Victory for elephant conservation in circus case

2017-05-25 21:06
Elephants perform in the Brain Boswell Circus in 2008. (File, Netwerk24)

Elephants perform in the Brain Boswell Circus in 2008. (File, Netwerk24)

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Durban - In a victory for elephant conservation, circus owner Brian Boswell has failed in his legal bid to overthrow legislation which outlaws exporting the animals for use in circuses.

Boswell wanted to send five of his circus-trained African Elephants to Dubai reportedly for R3m for each.

Two years ago, he applied for a permit but it was turned down by the KwaZulu-Natal MEC for economic development, tourism and environmental affairs and Ezemvelo KwaZulu-Natal Wildlife.

They said that “norms and standards for the management of elephants” issued by the national minister of Environmental Affairs under the National Environmental Management Biodiversity Act (Nemba) prohibited the export of animals for circuses.

Boswell turned to the courts arguing that the “norms and standards” should be declared invalid because they were not authorised by Nemba.

The issue, closely watched by conservationists, was argued recently before Pietermaritzburg High Court Judge Dhaya Pillay.

In her ruling handed down on Thursday, the judge said there was a “matrix of legislation, regulations, directives and international agreements,” governing the environment and when the interpretation of a single rule arose, all had to be interpreted contextually.

She said Nemba applied to all State organs provincially and nationally. And South Africa gave effect to its international obligations arising from its ratification of CITES under Nemba.

“The minister has to report bi-annually on legislative, regulatory and administrative measures taken to enforce ... CITES [Convention on International Trade in Endangered Species of Wild Fauna and Flora].

“The norms and standards is such a measure….as a result of law it must be obeyed unless it is set aside.”

The Judge said different norms and standards applied to different biodiversity and their purpose was to give a flexible application over wide geographic and bio-diverse fields vulnerable to quick change.

Nemba expressly mandates the publication of norms and standards “to restrict or prohibit any act absolutely or conditionally”.

The judge said Nemba stated that no wild or captive animal may be exported for the purpose of keeping it in captivity in a controlled environment.

Controlled environment

It provided for captive elephants, part of a bona fide circus, to be temporarily exported for a limited and specified period, for the sole purpose of use in a circus and for the duration of a performance.

“Manifest from this is the intention to stop the import and export of all elephants, wild and captive, if they are to be kept in captivity in a controlled environment,” the judge said.

A controlled environment is one in which an elephant is prevented from escaping, facilitates human intervention to provide food, water, housing and veterinary care and is less than 2000 ha.

“The keeping of elephants in captivity is a serious concern that the norms and standards seek to regulate it.

“Nemba enables the authorities to refuse to issue a permit if it is likely to have a negative impact on the survival of the threatened or protected species….to secure a permit (Boswell) must comply with Nemba.”

Judge Pillay said the African elephant was listed as a “protected species” and “qualifies for special protection” under CITES regulations.

“The power to issue permits regarding elephants therefore originates in these CITES regulations...and although Nemba does not declare it an offence to import or export animals without a valid permit, the CITES regulations renders it punishable by a fine as much as R5m and imprisonment of up to five years,” she said.

Read more on:    brian boswell  |  animals

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