REGULATORY DEVELOPMENTS WITH REGARDS TO RHINO’S AND RHINO HORN

On 3 June 2020, the Minister of Forestry, Fisheries and the Environment published two notices and one set of regulations in terms of the National Environmental Management: Biodiversity Act, 10 of 2004 (‘NEMBA’). The notices and Regulations published specify:

• Prohibition under section 57(2) of NEM:BA of specific activities involving species and sub-species of rhino (white and black)- GN 625;
• Regulations on Trade in Rhino Horn- GNR 626; and
• Amendment of the Alien and Invasive Species List and List of Critically Endangered, Endangered, Vulnerable and Protected Species- GN627.

The two notices and the Regulations are published in final form but will only commence on a date still to be gazetted by the Minister. They replace an earlier set of draft notices published for comment in 2018 (GN986, 987 and 988 in GG 41919 of 21 September 2018).

The Minister has appointed a High-Level Panel to consider various issues relating to lion, leopard, rhino and elephant. The terms of reference for the Panel expressly include that is must consider trade in rhino horn yet these regulations were published during a period where stakeholders were asked to make submissions about the work of the Panel.

Notice 625: Prohibition on activities involving listed threatened or protected species.
Notice 625 was enacted mainly to prohibit the powdering of rhino horn or the creation of slivers, chips, drill bits or “similar derivatives” and the trade in such pieces of rhino horn and those smaller than 5 centimetres. Section 57(2) of NEMBA allows the Minister to prohibit “any activity which is of a nature that may negatively impact on the survival of a listed threatened or protected species”.

There are certain exceptions including the following:

• during microchipping of rhino;
• during horn removal for management, security or veterinary purposes;
• during insertion of tracking or similar monitoring devices;
• taking of samples for genetic profiling or registered scientific institutions but these are relatively strictly defined;
• where the chipping, powdering etc is done by a registered scientific institution for scientific or genetic profiling purposes; and
• where the chipping, powdering etc is done by the State.

It seems likely that this prohibition was made in attempt to prevent smuggling of small fragments or pieces of rhino horn.

GNR 626: Regulations on Trade in Rhino Horn
The regulations are intended to restrict trade in rhino horn within South Africa. In general, they require a permit for selling, giving, donating, buying, receiving, accepting or in a similar way disposing of or acquiring rhino horn  within South Africa as well as, exporting or re-exporting from South Africa. The Regulations detail the permit application process, which includes the minimum requirements that have to be met before an application will be granted compulsory conditions which, an issuing authority must attach to the various types of permits.

GNR 626 also regulates:

• the sale of rhino horn at auction;
• the use of proxies for trading rhino horn; and
• various methods for disposing of unlawful rhino horn fragments.

The regulations no longer contain the word “domestic” in the title as they allow for the issue of export permits for rhino horn. It is no longer the case (as it was with the 2018 draft) that the parties to any such trade must be South African citizens or permanent residents (similar restrictions apply where the party is a company or trust). Rather, the final Regulations merely require the parties are present in South Africa at the time of the transaction. The wording of the final Regulations appears to facilitate domestic and international trade in rhino horn.

Notice 627: Change in status of Black Rhinoceros
Notice 627 changes the status of the Eastern Black Rhinoceros (Diceros bicornis michaelis) from a nationally listed invasive alien mammal species to a nationally listed protected species in South Africa. The notice also specifies some transitional arrangements, including applications for new permits under Chapter 4 of the NEMBA (Threatened or protected ecosystems and species)  for those in possession of specimens of this animal or who have or intend to carry out a restricted activity involving it.

-This piece was written by Sarah Kvalsvig, a consultant at Cullinan & Associates

*Please note, these laws have not commenced but they are final.