Hunting and exporting of trophy animals

11 Jan 2023

The first applicant in Trustees for the time being of the Humane Society International – Africa Trust and Others v Minister of Forestry, Fisheries and the Environment and Others [2022] 3 All SA 616 (WCC) (HSI-Africa) was the local chapter of an international organisation dedicated to the protection of animals. It sought an urgent interdict pending the review of a decision taken by the first respondent (the Minister) to fix a quota for the number of leopard, elephant and black rhinoceros that may be lawfully hunted in South Africa (SA) and later exported abroad as trophies by foreign hunters during 2022. The Minister was the National Management Authority responsible for the allocation of quotas in terms of regulation 3(2)(k) of the Regulations published under the National Environmental Management: Biodiversity Act 10 of 2004 (NEMBA) in respect of ‘The Convention on International Trade in Endangered Species of Wild Fauna and Flora’ (CITES Regs). CITES is a multilateral international treaty which was adopted by 21 countries in 1973. The overall purpose of CITES is to regulate the worldwide trade in endangered species of, inter alia, wild animals and plants. In terms of Article XI of CITES, the signatory parties meet from time to time in conference and take decisions, which then become binding on such member states affected thereby.

In terms of regulations issued under NEMBA, the black rhinoceros, leopard and elephant were respectively listed as ‘endangered’, ‘vulnerable’ and ‘protected’ species. A second set of regulations, the ‘Threatened or Protected Species Regulations’ (the TOPS Regs) aimed to address a wide range of issues relating to the protection of listed fauna and flora as contained in GN R151 GG29657/23-2-2007, including the control of the captive breeding of wild animals, the issuing of a host of permits for the control of, inter alia, game farms and hunting associations, and the hunting and protection of the wild populations of protected species. Thus, the permissible hunting of black rhinoceros, leopard and elephant for trophy purposes is strictly controlled within SA via a permit system. The Minister fixes the quotas for such hunting, while the MEC’s have the authority to issue individual permits. All such hunting must comply strictly with the hunting methods listed in the TOPS Regs.

HSI-Africa submitted that in terms of reg 6(3)(c) of the CITES Regs, a permit may only be granted for the export of any protected specimen once the scientific authority has evaluated the proposed quota, and, importantly, has made a non-detriment finding (NDF). Regarding the 2021 quota for leopards, HSI-Africa was critical of the evaluation of the scientific authority report. Regarding black rhinoceros, HSI-Africa stated that while a draft was circulated, no final NDF was submitted by the scientific authority for the 2021 quota.

Gamble J held that the requirements for the granting of an interim interdict pendent lite are establishment of a prima facie right to the relief sought; a well-grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and he ultimately succeeds in establishing his right; the balance of convenience favours the granting of the interim relief; and that the applicant has no other remedy.

HSI-Africa argued that the Minister’s advertising for consultation in relation to the fixing of a quota in a particular year and then applying the determination of the outcome of that consultative process in a subsequent year was impermissible. The court agreed that it was manifestly unfair to invite a party to consult on an issue in which the decision-maker is statutorily time bound and then for her to apply that participative process to a time period in respect of which there has been no consultation. HSI-Africa thus established a prima facie right to the relief sought. The remaining requirements for the interim interdict were also established, and such relief was granted.

Article sourced from LexisNexis.

See also:

• Is that an alien in my backyard? – Indigenous vs invasive species
• Non-detriment Findings (NDF) for African Lion fly in the face of conservation & ethics
• Patenting micro-organisms: To deposit or not to deposit
• New requirements for mine dumps and stockpiles

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)