 328 000 Elephants since 1950 mainly to produce ivory hanko. Online Japanese ivory retailers including Rakuten, Mercari, Yahoo!, AEON and Ito-Yokado have banned Elephant ivory sales. The African Elephant Coalition and thirty-seven US Congressmen have sent Japanese politicians requesting the ban on their domestic ivory sales.
  9. The European commission is considering further restrictions on the ivory trade across the EU, based in part on the UK’s Ivory Act.
  10. Australia announced in Geneva at CoP18 that it would soon ban the domestic trade in Elephant ivory. New Zealand is presently in a consultative process with regard to reviewing their domestic ban on the ivory trade.
  11. Ivory stockpiles have been publicly destroyed in Kenya, Gabon, Zambia, China, Ethiopia, Chad, Sri Lanka, the United States of America and the Philippines.
  1. The policies adopted by the South African Department of Environment, Forestry and Fisheries are strongly in favour of sustainable utilisation despite the global outcry against the ivory trade.
  2. Minister Barbara Creecy has stated that she will be advised about environmental policy by a High Level Panel of experts who support sustainable use policies with an overwhelming majority. Submissions from stakeholders include the subject of the rhino horn trade, the ivory trade and the lion bone trade these submissions will apparently be dissected by this panel of advisors. A number of wildlife organisations have raised objections to the selection process of the members of this panel. There have also been a number of resignations from this panel and these changes have not been made public.
  3. It is our understanding that there are no members on the panel that represent non- consumption policy or non-sustainable use policy. We therefore must official raise our objection to any decisions made by this high level panel.
  4. There are many alternatives to the trade in Elephant ivory that would be financially beneficial South Africa. These alternatives to trade in ivory would have long term positive results for the country’s citizens and would protect their natural heritage at the same time.
  5. South Africa’s unemployment rate is set to hit 50% urgent attention must be focused on job creation, tourism offers many job creation opportunities.
  6. South Africa’s policy with regard to the unregulated legal domestic trade in ivory, rhino horn, and lion bone trade is hopelessly out of step with the rest of the world.
  7. South Africa’s trade policy, is detrimental to the survival of these species in the wild. This trade of endangered wildlife species parts is dangerous for these species, for human beings and for the environment. Many wildlife rangers are killed every year trying to protect these species. Encouraging trade fuels crime and corruption, this trade finances criminal organisations.
  8. There are global calls to tackle the illegal and legal wildlife trade in the wake of the coronavirus pandemic. Bold steps are being taken by countries such as China who have removed the pangolin scales from their list of traditional medicine. There are absolute proven links between the wildlife trade and the disease. South Africa should concentrate on creating long-term economic prospects for the unemployed instead of trying to sell a product that no one in the world seems to want anymore.

PART C: RHINOCEROS

1. Introduction

  1. AswehavementionedinSectionIIabove,wewishtoemphasisethefactthatcalls for public submissions on draft regulation in respect of the four species have previously been made. Each of ALRSA and EMS Foundation (as organisations and through our networks) have made submissions in respect of: (i) Elephants; (ii) Rhinos; (iii) Lions and (iv) Leopards. In this regard, we refer to Appendix I wherein previous submissions have been included (non-exhaustive). Not only have we not received responses to some of these submissions (nor acknowledgement of receipt), but it is unclear to what extent these submissions were even considered and if so, to what extent.
  2. Accordingly, we wish to state that the specific comments contained in our previous submissions, apply equally to matters to be deliberated on by the Panel, with the necessary contextual amendments. We have not repeated all of these herein.
  3. We incorporate by reference herein the SAIFAC Submission as it pertains to rhinos, insofar as same is applicable and does not conflict herewith.
  4. We also wish to note that the Minister has recently released regulations pertaining to the rhino horn trade and thus a portion of this Part was prepared prior to that release. We have not, given the time constraints, been able to properly analyse nor comment on these new regulations and reserve the right to do so and update our Submission in this regard accordingly.

Component I: Their Future is Dark: The South African Rhino Horn Trade

  1. The history surrounding the demand for African Rhino horn is complex. During the European colonial era trophy hunting was largely responsible for the decimation of the Rhino populations, for decades thereafter the uncontrollable illegal Rhino horn trade between Africa and Vietnam and China is to blame.
  2. Traditionally, once removed the horn was polished and carved to make ornaments, or the horn was ground down into a fine powder and used in traditional Asian medicine, but increasingly Rhino horn is now being used as a status symbol to display success and wealth.
  3. Recent studies published in May 2019 by Professor Vu Hoai Nam Dang and Professor Martin Reinhardt Nielsenhave from the University of Copenhagen have further determined that the discerning consumers prefer Rhino horn that is derived from wild Rhino not farmed rhino. Furthermore, Douglas Cookes and James Blignaut point out that ‘game’ farms may ‘harvest ‘horn every 1.5 years, whereas for poachers it is optimal to kill a Rhino and ‘harvest’ its horn, even at very low rotation intervals: “This suggests that, even if a Rhino poacher encounters a dehorned Rhino, it is still optimal to kill the rhino and take what is left of the stump. This casts further doubt on the effectiveness of a legalized trade”
  1. Seventy-percent of the world’s remaining Rhino population live in Southern Africa. We are therefore the key role player in determining the future of the species. The enormous responsibility to conserve this species rests firmly with us. During the five-year period 2012- 2017 51% of the white Rhinos population have been obliterated from the Kruger National Park and a further 26% from other state-owned parks.
  2. Despite this alarming decline of Rhino numbers and instead of using this unique opportunity to harness exacting tourism and job creation, South Africa has chosen to trade in Rhino horn which benefits only a few millionaire private owners such as professional breeders Derek Lewitton and John Hume.
  3. Information about the state owned stockpile of Rhino horn is unfortunately not freely available. South Africa has undergone a period of systemic political corruption commonly referred to as state capture rumours abound about the possible pilfering of the state owned Rhino stockpile, urgent transparency in this regard is imperative. We ask that the DEFF identify, mark, register secure stockpiles and declare the results.
  4. We are not confident that those in favour of legalizing the domestic or international trade in Rhino horn trade prior to 2017 have adequately considered and or resolved the complex issues at hand. We do not support the South African Rhino horn trade nor do we support the proposals to legalise the international trade in Rhino horn.
  5. The international legal trade in Rhino horn is regulated by the Convention on International Trade of Endangered Species (CITES). The international trade of Rhino horn has been banned since 1977. Individual countries are able to determine their own laws about the domestic trade of Rhino horn. At the CITES Conference of the Parties (CoP) held in 2016, Swaziland tabled a last minute proposal to unban the international trade in Rhino horn. This proposal was overwhelmingly rejected 100-26 with 17 abstentions.
  6. In 2009 a ban of the domestic trade in Rhino horn South Africa was introduced because of the poaching crisis. This ban was opposed by some private rhino owners including John Hume and Johan Kruger. Hume and Kruger successfully ligated against the ban. The High Court ruling stated that the incorrect due process was followedduring the public consultation process by the Department of Environmental Affairs before imposing the ban. The decision taken against the DEA was upheld by the Constitutional Court. After defending the ban through all the legal processes it remains unclear why the DEA did not attempt to re-advertise its intention to ban the domestic trade in Rhino horn with required notice period and circulation of information.
  7. Instead, the DEA, under the leadership of Minister Molewa, chose to focus on developing new legislation which included setting out the requirements for the domestic sales of Rhino horn. Numerous organizations in South Africa and internationally appealed against this decision.
  8. A Committee of Inquiry was appointed by the DEA and tasked with producing a report on the viability of the domestic Rhino horn trade in South Africa. Apparently the full report was completed in 2016 but only a summary report has ever been made available. We would appreciate access to full report in order for us to understand and evaluate the COI’s findings.

“The primary recommendation from the Committee was that the government should do everything possible to create an environment conducive for rhino conservation in South Africa, to effectively address rhino poaching and the illegal trade in rhino horn, and to reach a point where any potential trade in rhino horn would contribute to conservation outcomes”.

  1. It is a well-documented fact that the illegal killing of Rhino and the illegal trade in Rhino horn continues unabated across Africa and Asia. The rate of killing in parts of Africa has continued to increase dramatically over the past decade and this has threatened the continued survival of the Rhino species and negatively impacted the ecosystems in which they live. The rhino poaching figures presented by the DEFF do not, we believe, necessarily only represent a decline in poaching but rather highlight the fact that there are less rhino to poach.
  2. The scale of the Rhino poaching crisis poses a threat to the national security of our country and to the other range states. Rhino poaching fuels conflict and unrest, it destroys livelihoods, it promotes corruption and negatively impacts wildlife based economies and all conservation efforts.

14. Of the fifty-seven proposals to amend on the lists of species, two related to the white Rhino were once again on the agenda at CoP18 which was held in Geneva, in Switzerland in August 2019. Parties attending CoP18 addressed the contentious issue of the Rhino horn trade with proposals to further restrict commercial trade, and counter-proposals intending to remove trade restrictions. Parties attending CoP18 were asked to consider a proposal on the establishment of a database for the storage and management of illegal trade data collected through CITES annual illegal trade reports.

  1. Eswatini, formally known as Swaziland, tabled a proposal to remove the existing annotation on the Appendix II listing of its white Rhino population which would allow international trade in Rhinos and their products including horn. Namibia tabled a proposal to allow for a live animal trade in white rhino and for trophy hunting, in other words they proposed to change the status of their white Rhino population from Appendix I to Appendix II.
  2. The proposal by Eswatini to reopen legal international trade in white Rhino horn was overwhelmingly rejected at the 18th Conference of the Parties in Geneva on the August 25th 2019. Governments at CITES recognised that it was not the time to contemplate the reversal of the strict prohibitions on the international trade in Rhino horn. Doing so would undermine years of hard work in Asia to reduce the demand for Rhino horn products.
  3. Despite the overwhelming support for protecting Rhino by not allowing trade, South Africa has continued to promote the domestic trade in Rhino horn. We believe, this trade is contributing to the poaching of rhinos in South Africa and in neighbouring African countries such as Botswana were Rhino poaching has increased. The legal domestic trade has undermined enforcement efforts and it has provided potential routes through which illegally obtained Rhino horn might be laundered.page124image2427589408
  1. The domestic trade in Rhino horn weakens the international trade ban under CITES. Over the past two years frequent shipments of farmed Rhino horn from South Africa have been intercepted at international border and recently there have been large scale illegal shipments of farmed Rhino horn intercepted within South Africa.
  2. The poaching of Rhinos and the illegal trade of Rhino horn is an organized transnational crime, it is organized by criminal syndicates that profit from the sale of Rhino horn and horn products to satisfy consumer demand principally in Asia.
  3. We are in agreement with a number of parties to CITES in their request to destroy government stockpiles of Rhino horn. Public stockpile destruction events have taken place in China, Czech Republic, India, Kenya, Mozambique, Nepal, Taiwan, United Arab Emirates, USA and Vietnam. We request that South Africa does the same.
  4. On the 22nd October 2019 it was announced that Minister Creecy had appointed an advisory committee to review policies, legislation and practises related to the management of elephant, lion, leopard and rhino. The names were published in the Government Gazette 42761 (Notice No. 1317) on the 10th October 2019. We have been advised that certain members of the panel have resigned. We would also like to note for the record that to our knowledge there is no representative from the non-consumptive, non-trade or wildlife welfare sector is represented on this so called high level panel. Therefore we do not believe that our best interests, or the interests of rhinos, are legitimately or democratically served.
  5. We would also like to note for the record that we were given the opportunity to submit our concerns regarding the rhino horn trade before the 15th June 2020. Yet to our dismay the Minister published the regulations relating to the rhino horn trade on the 3rd June 2020. We note a number of changes to the draft regulations which include replacements, deletions and insertions. However, we fail to understand how this document could be finalised or indeed published prior to receiving the submissions from interested stakeholders for consideration. Will the Minister republish the regulations pertaining to the domestic trade in Rhino horn after the so called High Level Panel has examined all the submissions? We are concerned that the published provisions seem to include the details pertaining to the export of Rhino horn, if the Rhino horn trade is banned internationally, what is South Africa actually suggesting?
  6. The published regulations and other legislative measures currently in place are insufficient to ensure that rhinos will be protected for the benefit of current and future generations, and that any use of rhinos as required by section 24 of the Constitution.
  7. Farming rhinos to supply rhino horns to the market is not conservation and does not constitute an ecological sustainable use of natural resources as required by section 24.
  8. The international trade in rhino horn is unlawful and is the reason why rhinos are being poached and are at risk of extinction.
  9. The domestic trade in rhino horn will ultimately result in increased international trade which will be detrimental to rhino conservation.
  1. We are concerned that the regulations undermine the CITES international trade prohibitions which protect rhino populations globally. A legal domestic trade in rhino horn provides an avenue for laundering illegal rhino horn, thereby increasing the burden of law enforcement authorities responsible for combatting rhino horn trafficking.
  2. Further, the regulations also seriously undermine campaigns to reduce demand for rhino horn and instead legitimize its consumption as a commodity.
  3. South Africa has a huge poaching problem. Legalising trade and export is likely to collapse international attempts to protect rhinos. The decline and possible extinction in the wild of rhinos may now be in the interest of rhino breeders, who will then control the world market.
  4. There is a demonstrable link between the sale of farmed wildlife and poaching. Lifting the trade ban would serve to stimulate almost limitless Asian markets through the sale of limited goods which would not take long to bleed into illegal procurement through poaching.
  5. The Regulations are contrary to South Africa’s international obligations. For example, the State Parties to CITES have identified international trade in rhino horn as being detrimental to the conservation status/ survival of rhinos. The Regulations will legalise a (limited) trade in rhino horn which the parties to CITES are seeking to prevent. Furthermore, as a contracting party to the Convention on Biological Diversity, South Africa is required, as far as possible and as appropriate, to adopt measures relating to the use of biological resources to avoid or minimize adverse impacts on biological diversity (article 10). Farming rhinos for their horns and trading in horns have an adverse impact on the conservation status of rhinos and hence on biological diversity.
  6. In order to ensure the long-term protection of wild rhinos it will be necessary to reduce the demand for rhino horn and so the price of rhino horn in order to eliminate or substantially reduce the incentive to poach. This has been recognized by the parties to CITES, the CITES Secretariat and INTERPOL. Furthermore, it effectively opens international and commercial trade and will open the door to widespread laundering of rhino horns.
  7. The illegal trade in rhino horn in China and Vietnam is well-documented. Indeed, at the request of the CITES Parties, major consumer countries like Vietnam have been making progress in lowering the demand for rhino horn in their countries including by raising awareness of their citizens, and strengthening their country’ law enforcement and legislation; thus this move by our country will send the wrong message to the international community in general, and to the government and people of these consumer countries in particular. Efforts to protect rhinos from poachers and reduce demand for rhino horn in consumer countries such as China and Vietnam are beginning to show good signs of progress. South Africa’s regulations undermine these efforts. South Africa needs to work side by side with these countries to reduce the demand for rhino horn, not to undermine their efforts by encouraging consumption of rhino horn.
  8. Allowing any domestic trade in rhino horn or the export of rhino horn for whatever purpose will stimulate demand for rhino horn, make enforcement much more difficult and consequently have an adverse impact on rhino populations because poachers will continue to have access to lucrative markets. Consequently, it is unreasonable and contrary to the State’s role as trustee of biological diversity to pass legislation that legalizes such trade.
  1. Legalising trade in rhino horn is extremely risky, is not based on sound science or sound economics, and is contrary to the recommendations made by the advisory group appointed by the Minister to advise her on this issue. It is also contrary to the principle in section 2(4)(a)(vii) of NEMA which states that sustainable development requires the consideration of all relevant factors including: “that a risk-averse and cautious approach is applied, which takes into account the limits of current knowledge about the consequences of decisions and actions;”
  2. Confining rhinos in small areas to farm them for their horn removes their ecological relationships and prevents them from playing their specific roles and functions within ecosystems. This means that commercial rhino farming in confined spaces (as opposed to game farms) results in a degradation of the ecosystems from which the rhinos have been removed which will have a negative impact on biological diversity and ecosystem functioning (i.e. disrupt the ecological integrity of the ecosystem in which rhinos occur) and cause significant environmental degradation. This means that farming rhinos for their horns is not ecologically sustainable.
  3. The environmental right in section 24 of the Constitution imposes a duty on the State (and indeed everyone in South Africa) to protect the environment (including wildlife) for the benefit of present and future generations, by taking reasonable legislative and other measures that (a) prevent ecological degradation; (b) promote conservation and (c) ensure that if natural resources are required for the purposes of justifiable economic and social development, then that use and development is undertaken in a manner that is ecologically sustainable.
  4. This means that the Constitution: (a) does not establish either a duty or a right to use wildlife; and (b) does not prohibit the use of wildlife but imposes a duty on both the user and the State to take reasonable measures to ensure that no ecologically unsustainable use occurs.
  5. Consequently, the State is not under a duty to promote the use of wildlife (e.g. by facilitating the farming of rhinos for horn and trade in rhino horn), only to ensure that any use that does occur is ecologically sustainable, humane and otherwise lawful.
  6. The Regulations are inconsistent with the environmental right in section 24, among other reasons because (i) they will result in detrimental impacts on biological diversity and the environment and do not: a. secure the ecological sustainable use of natural resources (wildlife); (ii) protect the environment for the benefit of current and future generations; or (iii) promote conservation.
  7. If there is any legal rhino horn in circulation, enforcement (both in South Africa and internationally) becomes much more difficult. Passing these Regulations will undermine the efforts of other countries to combat illegal trade in rhino horn and the illegal activities that it funds, and harm South Africa’s relationships with the international community which is against rhino horn trade. At a time when the future survival of rhinos is at stake it is irrational to undermine and weaken national and international law enforcement initiatives to prevent illegal trade in rhino horn.
  1. South Africa is unable to ensure that the horns will not enter the illegal international markets.
  2. South Africa’s ability to regulate domestic trade in rhino horn is in doubt. The recent series of prosecutions involving the spurious use of hunting permits to facilitate smuggling of rhino horns out of South Africa by foreign nationals demonstrate that unscrupulous people are ready and willing to take advantage of any new options for removing horn from the country, are ingenious at coming up with ways to do so, and in many cases are connected with well-funded foreign syndicates able to deal with corrupt officials in end-market countries. It is almost certain that such people will try to take advantage of the export mechanisms in the regulations, and highly likely that they will succeed in doing so despite any mechanisms the regulations may contain.
  3. South Africa does not have the enforcement capacity to ensure that illegally obtained rhino horn will not be exported as legally obtained rhino horn (e.g. using forged documents). The South African government does not have the ability to police the legal and illegal trade simultaneously. Re-opening of a domestic trade in rhino horn would make it even harder for already overstretched law enforcement agents to tackle trafficking of rhino horn. How will an already stretched and under-funded regulatory and policing force cope with monitoring internal trade?
  4. Indications from research on other high-value wild animal body parts has shown that legalising trade has not stopped the black market illegal trade which is also associated with organized crime including drugs, weapons and human trafficking.
  5. Furthermore, we question who is going to benefit from a South African domestic trading system in rhino horn, since South Africans are generally not interested in owning rhino horn. We fear that this domestic trading might help facilitate the smuggling and illegal export of rhino horn to consumers, specifically, in Asia.
  6. While global cooperation is essential and law enforcement across implicated borders is crucial to control poaching, South Africa remains the main source country for illegally traded horns, often illegally exported to consumer markets via Mozambique. South Africa, Mozambique, Viet Nam, China, Zimbabwe and recently also Namibia, are identified as countries of huge concern for rhino horn poaching and their significant illegal market.
  7. There are serious concerns about the challenges that law enforcement and permitting officers would face in trying to manage parallel legal and illegal trade. The South African government needs to retain the moratorium and focus its efforts on disrupting the organized criminal syndicates involved in rhino horn trafficking.
  8. Despite the attendance at CITES CoP18 of South Africa’s generous delegation in Geneva from 17th to the 28th of August 2019, their proposals via Swaziland to attempt to allow the trade in live Southern white rhinos and their products including rhino were wholeheartedly rejected.
  1. The report Breaking Point, published by Ban Animal Trading South Africa and the EMS Foundation was the result of an intensive four year investigation carried out in South African and China. The report questions the ability of the Department of Environment, Forestry and Fisheries to regulate the legal trade in live wild animals. The report highlights serious irregularities with regard to the control of CITES permitting system.
  2. The report has convincingly established that the legal trade in live wild animals is facilitating and providing cover for the illegal trade. The report also concluded that DEFF and the provinces are under-resourced and not able to ensure compliance with relevant regulations. Of concern, the report indicated that the legal wildlife trade between DEFF and China was closely associated with International Organised Crime Syndicates. Based upon the exacting details of this report, we do not believe that DEFF would be able to adequately regulate a legal trade in Rhino horn. We therefore echo the call for a moratorium on all export of live wildlife and wildlife parts from South Africa until a thorough investigation has been carried out.
  3. Images of South African Rhino huddled in indoor zoos in China is extremely disheartening. We fail to understand how South African authorities and CITES representatives can allow Rhino to be removed from their natural country of origin and forced to exist in the confines of a zoo arguments in favour of conservation and protection of species fall very short in reality.
  4. In a matter of weeks in 2019 large quantities of rhino horn were seized from individuals and warehouses in South Africa. The size of seizures indicates that the horn was from stockpiles. In some instances the source has been proved to be from the Rhino breeder John Hume. This illegal activity is concerning in a country where the Rhino in rhino horn is legal and further underscores our concerns that South African is not capable of regulating a legal trade.
  5. A report titled The Prevention of Organised Crime Act 1998: The Need for Extraterritorial Jurisdiction to Prosecute The Higher Echelons of Those Involved in Rhino Poaching should be included as mandatory reading material when assessing the illegal Rhino horn trade.
  6. Of critical concern is the difference between the DEA and the NDPP Annual Reports. There are a number of disturbing details which do not offer a useful approach to dealing with all the challenges in Rhino poaching. In this regard we would formally request that the South African Police reports relating to rhino poaching incidents recorded in KwaZulu Natal from 2008 until 2018 must be examined for accuracy. This statement is supported by the fact that there is an ongoing investigation into suspicious activities of former SAPS members and an APU unit operating in Northern Kwa-Zulu Natal. Statistics for Rhino poaching and Rhino poaching incidents cannot be confirmed until this investigation is completed.

56. Corruption, toothless, weak judicial systems and light sentences allow criminal networks to keep plundering wildlife with little to no regard of the consequences.page129image2431872848
57. In 2020 a corona virus called COVID-19 has evolved into a global pandemic. The resulting number of human fatalities and the disruption and destruction of the global economy has sparked global food security issues and burdened health care centres around the world. We have to question the very real dangers that the wildlife trade and zoonotic disease pose. Whilst the origins of COVID-19 are currently unproven there are strong indications of a wild animal source and a direct link to the wildlife trade in China. This is not the first zoonotic disease outbreak and scientists are warning that it will not be the last. There are strong indications of disease transmission links to trade and consumption of wild animal species. We therefore have to question the morality of the decision of the South African government to want to continue to trade in wild animals and wild animal parts.

  1. As a result of COVID-19 South Africa was locked down during this time period significantly less rhino were poached. We believe that the government should focus their attention on how to manage the supply chain in future in order to continue the disruption of the illegal trade in Rhino horn when the lockdown period is lifted. There would obviously be the possibility for job creation in this area.
  2. We have noted that the Minister has ignored the signatures of over three million people with regard to South Africa’s Lion Bone Trade we would be remiss not to include a link to a petition to the Minister with regard to abolishing the Rhino horn trade in South Africa.
  3. We formally request that the Minister re-considers the negative impact of the domestic Rhino horn trade in South Africa which includes the export internationally of Rhino horn for “personal purposes”.

PART D: LIONS

(and more broadly, captive big cats)

1. Introduction

  1. AswehavementionedinSectionIIabove,wewishtoemphasisethefactthatcalls for public submissions on draft regulation in respect of the four species have previously been made. Each of ALRSA and EMS Foundation (as organisations and through our networks) have made submissions in respect of: (i) Elephants; (ii) Rhinos; (iii) Lions and (iv) Leopards. In this regard, we refer to Appendix I wherein previous submissions have been included (non-exhaustive). Not only have we not received responses to some of these submissions (nor acknowledgement of receipt), but it is unclear to what extent these submissions were even considered and if so, to what extent.
  2. Accordingly, we wish to state that the specific comments contained in our previous submissions, apply equally to matters to be deliberated on by the Panel, with the necessary contextual amendments. We have not repeated all of these herein.
  3. We incorporate by reference herein the SAIFAC Submission as it pertains to lions, insofar as same is applicable and does not conflict herewith.
  4. We also wish to draw attention to the release of Lord Ashcroft’s Report on lion hunting in South Africa – “Unfair Game”166 and “Operation Chastise”. Given the time constraints, we have not had an opportunity to include this and relevant factors in our Submission but reserve the right to do so and update accordingly.

Component I: General issues

  1. Captive lion breeding is defended on the grounds that the canned trophy hunting and lion bone trade industries ‘may serve as a buffer against wild lion exploitation’.167 This ignores the fact that wild lion exploitation in less well-protected domains is growing168, and that South Africa may be actively promoting a trade in lion and tiger parts that will exacerbate demand, potentially with irreversible ecological consequences for wild lions and serious risks to farm worker (in South Africa) and consumer health (in Asia). The recent outbreak of the Corona Virus provides a case in point.
  2. South Africa’s captive predator breeding industry is abhorrent in the eyes of the legal fraternity and even the ‘ethical’ trophy hunting industry. More than that, it is extraordinarily difficult to justify its continuation on the grounds that it supports a mere 600 jobs and 500 others through a multiplier effect. The industry is lucrative for a handful of breeders and traders who put tourists and employees at risk in terms of health and safety. The economic arguments in favour of continuing the industry are weak and at odds with parliament’s instruction that the industry be terminated. Furthermore, from a welfare perspective, it is difficult to understand how any government could support such an industry or expect improvements to occur given the nature of how the market has shifted away from the dominance of canned hunting for trophies to now selling directly into the bone trade.
  3. It is patently obvious that neither the government nor anyone else knows the exact number of predators in captive facilities nor how many breeding, interaction or hunting facilities exist in South Africa.169 The captive breeding of lions commenced in earnest in the 1990s, and by 1999 there were about 1000 lions estimated to be in the industry. Some publications cite a figure of 8,000 (lions only). In 2015, the Traffic/Wildcru Bones of Contention170 report estimated that there were more than 9,100 lions in South Africa, of which approximately 68% were in captivity, i.e. 6,188. In 2017, researchers from the University of the North-West made a claim, based on inadequate extrapolations, that there are 297 lion breeding facilities in South Africa.
  1. In answer to a parliamentary question in August 2019 the Minister said that the provincial issuing authorities reported in December 2017 [our emphasis]that there were approximately [our emphasis] 7979 lions [lions only]in captivity in South Africa at 366 registered [our emphasis]captive facilities. This response is very misleading because at a Parliamentary Portfolio Committee on Environmental Affairs (PPCEA) meeting on November 2019, three months later,171 DEFF told the members that “to date, a total of 239 inspections have been conducted, involving a total of 6587 lions. In the Free State, where permits were expired, the permits were renewed.” Moreover, it is also clear from that PPCEA meeting that the inspections were still in the process of being conducted and had not been completed. At the same meeting the DEFF presentation showed that of the 111 Free Stare facilities inspected 62 facilities were found to be non-compliant with both TOPS regulations and permits and that most facilities were found to be operating with expired permits. Thus, to date, no conclusive figures are available or have been released to show exactly how many facilities existed across the country or were involved in breeding, and how many large predators, including tigers, ligers, tigons, etc. exist across these facilities.
  2. ThefindingsbyEMSandBanAnimalTrading(“BAT”)alsoshowthatthenumberoflions and other African and Asian big cats in the industry and the number of places breeding them― including Ligers, x-brown with white lions, x-Siberian and Bengal Tigers etc.―is high. 172 Of concern is that an audit of these big cats has not been included in the provincial ‘inspections’. This is a major oversight.
  3. The information provided by the provinces is therefore deficient, patchy and inaccurate. The extent of the captive big cat industry in South Africa is therefore not known. The industry has not been independently audited or verified and a forensic investigation of the industry has never been done. This needs to be undertaken urgently and is intimately connected to any decision making process related to the industry..
  4. Eitherway,thisnumberhasproliferatedrapidly,asitisaremarkablylucrativeindustryfora handful of people.173 What makes it so lucrative is the ‘value’ chain. Breeders rent or sell cubs to interaction facilities, where unsuspecting tourists cuddle, feed or pet the cubs. Once the cub has grown beyond its petting usefulness (become dangerous to people), it becomes a ‘walking lion’. Thereafter, it is sold either to the captive lion hunting industry (commonly known as canned hunting) or directly into the Asian bone trade. Demand for lion bones is growing, as they substitute for tiger bones in those markets – a lookalike product. Prior to 2016, skeleton exports were a by-product of the trophy hunting industry. However, as the impact of the 2016 US trophy import ban from captive-bred lions gained traction, many breeders switched toselling directly into the bone trade.174
  1. Captive-bred lions from South Africa are sold as tiger bones in Asian markets.175 The fact thatlion bones substitute as tiger bones creates three difficulties as far as international regulation is concerned. First, it is a look-alike product – tiger bones are indistinguishable from lion bones, and tigers are at serious risk of extinction in the wild. The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) protects species through listing them on either Appendix I (maximum protection through trade prohibition) or Appendix II (that allows trade under certain conditions). Appendix II, confusingly, allows the listing of lookalike species provided that trade in the lookalike product (lion bone) does not undermine efforts to protect Appendix 1 species, such as wild tigers.
    •   Second, the legally allowable trade in lion bones effectively creates an incomplete ban on tiger products. Incomplete bans are defined as those that apply to species threatened by international trade while simultaneously allowing exceptions to that ban. In other words, a ban is rendered incomplete through exceptions to its application.
    •   Third, the annotation at CITES CoP17 that allowed South Africa to establish an annual quota for captive-bred lion parts has effectively created a split-listing problem, which is tantamount to an incomplete ban on lion products – captive lion parts can be traded but not Appendix-I-listed wild lion or tiger parts. Split-listing is normally based on geographical boundaries and not on the particular part or specimen of the species in demand. In other words, the bones from captive-bred lions and the bones or parts from wild lions are not distinguished in consumer markets.
  2. The risk of laundering illegal parts (wild-poached tiger and lion parts) to feed into the legal lion bone export market (sold on as illegal tiger parts) is high176 and creates considerable governance complexity for managing the captive-bred lion industry in South Africa. Moreover, for law enforcement officials, ‘distinguishing between farmed and wild tiger parts is impossible’,177 despite efforts at certification. ‘To address the possibility of laundering, a strong enforcement infrastructure is required.’178 Given the lack of capacity among South Africa’s law enforcement fraternity to check consignments at border posts, ports and airports, there is sufficient reason to expect that laundering will become a problem. This view is further supported by clear evidence of already-prevalent criminality in the captive lion industry, especially among traders.179
  1. Exceptions to bans through split-listing or captive-breeding are confusing because species are listed on Appendix I precisely because trade has been determined as a significant threat to their survival due to excessive demand. Yet, the argument is that having a market will help these species at the same time.180
  2. Arguments in favour of trade from supply-side economics can, at first glance, appear logically compelling. Proponents argue that increased supply reduces prices and, consequently, poaching incentives. In the absence of legal trade, they contend, markets are driven underground and demand for products with perceived rarity increases. On this view, wild tigers would have come under even more pressure (it is illegal to purchase tiger bones in China) were it not for the supply of captive lion products from South Africa. Breeding lions and tigers for their bones in South Africa can supply the demand for products from these animals in Asian markets. This takes pressure off wild populations. This is the language that appears in the South African Scientific Authority’s non-detriment finding (NDF) of 2018181, in which it is speculated that breeding lions in captivity could create a ‘buffer’ effect against wild lion exploitation. The NDF posits that there is no threat within South Africa posed by captive breeding operations to wild lions. Wild lions are under severe threat, having disappeared from 94% of their historic range. There are only half as many as there were 25 years ago, with fewer than 25,000 estimated. Poaching is one of the primary threats and is increasing to satisfy the growing demand for skin, teeth, paws, claws and bones.182 The pro-trade argument also assumes that a legal trade in lion bones will fetch exactly the right price to incentivise sufficient breeding, but somehow simultaneously disincentivise poaching.
  3. The pro-trade view ignores the science183 that shows that it will always be less expensive to poach a wild animal than to breed it responsibly. The idea that a legal and regulated market will crowd out illegal supply is therefore fanciful. The government’s view also assumes, despite significant evidence to the contrary, that no illegality in the lion bone trade currently exists, through which illegally acquired supply is laundered through legal channels.
  1. Legal lion bone supply also undermines efforts in Asia to ban the purchase of tiger products. Laws have an impact on norms that determine consumer preferences. They may, for instance, create a stigma effect that complements demand-reduction efforts. South Africa’s continuation of a legal trade in lion bones erodes the efficacy of this stigma effect and sends confusing signals to the market.
  2. The claim that captive origin lions are required to bolster wild or wild-managed populations (SAPA, 2017), or may be required to do so in future, has been strongly refuted (Hunter et al., 2013a, 2013b; Miller et al., 2016).
  3. The existence of a captive predator-breeding industry may have a detrimental effect on wild lion survival, especially if it shifts demand for derivative parts well beyond the legal market’s ability to supply. The contention that there is no proof that poaching is increasing because of captive breeding reflects a fallacy that absence of evidence equates to evidence of absence. That South African wild lions have not seen a significant uptick in poaching does not mean that there has not been increased poaching in other range states. Conservation decisions cannot be taken in a vacuum, as if trading in captive-origin bones from South Africa has no impact on wild lion poaching in places such as Mozambique.
  4. The problem with the NDF is that it does not consider the impact of captive predator breeding on wild lion populations outside of South Africa. Lions are categorised as a migratory species, which makes the South African NDF all the more peculiar. Hiding behind the NDF is disingenuous, as the supply of bone through a legal trade is likely to put pressure on wild populations outside South Africa where poaching requires less effort. In other words, the increase in poaching of lions in Mozambique, with the removal of parts, indicates that – because it is always cheaper to poach wild stock than to farm captive stock184 – South Africa’s NDF is essentially obsolete in this respect.
  5. Furthermore, the supply side argument ignores the opportunity costs of continuing a captive predator breeding industry in South Africa. As was clearly revealed in the parliamentary portfolio committee on environmental affairs (PCEA) report185, adopted by the National Assembly in December 2018, global opinion is strongly stacked against the practice. Even groups that are fully in favour of ‘sustainable use’, such as the International Union for the Conservation of Nature (IUCN), have called for the industry to be terminated.186 Global reputation matters for tourism, especially with the rise of ethical tourism. Values and ethics therefore cannot be separated from economic considerations.
  6. Moreover, the 600 jobs that the captive lion breeding industry currently supports – with multiplier effects that may add another 500 through support industries – are hardly of a high quality. For instance, the safety risks to workers who handle the lions are significant, as are the safety to risks to tourists who interact with lions or other big predators. The health risks to workers who handle lion bones and meat at abattoirs are similarly, if not more, significant. The risk of contracting zoonosis is high, and the slaughter of lions in South Africa is completely unregulated, as lions are not included in the Meat Safety Act.
  1. Local labour is actually being crowded out. The SAIIA paper referenced above found that at least 84 full time jobs – that could technically be undertaken by local labour – are undertaken by foreign volunteer tourists who, instead of earning a salary, pay the respective institutions for the ‘privilege’ of feeding the animals, cleaning cages and priming them for interaction with humans. Aside from crowding out local labour while hiding behind the rationale of job creation, the volunteer tourism aspect of the industry points to the general lack of ethics therein. Tourists are typically sold an experience under a false pretext. For instance, the institutions market themselves as contributing to conservation, either through reintroduction to the wild or through education. Neither of these bear up to scrutiny. Not a single lion scientist has argued successfully in a respected peer-reviewed journal that captive-bred lions have positive conservation value.
  2. To the contrary, a number are of the view that there is no science to support the captive breeding of lions.187 Many more jobs are likely to be lost through the negative effect of the industry on ‘ethical’ trophy hunting and tourism than the industry can possibly support. Within the trophy hunting fraternity, hunters that insist on ‘fair chase’ recognise that hunting a captive bred lion can never constitute a fair chase, as the animal is neither physically nor mentally free to escape in captive hunting conditions, no matter how large the enclosure is.188
  3. The Supreme Court of Appeal shared this view, and ruled in 2010 that the Department’s efforts to enlarge the habituation period or the size of the enclosure in law were arbitrary.189 Furthermore, the Stewards of Professional Hunting in Southern Africa argue that the reputational damage done by captive-origin hunting to ‘ethical’ hunting has cost thousands of jobs, as social media does not discriminate between different types of hunting in its abhorrence of the industry.
  4. It seems to us, however, that relying on trophy hunting in any form is a perpetuation of neo- colonial dependence on the global north. More viable would be to abandon the captive predator breeding industry altogether and to join up currently fragmented landscapes to create viable wilderness landscapes with wild animals that can migrate freely.
  5. Those in favour of captive breeding have argued that it provides an ecological ‘service’ through conserving land that would otherwise be converted to agriculture. This argument depends on a false dichotomy; the choice is hardly ever binary or this simplistic. Further, the argument fails to acknowledge that the industry in its current form contributes to the very fragmentation that undermines wild lion survival probabilities.190 Moreover, land for breeding lions and conducting human interaction activities is hardly large or ecologically intact. Land used for captive hunting, similarly, does not appear to be exemplary of ecological integrity.
  1. A recent scientific report notes that intensive and selective breeding of game for hunting entails a high risk of exacerbating negative perceptions about hunters, hunting in general and conservation in South Africa (Selier et al., 2018). An assessment of the literature in this report noted specifically that ‘although shooting of intensively-bred lions is legal in South Africa and was practised for years, stakeholder perceptions about the practice have changed over time as attitudes towards hunting have changed’ (Selier et al., 2018). The growing negative perception is a result of the ‘overwhelming negative response of hunting organisations worldwide to the change in policy position of PHASA in support of captive bred lion hunting…’ (Selier et al., 2018). Tourists are also becoming increasingly conscious of the importance of not supporting activities that are deemed to be unethical (Ganglmair-Wooliscroft and Wooliscroft, 2016; Moorhouse et al., 2017).
  2. An under-explored element of the captive predator breeding industry’s supply chain is the sale and renting of cubs to facilities that sell interactions with human tourists. In the process, cubs are often removed from their mothers within a few hours of birth, distressing the lioness into early oestrus to produce more cubs than would have been the case in the wild. Volunteer tourists pay to feed and cuddle these cubs under the pretext that they are contributing towards predator rehabilitation and future release back into the wild (Peirce, 2018). The volunteer programmes that feed revenue and free labour into many of these lion farms ‘entice people, often young students who believe they are making a worthy conservation contribution, into paying substantial amounts of money to offer their services to these facilities’ (Michler, 2016).
  3. Many tourists, especially volunteer tourists, are invariably unaware that they are contributing to the perpetuation of an industry that generates revenue off false pretexts and deprives the local labour force of employment opportunities in the process. Increased recognition of the fact that so many predator cubs are hand-reared for subjection to extensive human interaction, and then likely sold into the hunting industry or directly into the bone industry, seems likely to undermine South Africa’s tourism brand value. This argument appears to be especially strong with the rise of ethical tourism.
  4. ‘South Africa cannot ignore the risks associated with ethics, integrity or reputation and the “triple bottom line” of economic, environmental and social issues, especially not in today’s world of immense and instant market reaction’ (Selier et al., 2018, p. 8). Selier and her co- authors (2018, p. 85) also recognised that the exposure of hunting captive-bred lions affected the reputation of other role players in wildlife-based tourism as well as ‘Brand South Africa’.
  5. As of 6 August 2019, the government is legally obliged to consider animal welfare in all its wildlife conservation decisions. This is the message from the judgment handed down by the Gauteng High Court,191 which determined that South Africa’s 2017 and 2018 lion export skeleton quotas were unlawful and constitutionally invalid, although the exports under those quotas have already been made. The judgment, by Jody Kollapen, strongly rejects the view that “adaptive management” of wild animals can arbitrarily be divorced from ethics.
  1. Judge Kollapen noted that the way in which the 2017 and 2018 quotas were set had ongoing implications for how conservation decisions were taken. He ruled that the treatment of lions in captivity was an environmental issue and its relationship with the commercial activities that arise from its operations (lion bone exports) was “inextricably linked to the constitutional issue of what may constitute the elements of the right to an environment and the right to have it protected for the benefit of this and future generations that Section 24 of the Constitution articulates”.
  2. Kollapen referenced the 2016 judgment in the NSPCA case against the Minister of Justice and Constitutional Development, which stated that “the rationale behind protecting animal welfare has shifted from merely safeguarding the moral status of humans to placing intrinsic value on animals as individuals”.
  3. In this respect, the canned hunting of lions was unanimously seen as “abhorrent and repulsive” due to the animals’ suffering. Given the integrative nature of welfare and conservation, Judge Kollapen ruled that while the minister may technically be right that the welfare mandate for lions in captivity resides substantially with the Department of Agriculture, this was different to the obligation to consider welfare issues in conservation decisions. The latter resides in the minister of environment, especially as lions in captivity constitute part of the country’s biodiversity challenge.
  4. The judge further noted that it was “inconceivable that the State Respondents could have ignored welfare considerations of lions in captivity in setting the annual export quota”. It was “illogical, irrational and against the spirit of Section 24 and how our courts have included animal welfare concerns in the interpretation of Section 24” to signal that South Africa endorses a legal lion bone trade but ignores the conditions under which lions are kept. He, therefore, declared that the decision to enact a quota in 2017 and 2018 was “unlawful and unconstitutional”.
  5. This clearly has implications for whether the environment minister can set a new quota until a process for addressing welfare considerations is established. Pivotal as the judgment is, it does not stop the captive breeding of lions nor the setting of future export quotas per se but places the onus on the department to take the animals’ welfare into consideration when making decisions concerning them.
  6. Welfare problems have always characterised the industry but have proliferated over the past few years due to a shift in the market as lion breeders actively promote lion bone exports.
  7. It is concerning that the Minister has chosen to consult with only one animal welfareorganisation in relation to this industry. In so-doing the Minister is effectively attempting to side-step government’s responsibility by thinking she can simply outsource ‘welfare’ to an under-resourced NGO that does not have the legal enforcement authority.
  8. Since the US imposed an import ban on captive-origin trophies in 2016, many breeders have switched to bypassing interaction and hunting altogether, as the bone trade is growing steadily more lucrative.192 In the past, breeders had a superficial incentive to pay attention to welfare as hunters wanted prime trophies.
  1. Judge Kollapen wrote that while the NDF idea that captive lions might serve as a buffer againstwild lion exploitation appears to be sound, “there appears to be some controversy as to whether the means used to achieve such an outcome – the targeting of captive lions – is beyond reproach.” Indeed. Not only is it not beyond reproach, the industry is increasingly characterised by criminality.
  2. As a comprehensive report by the EMS Foundation and BAT in 2018193 revealed, there is hard evidence of links between South African lion bone traders and international organised crime syndicates. In a bizarre display of ignorance, the Scientific Authority argued – at a meeting in June 2019 – that the legal trade in lion bones should be allowed to continue in order to prevent the proliferation of black-market criminality. However, such proliferation is clearly already occurring. The Scientific Authority similarly argued that – based on the research it commissioned194 – a removal of a legal quota would lead to breeders finding ‘alternative’ avenues through which to get bones to market. In other words, the threat of illegal activity is being used to hold the country to ransom.
  3. The Williams and ‘t sas-Rolfes paper, unusually for a document published in the peer-reviewed scientific literature, speculated that any disruption to the status quo would lead to the kind of criminality and racketeering that characterised rhino poaching at its peak. Again, this ignores the fact that the very same high-profile syndicates are already involved and have been for some time. Because it suits the pro-trade argument, Williams and ‘t sas-Rolfes twisted the data to suit the narrative instead of allowing the data to tell its own story on the rhino poaching front. For instance, they argued that criminality and poaching proliferation occurred only after the imposition of rhino horn domestic trade moratorium in 2009. But the data clearly indicates that poaching started to escalate in 2006, a full three years before the moratorium. Clearly, the moratorium was a response to poaching rather than a cause thereof. That poaching continued to escalate thereafter is more likely a function of market demand growth as a result of growing disposable incomes in Asian markets than South Africa’s domestic trade ban.
  4. Criminality is evidenced by the fact that most CITES import permits for lion bones had false addresses on them and clearly no law enforcement official in South Africa bothered to check the permits. This demonstrates the loopholes that characterise the CITES system. On these grounds alone, a complete trade ban should be enacted so that law enforcement officials do not have to incur the transaction costs of trying to distinguish between legal and illegal lion bone supply. They have neither the time capacity nor the technological resources with which to do so.

41. Even the International Union for the Conservation of Nature (IUCN), which is in favour of ‘sustainable use’ generally, called for the termination of South Africa’s captive predator industry in 2016.195

Component II: South Africa’s ‘Lion’ Bone Trade

  1. In July 2018, the EMS Foundation and Ban Animal Trading released a report called The Extinction Business: South Africa’s Lion Bone Trade which was the outcome of 18-months of research and investigation into South Africa’s role in the international lion and big cat bone trade.
  2. Thetradeinlionbonesisamajorethical,legalandadministrativeembarrassmentforSouthAfrica.
  3. One of the big problems is that the government – has no idea how many lions and other big cats there are in captivity in South Africa. And although we have been asking for this information from them for years it has not been forthcoming. In addition DEFF does not know how many tigers there are in the country – despite the fact that they are CITES Appendix I animals and thedepartment is supposed to keep a list of breeders.
  4. It is important to note that the issue of South Africa’s highly controversial lion bone trade is a national policy issue which has enormous local and global opposition. As a country, if we no longer choose to trade in big cat bones, it will have no impact on our commitments to CITES. South Africa is under no obligation to CITES to trade in lion bones.
  5. Our research revealed how the Department is supporting and growing a trade which has strong links to international criminal networks and is providing a legal channel for the trafficking of illegal big cat parts.
  6. Controversially, South Africa is the largest exporter in the world of ‘lion’ skeletons, bones and other body parts to countries that are at the nexus of the illegal wildlife trade. According to official sources South Africa has exported approximately 9000 lion skeletons in the last 10 years. Because of all the oversight loopholes, our research shows that it is likely to have been many, many more.
  7. There is a tsunami of domestic and international criticism against South Africa, with many conservation bodies, lion scientists and NGOs affirming that the government’s unfettered support for this industry cannot be supported scientifically, or from a tourism, economic, conservation, ethical or welfare perspective.
  8. The ‘lion’ bone trade damages Brand South Africa’s image and tourism. A vast number of individuals rely on continued employment in the tourism sector. Their livelihoods are in the firing line in order to benefit only the few predatory elite in the ‘lion’ bone trade. Tourism itself is a National Asset. South Africa faces an onslaught of bad publicity because of all the elements involved in this shocking trade. Tourists will rather choose to spend their money elsewhere.
  9. South Africa only has somewhere between 1,300 and 1,700 adult lions remaining in the wild. Between 1993 and 2014 Africa lost 43% of its wild lion population, and it keeps plummeting.
  1. Lions now face a new threat: a growing demand for their body parts, including their bones, teeth, and claws. These are sought after for use for jewellery and used in ‘medicines’ – such as ‘wines’, tablets and capsules, tonics, balms, gels, liqueurs, soups, plasters and jelly, mostly in Southeast Asia, particularly China and Vietnam. The legal quota creates and promotes parallel illegal markets for illegally obtained body parts to be laundered through “legal” markets. The legal export of bones from farm-bred caged lions allows the illegal export of wild lion bones to continue, and allows the market to thrive. It is also impossible to differentiate between body parts from wild and captive animals.
  2. The department argues that captive lions will serve as a buffer to potential threats to wild lion population survival. This is irresponsible in the extreme and empirically untested. There is also not one lion scientist that has gone on record to say that this trade has any legitimate scientific or conservation basis. Most of them say that the decision is likely to do harm by encouraging trafficking in African lion and other Big Cat body parts.
  3. The practices of the Big Cat breeding industry do not fulfil the constitutional insistence on ‘ecologically sustainable development’ that satisfies the stipulation ‘for the benefit of present and future generations’.
  4. The precautionary principle is also important here, because it cautions that if current practices are likely to put the future viability of the wild lion populations at risk, such practices should be stopped.
  5. South Africa’s legalization of the export of skeletons from captive ‘lion’ facilities is not only incomprehensible, downright dangerous and promoting criminality, but it has now created a trade that could very well replace canned hunting as the breeders’ primary revenue source.
  6. Our study of skeleton exports for 2017 found that 91% included skulls. As hunters keep the skulls for trophies, this constitutes clear evidence that, contrary to DEA’s assertion, the bone trade is not merely a by-product of the hunting industry.
  7. DEFF and the provinces allow lion bones and skeletons to be stockpiled by private individuals and that the department uses this fact as a basis to increase the quota. By doing this DEFF is actively supporting, growing and stimulating the demand for lion and tiger bones in countries that are working hard to eradicate this demand.
  8. In Southeast Asia, lion bone masquerades as tiger bone. And in China and Vietnam, the demand for lion bone itself is increasing. This means that South Africa’s ‘lion’ bone trade undermines both wild tiger and wild lion survival.
  9. No data exists to support DEFF’s whimsical notion that providing lion bones to Southeast Asia reduces demand for tiger bone. To the contrary, the NGOs working on the ground in these countries report that the demand for tiger body parts is not dissipating in the least.
  10. African Lions are listed on CITES Appendix II. An annotation added to the CITES-listing at the 17th Conference of the Parties held in 2016, allows for the commercial trade in the body parts of captive-bred lions from South Africa, subject to a quota as determined by DEA.196 The annotation is lamentable, because it seeks to regulate something that should never have been recognised in the first place. It is important to state the obvious: South Africa is under no obligation through its multilateral agreements, such as CITES for example, to trade in lion bones. South Africa can take the decision TODAY to stop the trade in lion bones.
  1. The response of the apologists for the industry, is that it is a regulated industry. However, it isclear that the regulatory system that has been developed, is fundamentally flawed and that it cannotbe rectified.
  2. DEFF claims that the lion bone trade is permissible because it is part of their ‘sustainable use’paradigm. This simply is not good enough. DEFF has not properly defined what sustainable use is. It has become a smokescreen behind which controversial decisions are rationalised, based on a narrow reading of section 24 of South Africa’s Constitution, at the expense of broader biodiversity preservation commitments made in the same section. Moreover, a recent Constitutional Court judgment clearly points to the need for a more ‘integrative’ approach, which requires the adoption of an attitude of respect to the individuals who make up a species, an eco-system or the components of biodiversity.197
  3. Implicit in this quota is that government endorses and encourages the commercial breeding of lions and other Big Cats specifically for their bones, and also endorses and encourages illegal, unregulated cruel and brutal slaughterhouses which are now also part and parcel of this abhorrent and shameful industry.
  4. We have been told that lions are kept for days in small cages that do now allow them to even turn around, drugged and shot while in the cages, that shots are missed, that the drugging process is cruelly executed and that lions are sometimes skinned while still alive.
  5. Of great concern is that the current South African permit system, a DEFF responsibility that has been devolved to the provinces, is secretive and flawed and, instead of protecting our country’s iconic wildlife, harms them. The system favours a handful of individuals who benefit financially, but who do not contribute to conservation in any way.
  6. Drawing on CITES export permits, issued by South Africa’s conservation agencies and obtained through Promotion of Access to Information requests, we found substantial problems and endemic loopholes in the CITES permit system, as well as with South Africa’s enforcement and oversight processes. Our research also showed major failings in national policies and procedures. All of this translates into a convergence of the legal and illegal trade.
  7. Having a legal trade allows traffickers to easily pass off illegal products as legitimate, as is seen in the elephant ivory trade. There is no scientific data to support the idea that a legal trade in lion bones may offset illegal activity.
  8. The current permit procedure allows for the quota to be managed by DEFF. After an application for an export permit has been received, provincial conservation authorities inspect the lion skeletons at source.

a. A DNA sample is supposedly taken of each skeleton, which is also individually tagged, and the results are kept at the National Zoological Gardens laboratory in Pretoria.

b. Withoutanyoversightfromprovincialconservationauthorities,theexporterweighsand packs the bones AFTER the DNA testing and tagging has been completed. According to DEFF, random DNA samples may be taken at the airport before export, and all

consignments must be inspected and weighed at the ports of exit, in order to confirm the

information contained in the relevant permit.198 This is clearly not happening.
c. Working with the 2017 lion bone export quota of 800 skeletons, the results of our research show that this process is unreliable, inherently flawed and that DEFF is fuelling the illegal export market of lion skeletons.

  1. The results of our report damningly showed that DEFF oversaw the issuing of CITESpermits for 870 skeletons and signed off on these exports. DEFF may want to argue that all the permits were not used, but we verified each permit against actual exports. In fact, some of the allocated tag numbers were used twice.
  2. Our report, through an analysis of the weights of the big cat skeletons that were exported in 2017, revealed that it is likely that many more than 870 skeletons were actually exported. In fact, it could mean that at least twice or three times as many lion skeletons were exported than what was declared and it could also mean that tiger bones could have been included in the consignment.
  3. DEFF does not verify the bona fides of either the South African traders or the international importers. Permits for the export of lion skeletons are issued to known animal trafficking networks and to fictitious addresses in Southeast Asia.
  4. There are major oversight problems in the countries of import as well.
  5. More skeletons than declared on the CITES permits are exported, and South African traders under declare the true value of the exports – in some cases fraudulently declaring only R500.00 per exported skeleton to customs. It is reported that in 2017, one kilogram of lion bone cost about $880.00 in Vietnam. The traders are supposed to pay R550.00 forthe DNA for every skeleton. Clearly things do not add up.
  6. DEFF stamped and approved all the 2017 lion skeleton consignments at the airport.
  1. When it comes to the economics of the ‘lion’ bone trade on the South African side – after all, this is what is driving the trade – very little is known about the modalities of the industry and/or the processes and mechanisms of how the money flows along the entire supply chain. And it is patently clear that no agency is analysing it.
  2. Access to this information and transparency is crucial, not only to understanding the nature of the trade, but in gaining insights into the illegal trafficking links. All of this, the South African government urgently needs to open up for public scrutiny so that it can be fully and accurately interrogated, understood, and the money trail investigated.
  3. Apart from the obvious tourism, conservation, cruelty, welfare, maladministration and lack of oversight issues, the ‘lion’ bone trade is fundamentally part of illicit trade networks.
  4. Our data shows overwhelmingly that there is a connection between South Africa’s ‘lion’ bone trade and organised crime, with extensive links between importers of ‘lion’ bones and known wildlife traffickers and trafficking networks.
  5. One of the key findings was that the legal trade is part of the illegal trade. They cannot be separated. It is likely that the legal trade in captive bred ‘lion’ skeletons and bones is being used as a cover by criminal syndicates to launder illegally obtained bones and skeletons from their wild caught counterparts.
  1. Our findings show that the criminal networks involved in the illicit rhino-horn trade are linked toSouth Africa’s lion bone trade. The link between rhino horn and ‘lion’ bone trafficking syndicates and the legal ‘lion’ bone trade in South Africa was already established and in the public domain as far back as 2011 with arrests in South Africa of members of the Xaysavang Trafficking Network – one of the world’s most prolific wildlife traffickers. In fact the so-called pseudo-hunting of South African rhinos started with the export of lion bones to this Network. DEFF would have been aware of this.
  2. More generally, South Africa plays a significant role in the illegal wildlife trade and indeed, alarmingly, is now one of the top countries in the world199 for recorded wildlife trafficking occurrences.200 Organised crime in South Africa is also shaped by external markets, such as Asia’s insatiable desire for wildlife body parts.
  3. There is overlay between seemingly legitimate business actors and organised criminal ones. This is of SERIOUS concern.
  4. Organised criminal syndicates clearly do not have an interest in the conservation of South Africa’s wildlife. The presence of these syndicates poses a serious security risk to the country, in addition to exacerbating the problem of illicit financial flows.
  5. The only thing that can disrupt wildlife crime is the degree to which South Africa manages to contain it. Our State response to wildlife crime issues is weak and it does not have the huge resources necessary to tackle wildlife crimes.
  6. Apart from the obvious welfare and ethical issues associated with slaughtering lions and other big cats for their bones, the risks to human health associated with the cruel and unregulated (and cannot be regulated) practices of the captive lion industry are well known – the transference of lion TB to humans, for instance, is a significant risk factor in the process of bone production. In particular, with a deterioration in market conditions for captive hunting and a growing demand for derivative lion parts in Asia201, slaughtering lions with teratogenic anesthetic can be lethal if it enters the bloodstream of humans and similarly lethal to animals who feed on the carcasses of darted animals. Teratogenic agents can also cause abnormalities in physiological development during pregnancy.202 No abattoir is registered to slaughter lions, nor should they be.
  7. There are dangers to marginalised and exploited ‘game farm’ workers involved in the slaughter for meat or bones.203 As Brandt has pointed out, generally the wildlife industry violates the rights of black people and farm workers are disproportionally exposed to risks while living and working with dangerous animals like lions. In addition, generally these workers do not receive employment benefits, such as medical insurance nor do they have the means to protect themselves from harm, disability or death.204 In addition to all of this, the consumption of the bones in Asian markets or for muti use in African markets may expose consumers to the same risks.
  1. The precautionary principle strongly suggests that trade in captive lion parts should be entirely rescinded given the overwhelming health and conservation risks that have been outlinedthroughout this submission.
  2. Based on our findings, in 2018, the largest airline exporter of ‘lion’ bones from South Africa toSoutheast Asia―Singapore Airlines –took the decision to no longer support South Africa’s big catbone trade and not to allow lion bone shipments to be carried on any of its flights.
  3. In August 2018 we delivered the result of our report to the Parliamentary Portfolio Committee on Environmental Affairs. By bringing our concerns on this matter to the urgent attention of Parliament we had hoped that appropriate steps would be taken to stop this trade in its tracks and take the necessary steps to terminate it as well as hold the Executive to account for promoting this truly repulsive trade, which clearly threatens our country’s reputation. We requested Parliamentto:
    1. Place an immediate ban on the lion and other Big Cat bone trade for commercial purposes,including from captive sources. This needs to be applied nationally and provincially (provinces need to be instructed not to issue any CITES export permits for lion bones/skeletons). Included in this ban, should be the destruction of all Big Cat bone stockpiles.
    2. Bring the criminal aspects of this trade to the attention of other relevant Parliamentary Committees and authorities to ensure that a forensic investigation and financial tracking of the industry is undertaken.
    3. Urgently ensure that animal protection, welfare, care and respect is included in the appropriate environmental legislation, particularly in relation to the issuing of permits for the keeping, sale, hunting and exporting of wild animals and their body parts.
    4. Close down the rogue Big Cat captive industry and instruct DEFF and the Provinces to issue urgent regulations restricting the keeping and breeding of Big Cats.
    5. Instruct DEFF as a matter of urgency to provide a complete and audited list of all Big Cat breeding and keeping facilities nationally, and to make this list publicly available.
    6. Instruct DEFF to convene stakeholder meetings to discuss the dismantling of the captive Big Cat industry, including experts from the fields of animal welfare, sanctuary management and forensics, as well as NGOs.
    7. Lastly, we asked them to convene a Parliamentary Colloquium on “sustainable use”.
  4. But in 2019, DEFF, despite all of this evidence and local and global outrage again sought to continue the trade and set a quota. Of concern is that SANBI’s advice to the Minister on the 2019 lion bone export quota is reliant on a single highly contestable, flawed, biased, incomplete and pro-trade piece of research commissioned by SANBI. It is unclear how SANBI went about selecting the two researchers for this purpose and the processes and procedures were not done in a publicly transparent manner. The fact that the new Minister was considering the quota for an ‘industry’ which it does not properly legislate205 for, enforce or have oversight into is problematic and inconceivable, particularly given the strong links of this ‘industry’ to international criminal networks. There are gaps and loopholes that have been exploited, inconsistencies when such legislation exists, enforcement black holes and little accountability or transparency. Moreover the claim by DEFF that welfare is outside its scope despite the constitutional court ruling is not acceptable.206

44. In brief, the key problematic issues that the Minister and DEFF face in relation to the lion bone trade are:

  1. Jurisdictional issues207
    1. between the DEFF and the Department of Agriculture, Rural Development and LandReform (DARDLR) respectively);
    2. between national Government and provincial government; and
    3. between the provinces themselves.
  2. Industryself-regulation
  3. Enforcement
  4. Permitting requirements
  5. Lack of requirements to start a business
  6. Failure to consider statements of the court
  7. Failure to follow PCEA recommendations
  8. Infringement on public rights and other constitutional rights and interests
  9. Facilitation of criminality by a government department
  10. Workers and safety concerns
  11. Slaughter,SafetyandHealthRequirements
  12. International obligations (and international relations)
  13. Court judgments
  14. Cruelty
  15. Failure to consult all the relevant animal protection stakeholders
  16. Attempting to sidestep the department’s welfare responsibilities by outsourcing welfare to anunder-resourced NGO that does not have the legal authority to effectively police the industry.

PART E: LEOPARDS

1. Introduction

  1. AswehavementionedinSectionIIabove,wewishtoemphasisethefactthatcalls for public submissions on draft regulation in respect of the four species have previously been made. Each of ALRSA and EMS Foundation (as organisations and through our networks) have made submissions in respect of: (i) Elephants; (ii) Rhinos; (iii) Lions and (iv) Leopards. In this regard, we refer to Appendix I wherein previous submissions have been included (non-exhaustive). Not only have we not received responses to some of these submissions (nor acknowledgement of receipt), but it is unclear to what extent these submissions were even considered and if so, to what extent.
  2. Accordingly, we wish to state that the specific comments contained in our previous submissions, apply equally to matters to be deliberated on by the Panel, with the necessary contextual amendments. We have not repeated all of these herein.
  3. WeincorporatebyreferencehereintheSAIFACSubmissionasitpertainstoleopards, insofar as same is applicable and does not conflict herewith.
  4. We also wish to draw attention to the release of Lord Ashcroft’s Report on lion hunting in South Africa – “Unfair Game”208 and “Operation Chastise”. Given the time constraints, we have not had an opportunity to include this and relevant factors in our Submission but reserve the right to do so and update accordingly.

Component I: Trophy Hunting of Leopards209

  1. We recommend a zero quota and a cessation of the issuance of leopard trophy permits based on the available science and deficiencies of the regulatory environmental and consultative processes that are in place in the determination of population viability and status of the species. This includes a zero quota and cessation of any trade in live leopards and/or any of their body parts.
  2. Globally leopard range has diminished to 25-37% of its former range and this contraction is far greater than previously known (Jacobsen et al., 2016). No comprehensive estimates of the number of leopards remaining in the wild exist. In southern Africa, 62% of leopard

distribution falls outside of formally protected areas. This unprotected landscape is highly fragmented by both agriculture and urban development. In South Africa, leopard populations are currently contracting at 11% per annum (Mann et al., 2018) and a further 8% decline assessed in 2017. This indicates a persistent decline (DEFF CITES Submission, 2018).

  1. Conserving leopards successfully requires us to track population numbers and trends. However, leopards are notoriously elusive and occur at low densities, which makes monitoring difficult. Threats to many wild cat populations across southern Africa are often age and sex- biased. How these threats influence leopard behaviour is poorly understood.
  2. Population monitoring of leopards indicates that habitat loss and population declines are similar to lion and rhino. Yet their silent disappearance goes largely unnoticed due to their broad distribution and elusive nature.
  3. Existing laws and regulations are inadequate to address the many threats facing leopards and the scientific basis for decisions to trophy hunt leopards are limited and highly disputed. Trophy hunting is a threat to their continued existence particularly given that their current status and distribution clearly shows that their range is in alarming and precipitous decline. Not only is loss of habitat threatening them, but also loss of prey, high levels of poaching for commercial purposes and indiscriminate killing such as snaring and retaliatory killing by poison or firearms by farmers.
  4. There is insufficient credible data on leopard populations and the effect of trophy hunting on leopards. The credible research that has been done is clearly showing that human-mediated killings of leopards is having a devastating effect on leopard populations and indeed threatening their continued existence.
  5. The TOTAL number of leopards remaining in South Africa is unknown but what is definitely known is that their numbers are declining.
  6. According to predator scientists, leopards are the most persecuted cat species in the world. And this statement is very true for South Africa
  1. The South African department of environment, as the authority responsible for conservation and protection, and in line with good scientific practice, has a duty to take a Precautionary Position in relation to the trophy hunting of leopards, particularly as they are a CITES Appendix I Listed Species. The fact that we are dealing with the persistence of species means that if a mistake is made the cost can be extinction or large-scale extirpation.
  2. The exploitation of leopards as proposed by current government policy will have severe ecological and evolutionary costs to the leopard population. The South African government consumptive utilisation policies which support the trophy hunting and killing of leopards need to change urgently. Government policies should also be driving the recovery of leopard numbers in historically exploited protected areas to safeguarding the 62% of unprotected leopard range from loss. Government policies should also be promoting movement between reserves to encourage gene flow requires suitable wildlife corridors for leopards, even through already transformed land.
  1. Apart from trophy hunting, there are a number of additional pressures on leopards and all these factors together need to be taken into account. A holistic approach must be taken.
  2. DEFF needs to take the effects of climate change into account. Particularly on an animal such as leopards, which is already listed as CITES Appendix I.
  3. The DEFF cannot facilitate and support an industry (hunting) purely predicated on profits and consumptive use to the detriment of an entire species.
  4. Sport/trophy hunting of endangered and threatened species such as leopards is not a legitimate conservation tool.
  5. The proponents of “trophy/sport-hunting as a conservation tool” contention are primarily sport-hunting advocacy organizations, like PHASA, CHASA, SAPA, Safari Club International etc. These organisations often cite two interrelated documents as alleged “proof” that trophy hunting can be a “useful tool” to conservationists:a. the IUCN SSC Guiding Principles on Sport-hunting as a Tool for Creating Conservation Incentives (09 August 2012)

b. CITES Resolution Conf. 2.11 (regarding trade in hunting trophies of species listed in Appendix I).

The primary theory for promoting trophy hunting as a conservation tool behind the IUCN Principles and the CITES’s Resolution is that hunting can:

a. Incentivise governments in developing countries to generate conservation programmes

b. Directly raise funding for on the ground conservation efforts in counties with otherwise limited resources.

  1. Supporters of trophy hunting based conservation increasingly ignore that these so-called benefits of trophy hunting have not overcome the long-term negative effect of hunting – namely the allowance for legalised killing of these animals continues to decrease their overall chance of survivability as a species in the wild. In fact, development economists conducted a study on illegal trade of wildlife and found that “the literature advocating trade as a conservation solution for endangered species relies on models that are based on simplistic and/or extremely restrictive assumptions.”210 The study went on to explain that “[i]n most cases these models rely on conceptual tools that have been theoretically discredited.” Indeed, many objective scientific studies and in the field observations that are not directly supported by sport-hunting organizations have repeatedly concluded that sport-hunting endangered or threatened species, even if well managed, is one of the primary factors driving the illegal trade of these species in the black market. These findings show that the legal and illegal markets are intertwined in a complex manner and that their interactions create a dual market that is impossible to regulate.
  2. Development economists such as Nadal and Aguayo are supported by South African programmes driven by the Department of Trade and Industry (DTI) and the Industrial Development Corporation (IDC), for example through the African Programme on Rethinking Development Economies (APORDE).
  1. These development economists are extremely concerned by the lack of serious economic analysis on market structures and price formation dynamics in markets for so-called wildlife ‘products’ (including, of course, ivory, rhino horn, lion and tiger bones and skins, etc.). They argue that advocates of trophy hunting and deregulated trade of these ‘products’ have been navigating in oceans of ignorance, both in terms of the theoretical tools that are used as well as the superficial analyses of real world (existing) markets. This means that assertions concerning the movement of prices and the amount of resources that are supposed to be ‘ploughed back’ into conservation are in reality just empty statements.211
  2. Given the remarkable exposure and research that has been generated over the past decade regarding the lack of credible evidence that sport/trophy hunting actually increases the survivability of many protected species, it is urgent that South Africa undertake a review of its policies.
  3. Allowing leopards to be trophy hunted and arguing that this can be used to obtain informationon leopard populations and dynamics is counter-intuitive and unscientific.
  4. Trophy hunting, illegal hunting, killing for skins,’ legal destruction’ and revenge killings result in many leopards dying, and by-catch from snares for the bush meat trade, are pushing leopards in South Africa to the brink of extinction.
  1. Unreported and illegal killing of wildlife is widespread across southern Africa and therefore extremely pertinent.212
  2. A recent study explored the long-term genetic costs of exploitation-driven changes in the behaviour of leopards. The study showed clear evidence of how exploitation can disrupt the dispersal behaviour of leopards, ultimately leading to inbreeding. It also emphasised that even “recovering” populations still carry the inbreeding “scars” of historical exploitation. While reduced genetic diversity exposes populations to the challenges of future disturbances, including disease outbreak, habitat loss and climate change.
  3. According to peer-reviewed research papers human-mediated leopard mortality is widespread, especially amongst private agricultural and wildlife ranches in South Africa.
  4. A recent study on leopards in Limpopo demonstrated that legal mortality is unsustainable. Indeed this is the same study the N&S is using to propose LHZ’s – this is contradictory.
  5. In Limpopo and KZN for example research213 has shown that human-mediated leopard mortality exceeded the annual trophy “offtake rate” considered sustainable. In other words trophy hunting is causing leopard extirpation.
  6. The notion of a so-called “sustainable off-take” particularly in relation to leopards is also hugely problematic, contested and untested.
  7. Given the increased economic reliance on agricultural productivity, and the increased financial risk associated with intensive high-value wildlife breeding, decreased tolerance among landowners towards so-called problem animals such as leopards is inevitable.
  1. The consequences of decreased tolerance towards ecologically important free-ranging wild animals214 in particular leopards, is likely to have significant detrimental impacts on species persistence and ecological systems more broadly.
  2. Pitman et.al (2016)215 clearly showed that in Limpopo alone “From 2003–2012, landowners submitted 693 problem animal permit applications for nuisance wildlife, and 999 for non- nuisance wildlife. Most (79%) applications originated from game ranches. For nuisance wildlife, leopard were the most common putative problem animal (68%)”, this means that 471 leopards were known to have been killed during this period. These figures exclude unreported killings, which according to researchers, is widespread (see point 17 above).
  3. Pitman et.al (2016) also demonstrated that wildlife ranching management practices have become more intensive, to facilitate the breeding of high-value game species and they are as a result increasing predator-proof fencing to keep free-ranging wildlife out, and reducing populations of so-called “nuisance wildlife” through legal destruction.216 This is having a devastating effect on leopards.
  4. Their findings demonstrated that the proportional increase in problem animal control of nuisance wildlife has far outweighed the proportional increase in game ranching trends towards more intensive practices – suggesting that intolerance is growing in momentum.217 The consequences of decreased tolerance towards ecologically important free-ranging wildlife such as leopards is likely to have significant detrimental impacts on their ability to survive and endure as well as on ecological systems more broadly.
  5. The top three species killed as so-called ‘problem animals’ (leopards, elephants and lions) are also the most desired for non-consumptive tourism.218 The contribution of charismatic species such as leopards to South Africa’s economy, together with their ecological significance, make them vitally important species to conserve.219 The DEFF therefore must take a more precautionary approach.
  6. The increased use of predator-proof fencing and the legal destruction of wildlife shows that wildlife ranching practices are in conflict with leopard conservation.
  7. The predisposition to erect predator-proof fencing raises additional concerns (Woodroffe et al. 2014) because it fragments leopard habitats and significantly alters interactions between species, leading to detrimental impacts on ecosystem functions.
  8. Of concern is that currently there is inadequate national or provincial environmental legislation to control this particular private sector and the negative impact it is having on conservation and protection of species such as leopards.

37. The marked growth of human population in the provinces where leopards occur is increasingly negatively impacting and threatening leopard habitat and has left the majority of suitable wildlife habitat in a highly fragmented state.220

38.Pitman et.al. (2015) Leopards in Limpopo demonstrated that legal mortality is unsustainable (Pitman et al. 2015), and camera-trapping surveys conducted during and after that study period indicate that leopard populations are declining (Pitman et. al 2016).

39. Another enormously concerning anthropocentric practice is the illegal trade and killing (snaring and poisoning) of leopards for cultural and muti purposes. For example in KZN one trader was found with 150 leopard skins.221 This trader was not charged and is apparently still in business: this raises a red flag in terms of weak and incompetent enforcement. So even though theoretically a “strict permit system” governs hunting many leopards are being killed and traded illegally.

40. DEFF cannot allow trophy hunting because in general, both nationally and in the provinces, there are valid concerns about the monitoring and enforcement systems, the negative effects of decentralised systems and practices and the concomitant poor management of wildlife in provinces. This includes the lack of implementation of a fully functional and transparent electronic permitting system (which is also accessible to NGOs who are monitoring trade and hunting)

41. TRAFFIC has already highlighted to DEFF that the requirement to address capacity and resource constraints affecting South Africa’s conservation authorities at national, provincial and site levels has not been addressed. This also includes South Africa’s administration of CITES. According to TRAFFIC DEFF remains derelict in fulfilling this critical need despite repeated promises and as a result South Africa’s wildlife management remains clouded by delays, abuse and miscommunication within the current permitting structure, providing loopholes and opportunities for illegal and unintended activities for many species to proliferate.

42. The effect on leopard populations of local decision-making in the absence of adequate centralized regulation and evidence-based best practice necessary to uphold conservation objectives is extremely worrying.

43. In addition mosst of the provincial nature conservation departments are under-staffed and often dysfunctional. Conservation authorities lack the human and financial resources toaccurately and consistently monitor wildlife populations,222 particularly elusive species such as leopard that range widely, and occur mainly outside of formally protected areas.223 As a result these conservation departments and officials cannot be entrusted to collect scientific data, or oversee and manage leopard issues. In particular the lack the ability to adequately effectively monitor and regulate trophy hunting activities.

44. The effect of widely documented corruption in the provinces where leopards largely occur isalso of concern and surely has the potential to adversely affect leopard populations.

  1. It is well-document that the hunting industry itself is extremely problematic and unethical and has been involved in countless illegal activities with an expansion and consolidation of criminal syndicates in its ranks. This means there is even more need for the hunting industry to be appropriately monitored, controlled and managed. DEFF cannot give them a free-hand to do as they please. It certainly cannot be left up to hunting associations to self-enforce, self-police and self-instruct. Nor can it be left up to under-resourced inefficient conservation department in the provinces. Unless this issue is seriously addressed by DEFF, trophy hunting, particularly of Appendix I animals such as leopards, whose very existence is severely compromised by human activities, should be suspended.
  2. A declining population of leopard is suggested by SANBI: “Results from our latest year of camera trapping paint a bleak picture of leopard population status in South Africa. Most monitored populations are declining … and the few that are stable appear to be well below their potential ecological capacity… Indeed, leopards appear to have been extirpated – at least functionally – from several sites across the country… Averaged weighted annual population growth (lambda) across all sites in South Africa was 0.89, suggesting an average population decline of 11% per year. (An 8 % decline was reported in the preceding year, 2017.) It is also important to note that we purposefully selected sites which comprise suitable leopard habitat; the situation in more marginal areas, which constitute a large part of leopard range in South Africa is likely even more dire. After more than two years without leopard trophy hunting in South Africa, there is little evidence to show that this alone is sufficient to stimulate a broad scale improvement in leopard population status.” Based on this alone any contemplation of reinstating leopard trophy hunting should be rejected. There is also evidence of preceding a persistent decline in Northern Natal (Hluhluwe-iMfolozi and St Lucia Eastern Shores) in 2015 and 2016, with the former showing a decline of 70% in five years. Further declines are reported in Limpopo with areas indicating a decline of as much as 44% (DEFF, CITES Submission, 2018). Despite this, the DEFF approved trophy hunting permits in Limpopo and Kwazulu Natal in 2018. By their own admission, DEFF has no idea on leopard population dynamics in other regions in South Africa. Based on the trends it must be accepted that population numbers continue to be in declining across the country. The DEFF request to continue the CITES allocation of 150 trophies per annum, to allow them the flexibility to issue permits up to this number, flies in the face of the data before them on population trends.
  3. Unknown numbers of leopard mortalities from human-wildlife conflict and “cultural” artefact harvesting compounds this situation and should advocate against the reinstitution of leopard sports hunting. Government has no control over the situation and should not be compounding the peril for the species by contributing to its mortalities in appeasement of the hunting industry pressures.
  4. Regional genetic and habitat fragmentation has only been demonstrated in the Eastern and Western Cape. It may be evident in other areas of population fragmentation and restricted connectivity. Until this is investigated further, removal of individual leopards may in fact contribute significantly to the demise of the species through ignorant actions. This should be researched thoroughly prior to any contemplation of reinstitution of leopard hunting.
  1. Flawed monitoring by SANBI, which they claim themselves rather robustly is the “gold standard”, is rudimentary and flawed. It is based on a method that cannot remotely establish asymptote (within 30 – 60 days of camera trapping) of population estimates (of which a closed population requires 90 days (Kamaranth. 2009)). This fails to consider social dynamics and qualitative analysis of population structures and dynamics and pays no regard to the genetic structure of populations. Trophy hunting can exacerbate population declines where other human-caused mortality is severe, ongoing, not fully recorded and uncontrolled.
  2. Improper consultative process has a long and ingrained culture in terms of leopard conservation, threatened and protected species legislation and damage causing animal legislative issues with Department of Environmental Affairs (DEFF) and the South African National Biodiversity Institute (SANBI). It dates to the Leopard PHVA in 2005 when stakeholders were excluded from the process, which had almost no detailed data, on which it was based and the subsequent CITES permit allocation number of 150 trophies per annum. The latter has never been rationally reviewed, and by DEFF’s own version was retained for no other reason than the onerous process of changing trophy allocation limits with CITES. Even if the science dictates that current allocations are unsustainable, this improper consultation continued. DEFF has failed court processes due to this manner of consultative processes in the lion hunting and rhino horn trade cases and it seems that nothing has been learnt from these flawed consultative processes. DEFF has participated in misrepresentation of information to CITES in 2018 in its request to retain the 150 trophy permits in 2018 ahead of the CITES meeting this year. It has failed to cite relevant, current published research while biasedly presenting conjecture that supports the continued hunting of leopards in the face of data that points to continued decimation of the leopard regional populations. The continued motivation of trophy hunting flies in the face of the available science, and the very principles that the Department claims to be adhering to, namely:
    1. Sustainable use paradigm – even if this was adhered to the decreasing population, other human caused mortalities and continued habitat fragmentation, trends points to current unsustainable management;
    2. Adaptive management is not adhered to in the face of SANBI’s own data, showing an 11% population shrinking in 2018, based on severely depleted and fragmented leopard populations
    3. “Involvement of stakeholders” belies SANBI and DEFF practices by excluding stakeholders, and further concealing data which is evident in the declining leopard population figures from 2017 and 2018;
    4. Robust science is being ignored in reports and not adhered to in monitoring;
    5. TheimpactofdamagecausinganimalDEFFthsandillegalkillingisunverified,notaccurately recorded and seemingly ignored in quota application and issuances;
    6. There is no basis in science that support the use of sports hunting in the managementof sustainable leopard populations;
    7. There is no scientific basis whereon sports hunting of leopards has proven beneficialfor local livelihoods.
  1. The current farcical approach of approving permits on a baseline that is set arbitrarily on the commencement of the current SANBI initial monitoring results of 2016, has no basis on historical carrying capacity or appropriate natural distribution and population densities.
  2. NDF emerged with a negative finding for leopards and as such should dictate zero quota allocation in terms of CITES until a positive NDF replaces it. Despite this, the DEFF and SANBI, asserted that permits should be issued at the allocated 150 per annum rate in the NDF report and their current submission before CITES as submitted in 2018. After a public outcry following the NDF report, the DEFF, correctly, set the quotas at zero for two years (2016 and 2017) and yet in 2018, despite the standing negative finding on the NDF reinstituted leopard hunting quotas without due consultation and scientific justification and in spite of population declines evident from their “monitoring” project results. All attempts at transparency were resisted and when the SANBI report of 2018 detailed the contraction of 11% in the population became apparent through the leaking of the report by some parties, the reason for the non- accountability became obvious, as there appeared to be no factual basis for the recommencement of trophy hunting in the face of the continued population declines.
  3. Therefore, based on 1) the declining population, 2) the escalation and ongoing threats to the population, and 3) the poor data quality and 4) undue process in consultation, it is incumbent on the DEFF to decline any current permits for trophy hunting or killing of the species. We recommend that a zero quota be adopted and that this should stay in place until appropriate, accountable and transparent governance processes are employed, a transparent NDF be confirmed and that decisions are based on respected scientific methods.
  4. No leopard trophy hunting quotas should be allocated, until a positive NDF is adopted and therefore should be in accordance with CITES approvals of a zero quota and not as present attempts to wrongfully keep this allocation in the NDF and in the 2018 proposal to CITES at 150.

Original Quota of 150

  1. Theoriginalquotaof150CITESpermitsstemsfromthePHVAof2005andhasneverbeen reviewed. The 2005 process was notable by the absence of any credible data on which to base the quota amount and the exclusion of key stakeholders from the process. By its own admission, DEFF in their submission to CITES in mid-2018, retained the quota application at 150 for no rational scientific-based reasoning, and by its own admission retained it at 150 to avoid applying for changed quota quantum as it would be administratively too onerous to do such an application, even if the science dictated a reduced quota was warranted.
  2. This together with the assertion that it should retain the 150 quota in the face of a negative NDF points to irrational and nefarious agendas to continue trophy hunting of leopards regardless of the objective facts before them.

Flawed Monitoring Processes

3. Focus on quantitative assessment of leopard populations, almost exclusively in protected areas, fails to assess leopards in production landscapes where the conflict zones exist. Any results obtained from protected areas may in fact be an over-estimation of leopard populations when extrapolated beyond these protected areas. The method fails to follow recommended scientific methods of establishing asymptote measures to obtain a population estimate using camera traps by only placing these monitoring cameras at sites for 30 – 60 days instead of the recommended three months (Ref. Karanth, 2009).

4. The monitoring process fails to do any meaningful population dynamic analysis and assessments of social structures of leopards and the impacts mortalities have on these. There is also no investigation on population connectivity in transformed landscapes. No investigation of population genetic structure is done and the impact this has on genetic vitality of the population in areas of human-caused mortality, and thus on population persistence. Furthermore, the SANBI team self-grandiosity by claiming their methods are the “gold standard” fails to accept the fatal flaw that their measure of the starting assessment of 2016 is the basis from which recommendations were made whether populations were increasing or decreasing, when already this starting point was substantially reduced from natural carrying capacities. The basing of permit allocations on this starting point was based on a flawed assumption. These flaws in monitoring makes a mockery of the claimed adaptive management underpinning permit recommendations and the science that ought to underpin such methods.

Government Legal Obligations and Consultative Process Failures

  1. Muchfrustrationhasbeenexperiencesasstakeholdersoveralmost15yearsofattemptstoget accountable governance in government processes affecting leopard conservation involving the following:a. Leopard PHVA assessment of 2005
    b. Norms and standards for the management of Damage Causing Animals, 2010
    c. Threatened or Protected Species Regulations, 2013
    d. Non-Detriment Findings on leopards, 2015
    e. ProtestingoftheappointmentofspecialistconsultantstoSANBIwithoutdueprocess f. Norms and standards for the management of Damage Causing Animals, 2016
    g. Draft Norms and Standards for the Management and Monitoring of the Hunting ofLeopard in South Africa for Trophy Hunting Purposes, 2017
    h. Reinstating of leopard trophy hunting permits in the presence of a negative NDF in2018 and refusal to provide the scientific justification for such.
    i. The application to CITES in 2018 to retain the allocation of 150 CITES permits in thepresence of a negative NDF and claiming their application is based on robust scienceand accountable governance when this was untrue.
  2. This has been mostly centred around a select unaccountable group of state officials and a fewconsultants appointed without due process affecting leopard management decisions, policy and legislation development and subsequent permit issuing that have been unaccountable, based on biased and jury-selected facts and ignoring the science that dictates the need to set the hunting quota at zero.
  3. It is recommended that accountable governance structures be developed to develop leopard conservation policies, legislation and administrative processes that are defendable scientifically and that individuals that have developed a cabal around leopard conservation in the past be excluded from such processes.

Approach to be adopted in relation to determination of detriment

  1. The Convention on International Trade in Endangered Species (“CITES”) provides that an export permit for a specimen of a species included in Appendix II cannot be granted unless the Scientific Authority of the State of export has advised that such export will not be detrimental to the survival of that species. Species are included in the Appendices to CITES if they are, or may be, detrimentally affected by international trade. Consequently, it must be assumed that international trade has a detrimental effect on any listed species unless the Scientific Authority determine that it will not, by making a so-called “non-detrimental finding ” (“NDF”).
  2. In other words, an NDF is an exception to the general rule that prohibits trade in CITES Appendix II-listed species and the Scientific Authority may only make a NDF if there is clear scientific evidence that trade will not have any detrimental effect. If the available evidence is not conclusive in this regard, the Scientific Authority cannot, and must not, make an NDF. This is consistent with the principle in the National Environmental Management Act (“NEMA”) which requires that the decision maker must apply “a risk averse and cautious approach … which takes into account the limits of current knowledge about the consequences of decisions and actions” (NEMA, section 2 (4)(a)(vii)). Put differently, in the absence of sound scientific justification for a specific quota, the Scientific Authority must not set a quota.
  3. Proposals to establish or amend an NDF must evidence-based and include details of the scientific basis for any quota that may be proposed. CITES does not specify precisely what scientific evidence is required but the CITES conference of the parties has adopted guidelines in relation to species such as sharks. In 2002 the IUCN published a checklist to assist scientific authorities in making non-detriment findings for Appendix II exports. The checklist helps Scientific Authorities to identify the factors that need to be taken into account when making an NDF and the strengths and weaknesses of the available information. (At a minimum the Scientific Authority should consider information such as: species distribution, population status, population trends, threats, utilization and trade, actual or potential trade impacts, population monitoring, management and control measures.)

South African Scientific Authority must take account of all relevant information

  1. Despite the existence of these (non-binding) guidelines, when deciding whether or not to make a NDF the Scientific Authority must act both in a manner that is not contrary to CITES and in accordance with the law that governs it (in this case South African law). As explained below, South African law requires the Scientific Authority to take account of all relevant information, not just information from peer-reviewed scientific studies or from scientists.
  2. The decision by the South African Scientific Authority about whether or not international trade may be detrimental to leopards, is a decision that may significantly affect the environment. Consequently in making that decision the Scientific Authority must be guided by the environmental right in section 24 of the Constitution and by the national environmental management principles in section 2 of the National Environmental Management Act (“NEMA”).
  1. The following principles are particularly relevant to this decision:2(4)(a)(vii) that a risk averse and cautious approach is applied, which takes into account the limits of current knowledge about the consequences of decisions and actions; and(b) Environmental management must be integrated, acknowledging that all elements of the environment are linked and interrelated, and it must take into account the effects of decisions on all aspects of the environment and all people in the environment by pursuing the selection of the best practicable environmental option.(g) Decisions must take into account the interests, needs and values of all interested and affected parties, and this includes recognizing all forms of knowledge, including traditional and ordinary knowledge.(o) The environment is held in public trust for the people, the beneficial use of environmental resources must serve the public interest and the environment must be protected as the people’s common heritage.”
  2. A decision to establish or amend a quota for the export of leopard trophy hunts would also be “administrative action” for the purposes of the Promotion of Administrative Justice Act (“PAJA”). Consequently, the decision-making process must be procedurally fair, and the decision-maker must, among other matters, take all relevant considerations into account, and disregard irrelevant considerations.
  3. Not only is a negative NDF in place for leopard trophy hunting and exports, but there are substantive problems with the governance around decision making related to leopard conservation, yet the DEFF have continued and restarted trophy hunting and continued to request a maintenance of 150 CITES permits for leopards when the data and science does not support such.

Consideration of the effect of a leopard trophy hunting and export quota on the survival of all wild leopards

1. It is important to note that the Scientific Authority must consider the impact of a leopard trophy hunting and export quota on leopards both within South Africa and in other range states. Although CITES defines “species” as “any species, subspecies, or geographically separate population thereof”, the 10th meeting of the Conference of the Parties to CITES adopted a resolution on the Designation and role of the Scientific Authorities (resolution Conf. 10.3) which recommends that:

“the appropriate Scientific Authority monitor the status of native Appendix-II species and export data, and recommend, if necessary, suitable remedial measures to limit the export of specimens in order to maintain each species throughout its range at a level consistent with its role in the ecosystem and well above the level at which the species might become eligible for inclusion in Appendix I;”

2. This means that in order to make an NDF the decision-maker must not only have adequate scientific evidence that trade in leopards is not resulting in, and will not result in, higher mortalities among wild leopards in South Africa, it must also have adequate scientific evidence to exclude the risk that permitting a legal trade in leopards will not be detrimental to the prospects of maintaining appropriate leopard populations in all range states. Establishing a leopard hunting industry is detrimental to the long-term survival of the species in the wild. The Scientific Authority cannot make a NDF in order to set a quota for the export of leopards unless it has the evidence to prove the contrary.

The 2018 quota was not established on scientific grounds

  1. As the call for submissions rightly points out, the Scientific Authority is required to make recommendations to the Minister ‘based on a scientific and professional review of all available information.’ We submit that this was in fact not complied with when the new quota was set in 2018. Such a review would have revealed that no non-detriment finding (NDF) pertaining to the trade in leopard trophies (an Appendix II-listed species according to the Convention on International Trade in Endangered Wild Species of Fauna and Flora (CITES)) and its potential impact on wild leopards yet existed. The 2015 NDF carried out to assess whether a trade in leopard trophies was detrimental to wild leopards in South Africa came out against trophy hunting of leopards (a negative NDF).
  2. ThenegativeNDFisstillinplace.DespitethisnegativeNDFthescientificauthoritytriedto assert that permits still be issued and only relented after public and media pressure but in 2018 applied to maintain the allocation of 150 as it was too inconvenient to have this changed with CITES and they recommenced permit issuing. Based on the negative NDF, it would therefore appear to us to have been prudent to set the quota to zero until such time as, at a minimum, a relevant NDF had been issued. In the interim data emerged that pointed to accelerating population declines and the Scientific Authority and small select group of consultants tried to conceal the negative population data from stakeholders while moving ahead with reinstating trophy quotas. Such concealment can only point to bad faith and nefarious agendas at appeasing pressure from the trophy hunting industry.
  3. The precautionary principle appears to require that the burden of proof is on the proposer of an action to demonstrate that it will have no harmful or irreversible effect. The bottom line is that a scientific review would likely have concluded that enough warning signs were present to suggest that a quota should not be established until more scientific research was available.

Scientific Justification for Recommendation

1. Large carnivores have experienced significant population declines due to geographic range contractions, fragmentation of their habitat and human wildlife conflict events (Morrison et al., 2007), other human caused mortality and the illegal wildlife trade. All carnivore ranges have had a significant decline globally (Ripple et al. (2014). In South Africa this is supported by the absence of almost all free roaming large carnivores, except for leopard and occasionally cheetah and wild dogs. The one remaining large felid in parts of South Africa is the leopard (Panthera pardus); but the worldwide range is continuing to decline. This global range loss is more extensive than previously appreciated and the species occupies a mere 25-37% of its historical range.

  1. Globally the decline of leopard populations is illustrated (Figure 1&2) as published in Jacobsenet al. (2016). Regionally (the whole of South Africa) the leopard is listed as Vulnerable C1 (Swanepoel et al., 2016), although the southernmost population in the Cape Provinces may be substantially more threatened. Additionally, it is highlighted that leopards are undergoing increasing levels of persecution due to being hunted in retaliatory killings, for cultural regalia and from the increase in high-value game breeding farms that treat them as damage causing animals within their current distribution. This is leading to significant and continuing declines, 10% over three generations.
  2. Even internal reports from SANBI suggest alarming declines of leopard population by as much a 11% per annum in 2018 is also recorded by the Scientific Authority, and in their own words the “results from … latest year of camera trapping paint a bleak picture of leopard population status in South Africa. Most monitored populations are declining…and the few that are stable appear to be well below their potential ecological capacity … Indeed, leopards appear to have been extirpated – at least functionally – from several sites across the country…Averaged weighted annual population growth (lambda) across all sites in South Africa was 0.89, suggesting an average population decline of 11% per year (our emphasis)!
  3. Actions of the Scientific Authority should rather be focused on that which can facilitate the conservation of the species instead on this yearly battle to limit their further sanctioned human-caused mortality through trophy hunting. This should include:a. Connectivity of isolated populations,
    b. Managementofgeneticbottleneckingofremainingpopulations,
    c. Addressinghuman-wildlifeconflict,
    d. Utilizing and evaluating efficacy of local translocation as a means of dealing withconflicts, and
    e. Reducing human caused mortality.
Figure 1&2. Current and historical leopard distribution demonstrating the global decline Jacobsen et al. (2016).

5. Population Connectivity: Devens et al. (2018) estimated the population of leopards to be between 467-533 individuals in the Western Cape and between 365-430 in the Eastern Cape. However, these free roaming leopards are facing hazards as the anthropogenic landscape expands, and concurrent habitat destruction. The above estimates may be an overestimation because it relies on extrapolated habitat patches that include small (narrow and isolated) patches that probably do not support this wide-ranging species. Such a landscape can result in movement constraints and increased mortality events resulting in a declining population (Woodroffe et al., 2005). The Northern, Western & Eastern Cape have low population of leopards with which to effect conservation of the species, as part of that connectivity between isolated populations forms a key part of such conservation actions. The detailed peer-reviewed population densities in other areas of South Africa is not known and the current leopard monitoring by SANBI fail to meet scientific muster as the period of monitoring fails to establish asymptote for population estimates. In the absence of this detailed scientific evidence of acceptable and healthy populations there is no basis to move ahead with authorizing trophy hunting to add to the already accepted evidence of increasing human caused mortality and perilous nature of leopard populations globally and regionally.

6. Drouilly et al. (2017) performed an analysis of carnivore scats found both in protected areas and on farmland. They found that leopards located in protected environments had no evidence for livestock predation events in their scats, and preferentially preyed on antelopes and bushpigs (although their study sites were not representative of leopard habitat across the range of leopards). No leopard scat was detected on any of the farmlands on their particular farming site; reinforcing the knowledge that these anthropogenic regions form considerable barriers to leopard movements. This can ultimately lead to a genetic bottleneck (Sweanor et al., 2000). A consideration of apex predators should form a crucial component of conservation strategies and should be considered on an equal footing to habitat preservation efforts.

7. GeneticBottlenecking:McManusetal.(2015)studiedthegeneticstructureofleopardsin the Eastern and Western Cape. They found that three distinct population groups existed within the study area. Two of these populations in the north and south of the Western Cape were found to be acting as sink populations with a low rate of gene flow. They suggested that this population structure is a result of increased anthropogenic land use and human wildlife conflict events. McManus (PhD Thesis, 2018) has additionally shown that both male and female leopard behaviours are strongly influenced by their distance to roads and towns. They seldom use human modified landscape (ploughed fields, orchids, etc.) supporting the claims that the modified environment is causing the low gene flow and the bottlenecking of the populations of leopards in the Western Cape. Additionally, it was found that males organized themselves based on the locations of females, whilst females made few inter-patch movements when close to towns. This suggests that leopards surrounded by highly modified environments will find themselves increasingly isolated with only a few males making large dispersal movements across the anthropogenic landscape. McManus (PhD, 2018) detailed resource usage of leopards in the Eastern and Western Capes and illustrated the habitat and population fragmentation of the species in the study area. Furthermore, the projected corridors of population connectivity were identified.

  1. Very few areas in South Africa has had populations studied to this detail which is needed prior to authorization of further leopard mortality actions, such as trophy hunting authorization.
  2. Very little scientific work has been done to evaluate population structures of leopard across the country. In the light of range shrinkage, ongoing population and habitat fragmentation and mortalities it becomes more and more important to investigate population and genetic structure of leopard populations before authorizations for further human mortalities. McManus et al. (2015) showed that the leopards of the Eastern and Western Cape form a complex genetic structure with low rates of gene flow between three identified core subpopulations. This suggest genetic bottlenecking of isolated and fragmented leopard sub- populations. Habitat fragmentation is suggested as the primary cause for the reduction in rates of gene flow between these populations which is resulting in a significant genetic bottle- necking effect on the southern and northern populations in the Western Cape (McManus et al., 2015). Establishing connectivity between populations and reducing further human caused mortality is crucial to avoid any further genetic deterioration. An understanding of the genetic landscape will greatly help in guiding conservation orientated decisions, in particular for mortality decisions, future translocations of leopards and for the management of subpopulations and protected areas by conservation bodies, particularly supporting connectivity corridors being functional through addressing and mitigating conflict and effective gene flow and translocations in select instances. Fostering gene flow between isolated populations through territorial connectivity or active management, such as translocations, may be important, because deterioration of gene flow can have detrimental effects within a few generations that would result in low population survival. The absence of this detailed knowledge together with glib decision on authorizing leopard hunts may have massively detrimental effect on the genetic viability of populations in the current state of population declines and habitat fragmentation.

10. Addressing Human Wildlife Conflict: Leopards are difficult to study because of their elusive nature. Most studies have focused on leopards within nature reserves; areas where leopards are significantly threatened often generally overlooked (Balme et al., 2014). The current SANBI studies are flawed in that the methodology they use is unable to establish asymptote in population quantitative assessments and fails to deal with behavior studies and genetic analysis, both latter being crucial to assessing population viability. A focus on production landscapes is essential and it holds the potential to address key knowledge gaps. Current monitoring is focused on protected areas. Those leopard populations which persist in anthropogenic environments have received little scientific attention, often due to the difficultly of studying a highly elusive animal in such a landscape. As a result, conservation practices and management plans for leopards utilising these habitats are all too often based on anecdotal evidence. Balme et al. (2014) identified several threats faced by leopards in South Africa; key among these were loss and fragmentation of habitat and anthropogenic killing. It seems to be illogical to be considering trophy hunting of leopards when there is little to no veracity to any data related to mortalities from human wildlife conflict situations, and even less knowledge of cultural harvesting of leopard body parts/skins. In the face of the global decline of leopard populations, a SANBI reported annual decline of 11% in the population of leopards locally, it seems utterly dumbfounding that any consideration is given to leopard trophy hunting.

11. The overt threats by game farmers and hunting community that they ought to be given access to trophy hunting permits to allow them to seeing value in this species or else they may resort to “shoot, shovel and shut up” practices are nothing short of extortion. The species is a res nullius public good and permits are a state mechanism to assign such public assets to private profit and in the face of the decline in the species, this public good for their existence value outstrips the private profit of hunting outfitter or pro-hunting landowners. Published research comparing retaliatory killings with trophy hunting and its effects on leopard populations suggest that the former has greater negative impacts on leopard populations, but the study fails to consider any compensation schemes other than trophy hunting (Swanepoel et al., 2015). This is a constant failure and an indicative of a constant bias and appeasement of the trophy hunting industry even in the face of threats to the species by this bias.

12. Government would do well rather to consider the development of compensation schemes for human wildlife conflict situations. Wildlife compensation schemes have been found to improve tolerance of carnivores in conflict areas by raising awareness and shifting economic responsibilities from farmers to broader communities (Wagner et al., 1997). This allows animals to live longer and encourages the implementation of alternative controls rather than long-used lethal management methods. Where compensation schemes are absent, retaliatory killing is more likely (Nyhus et al., 2005). However, damage to property by wildlife will occur in perpetuity and over vast areas, thus formalizing sustainable compensation schemes has challenges. Furthermore, even individuals receiving compensation may kill animals illegally. It is a reality that leopards at times and opportunistically do hunt and kill livestock and indeed framed game. This has historically led to farmers taking lethal control measures to remove the problem causing animal, with these actions taking place both legally and illegally. Conservation authorities have also killed leopards that they deemed to be “problem leopards”. Such actions have not been open to review and scrutiny. However, this has the potential to create a larger problem where a territorial gap opens in the landscape causing disruption within the underlying population structure. It is believed and proposed that an effective solution is to better manage the livestock, rather than the predator, and in limited circumstances where key threatened or protected species (such as leopards) are imperiled by human wildlife conflict to provide compensation for any future livestock losses caused by leopards. It is also very important that human wildlife conflict situations NOT BE CONFLATED into trophy hunting events as all high value trophy animals will be incentivized to be labeled problem animals.

13. Leopard Removal and Translocations: Instead of trophy hunting we would suggest that if leopards are to be condemned to removal that translocations are rather considered as it may be a valuable conservation tool in threatened populations and species. Many leopards have been translocated or killed that have been deemed problem animals. These actions have been done without scientific analysis and review. In the scenario of low numbers, isolated sub- populations, limited connectivity, continued persecution of leopards and a population with evident reduced genetic diversity amongst extant populations, it has become important to investigate the feasibility and parameters of the success of translocations. Translocation also may be a very effective tool for rewilding efforts.

14. Translocation as a conservation tool has been identified by the IUCN as a critical component of conserving endangered species and in re-establishing populations in areas where species have been driven to extinction (IUCN/SSC, 2013). They recognize that reinforcement of existing populations to enhance viability, as well as reintroduction to establish new viable populations are equally vital and should be considered in tandem. Fonturbel el al. (2011) performed a meta-analysis of 50 scientific articles concerning translocations of large carnivores around the world; they found that in 64% of cases the translocated individual did not return to their home range (N=15). However, this does not equate to a 64% success rate. On the contrary 47% of the animals translocated died within 110 days, with 83% of deaths caused as a direct result of human activity, both intentional (illegal hunting) and accidental (vehicle collisions). Although many of the study species were large felids, none of the studies analysed focused on leopards. Translocation has been shown to be extremely successfully in managing the cheetah (Acinonyx jubatus) meta-population that exists on small private game reserves in South Africa (van der Merwe et al., 2016), which can be contained by fences. This network of reserves essentially forms a fragmented habit for cheetahs where no natural genetic flow takes places; without translocation each of these populations would be unviable. However, these animals enter range-restricted (cheetah proof fence) habitats allowing a high degree of success. There are moves afoot to manage both cheetah and lion meta-populations through judicious translocations.

15. 7-year age male hunting limit: The entire hunting quota based on the purported fact that hunting male leopards over 7 years of age has minimal “impact on leopard population persistence” (Government Gazette, No 40601, 8 February 2017). Packer et al. (2009) is quoted as the reference for this. When the paper in question is analysed it says nothing of the sort. The study is fraught with faults and is known to be dramatically inflated and unreliable as criticized extensively by peers. Furthermore, the paper fails to detail the data and methods to justify models used to derive these conclusions, nor is there any attempt at validating the model. It must be stated that the reliance on CITES data is very suspect as there is already a “filtered” element to this data and amounts to nothing short of opinion surveys and not imperial fact. It is of grave concern that the DEFF is prepared to rely on this questionable data (CITES import data), a suspect modelling exercise and opinions about the 7-year limit to base an entire national N&S of harvesting of leopards. It seems cavalier to say the least. How the conclusion can be made off this glibly used “fact” is incomprehensible? No other research has attempted to validate this claim nor confirmed it through verifiable and repeatable empirical research. The opinion of the 7-year of age threshold is presented as scientific fact of what appears to be questionable conclusions. The effect of action that could flow for this gives no regard population social structures. It cannot be accepted to be the guide for policy. We would urge DEFF to review this paper critically and reconsider this erroneous assertion that male leopards can be harvested after 7 years of age without population persistence impacts. It uses unclear methods in model design and data known to be highly inflated leopard density data.

  1. Leopards probably live to ages 10 -13 in protected environments, and when in conflict in production landscapes on average 6-8 years. It is rare that a male leopard has a stable territory before 5-6 years and thus the paternal factor of cubs. To suggest you can shoot them from this early age is sure to create havoc amongst the populations and generalize infanticide. It also gives absolutely no regard for the impact on social structures and the impact this has on species persistence. The fact remains that we know almost nothing about leopard population studies and the few detailed empirical studies that have been done are so regionally specific that making sweeping statements based of “models” and extrapolation of CITES data and a tiny regional based inquiry is irresponsible to the extreme and will not provide insight to a broader areas. We would suggest that the 7-year threshold to kill males is opinion masquerading as fact and should be rejected.
  2. The second aspect that is fatally flawed is that leopards cannot be aged and sexed accurately to abide by the first already flawed assumption. We believe this to be a fabrication in support of the flawed assertion above. Panthera’s research bears this out and demonstrates the poor accuracy of sex and age predictions even amongst photographic guides and researchers, and much worse amongst hunters which apparently had the least accurate assessments (Balme et al. 2012). More concerning is that this study excludes the human factor in leopard identification, as it uses still, and clear images and suggest fleeting and field sightings that can’t be used as an identification. It goes on to disprove that hunters can be trained to improve their accuracy. SANBI and DEFF have accepted this without question in support of authorizing leopard trophy hunting. There is no evidence for this. The ability to accurately sex and age leopards in real life in the field is not possible, not implementable or police-able and thus a fanciful construct to enable hunting under false pretense of management.

SECTION V: CONCLUDING NOTES & REQUESTS

____________________________________________________________________

In our view, the Department’s policy framework is premised on an outdated and incorrect interpretation of section 24 of the Constitution. For this reason and for the reasons set out in this submission, any output of the Panel as currently constituted and operating is unlikely to comply with the Constitution. We submit that the Department must, in order to comply with the Constitution and the other legislation applicable to the protection of the environment and fair administrative procedure immediately halt the work of the HLP and take the following steps:

  •   revise its policy framework to take account of the interpretation of section 24 set out in this submission known as the ‘integrative approach’ which was adopted by the Constitutional Court; and
  •   correct the deficiencies in the composition of the Panel and in the process adopted by the Panel to take account of the concerns set out herein.Our detailed submissions regarding these two steps are set out below.

1. Revision of policy framework in light of Section 24

We request that the Department revise its policy framework in light of the alternative approaches to section 24 that we have explained in detail in this submission. A serious process of reform of the Department’s policy documents and framework in light of current Constitutional requirements is long overdue.

2. of the deficiencies in the composition of the Panel and the process Correction adoptedpage167image2458873632

On the basis of the submissions contained in Section II, the ToRs must be revised and the Panel reconstituted.page167image2458887328

The ToRs should ideally determine the exact scope of investigation of the Panel. They should also take account of and incorporate the Parliamentary Resolution which gave rise to the process of appointing a High Level Panel. The public has not been consulted on the scope of the ToRs for the Panel. Nor, for the reasons set out in this submission, are the current ToRs sufficiently comprehensive. Accordingly, we submit that revised ToRs must be published for comment by the public, that the comments received are properly taken into account and that a final version of the ToRs is gazetted and circulated by email to all stakeholders as a first step.

We submit that in order for the Panel to be properly constituted:

a. the criteria for appointing Panel members must take into account the requirements of ecologically sustainable development as explained in Section I of this submission;

b.
c. the Panel must represent a balance of interests.

the Panel must therefore include the additional experts as set out in this submission, including sufficient scientific and other expertise on each individual species; andpage168image2455652896

Once the ToRs for the Panel has been revised, either the Panel must be disbanded or a new request for additional nominations must be gazetted. Nominations received must be properly considered in order to remove the potential for bias that currently exists and to ensure that all the necessary experts are included. Where nominations are refused, reasons must be given. All Panel members whether old or new must declare any interests.

Once a new Panel has been constituted, a fresh call for submissions must be gazetted and circulated to all stakeholders via email, with the ToRs attached.page168image2412649168

Alternatively, if the Department refuses our requests above and persists with the current process, we set out below the remedial actions which the Department must at least take to address some of thepage168image2441225232page168image2441225520

key deficiencies in the process to date.page168image2441230736

3. Respond to stakeholders and requests for information

  1. The Department must respond to previous requests made by the EMS Foundation,ALRSA and WAPFSA, which have gone unanswered.
  2. In this regard, we refer to Appendix I which contains some of the correspondenceswherein we have raised concerns, issues and asked for specific information:
  3. As requested in the WAPFSA Letter:
    1. A copy of the rubric and other criterion considered and utilised when selecting the Committee. Furthermore, an explanation of why this criterion was utilised by the Department.
    2. ReasonsforwhytheCommitteewasconstitutedinthewayithasbeen.
    3. The Terms of Reference and purpose of the Committee and all other information relating to its functioning. Furthermore, the outcomes and actions envisaged (e.g. policy/legislative actions, etc.)
    4. Whether and to what extent there will be engagement with the Department of Agriculture, Land Reform and Rural Development in this process.
    5. Whether and to what extent there will be engagement with other relevant government departments.
    6. Whether and to what extent there will be engagement with experts by the Committee relating to the species, conservation animal welfare and other relevant issues relating to the Committee’s purpose (provided this can be reasonably established). In particular, those holding views (including scientists, economists, lawyers and others) questioning the current interpretation by the Department of section 24 of the Constitution, and, in particular the notion of ‘sustainable use of natural resources’.
  1. Whether and to what extent the welfare of wild animals being kept in captivity as well as in the wild will be considered and included in this process and subsequent policies and legislation going forward.
  2. Whether the Department will include the public and their opinion on these matters as the rights bearers of section 24 of the Constitution and those who have a legitimate interest in the interpretation by the Department as well as the use of wildlife in the country.
  3. Whether the Committee members will be required to complete a “Declaration of Interest” form that will be made publicly available. This would include Committee members to make disclosures regarding their personal and organisational interests (financial, and otherwise) pertaining to issues which the Committee will be involved with.
  4. Whether the Department or Government more generally has a procedural document which informs the establishment of such Panels/Advisory Committees. If so, we request a copy of same.

d. In addition, we have requested information formally through PAIA, generally and specifically relating to the Panel.

e. We refer to the EMS Foundation PAIA request dated 25 May 2020, wherein the following was requested:

“Copies of all records, insofar as this information is produced recorded and/or held by DEA/DEFF, the Ministry and its authorities, including but not limited to:

a. Correspondence;
b. Minutes of meetings;
c. Interim and/or final reports;
d. Interim and/or final agreements; e. Findings and decisions;

Relating to the structure, functioning, activities and processes of the High-level Panel established to review policies, legislation and related practices on the management, breeding, hunting, trade and handling of elephant, lion, leopard and rhinoceros, in particular:
• Activities and operations of the High Level Panel to date.

• Roles and responsibilities of individual Panel Members.
• Roles and responsibilities of Panel working groups (or the equivalent)
• Steps and procedures to take positions and decisions
• Processes, procedures and criteria used to evaluate submissions to the HLP
• How are working groups divided and tasks assigned for evaluation and decisions
• All minutes / recordings of the HLP meetings, from the date of appointment of the Panel till today

Furthermore:
• Power of the Panel in relation to the Minister (DEFF)
• The Minister final decision process and procedures after consultation with the HLP.”

4.

  1. We request that at a minimum, responses be provided by the relevant employees within the Department to letters, emails and other correspondences.
  2. Werequestthattheseresponsesbeprovidedwithinareasonabletimeframe,andthat these are not simply generic acknowledgements.
  3. Aswebelievetheissuesthatweraisearenotonlyofpublicconcern,butimpacton fundamental and guaranteed constitutional rights, we believe it is the duty of the Department as a state agency to give due consideration to our correspondence and respond accordingly.

Transparency

In the interests of transparency more specifically insofar as it relates to the Panel and the Call for Submissions, we hereby request:

  1. DeclarationofallintereststobemadebythePanelmembers;
  2. In relation to this Submission process, we request that:
    1. a full register of all of the responses received to the Call for Submissions be made publicly available (sensitive information may be redacted to the extent necessary)
    2. Further to (i) above that the Panel respond to such Submissions, and specifically, the extent to which these were considered, accepted and or rejected and the reasons therefor.
  3. OncetheconsiderationsanddeliberationsofthePanelarecomplete,werequestthat the Report and any substantiating documentation be released to the public.

Participation

  1. We request that participation in the future process be wider to include NGOs with key expertise.
  2. More specifically, that organisations working on animal welfare be properly represented.
  3. Importantly, and as we have set out in this Submission, the NSPCA is not the only stakeholder with respect to animal welfare.
  4. Thereareanumberoforganisationswhohaveadefinitiveandfundamentalinterest in these issues and should be able to participate in an effective way. Such organisations have relevant expertise, different values and objectives, which should be given a platform.

5.

6. Other High Level Conclusions and Request

Place a moratorium on the international wildlife trade except in the case of translocations that benefit conservation in the wild (i.e. in situ conservation) until an independent investigation has been conducted and systemic problems addressed.

Remove all wild animals from SouthAfrica’s livestock list or classification.

Amend NEM:BA to properly protect the welfare of wild animals and to give effect to recent jurisprudence regarding wild animal welfare.

Direct the DEFF and all provincial Nature Conservation departments to ensure that their information officers give immediate access, on request, to all records relevant to all international trade in wildlife (i.e. CITES and non-CITES trade) including applications for permits, permits and permit conditions, records of decision-making processes, and reasons for the decisions, and amend their PAIA information manuals accordingly.

Restrict the consumption of wildlife body parts (for food or medicine) where there is a risk of the transmission of zoonotic diseases and strictly regulate the production, trade and consumption of meat from wild animals to ensure that animal welfare and food safety are not compromised.

Place a moratorium on commercial hunting in all the private reserves adjoining the Kruger pending an independent investigation.

SANParks must be required to cancel the 2018 GLTFCA Cooperative Agreement and conduct a transparent and accessible process which allows for meaningful participation by any interested parties.

End the abuse and exploitation of elephants. This includes (but is not limited to) elephants as the subject of trophy hunts; in zoos; in circuses; as ivory (or any other products) and in other human-elephant interactions (such as elephant-back riding, feeding and walking with elephants, etc.).

In relation to elephants, on the issue of culling any decision must go through a committee made up of relevant stakeholders and such decision cannot be pre-approved through a Management Plan that only needs to be updated every ten years.

Place a moratorium on the domestic trade in rhino horn.
Burn ivory, rhino horn and lion (and other big cat) bone stockpiles. Protect leopard by ensuring that they are not allowed to be trophy hunted.

Dismantle the captive big cat industry.
Instruct DEFF to convene stakeholder meetings to discuss the dismantling of the captive Big Cat industry, including experts from the fields of animal welfare, sanctuary management and forensics, as well as NGOs.
Ban the lion and other Big Cat bone trade for commercial purposes, including from captive sources.
Ensure that a forensic investigation and financial tracking of the captive big cat and bone trade industry is undertaken.
Ensure that an independent audit and investigation is done of all the big cat breeding facilities.

  1. At the international level South Africa should advocate for the revision or replacement of CITES with a treaty that bans the international wildlife trade and ensures that the welfare of wild animals being translocated for in situ conservation purposes, is protected.
  2. As a CITES States Party, there is an opportunity for South Africa to take the lead on addressing policy, regulatory and legislative gaps and address the fatally flawed CITES system by prioritising, adopting, implementing and supporting ethical values and practices, as articulated in our submission.

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Original form: https://www.animallawreform.org/wp-content/uploads/2020/07/HLP-Submission-ALRSA-EMS-Foundation-June-2020.pdf

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