1. Briefing of the Portfolio Committee on Environmental Affairs: Legislative review of wildlife crimes involving rhino
21 February 2017
Branches: Biodiversity and Conservation AND Legal, Authorisations, Compliance and Enforcement

2. Table of contents Listing of rhino Legislative requirements
Current offences and penalties
Legislative amendments
Prosecution of rhino poaching
Wildlife Crime – further legislative considerations

3. NEMBA Prohibition Notice Biodiversity Management Plan Regulations
TOPS Regulations
CITES Regulations
AIS Regulations
BABS Regulations
Professional Hunting Regulations
Norms and Standards
Marking of rhino and horns, and hunting of rhino
Management of elephants in South Africa
Damage-causing animals
Draft
Prohibition Notice
Trade in
rhino horn
Wild cycads and export of large cycads
Biodiversity Management Plan
Albany cycad
African penguin
Black rhino
Lion
White rhino

4. Listing of rhino (I/II)
Rhino is regulated in terms of national and provincial
biodiversity legislation
Rhino is listed as specially protected in terms of many
provincial acts/ ordinances
Enabling national legislation: National Environmental
Management: Biodiversity Act, 2004 (Act No. 10 of
2004) (NEMBA)
Section 56 of NEMBA enables the Minister to list a
species as threatened or protected

5. Listing of rhino (II/II)
Threatened species:
critically endangered, endangered or vulnerable, depending on
its level of threat with extinction (based on IUCN Red List
criteria)
Protected species
Species of national importance or high conservation value
Both indigenous black rhino sub-species are currently
listed as endangered species
White rhino is currently listed as a protected species

6. Legislative requirements (I/III)
A permit is required in terms of NEMBA to carry out any
restricted activity involving a specimen of a listed
rhino species
Restricted activities include possession, transport,
selling, hunting/ killing, import/ export, etc.
A specimen includes a living or dead rhino, or any part
of a rhino (e.g. a horn)
Illegal killing of rhino (killing without a permit) =
poaching

7. Legislative requirements (II/III)
NEMBA currently prohibits the domestic selling/ buying
or donation/ receiving as donation of rhino horn (the
rhino horn moratorium is currently under judicial
review)
The Threatened or Protected Species (TOPS) Regulations
require the compulsory registration of persons as
wildlife traders, or facilities such as captive breeding
facilities, zoos, sanctuaries, rehabilitation facilities, etc.

8. Legislative requirements (III/III)
The TOPS Regulations prohibit the hunting of rhino :
That is captive-bred, within 24 months after its release from a
captive breeding facility (regarded as put and take hunting)
In a controlled environment (an area that is too small for a
population to be self-sustainable)
That is trapped against a fence, without a fair chance to evade the
hunter
By means of darting, or a rhino that is under the influence of a
tranquilising or narcotic agent
By means of a trap, snare, poison, shot gun, air gun or bow and
arrow
By luring it with smell, sound or any other induced luring method
By means of flood/ spot lights, or from a vehicle or aircraft
(except under specific conditions)

9. Legislative requirements - CITES
Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)
Black rhino listed in Appendix I – no commercial trade allowed & import permits must be issued before an export permit can be issued
White Rhino listed in Appendix II with an annotation – For exclusive purpose of allowing international trade in live animals to appropriate and acceptable destinations and hunting trophies. All other specimens shall be deemed to be specimens of species included in Appendix I and the trade in the shall be regulated accordingly
CITES Regulations – promulgated in terms of NEMBA: Permits required for international trade [permit required in terms of NEMBA Section 57 (1A)]. Regulations provide further processes and restrictions and limited ports of entry and exit designated

10. Offences involving rhino
Offences in terms of NEMBA:
Failure to comply with a prohibition notice (Example: prohibition on domestic trade in rhino horn)
Failure to comply with any permit requirement (Example: killing without a permit; export without a CITES permit)
Failure to comply with any permit condition (Example: marking, DNA samples)
Fraudulently altering a permit or fabricating a document to pass it as a permit (Example: changes to permit holder information / dates / quantities or use a fraudulent permit)
Making a false statement for the purpose of obtaining a permit (Example: false information relating to legal acquisition)
Allowing another person to carry out a restricted activity without a permit (e.g. allowing another person to poach a rhino, or allowing another person to sell a rhino horn in contravention of the prohibition notice)

11. Offences involving rhino (I/II)
Offences in terms of the TOPS Regulations:
Hunting a rhino in a prohibited manner (list of prohibitions listed)
Conducting a captive breeding facility or operating as a wildlife trader without prior registration
Fraudulently altering game farm hunting permits by a game
farm owner, or personal effects permits by a wildlife trader
Offences in terms of the CITES Regulations, include:
legal acquisition
Alter / erase mark used to identify specimens
Withhold information
Carrying out a restricted activity in contravention of
applicable norms and standards constitutes a crime in
terms of NEMBA, by contravening a permit condition

12. Penalties involving rhino (II/II)
Penalties in terms of NEMBA:
A fine not exceeding R10 million, or a fine equal to three times the
commercial value of the specimen involved (e.g. a rhino horn),
whichever is greater; or
Imprisonment for a period not exceeding 10 years, or
Both a fine and such imprisonment.
Penalties in terms of the TOPS Regulations:
Imprisonment for a period not exceeding five years; or a fine not
exceeding R5 million; or
Both such a fine and such imprisonment; or
In the case of a second or subsequent conviction, to a fine not
exceeding R10 million or imprisonment for a period not exceeding 10
years, or both such a fine and such imprisonment.

13. Penalties involving rhino (II/II)
Penalties in terms of the CITES Regulations:
a fine not exceeding R5 million or imprisonment for a period not exceeding five years, and in the case of a second or subsequent conviction, to a fine not exceeding R10 million or imprisonment for a period not exceeding 10 years; or
Both such fine or imprisonment; or
In the case of repeat offenders, a fine or imprisonment or both a fine and imprisonment as referred to above and being banned from ever applying for a permit to trade in CITES listed species again.
years, or both such a fine and such imprisonment.

14. Norms & Standards - Rhino
Norms and Standards for the marking of rhinoceros and
rhinoceros horn and for the hunting of white
rhinoceros for trophy hunting purposes were
implemented in terms of NEMBA on 20 July 2009
The purpose of the norms and standards was to
provide a national uniform system for the marking of
live rhino and rhino horn, and to regulate the hunting
of rhino by foreign hunters
Substantial amendments to the norms and standards
were published for implementation on 10 April 2012

15. Legislative amendments (I/V)
Substantial amendment of the TOPS Regulations,
including provisions relating to rhino
Purpose of the amendment is to strengthen certain
provisions, e.g.:
A permit for the breeding of white or black rhino in captivity
must be refused, unless the applicant can demonstrate how
such breeding in captivity will contribute to the conservation of
rhino.
Progress – approval by Minister initiated to table with
NCOP for approval, and with National Assembly for
noting

16. Legislative amendments (II/V)
Amendment of the Norms and Standards (N&S) for the
marking of rhinoceros and rhinoceros horn and for the
hunting of rhinoceros for trophy hunting purposes
Purpose of the amendment is to strengthen certain provisions, e.g.:
Skin and horn samples for genetic profiling to be collected
whenever a rhino is darted, instead of darting for translocation
purposes only
All rhino hunts must be monitored by an Environmental
Management Inspector (previously only hunts by foreign
hunting clients)

17. Legislative amendments (III/V)
the curriculum vitae regarding previous hunting experience of a
hunting client, relates to the hunting of mammalian game
species indigenous to Africa (previously referred to any African
species, which could involve only birds)
Progress - the final draft revised N&S have been tabled:
on 2 February 2017 with the NCOP for approval, and with the
National Assembly for noting; and
On 3 February with the Select Committee on Land and Mineral
Resources for consideration on 28 February 2017, and report
to the NCOP for approval

18. Legislative amendments (IV/V)
Regulatory measures for the domestic trade in rhino horn, involving:
Draft regulations for domestic trade in rhino horn;
Prohibition to shave or powder rhino horn, to trade
domestically in shaved or powdered rhino horn, and to export
shaved or powdered rhino horn; and
De-listing of the East African black rhino as an invasive species,
and the listing thereof as a protected species
Purpose of the regulatory measures:
In preparation of the ruling by the Constitutional Court
regarding the possible setting aside of the rhino horn trade
moratorium with immediate effect

19. Legislative amendments (V/V)
Progress:
Draft notices (Notice No. 74, 76 and 77) published in the
Government Gazette on 8 February 2017 for public
participation for a period of 30 days

20. Compliance and Enforcement
Potential additional charges that can be instituted against offenders of rhino related crimes:
Fraud (false information given) Common Law crime
False declaration of goods – Customs and Excise Act
Racketeering/money laundering – Prevention of Organized Crime Act
Possession of unlicensed firearms/ammunition – Firearms Control Act
Trespassing (National Environmental Management: Protected Areas Act, Provincial Ordinances)
Use of scheduled veterinary medicines without approval – Medicines and related substances Act
Animal cruelty – Animal Welfare Act / Animal Protection Act
Theft – Common Law crime
Malicious injury to property – Common Law crime
Conspiracy to commit a crime – Riotous Assembly Act 17 of 1956
Poisoning - Fertilizers, Farm feeds, Agricultural remedies and Stock remedies act 36 of 1947
Climbing over fence or cutting fence – Fencing Act No. 31 OF 1963
Flying in a no fly zone, minimum height – Civil Aviation Act

21. Compliance and Enforcement
Minimum Sentence and Bail Proposal for Biodiversity Crimes:
DOJ&CD, SAPS, NPA and DEA convened a meeting in November 2014 to discuss a proposal from an NGO relating to the development of minimum sentences and reverse onus for bail for biodiversity crimes (e.g. rhino poaching)
The proposal for minimum sentences was discussed and it was decided not to proceed with this for the following reasons:
There is insufficient evidence that the current maximum penalty in NEM:BA (R10 million or/and 10 years imprisonment) is proving to be a limitation for prosecutors;
The inclusion of biodiversity crimes in the minimum sentence legislation may send the incorrect signal that animals are prioritized over humans, for example, human trafficking;
Need to undertake further research to confirm that the development of minimum sentences would actually have a deterrent impact on would be offenders/poachers;
Heavier sentences could be achieved through capacitating prosecutors to include the range of possible offences in the charge sheet.

22. Compliance and Enforcement
The proposal for a reverse onus for the accused was discussed and it was decided to proceed with this proposal in respect of POCA (and not NEMBA):
Noted that organised environmental crime, such as rhino poaching, frequently included offences in terms of POCA, such as money laundering and racketeering;
However, these POCA offences are not presently included in Schedule 5 of the CPA;
Agreed to insert POCA offences (Chapter 2, 4, 5, 6 or 9 ) into schedule 5 of the CPA, thereby placing onus on the accused that they must demonstrate that they are entitled to bail;
Brought into effect by the passing of the Criminal Matters Amendment Act, 2015 (Act No. 18 of 2015)

23. Examples: Finalised cases

24. Examples

25. Wildlife Crime – further legislative considerations
Draft National Integrated Strategy to Combat Wildlife Trafficking (NISCWT) and Rhino Conservation Lab initiatives:
DEA to initiate a policy and legislative development process (including a review of constitutional mandates) to move towards the national consolidation of all forms of wildlife compliance and enforcement, including permitting, databases, investigations
Outcome: Review of compliance and enforcement legislation results in the consolidation of wildlife compliance and enforcement processes as well as reporting on and to a national level authority (DEA)
DEA to investigate the possibility of restricting designated CITES ports of entry and exit in the country for wildlife and wildlife by-products to one seaport, one airport and one port each with neighbouring countries (Namibia, Botswana, Zimbabwe, Mozambique, Swaziland and Lesotho)

26. Wildlife Crime – further legislative considerations
International recommendations by UNODC to be considered in relation to policy and legislation:
One of the greatest shortcomings in current international system – fauna / flora is illegally harvested/poached/exported from one part of the world is then legally imported and sold in another. Consider drafting laws that recognize the illegal status of products that have been illegally harvested or trafficked from another country – even if what is illegal in one country is not illegal in another
Threatened species lists in a country are generally limited to domestic species, so there is nothing regulating the possession, use, or sale of the most threatened wildlife products from other parts of the world (eg. tiger in SA)
Consider introducing a reverse onus provision, which will require those in possession of Appendix I species to maintain documented proof of their legality through, for example, retention of a copy of the import documentation, or registration in a national database

27. CITES – Rhino related Resolution & Decisions
Resolution Conf (Rev. CoP17) on the Conservation of and trade in African and Asian rhinoceroses
Among others URGES all Parties to:
a) adopt and implement comprehensive legislation and enforcement controls, including internal trade restrictions and penalties:
i) aimed at reducing illegal trade in rhinoceros parts and derivatives, including any specimen that appears from an accompanying document, the packaging, a mark or label, or from any other circumstances, to be a rhinoceros part or derivative;
ii) incorporating specific provisions that apply to CITES - related offences, including the possession of rhinoceros specimens acquired in violation of the Convention, and to engage with the Secretariat as may be needed, for legal assistance in the development of legislative measures aimed at tackling illegal trade in rhinoceros specimens and to ensure effective domestic enforcement and prosecution of offenders; and
iii) that make provision for strong penalties, including custodial sentences, to deter illegal killing of rhinoceroses and illegal possession of and trade in rhinoceros horn

28. CITES – Rhino related Resolution & Decisions
Decisions – a number of Decisions adopted, including:
Directed at range States: Continuously review poaching and trafficking trends, to ensure that the measures they implement to prevent and combat rhinoceros poaching and rhinoceros horn trafficking remain effective and are quickly adapted to respond to any newly identified trends.
Directed to Secretariat: The Secretariat shall conduct a mission to Viet Nam to meet with enforcement and justice sector agencies to review arrests, seizures, prosecutions, convictions, and penalties for illegal possession and trade of rhinoceros horn, including offences detected at border points and domestic markets in Viet Nam.
Directed to Secretariat: The Secretariat shall conduct a mission to meet with the Mozambique Ministry of Land, Environment and Rural Development, including the CITES Management Authority, as well as law enforcement and justice sector agencies that are mandated to enforce illegal wildlife trade and the implementation of CITES and related national legislation. This mission shall focus on implementation of Mozambique’s National Ivory and Rhino Action Plan, in particular to assist Mozambique with the priority actions identified in the recommendations agreed at the meeting of the Standing Committee