Regulating the trade in rhino horn: a South African perspective.
Bergover, Shaun Neil.
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South Africa is facing a major rhino poaching crisis. In 2015, 1175 rhinos were killed by poachers and 1054 in 2016. During the first half of 2017, 529 rhinos had been killed by poachers. South Africa can currently sustain this rate of poaching because the population growth rate (approximately 6.5% for white rhino and 5% for black rhino) is higher than the off-take (legal and illegal), but if poaching continues to escalate, a tipping point may eventually be reached forcing the population to decline for the first time in 50-100 years. The driver for the illegal killing is a persistent demand for rhino horn from Asia, where it is used mainly for medicinal purposes. This demand cannot be met by legal supplies because international trade in rhino horn was banned by CITES in 1977 in response to long-term, high levels of rhino poaching that were threatening to push all rhino species to extinction. In 2009, South Africa – as a member of CITES, also banned domestic trade in keeping with CITES’ vision and mission. In 2016 the ban on domestic trade was challenged in the case of Kruger and Another v Minister of Water and Environmental Affairs. The High Court found that the then Minister responsible for environmental affairs (“the Minister”) did not fully comply with the public consultation requirements of NEMBA and set aside the moratorium with immediate effect. In February 2017 – following the 2016 High Court judgment – draft regulations were published by the Minister effectively setting in motion the legalisation of domestic trade in rhino horn. The draft regulations were available for public comment and those comments are now being considered by the Minister. Despite the regulations still being in draft form, this is a very new development with serious consequences for rhinos. This dissertation seeks to analyse the arguments for and against a legalised trade. The draft regulations will also be discussed and their viability – at least on paper – will be analysed. This dissertation will also look at South Africa’s obligations in terms of CITES and whether these regulations are in conflict with our obligations to CITES. Lastly this dissertation will provide recommendations for the approach that South Africa should take. The conclusion reached is that the draft regulations appear to address various concerns regarding the legalisation of domestic trade, however, they would need to be strengthened in order for them to be effective.