Johannesburg – The Department of Environmental Affairs (DEA) has shown it has neither the political will, the necessary clout nor the resources to properly regulate the domestic trade in rhino horn, let alone prevent a multi-million dollar trans-national rhino horn-smuggling racket that would violate a forty-plus year old treaty that outlaws the international commercial trade in rhino horn.
The warning was sounded by conservationists, legal experts and NGOs on Monday after Environmental Affairs Minister Edna Molewa’s 11th hour refusal to deliver a permit, authorising rhino farmer John Hume to trade 264 rhino horns through an online auction, backfired in the North Gauteng High Court on Sunday.
Speaking from Cape Town, environmental lawyer Cormac Cullinan warned the so-called "legal" domestic trade would serve as a cover for the illegal international trade in horn, just like other scams run by trans-national organised crime syndicates and Asian triads.
"As long as one unscrupulous person can get a buyer's permit, all the horn can be channelled out through that person or entity as a nominated alternative buyer. They will find a way to corrupt any monitoring scheme and the horn will leave SA. The department should have intervened much earlier.
"Although the DEA may discover that the purchaser no longer has the horn, a purchaser may also be a legal entity such as a company. If a company buys the horn and then illegally disposes of it or is "robbed", it may be difficult to hold anyone accountable," Cullinan said.
MS Foundation director Michele Pickover said she was "concerned there are insufficient checks and balances in place by the so-called authorities to oversee this auction and future sales and transactions.
'Insatiable demand for rhino horn'
"The lack of apparent internal controls in relation to the provision of permits for this auction is directly putting all rhino populations under threat and growing the insatiable demand for rhino horn. We are also questioning why the minister is not taking this case on appeal," she said.
Last Wednesday, Hume brought an urgent application forcing the minister’s hand, which she opposed, and applied to have the "unauthorised" permit set aside.
The court ruled in favour of Hume, and ordered Molewa to hand over the permit within 12 hours of the judgment, plus pay the costs of Hume’s legal counsel.
Judge Neil Tuchten rejected Molewa’s argument that her senior director Olga Kumalo "did not have the authority" to issue the permit to Hume on August 10, and that Molewa’s counter request that the permit, although not yet delivered, be nullified.
Tuchten said that was not a valid defence, and that the minister should rather have filed for a stay of the auction.
Hume’s controversial online rhino horn auction, which he had advertised since June, in English, Chinese and Vietnamese, was due to begin on Monday, but bidding has been postponed till Wednesday to allow buyers time to get their permits in order.
The department issued a statement on Monday saying it had handed the permit to Hume on the following conditions:
• That the permit holder only sell rhino horn to a person who has a permit issued in terms of the National Environmental Management: Biodiversity Act, 2004, authorising him/her to buy rhino horn from Hume;
• The permit does not authorise international trade in rhino horn; and
• The Department must be granted access to the online auction to do the necessary compliance monitoring.
DEA spokesperson Albi Modise refused to give a breakdown of the number of South African citizens versus the number of foreign buyers who had applied for permits for Hume’s auction.
"This information should be requested in terms of the Promotion of Access to Information Act," he said.
Asked how the DEA would monitor compliance with South African environmental legislation, and in terms of our obligation to the Convention on International Trade in Endangered Species (CITES) that no rhino horn traded would be allowed to leave South Africa’s borders, Modise said: "A username and password will be provided to the Department in order to monitor the sale online."
It is not yet confirmed whether CITES has requested an independent audit of Hume’s auction.
With rhino poaching in South Africa forecast to breach the 1 000 mark for the fifth straight year, legal experts, conservationists, wildlife NGOs and rhino owners, closely watched the outcome of Sunday’s contested matter.
"I think it was important that the minister did oppose the application by Hume, but it raises the question of how is it possible for a director to issue a permit for an important issue such as this, without the minister’s involvement and oversight," Cullinan said.
"If the minister only found out about it after it was issued, then the question must be raised as to how well her department is functioning.
"If the minister is correct in what she says, that she did not delegate this authority, then there is a real problem when a director is exercising the authority she has not been given, and the minister does not find out about this until the 11th hour.
"The government in South Africa must be completely clear that whatever this auction and trade is dressed up as, this is about getting rhino horn into Asia where it can be sold at a very high price. It’s a complete sham, and it should be seen as such, and should not be allowed."
'Playing a role in extinction'
Cullinan said rhino horns are not worth anything in South Africa and that this is merely a device to facilitate horn getting out onto the international market.
"It is shocking that the idea of conservation has been perverted into selling rhino horn and lion bones into illegal and fraudulent international trade that will drive demand that causes these species to be poached.
"If South Africa permits the export of lion bones to be used as a fraudulent substitute for tiger bones in the east, or allows rhino horn to enter the international trade, it won’t be able to stop it."
By allowing domestic trade which enables the criminal activity, we will be officially supporting and promoting "end-user" international trade in wildlife. "This is not a reputation which South Africa should have," he added.
"One does have sympathy with rhino owners in that it’s costing them a lot of money to protect their rhino. But to say that the right answer to that is to sell rhino horn, which will stimulate poaching and creates the need for security in the first place, is totally misplaced.
"The DEA needs to treat the issuing of these permits with greater care, because we are talking about something that has huge international implications because it could undermine global conservation efforts to protect rhinos.
"If we stimulate the trade that is driving the poaching that is threatening rhinos with extinction, we are potentially talking about playing a role in driving a species to extinction, and this is obviously not the role the DEA should be playing," Cullinan added.
Kelly Marnewick of the Endangered Wildlife Trust (EWT) said they are very concerned that the legal trade in rhino horn will:
• Lead to laundering of illegal rhino horn into legal domestic trade, and that rhino horn will find its way into the illegal international market;
• Tarnish South Africa’s international conservation reputation and potentially drive rhino populations to extinction in neighbouring countries and other range states;
• Increase existing challenges in compliance and enforcement and nurture corruption; and
• Increase consumer demand, leading to an upsurge in rhino poaching to satisfy a demand that cannot be met.
The EWT is further concerned that there are serious challenges with the monitoring and regulation of this trade, including:
• The expertise and capacity to implement, enforce and monitor legal compliance in respect of rhino and rhino horn specific permits are, for the most part, lacking.
• Current legislation is insufficient, as acknowledged by the minister of environmental affairs. Although she states that other regulatory measures are being put in place, these are, however, all in draft format and several months away from implementation.
• No effective permit monitoring system is in place. The proposed electronic permitting system is, to the best of our knowledge, not fully functional and has not been tested in real-life situations.
Private Rhino Owners’ Association spokesperson Pelham Jones called the DEA’s wasting of taxpayers’ money to defend a legally indefensible position "a cause for concern".
"We have seen with dismay the vast quantum of legal expenses wasted on this case and other non-rhino-related cases; the DEA has gone to court and lost time and time again."
Jones said the upcoming rhino auction "will be fully compliant with national legislation and CITES international protocols, as foreign buyers are welcome to buy horn, although they may not export it".