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I. Introduction

In South Africa, legislative jurisdiction regarding the conservation and management of wildlife is shared between the national and provincial governments.  The Constitution mandates that “[n]ature conservation, excluding national parks, national botanical gardens and marine resources,” is one of the functional areas in which there is concurrent national and provincial legislative jurisdiction.[1]  South Africa has nine provinces: Eastern Cape, Free State, Gauteng, the KwaZulu-Natal, Limpopo, Mpumalanga, Northern Cape, North West, and Western Cape.[2]  A great deal of legislative and executive jurisdiction over issues of conservation and management of wildlife in the country, including regulation of imports and exports, is exercised by these provincial governments.[3]

However, the national government also wields significant legislative jurisdiction over the protection of wildlife, in large part to create national uniformity on the matter.  The National Environmental Management: Biodiversity Act (NEMBA) of 2004 and its subsidiary legislation put in place protections for various species that are threatened or otherwise in need of protection.[4]  It also provides the authority for consolidating fragmented biodiversity legislation in the country through the establishment of national norms and standards specific to certain particularly vulnerable animals.[5]  One example is the National Norms and Standards for the Management of Elephants in South Africa (NNSMESA).[6]  One purpose of this document is to set uniform norms and standards so that “the management of elephants is regulated in a way that is uniform across the Republic” and takes into account the country’s international obligations.[7]

Enforcement of the NEMBA and its subsidiary legislation is shared across various tiers of government.  Specifically, it comes within the jurisdiction of the Environmental Management Inspectorate, a network of national, provincial, and municipal government officials.[8]  The Inspectorate enjoys broad enforcement powers, including inspection, search and seizure, and arrest powers, as well as administrative authority to issue compliance notices.[9]

This report focuses on the national laws, specifically the NEMBA and its subsidiary legislation, the application of which is limited to wildlife that is threatened or in need of protection. 

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II. Poaching and Trafficking in Wildlife

The NEMBA prohibits anyone from carrying out a “restricted activity” involving any “threatened or protected species” without a permit.[10]  It authorized the Minister of Environmental Affairs and Tourism to establish lists of species that are threatened or in need of national protection, further subdividing the class of “threatened” species into those which are “critically endangered,” “endangered,” and “vulnerable.”[11]  The Minister issued NEMBA Regulations in 2007 that contained such lists.[12] 

Restricted activities with regard to the listed species include

(i)  hunting,[13] catching, capturing or killing any living specimen of a listed threatened or protected species by any means, method or device whatsoever, including searching, pursuing, driving, lying in wait, luring, alluring, discharging a missile or injuring with intent to hunt, catch, capture or kill any such specimen;

. . .

(iv)  importing into the Republic, including introducing from the sea, any specimen of a listed threatened or protected species;

(v)   exporting from the Republic, including re-exporting from the Republic, any specimen of a listed threatened or protected species;

(vi)   having in possession or exercising physical control over any specimen of a listed threatened or protected species;

(vii)  growing, breeding or in any other way propagating any specimen of a listed threatened or protected species, or causing it to multiply;

(viii)  conveying, moving or otherwise translocating any specimen of a listed threatened or protected species;

(ix)  selling or otherwise trading in, buying, receiving, giving, donating or accepting as a gift, or in any way acquiring or disposing of any specimen of a listed threatened or protected species; or

(x)  any other prescribed activity which involves a specimen of a listed threatened or protected species. [14]

A person who violates these prohibitions, including by violating the terms and conditions stipulated in a permit, commits an offense.[15] 

The NEMBA further authorizes the Minister to prohibit any activity “that may negatively impact the survival of listed threatened or protected species,” or engaging in such activity without a permit.[16]  These matters are addressed in the 2007 NEMBA Regulations.[17]  A violation of any prohibition issued by the Minister under this authority is an offense under the NEMBA.[18]

The NEMBA Regulations prohibit certain activities involving listed large predators (including cheetah, spotted hyena, brown hyena, wild dog, lion, and leopard), white rhinoceros, and black rhinoceros.  It prohibits hunting

  • a “put and take animal”;[19]
  • in a controlled environment;
  • with the use of any tranquilizer, narcotic, or other immobilizing agent;
  • in an area near a holiday facility for such animals;
  • with the use of a gin trap; or
  • where the hunter does not first obtain a written affidavit from the owner of the land where the animal is located indicating the length of time the animal has been on the property and that it is not a “put and take animal.”[20]

The NEMBA Regulations also prohibit the purchase, acquisition, sale, supply, or export of any live animal that is listed as threatened or protected,[21] with one exception: a person may purchase, acquire, sell, supply, or export any of these animals if he can provide an affidavit or other written proof indicating the purpose of the transaction and that the animal is not going to be used for prohibited hunting activities.[22]

The NEMBA Regulations further impose a ban on the use of certain hunting methods by prohibiting the issuance of a permit to hunt a threatened or protected species using

  • poison;
  • traps;
  • snares;
  • dogs;
  • darts;
  • an automatic weapon;
  • a weapon discharging a rim firing cartridge of -22 of an inch or smaller caliber; shotguns, except for the hunting of birds; or
  • air guns.[23] 

The Regulations also prohibit luring such animals for the purpose of hunting using bait, sounds, smell, or any other methods;[24] the use of floodlights or spotlights, motorized vehicles, or aircraft;[25] and hunting an animal not in control of all its faculties due to a tranquilizing, narcotic, or other immobilizing agent, or cornered with no chance to escape.[26] 

The violation of any of the above-referenced provisions of the NEMBA Regulations is an offense.[27]  Limited exceptions apply to the Regulations’ prohibitions, however.

In addition to the above-referenced prohibitions under the NEMBA and the NEMBA Regulations, national norms and standards issued under the NEMBA impose further restrictions regarding specific animals—for example, the National Norms and Standards for the Management of Elephants in South Africa (NNSMESA).  The NNSMESA prohibits elephant hunting except for the hunting of solitary males, female elephants that cause damages provided all applicable procedures are followed, and female elephants on private or communal land according to a management plan, and imposes specific restrictions applicable to the hunting of these elephants.[28]  When the elephant hunter is an alien, a registered professional hunter must be present for each hunt.[29] 

The NNSMESA also imposes additional restrictions on hunting methods in addition to those provided under the NEMBA and the NEMBA Regulations.  It specifically prohibits the following methods:

(a)  driving an elephant by any means;

(b)  hunting within 500 metres of a water hole or watering point;

(c)  using a pitfall; or

(d)  hunting with –

(i)   a rifle with a calibre of less than .375 H&H; and

(ii)  a bullet with a full metal jacket or monolithic construction with a weight of not less than 286 grains or heavier bullet of monolithic or full metal jacket construction.[30]

In addition the NNSMESA imposes various restrictions on the translocation, import, and export of elephants.[31]

Violation of any of the NNSMESA provisions (including by a person who owns or possesses land in which an elephant roams or a person who is a management authority of a protected area) is an offense under the NEMBA Regulations.[32]

Additional norms and standards issued under the NEMBA focus on hunting methods.[33]  These establish national standards on

(a)  minimum bullet weights for rifle hunting;

(b)  minimum bullet weights and barrel lengths for handgun hunting;

(c)  permissible bows for bow hunting;

(d)  minimum requirements for bow hunting;

(e)  minimum requirements for falconry;

(f)  criteria to be met by game birds for inclusion in provincial hunting proclamations.[34]

Also issued under the authority established by the NEMBA are the Norms and Standards dealing with rhinoceros hunting and tracking,[35] which establish national standards for “the marking of rhinoceros and rhinoceros horn and for the hunting of rhinoceros for trophy hunting purposes.”[36]

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III. Penalties

A.  Under NEMBA

A person convicted of an offense under the above-referenced provisions of the NEMBA is subject to fines and/or up to five years of imprisonment.[37]  If the conviction is for an offense regarding a listed threatened or protected animal, the applicable fine could reach up to three times the value of the animal.[38]

B.  Under NEMBA Regulations

A person convicted under any of the above-referenced provisions of the NEMBA Regulations is subject to a fine in the amount of 100,000 South African Rand (ZAR) (about US$11,255) and/or up to five years of imprisonment.[39]

C.  Penalties of General Application

In addition to the penalties for an offense under the NEMBA or its subsidiary legislation, two generally applicable additional penalties may apply: a court may order that the offender’s permit or authorization, if any, be revoked or that the offender be disqualified from being eligible for one,[40] or order that any tool used in the commission of the crime be forfeited to the state.[41]

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IV. Enforcement Authority

The Environmental Management Inspectorate—an institution consisting of a network of enforcement officials known as Enforcement Management Inspectors (EMIs) who represent national, provincial, and municipal authorities—is the principal enforcement authority for the NEMBA and its subsidiary legislation.[42]  EMIs enjoy broad administrative and enforcement powers, including the power to

  • conduct routine warrantless inspections of buildings, land, vehicles, vessels, aircrafts, containers, bags, etc. to ensure compliance with the controlling law or terms of a permit;[43]
  • conduct warrantless searches and seize vehicles, vessels, aircraft, or pack animals on the basis of any “reasonable suspicion” that they are being used in the commission of a crime or in violation of the controlling law or the terms of a permit, or contain evidence of an offense or a violation;[44]
  • issue a compliance notice upon discovering that a person has failed to comply with the terms of the controlling law or a permit issued under the law;[45] and
  • make arrests.[46]

The Environmental Management Inspectorate does not have prosecutorial powers.[47]

In addition, members of the South African Police Service (SAPS) also enjoy all the enforcement powers conferred on the EMIs with two notable exceptions: the power to conduct routine searches and the power to issue compliance notices.[48]

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Hanibal Goitom
Foreign Law Specialist
January 2013
 

[2] South Africa’s Provinces, South Africa Government Information, http://www.info.gov.za/aboutsa /provinces.htm (last visited Jan. 17, 2013).

[3] Services by Provincial Authorities, Republic of South Africa, Department of Environmental Affairs, http://www.environment.gov.za/?q=content/services/provincial-authorities (last visited Jan. 17, 2013); M.A. Kidd, Environmental Conservation, in 9 The Laws of South Africa 139, 246–47 (LexisNexis Butterworths, 2005).

[4] National Environmental Management: Biodiversity Act No. 10 of 2004 (NEMBA), 20 Butterworths Statutes of the Republic of South Africa [BSRSA] (rev. through 2011), http://www.info.gov.za/view/ DownloadFileAction?id=82170.

[5] National Environmental Management Act (NEMBA) Regulations on Threatened and Protected Species, Republic of South Africa, Department of Environmental Affairs, http://www.speciesstatus.sanbi.org/ threatened.aspx (last visited Jan. 23, 2013). 

[6] NEMBA: National Norms and Standards for the Management of Elephants in South Africa (NNSMESA), Government Notice [GN] No. 251, Government Gazette No. 30833 (Feb. 29, 2008), available at the Department of Environment and Tourism website, http://www.environment.gov.za/sites/default/files/gazetted_notices/ nemba_elephantsinsa_ g30833gon251.pdf

[7] Id. § 2.

[8] National Environmental Management Act 107 of 1998, §§ 1, 31B & 31C, 20 BSRSA (rev. through 2011), available at the City of Cape Town’s website, http://www.capetown.gov.za/en/EnvironmentalResource Management/publications/Documents/NEMA-Act-107-of-1998-incl-all-amendments-effected-until-18Sep2009.pdf; see also Department of Environmental Affairs and Tourism, Republic of South Africa, Directorate Enforcement, Everything You Need to Know About The Environmental Management Inspectorate, http://www.inece.org/africa/ prosecutors/d1_s2b.pdf (last visited Jan. 23, 2012).

[9] National Environmental Management Act 107 of 1998 §§ 31K, 31J, 31L & 31H.

[10] NEMBA § 57.

[11] NEMBA § 56(1); see also Department of Environmental Affairs, supra note 5.

[12] NEMBA: Publication of Lists of Critically Endangered, Endangered, Vulnerable and Protected Species, No. R. 151, Government Gazette No. 29657 (Feb. 23, 2007), available at the South African Department of Environmental Affairs and Tourism website, http://www.environment.gov.za/sites/default/files/gazetted_ notices/nemba_criticallyendangered_protectedspecies_g29657rg8638gon151.pdf.  This list was amended by NEMBA: Amendment of Critically Endangered, Endangered, Vulnerable and Protected Species List, GN No. R. 1187, Government Gazette No. 30568 (Dec. 14, 2007), http://www.environment.gov.za/sites/default/files/gaz etted_notices/nemba_criticallyendangered_specieslis_g30568rg8801gon1187.pdf

[13] “Hunting” is assigned a broad definition including “to intentionally kill such species by any means, method or device whatsoever; to capture such species by any means, method or device whatsoever with the intent to kill; to search for, lie in wait for, pursue, shoot at, tranquillise or immobilise such species with the intent to kill; or to lure by any means, method or device whatsoever, such species with the intent to kill, but excludes the culling of a listed threatened or protected species in a protected area or on a registered game farm or the culling of a listed threatened or protected species that has escaped from a protected area and has become a damage causing animal.”  NEMBA: Threatened or Protected Species Regulations (NEMBA Regulations) § 1, No. R. 152, Government Gazette No. 29657 (Feb. 23, 2007), available at the South African Department of Environmental Affairs and Tourism website http://www.environment.gov.za/sites/default/files/legislations/nemba_threatenedspecies_regul ations_g29657rg8638gon152.pdf.

[14] NEMBA § 1.  This does not apply to species in South Africa that are in transit.  Id. § 57.

[15] Id. § 101.

[16] Id. § 57. 

[17] NEMBA Regulations, supra note 13.  The Regulations have been amended at least five times through the following measures:

[18] NEMBA § 101.  

[19] A “put and take animal” is defined as “a live specimen of a captive bred listed large predator, or a live specimen of Cerutotherium simum (white rhinoceros) or Diceros bicornis (black rhinoceros) that is released on a property irrespective of the size of the property for the purpose of hunting the animal within a period of twenty four months.”  NEMBA Regulations § 1.

[20] Id. §§ 1 & 24.  These prohibitions are inapplicable to an animal bred and kept in captivity, “which has rehabilitated in an extensive wildlife system and has been fending for itself in an extensive wildlife system for at least twenty-four months.”  Id.

[21] Id. § 24. 

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id. § 73.  See discussion of corresponding penalties, Part III(B), infra.

[28] National Norms and Standards for the Management of Elephants in South Africa § 20.

[29] Id.

[30] Id. § 21.

[31] Id. § 12.

[32] NEMBA Regulations § 73.

[33] NEMBA: Norms and Standards for Hunting Methods in South Africa, GN No. 456, Government Gazette No. 34326 (May 27, 2011), http://faolex.fao.org /docs/pdf/saf104522.pdf

[34] Id. § 2.

[35] NEMBA: The Norms and Standards for the Marking of Rhinoceros and Rhinoceros Horn, and for the Hunting of Rhinoceros for Trophy Hunting Purposes, GN No. 304, Government Gazette No. 35248 (Apr. 10, 2012), http://www.environment.gov.za/sites/default/files/gazetted_notices/nemba_huntingstandards_ g35248gen304.pdf.

[36] Id.

[37] NEMBA § 102. 

[38] Id.

[39] NEMBA Regulations § 74. 

[40] National Environmental Management Act 107 of 1998, § 34C.

[41] Id. § 34D.

[42] Id. §§ 1, 31B & 31C; see also Department of Environmental Affairs and Tourism, supra note 8, at 1.

[43] The National Environmental Management Act 107 of 1998, § 31K.  Routine inspection of residential premises requires a warrant or consent of the resident.  Id.

[44] Id. § 31J.

[45] Id. § 31L.

[46] Id. § 31H.

[47] Department of Environmental Affairs and Tourism, supra note 8, at 5.

[48] The National Environmental Management Act 107 of 1998, § 31O.

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Last Updated: 02/28/2014