COPY OF THE LETTER WRITTEN TO THE DIRECTOR GENERAL MS NOSIPHO NGCABA AND MINISTER BARBAR CREECY
RE: ADVISORY COMMITTEE TO REVIEW POLICIES, LEGISLATION AND PRACTICES ON MATTERS RELATED TO THE MANAGEMENT, BREEDING, HUNTING, TRADE AND HANDLING OF ELEPHANT, LION, LEOPARD AND RHINOCEROS AND RELATED MATTERS
We, the Wildlife Animal Protection Forum of South Africa (“WAPFSA”), refer to:
1. Government Gazette 42761 (Notice No. 1317) 1 dated 10 October 2019 (the “Committee Gazette”) relating Advisory Committee to Review Policies, Legislation and Practices on matters related to the management, breeding, hunting, trade and handling of elephant, lion, leopard and rhinoceros (the “Committee”) [Note we have used High Level Panel and Committee interchangeably herein. It is unclear if they are the same];
2. Media Release2 on the appointment of the Committee; and
3. Government Gazette No 42247, (Notice No 243)3 dated 25 February 2019 relating to the Appointment of a High-Level Panel of Experts for the review of policies, legislation and practises on matters related to the management, breeding, hunting, trade and handling of elephant, lion, leopard and rhinoceros.
WAPFSA is a coalition of twenty-four South African NGOs. A list of our members in support of this Letter are included at the end hereto.
We further refer to:
B. COMMITTEE CONCERNS
We are disappointed and deeply concerned with the selection of the Committee as well as the Department’s lack of transparency and clarity in respect of the selection thereof.
In our Nominations Letter, we put forward extremely qualified candidates who collectively have decades of experience and extensive qualifications in their respective fields of ethical conservation management, biodiversity policies, wildlife trade, legislation, animal protection, economics and welfare species-specific expertise.
As we mentioned in our Nominations Letter, our candidates were/are committed to ensuring the relevant objectives and principles are adhered to, in terms of existing legislation as well as the interpretation thereof by our courts.
Not only was each and every one of our nominations unsuccessful, but the following outlines a list of our grievances:
7. The Committee is predominantly composed of persons directly involved in the use and exploitation of wildlife (including hunting, breeding, testing, killing and otherwise). Such persons have deeply vested commercial/financial and other interests in the outcome of the Committee’s deliberations. We are of the view that such persons cannot be considered to be independent of these interests and will thus attempt to influence the outcome in accordance with such. For example, more than a few of those selected have a direct interest to ignore the parliamentary instruction to review legislation with a view to shutting the industry down (more on this below);
8. There has been no requirement for the Committee Members (as far as we are aware) to declare or disclose all of their personal/organisational or other interests and involvements that may have an impact on the issues to be deliberated by the Panel. Such interests must be disclosed as a matter of public interest; the rule of law; to ensure transparency and adherence to constitutional values, among other reasons. These interests and/or involvements could (and are likely to) severely compromise the Committee as well as the future of environment, wildlife, international relationships and other issues in the future. Any actual, perceived or potential interests or conflicts thereof and involvements must be disclosed as well as evaluated in order to properly determine whether a Committee member should be entitled to serve on the Committee;
9. It is not at all clear what the Committee is meant to achieve, how it intends to do so and other relevant considerations one would expect to be set out clearly and transparently for a matter that is so important to the South African public and other relevant stakeholders;
10. The Department failed to adequately respond to our Request Letter (other than to acknowledge receipt and send the Gazette). Matters raised in our Request Letter included the following:
a. “The Terms of Reference for the Panel were not published for comment and stakeholders (despite requests to do so) and are unclear about how the scope of work of the Panel will be determined. It is also unknown whether there will be any remuneration offered to the members of the Panel and if so, what that remuneration will be.
b.StakeholdersarealsoconcernedaboutsomeoftheassumptionsmadebyyourDepartmentinitspress release of 3 December 2018 regarding the Panel. The assumptions were that:
i. the captive breeding and trophy hunting industries and the lion bone trade should be allowed to continue;
ii. the captive breeding industry has a conservation value; and
iii. the most recent Non-Detriment Finding for lions and the Interim Report of the Scientific Authority for CITES on the lion bone quota are scientifically sound.
c. It is unclear how this High Panel is dovetailing with the report of the Parliamentary Portfolio Committee for Environmental Affairs (PPCEA) on the Colloquium on Captive Lion Breeding for Hunting in South Africa which was adopted by the National Assembly in December 2018. The report resolved that your Department should initiate a policy and legislative review of the lion bone trade and captive breeding industry “with a view to putting an end to this practice”. The PPCEA also found that there “was an overwhelming consensus for the need to bring an end to the controversial aspects of captive lion breeding industry in South Africa.”
11. There is no clear indication as to how the Committee will work with experts, NGOs, other governmental departments or other relevant stakeholders. Furthermore, to what extent the input of such stakeholders will be given due and proper consideration;
12. While there are a few representatives of selected communities, there is no clear indication of how other communities will be represented and their interests taken into account;
13. Based on amendments earlier this year to the Animal Improvement Act, there appears to be a huge lack of communication and accountability between DEFF and the Department of Agriculture, Land Reform and Rural Development and (“DALRRD”). The Committee does not appear to be constituted in such a way that deals with this nor the plethora of issues relating to the agriculturalisation of wildlife and various other pressing matters; and
14. We understand that the Committee has been set up because of (inter alia) a number of policy and other concerns raised by the Animal Protection sector over a number of years, as well as several interventions and submissions relating to lack of engagement with all relevant stakeholders, in particular animal protection organisations and NGOs. Yet, these same groups are still not adequately represented on the Committee, which is weighted heavily in favour of animal use and exploitation.
15. The Committee runs the potential risk of institutional bias. In this regard, we refer to our analysis in Schedule 1 hereto.
C. BROADER CONCERNS
We have set out below some of our broader concerns relating to the Department and Minister more generally, which is by no means a complete list and we reserve the right to amend and update this at any time. It is meant to be illustrative rather than comprehensive.
1. Lack of Transparency and Accountability
a. Through our Continuous Correspondence, (as well as the correspondence of our members individually), we have indicated the Department has failed to consider not only NGOs and other civil society organisations, but the will of many active people in South Africa.
b. The Department has consistently only and/or predominantly engaged with those who benefit from the commercialisation of animals and have no real concern for their individual interests nor wellbeing.
2. Views of Department and Minister relating to wildlife generally
a. Recently, the Minister of the Department, Barbara Creecy (the “Minister”) made a public statement on Twitter 4 that: “It is not the Animals that we need to worry about, it’s the people. After all animals have been looking after themselves for hundreds of thousands of years. If we want to address these issues we need to focus our energy on the people”. 5 This and other statements by the Minister as well as the Department show the blatant disregard for the intrinsic value of animals or any other worth besides their commodification. It further indicates a complete lack of knowledge and understanding of the interconnectedness of species – on biological, environmental, societal, political, legal and various other issues one would expect the Minister in charge of this portfolio to have.
4 https://twitter.com/BarbaraCreecy – Subsequently deleted.
5 Report of the Portfolio Committee on Environmental Affairs on the Colloquium on Captive Lion Breeding for Hunting in South Africa: harming or promoting the conservation image of thine country, held on 21 and 22 august 2018 https://pmg.org.za/tabled-committee-report/3595/
b. The former Minister of the Department, Edna Molewa, indicated similar sentiments when she indicated that if the captive lion breeding industry was shut down, lions would have “no value”.6
c. On the 29th October 2019 at the opening of 3rd annual conference of the Global Wildlife Programme in Pretoria7, the Minister seemed intent on only referring to the economic value of wildlife. She said that “the poaching of charismatic species, such as elephant and rhinoceros, prevents sustainable rural development since it reduces the tourism potential of natural habitats.” There appears to be a complete lack of concern for anything relating to the wildlife itself. Furthermore, without any mention of individual animals but rather the promotion of “the biodiversity economy” – indicating that the Department appears to be of view that animals only have economic value – a sentiment which we submit is not representative of the majority of South Africans. It is also not constitutional in light of statements by the Constitutional Court.
d. Please refer to our #TipsforBarbara Letter for more information on this.
3. Failure by Department to give due regard to legislative bodies, concerns and provisions.
In addition to the above failures to consult or be consistent in messaging by the Department and/or the Minister, the Department has actively failed to take into account and/or give due regard to concerns and resolutions of legislative bodies, legislative provisions and otherwise.
a. Example: Captive Lion Issue
2. The resolutions (not a complete list) from the Colloquium included (emphasis added throughout):
2. The Department of Environmental Affairs (DEA) should conduct an audit of captive lion breeding facilities throughout the country to ascertain the conformity with the current TOPS regulations and other applicable legislation in light of ongoing and increasing disquiet about the CLB Industry and should ensure that the current breeding facilities comply with legislation. The Department should indicate whether it is aware of private lion and cheetah cub petting and walking farms in the country, and further state the courses of action it had pursued against violators ofTOPS Regulations dealing with CLB.
3. The Department of Environmental Affairs and Department of Agriculture Forestry and Fisheries should present a clear programme of work on how they intend to address animal welfare and health issues that had been raised during the
Colloquium, which straddle the mandates of the two departments, outlining clear timeframes for achieving this.”
The Committee was established in terms of section 3A of NEMBA. We wish to point out the following provisions of section 4 of NEMA (our emphasis added throughout) which find application:
“(a) Sustainable development requires the consideration of all relevant factors including the following:
(i) That the disturbance of ecosystems and loss of biological diversity are avoided, or, where they cannot be altogether avoided, are minimised and remedied;…
(vii) that a risk-averse and cautious approach is applied, which takes into account the limits of current knowledge about the consequences of decisions and actions; and
(viii) that negative impacts on the environment and on people’s environmental rights be anticipated and prevented, and where they cannot be altogether prevented, are minimised and remedied
(f) The participation of all interested and affected parties in environmental governance must be promoted, and all people must have the opportunity to develop the understanding, skills and capacity necessary for achieving equitable and effective participation, and participation by vulnerable and disadvantaged persons must be ensured.
(g) Decisions must take into account the interests, needs and values of all interested and affected parties, and this includes recognising all forms of knowledge, including traditional and ordinary knowledge.
(h) Community wellbeing and empowerment must be promoted through environmental education, the raising of environmental awareness, the sharing of knowledge and experience and other appropriate means.
10 NEMBA (https://cer.org.za/wp-content/uploads/2010/03/107-of-1998-National-Environmental-Management-Act_18- Dec-2014-to-date.pdf)
(k) Decisions must be taken in an open and transparent manner, and access to information must be
provided in accordance with the law.
(l) There must be intergovernmental co-ordination and harmonisation of policies, legislation
and actions relating to the environment….”
c. WeareoftheviewthatthecompositionoftheCommitteeaswellasitsgoals,andthe process relating thereto are in contravention of / fail to adequately or property take into account the abovementioned provisions of NEMA.
4. Failure by Department to give due regard to judiciary, statements and interpretation
Bilchitz, David, Exploring the Relationship between the Environmental Right in the South African Constitution and
Protection for the Interests of Animals (February 15, 2017). Exploring the Relationship Between the Environmental Right
in the South African Constitution and Protection for the Interests of Animals South African Law Journal (2017,
Forthcoming) . Available at SSRN: https://ssrn.com/abstract=2942112 or http://dx.doi.org/10.2139/ssrn.2942112
12 National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development 2017 (1) SACR 284 (CC) atpara57.(http://www.saflii.org/za/cases/ZACC/2016/46.html) andLemthongthaivS(849/2013)ZASCA131; 2015 (1) SACR 353 (SCA) (25 September 2014) (http://www.saflii.org/za/cases/ZASCA/2014/131.html)
13 National Council of The Society for Prevention of Cruelty to Animals v Minister of Environmental Affairs and Others (86515/2017)  ZAGPPHC 367;  4 All SA 193 (GP) (26 August 2019)
14 Ibid at paragraph 45.
D. OBJECTION AND REQUEST
While there are numerous other failings we could express in this letter and reserve our right to do so, our predominant reason for this letter is to state our collective objection and disappointment about the constitution of the Committee, the process in respect thereof and other issues expressed in this letter.
Due to the national importance of this Committee for all persons within the Republic, a due and proper process that is transparent for all members of the public must be followed.
Section 24 of the Constitution applies to all within the Republic and to both present and future generations. It also requires justifiable social and economic development, not simply sustainable utilisation.
We also hereby formally request the following information and documentation from the Department as a matter of urgency:
11. Whether the Department or Government more generally has a procedural document which informs the establishment of such Panels/Advisory Committees. If so, we request a copy of same.
Michele Pickover Co-ordinator of WAPFSA, Director of the EMS Foundation firstname.lastname@example.org
On behalf of the following organisations:
Amy P. Wilson Director of Animal Law Reform South Africa
Jenni Trethowan Founder Baboon Matters
Smaragda Louw Director Ban Animal Trading
Toni Brockhoven Chairperson Beauty Without Cruelty (South Africa)
Brett Mitchell Chairperson Centre for Animal Rehabilitation and Education Elephant Reintegration Trust
Stephania Falcon Co-Founder Future 4 Wildlife
Fiona Miles Director Four Paws SA
Megan Carr Vice President Global March for Elephants and Rhinos Global
Linda Tucker Ceo Founder White Lion Protection Trust
Louise De Waal Founder Green Girls in Africa
Audrey Delsink Wildlife Director Humane Society International (Africa)
Audrey Delsink Wildlife Director Humane Society International Africa
Les Mitchell Director Institute for Critical Animal Studies
Bool Smuts Director Landmark Foundation
Steve Smit Co Founder Monkey Helpline
Kim Da Ribeira Director OSCAP
Prathna Singh National Co-ordinator Sea Shepherd South Africa
Cormac Cullinan Director Wild Law Institute
Les Abnett Director Southern Fight for Rhinos
Dave Du Toit Founder Vervet Monkey Foundation
Guy Jennings Director WildAid Southern Africa
ANALYSIS OF THE COMPOSITION OF THE ‘ADVISORY COMMITTEE TO REVIEW POLICIES, LEGISLATION AND PRACTICES RELATED TO THE MANAGEMENT OF ELEPHANT, LION, LEOPARD AND RHINOCEROS’
a. This Schedule contains an analysis of the composition of the Committee based on the
information on hand as at the date of this letter. It is not an exhaustive analysis and we reserve the right to amend and update should new and further information come to light.
b. It was composed for the purpose of highlightling potential interests, involements and accordingly bias and areas in relation to the Panel and/or where gaps have been identified in relation to actions and statements by the Department. [It does not mean as such that it will occur nor is it a reflection of the individuals and their abilities. Nor is it an attempt to malign any of the individuals or organisations included herein. ]
c. It is limited in its scope and cotnent and based on and includes the factors specifically mentioend and referred to herein.
resource development, capacity building’ and ‘employment creation’ cannot be reconciled with allowing an already endangered resource to be further depleted. ‘In the medium to long term, that is the path to economic contraction and the disappearance of jobs. When the lobsters are gone, there will be no employment in lobster fishing and no economic returns from the extinct resource… The further depletion of an already critically depleted resource jeopardises rather than enhances food security and is the reverse of ‘development’.
b. National Council of the Society for Prevention of Cruelty to Animals v Minister of Environmental Affairs, DG, Department of Environmental Affairs & South African Predators Association, August 2019.16 While the hunting of captive-origin lions is not technically illegal, the Supreme Court of Appeal ruled in 2010 that larger enclosures and longer adaptation time for captive-origin lions were arbitrary measures that did not change the fact that captive-origin lions have neither mental nor physical instincts for self-preservation that would result in ‘fair chase’. The High Court ruled that the 2017 and 2018 annual export lion skeleton quotas were illegal because they ignored welfare, and the judgement referenced that a Full Bench of the High Court had previously found that canned hunting of lions is abhorrent and repulsive due to the animals’ suffering.
c. National Council of the Society for the Prevention of Cruelty to Animals vs Minister of Justice and Constitutional Development, 2016 17The court ruled that ‘showing respect and concern for individual animals reinforces broader environmental protection efforts. Animal welfare and animal conservation together reflect two intertwined values (paragraph 58).
5. The press release of 22nd October 2019 states the following:
“The Department of Environmental Affairs (Environment, Forestry and Fisheries) has for some time dealt with a number of emotive and complex conservation and sustainable use issues, particularly those involving keystone species. These include the elephant management and culling debate, the management of ivory stockpile, trade in rhinoceros horn, captive breeding and the emerging issue of lion bone trade. Society and the international community is (sic) divergent on matters of conservation, sustainable use and benefit sharing arising from the use of genetic and natural resources…Irresponsible and unsustainable practices, inconsistent with the spirit and letter of the law, could be detrimental to wildlife conservation and sustainable development, thus fuelling negative public sentiments on matters of captive breeding, handling, hunting and trade in lions, elephants, leopard and rhinoceros specimens with implications on (sic) the country’s conservation reputation. Equally significant is the need to enhance the contribution of conservation and sustainable use of biological resources to socio-economic development of the country. It is for this reason that an Advisory Committee serving as a panel has been established. The Panel will, over the coming months, review existing policies, legislation and practices related to the breeding, hunting, trade and handling of elephant, lion, leopard and rhinoceros. The Panel will also review the implementation of the recommendations of the Committee of Inquiry into the feasibility, or not, of a legal rhinoceros horn trade, and any future decisions affecting trade-related proposals to the Convention on the International Trade in Endangered Species of Wild Fauna and Flora (CITES), conduct public hearings and workshops, consider submissions, scientific evidence and other forms of information, and identify gaps and make recommendations on the basis of the key focus areas…
Amongst the focus areas are the keeping in captivity and hunting of elephant and rhino, the ivory trade, rhino anti- poaching and anti-trafficking measures and community empowerment, as well as leopard hunting and the trade in leopard skins. The Panel will probe among others the breeding of lion in captivity, the hunting of lion, and the trade in lion bones and skins….
In appointing the Panel, the Minister considered, among others, criteria including the skills of the nominees, expertise and experience, qualifications in conservation, community interface, economics, trade and industry, legal, welfare and sustainable agriculture” (emphasis added).
17 https://cer.org.za/wp-content/uploads/2016/12/National-Society-for-the-Prevention-of-Cruelty-to-Animals-v-Minister- of-Justice-and-Constitutional-Development-and-others.
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