The move by the Constitutional Court to dismiss the environmental affairs department’s application for leave to appeal an earlier court ruling removing the moratorium banning the local trade in rhino horn means that South Africans can now do so.
The Constitutional Court dismissed the application for leave to appeal on Wednesday.
“The Minister of Environmental Affairs Dr Edna Molewa has noted the decision of the Constitutional Court on the application for leave to appeal the 2015 High Court of South Africa, Gauteng Division order that set aside the moratorium on the domestic trade in rhino horn,” said the environmental affairs department on Thursday.
The moratorium was implemented in terms of section 57(2) of the National Environmental Management: Biodiversity Act, 2004 (Act No. 10 of 2004) (NEMBA), and took effect on 13 February 2009.
An original application challenging the moratorium was brought by Johan Kruger in 2012, joined by John Hume in 2015. Wildlife Ranching South Africa and the Private Rhino Owners Association of South Africa supported the application.
On November 26, 2015, the High Court set aside the moratorium on the domestic trade in rhino horn with immediate and retrospective effect.
“Pursuant to this judgment, the minister filed an application for leave to appeal to the High Court, which was dismissed. Thereafter, the minister petitioned the Supreme Court of Appeal (SCA) for leave to appeal,” the department said.
“The SCA in May 2016 dismissed the minister’s application for leave to appeal with costs. No reasons were given for the order. The minister subsequently applied to the Constitutional Court for leave to appeal the decision in June 2016. Yesterday’s decision was the outcome of this application.”
Commenting on the latest court ruling, Molewa said: “Whilst we are studying the implications of the order handed down by the Constitutional Court, it should be noted that the court’s decision should not be construed to mean that the domestic trade in rhino horn may take place in an unregulated fashion”.
She said since the moratorium came into effect, the department of Environmental Affairs has strengthened its laws, regulations and systems to ensure no regulatory loopholes exist with regards to the possession of rhino horn as well as a possible future domestic trade in rhino horn.
“In the absence of the moratorium, it must be emphasised that all domestic trade in rhino horn will be subjected to the issuance of the relevant permits in terms of the National Environmental Management: Biodiversity Act (NEMBA), 2004 (Act No 10 of 2004) (NEMBA) and applicable provincial legislation.”
She explained that in terms of NEMBA a permit is required to among others possess, transport and trade in rhino horns and any derivatives or products of horn.
“The judgment does not mean that persons are allowed to trade (including selling, donating, or in any way acquiring or disposing of rhino horn) without a permit issued by the relevant provincial conservation department.”
She said application forms applying for authorisation of the regulated activities must be submitted in the province in which the applicant intends to carry out the restricted activity (E.g. selling, trade in, buying, giving, donating or accepting as gift, possession, conveying, movement and transport.
“It must be furthermore emphasised that this matter does not relate to the international trade in rhino horn for commercial purposes. Commercial international trade in rhino horn is still prohibited in terms of the provisions of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).”