1. THREATENED OR PROTECTED SPECIES REGULATIONS (TOPS)
Portfolio Committee
Biodiversity and Conservation

2. BIODIVERSITY
South Africa boasts a diverse range of landscapes - Associated with these landscapes is a rich biodiversity of both plants and animals

3. BIODIVERSITY
3rd most biologically diverse country in the world, after Brazil & Indonesia.
2% of the world's land area, but is home to:
10% of the world's plants
7% of the reptiles, birds and mammals
15% of known coastal marine species
Key Facts:
Biodiversity underpins ecosystem functioning & provision of ecosystem services for human well-being.
Biodiversity provides for food, security, human health, clean air & water, contributes to local livelihoods & economic development, & is essential for achievement of SDGs including poverty reduction

4. LEGISLATIVE PROVISIONS – AIMED AT ADDRESSING THESE PRESSURES
MAIN PRESSURES
LEGISLATIVE PROVISIONS – AIMED AT ADDRESSING THESE PRESSURES
Habitat loss & degradation
Invasive alien species
Illegal wildlife trade
The unsustainable use / overexploitation of resources
Climate change
Desertification, land degradation and drought
Pollution

5. Provincial legislation
LEGISLATIVE CONTEXT
Constitution
Section 24
NEMA
Principles
NEMBA
NEMPAA
Multilateral Environmental Agreements – 7 biodiversity related
White Paper
Provincial legislation

6. NEMBA Regulations Norms and Standards Prohibition Notice
TOPS Regulations
CITES Regulations
BABS Regulations
AIS Regulations
Professional Hunting Regulations
Norms and Standards
Marking of rhino and horns, and hunting of rhino
Management of elephants in South Africa
Hunting of Leopard
Draft
Damage-causing animals
Prohibition Notice
Wild cycads and export of large cycads
Biodiversity Management Plan
11 Critically endangered & 4 endangered cycads
Albany cycad
African penguin
Black rhino
White rhino
Lion

7. NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT (NEMBA)
Section 2 Objectives of Act
(a) within the framework of the National Environmental Management Act, to provide for-
(i) the management and conservation of biological diversity within the Republic and of the components of such biological diversity;
(ii) the use of indigenous biological resources in a sustainable manner; and
(iii) the fair and equitable sharing among stakeholders of benefits arising from bioprospecting involving indigenous biological resources;
(b) to give effect to ratified international agreements relating to biodiversity which are binding on the Republic;

8. NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT (NEMBA)
Section 2 Objectives of Act (continue..)
(c) to provide for co-operative governance in biodiversity management and conservation;
(d) to provide for a South African National Biodiversity Institute to assist in achieving the objectives of this Act; and
(e) Provide for the regulation of threatened or protected indigenous species to ensure that the utilisation of these species is managed in an ecologically sustainable manner.

9. NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT (NEMBA)
Section 3 State’s trusteeship of biological diversity In fulfilling the rights contained in section 24 of the Constitution, the state through its organs that implement legislation applicable to biodiversity, must- (a) manage, conserve and sustain South Africa’s biodiversity and its components and genetic resources; and (b) implement this Act to achieve the progressive realisation of those rights.

10. NEMBA – KEY PROVISIONS (TOPS)
Section 56 - Listing of species that are threatened or in need of national protection (1) The Minister may, by notice in the Gazette, publish a list of- (a) critically endangered species, being any indigenous species facing an extremely high risk of extinction in the wild in the immediate future; (b) endangered species, being any indigenous species facing a high risk of extinction in the wild in the near future, although they are not a critically endangered species; (c) vulnerable species, being any indigenous species facing an extremely high risk of extinction in the wild in the medium-term future, although they are not a critically endangered species or an endangered species; and (d) protected species, being any species which are of high conservation value or national importance or require regulation in order to ensure that the species are managed in an ecologically sustainable manner.

11. CATEGORIES OF SPECIES Critically endangered
Indigenous species facing an extremely high risk of extinction in the wild in the immediate future.
Example: wattled crane, blue swallow, riverine rabbit, albany cycad
Endangered
Indigenous species facing a high risk of extinction in the wild in the near future.
Example: geometric tortoise, black rhino, African wild dog
© J Donaldson

12. CATEGORIES OF SPECIES (2)
Vulnerable
Indigenous species facing a high risk of extinction in the wild in the medium-term future.
Example: cheetah, roan, peregrine falcon, leopard
Protected
Indigenous species of high conservation value of national importance that require national protection. (Risk of extinction is not a requirement)
Example: baboon spiders, scorpions, beetles, Nile crocodile, African rock python, elephant, black footed cat, white rhino

13. NEMBA – KEY PROVISIONS (2)
Section 57(1): A person may not carry out a restricted activity involving a specimen of a listed threatened or protected species (TOPS) without a permit Section 57(1A): A person may not import, export or re-export or introduce from the sea, a specimen of a species listed in terms of CITES without a permit The Minister may, by Notice in the Gazette, exempt a person or category of persons from the above restrictions

14. NEMBA – DEFINITIONS Restricted activity:
Involves those activities that have direct impact on listed
species, such as:
hunt, catch, collect, pick, chop off, damage or destroy; import to or export from Republic; possess, keep or exercise physical control over; breed or propagate; convey or translocate; import, export, sell or buy, receive or donate; or
any other prescribed activity involving a specimen of a listed threatened or protected species.

15. NEMBA – DEFINITIONS (2) Species:
A kind of animal, plant or other organism that does
not normally interbreed with individuals of another
kind, and includes any sub-species, cultivar, variety,
geographic race, strain, hybrid or geographically
separate population.
Species (Hippotragus niger & H. equinus)
Sub-species (Hippotragus equinus equinus & H. e. koba)

16. NEMBA – DEFINITIONS (3) Specimen:
(a) any living or dead animal, plant or organism;
seed, egg or any part of an animal, plant or organism that is capable of reproducing or transferring genetic material;
any derivative of such animal, plant or organism;
any goods which-
(i) contain a derivative of an animal, plant or other organism; or
(ii) from an accompanying document, from the packaging or mark or label, or from any other indications, appear to be or to contain a derivative of an animal, plant or other organism;

17. NEMBA – DEFINITIONS (4) Derivative:
Any part, tissue or extract of an animal, plant or organism, whether fresh, preserved or processed, and includes any chemical compound derived from such part, tissue or extract.
Therefore whole animal, plant or organism, whether dead or alive, or any part thereof, or any product thereof, or any compound produced.

18. NEMBA – DEFINITIONS (5): Specimens
EXCRETIONS– NOT REGULATED
DERIVATIVE PRODUCT
DEAD
LIVE
PART
EGG, SPERM GAMETE
PART
Species: White rhinoceros
(Ceratotherium simum simum)
PART - TISSUE
DERIVATIVE - LABEL
DERIVATIVE – Powdered horn

19. NEMBA – PROHIBITIONS Section 57(2)
The Minister may, by notice in the Gazette, prohibit the carrying out of any activity-
(a) which is of a nature that may negatively impact on the survival of a listed threatened or protected species; and
which is specified in the notice, or prohibit the carrying out of such activity without a permit
Example: Activities involving wild cycads

20. NEMBA – KEY ENABLING PROVISIONS
Section 97:
The Minister may make regulations, among others, relating to-
the facilitation of the implementation and enforcement of
section 57(1)
the carrying out of a restricted activity involving a specimen of
a listed TOPS
the circumstances in which restricted activities involving
listed TOPS may not be carried out
the minimising of the threat to the survival in the wild of a
listed TOPS
the composition and operating procedure of the scientific
authority.

21. NEMBA – KEY ENABLING PROVISIONS
Section 57(4):
The Minister may, by notice in the Gazette and subject to such
conditions as the Minister may specify in the notice, exempt a person
or category of persons from a restriction contemplated in section
57(1)

22. NORMS AND STANDARDS - NOTICES
Section 9:
The Minister may issue Norms and Standards to achieve
any objectives of NEMBA, including for the:
Management and conservation of biological resources;
Restriction of activities that may impact on biodiversity and its
components.
Currently implemented:
N&S for the management of elephants in South Africa;
N&S for the marking of rhinoceros and rhinoceros horn and hunting of white rhinoceros, and for the hunting of rhinoceros for trophy hunting purposes.
PERMIT CONDITION: ACTIVITY MUST BE CARRIED OUT IN COMPLIANCE WITH APPLICABLE NORMS AND STANDARDS

23. NEMBA OFFENCES 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)
Failure to comply with any permit condition (Example: marking, DNA samples, carrying out an activity in non-compliance with N&S)
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)

24. NEMBA PENALTIES 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.

25. THREATENED OR PROTECTED SPECIES (TOPS) REGULATIONS
TOPS Regulations and species list took effect on 1 June 2007
Purpose of the TOPS Regulations is to -
further regulate the permit system set out in Chapter 7 of the Biodiversity Act insofar as that system applies to restricted activities involving specimens of listed threatened or protected species;
provide for the registration of captive breeding operations, commercial exhibition facilities, game farms, nurseries, scientific institutions, sanctuaries and rehabilitation facilities and wildlife traders;
provide for the regulation of the carrying out of a specific restricted activity, namely hunting;
provide for the prohibition of specific restricted activities involving specific listed threatened or protected species;
provide for the protection of wild populations of listed threatened species; and
for the composition and operating procedure of the Scientific Authority.

26. TYPES OF PERMITS
Ordinary permit - for individual restricted activities
Possession permit – to keep/ possess permanently
Standing permit - continuous restricted activities (similar to exemption permits)
Registered game farm hunting permit - authorize hunting, transport and temporary possession
Nursery possession permit - authorize to buy, transport and temporarily possess
Personal effects permit - authorize to buy, transport and temporarily possess
Integrated permit

27. KEY PROVISIONS - TOPS Key provisions of the TOPS Regulations:
Relating to the issuance of permits:
factors to consider (e.g. Biodiversity Management Plan)
time frames
specific compulsory permit conditions (e.g. breeding in sanctuary not permitted)
contents of permits (e.g. method of hunting)
Provides for methods to manage damage-causing animals, and who may manage them
Compulsory registration of facilities, and non-compulsory registration of game farms
Recognition of hunting organisations
Marking of rhino horn and elephant tusks
Offences and penalties

28. PROHIBITED ACTIVITIES – TOPS REGULATIONS
NO PERMITS MAY BE ISSUED FOR:
Translocation of TOPS species to protected areas from outside natural distribution area.
Translocation to extensive wildlife system where possibility of transmitting disease or hybridization.
Listed large predators & rhino
Captive bred put and take
Hunting in controlled environment
Hunting adjacent to holding facilities for listed large predators
Hunting by using gin traps, poison, traps,snares
Specimen that is under influence of tranquilizer
Hunting of listed large predator, elephant, rhinos and crocodile by means of bow and arrow

29. PROHIBITED ACTIVITIES – TOPS REGULATIONS (2)
PROHIBITED MEANS / METHODS OF HUNTING:
Dogs, except for tracking a wounded animal / Flushing, pointing and retrieving
Darting, except for management purposes, disease control procedure or scientific experiments; Veterinary treatment; Translocation;
Luring (bait, smell, sound or any other) except for Leopard or hyena – dead bait; Marine or aquatic species – dead bait; Invertebrates for scientific purposes – dead bait;
Flood/ spot lights, except for culling; hunting leopard or hyena;
Motorised vehicles, except for when darting is required for management interventions; tracking when hunting over long ranges; culling; allowing a disabled person to hunt;

30. OFFENCES & PENALTIES - TOPS
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
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.

31. LINK WITH CITES Appendix I
Leopard, Black rhinoceros, Cheetah, Cape Mountain Zebra, Blue whale and southern Right Whale, Peregrine Falcon and Cycads (Encephalartos species)
Appendix II
Aloe species, Lion, Bontebok, White rhinoceros (export of trophies & live animals), Baboon and African elephant (specific restrictions).
Appendix III
Colophon beetle
Species listed in terms of both / provincial legislation:
Integrated permits, legal acquisition
Marking, etc

32. IMPLICATIONS OF COURT RULINGS (1)
Application by the (former) South African Predator Breeders Association (SAPBA), regarding the prohibition of “put and take” hunting of captive-bred lions:
The TOPS Regulations prohibited the hunting of captive-bred listed large predators (which included lion), within a period of 24 months of release from captivity of such predators
Lion was temporarily deleted from definition of “listed large predator”, pending outcome of court case
Judgment was in favor of SAPBA, primarily due to:
no rational basis, as there was no scientific evidence that lion required 24 months to be rehabilitated in the wild, or could be rehabilitated at all
no legal basis, as NEMBA does not enable the regulation of ethical matters (NEMBA is aimed at protection and conservation of species and ecosystems, and prohibition must be aimed at survival of the species in the wild)

33. IMPLICATIONS OF COURT RULINGS (2)
SAPBA case
Implication of the outcome of this litigation process:
Since the litigation involved lion in particular, put and take hunting in respect of lion was no longer prohibited
put and take hunting involving other listed large predators (leopard, hyena, cheetah and wild dog) remains prohibited in terms of the current TOPS Regulations
the prohibition of put-and-take-hunting in terms of the revised TOPS Regulations is no longer a prohibition

34. IMPLICATIONS OF COURT RULINGS (3)
Application Mr Johan Kruger and Mr John Hume regarding the prohibition of domestic trade in rhino horn in terms of section 57(2) of NEMBA:
Judgment was in favor of the applicants, primarily:
on a procedural basis of non-compliance with the public
consultation process as required in terms of NEMBA; i.e. the
intention of the Minister to prohibit domestic trade in rhino
horn was not published in any national newspaper
however, the prohibition (moratorium) was found to be
lawful (within the Minister’s mandate to prohibit an activity)
rational and reasonable, whereas no ruling was made on
the basis of constitutionality

35. IMPLICATIONS OF COURT RULINGS (4)
Application by Mr Brian Boswell regarding the prohibition to export captive elephants from the country, in terms of the Norms and Standards for the management of elephants in South Africa:
Judgment was in favor of the Department of Environmental Affairs, on the basis that the Minister acted within her legal mandate to:
implement such a prohibition in terms of norms and standards instead of regulations; and
give effect to obligations in terms of international agreements, in particular the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)

36. IMPLICATIONS OF COURT RULINGS (5)
Consultation with the Chief State Law Advisors regarding the legislative mandate of the Minister of Environmental Affairs confirmed that:
the welfare of specimens of listed TOPS in captivity falls within the ambit of the Animals Protection Act, 1962 (Act No. 71 of 1962) or the Performing Animals Protection Act, 1935 (Act No. 24 of 1935); and
Based on the law as it stands currently, the regulation of ethical matters does not fall within the objectives of NEMBA, whether expressly or impliedly.

37. NEED FOR SUBSTANTIAL AMENDMENTS
When the TOPS Regulations were implemented in 2007,
NEMBA did not contain an enabling provision for the
exemption of a person from permit requirements for
the carrying out of restricted activities
The implication was that the carrying out of any
restricted activity, involving every specimen and
derivative, of every listed species would require a
permit

38. NEED FOR SUBSTANTIAL AMENDMENTS (2)
Amendments to NEMBA took effect in 2009, which included a provision to enable the Minister to exempt a person/ category of persons from the permit requirements relating to listed TOPS
The practical and effective implementation of the TOPS
Regulations required a further amendment of NEMBA
(effected in 2013), which included enabling provisions:
To sub-categorize protected species
Determine conditions for exemptions
Specifying the issuing authorities
Deferral, refusal and suspension of permits

39. NEED FOR SUBSTANTIAL AMENDMENTS (3)
The species list also required revision, as the scientific basis for the inclusion of some species were questioned, as well as the rational for species that should have been included in the list but which had been omitted.
Therefore a re-assessment of the categorization of species, based on pre-determined scientific criteria, was required
Section 56(2) of NEMBA requires the Minister to review the list of species every 5 years

40. KEY AMENDMENTS TO BE IMPLEMENTED
Species list:
The new format for the species list includes different columns for the common and scientific names of species, exemptions and prohibitions, making it more user-friendly and easier to interpret
A provision was included to clarify the use of scientific names of species in the case of a change in the taxonomy of a species
Sub-categories were created within the category for Protected species, namely:
species of high conservation value or national importance (existing NEMBA criteria)
species listed to ensure that they are managed in an ecologically sustainable manner (this sub-category is a result of the 2013 NEMBA amendments, and includes species that are likely to hybridize, such as blue and black wildebeest; blesbok and bontebok)
Listing of species included in Appendix I of CITES, and which are not already listed in any of the other categories, as protected species

41. KEY AMENDMENTS TO BE IMPLEMENTED (2)
Regulations:
Key definitions included:
botanical garden
certificate of adequate enclosure (in respect of game farms)
closed water (in respect of fresh water fish species)
conservation purposes, enforcement purposes and
management purposes
DNA, DNA certificate, and DNA sample (in respect of the
marking of rhino horn)
stock book and stud book (in relation to captive facilities)
wild animal

42. KEY AMENDMENTS TO BE IMPLEMENTED (3)
Regulations:
Prescribing darting, releasing of a specimen, and angling, as
additional restricted activities for which permits will be required
Additional circumstances provided for requiring compulsory
risk assessments:
carrying out of restricted activities in ecosystems that are
listed as critically endangered
release of a captive-bred or artificially propagated
specimen in a national protected area
New provision included relating to an assessment of risks/
identification of risk factors, e.g. for the establishment of a new
captive facility for listed large predators

43. KEY AMENDMENTS TO BE IMPLEMENTED (4)
Regulations:
Providing for a more flexible approach towards time frames for
the consideration of applications and issuance of permits and
registration certificates
New provisions relating to the carrying out of restricted
activities involving fresh water fish species:
most restricted activities proposed to be prohibited, except
if for conservation purposes, and by low-risk escape
research facilities

44. KEY AMENDMENTS TO BE IMPLEMENTED (5)
Regulations:
New provisions included relating to Protected species that are
also listed as CITES Appendix I species:
ports of entry and exit have been included in the TOPS
Regulations for alignment with the CITES Regulations
possession and selling relating to imported specimens and
their off-spring to be regulated
Additional circumstances for refusal of permits, e.g.
the breeding of listed large predators or rhino in captivity,
unless the applicant can demonstrate how such breeding
will contribute to the conservation of the particular species
provision has been made for existing captive breeding
facilities to adapt their breeding practices within 12 months
of the commencement of the new regulations