Abstract
Several wildlife species in South Africa fall prey to wildlife crime daily. Therefore, the importance of combatting wildlife crime on national soil is increasingly emphasised. The latest National Biodiversity Assessment of 2018 recognises that South Africa’s biodiversity is under pressure because of various threats, but it does not recognise wildlife crime as one of the core threats. The assessment calls for an urgent investigation into a comprehensive, coordinated campaign to combat wildlife crime. Although the assessment does not recognise wildlife crime as one of the core threats, the Southern African Development Community Law Enforcement and Anti-Poaching Strategy 2016–2021 and the National Integrated Strategy to Combat Wildlife Trafficking of 2023 respectively recognise the urgency and seriousness to combat wildlife crime in the Southern African Development Community region and at national level in South Africa. The Department of Forestry, Fisheries and the Environment also reported that rhino poaching, which is a serious concern in South Africa, is on the decline. This decline is because of the government’s improved capability to identify and react to poaching. However, South Africa currently has no dedicated law or policy that focuses exclusively on combatting wildlife crime. Currently, the fight against wildlife crime is managed in terms of the country’s broad national environmental law framework, which includes provisions in the National Environmental Management Act 107 of 1998 (NEMA), the National Environmental Management: Biodiversity Act 10 of 2004 (NEMBA); the National Environmental Management: Protected Areas Act 57 of 2003 (NEMPAA), related regulations and provincial legislation.
This article is based on a comprehensive literature review from an environmental law perspective. It follows on the previous article, “Combatting wildlife crime: a legal-theoretical analysis of the activities, related crimes and role players”, that provided a legal-theoretical analysis of the acts, related serious crimes and role players that form part of wildlife crime. The analysis distinguishes four levels of activities that form part of wildlife crime, namely poaching wildlife (level 1); transporting and trading in wildlife (level 2); processing wildlife into products (level 3); and distributing and selling wildlife and their products (level 4).
In this article, the existing regulatory measures that South Africa currently uses to combat wildlife crime are identified, analysed and described. Conducting such an analysis and exposition of the existing legal framework is an important contribution to the current legal discourse on the matter, as no investigation has been conducted so far. First, the existing South African legal framework is contextualised, specifically regarding the areas of biodiversity management and nature conservation. Second, the analysis is guided by the four levels of activities that form part of wildlife crime and the proposals by the United Nations Office on Drugs and Crime (UNODC) (these were also examined and summarised in the previous article). Under each level of activity that forms part of wildlife crime, national and provincial legislation and policies are identified, analysed and discussed. Third, the shortcomings of current regulatory measures at the national and provincial levels are pointed out. Finally, recommendations are made to improve the existing South African legal framework.
Although South Africa does not currently have an overarching law or regulation that encompasses all aspects of wildlife crime, the country does have a broad legislative framework that regulates biodiversity management and nature conservation at national and provincial levels. The battle against wildlife crime in South Africa is currently exclusively fought according to command-and-control measures and criminal prosecution. The regulatory measures that regulate the four levels of activities that form part of wildlife crime are spread between different sections within the relevant legislation and regulations at national and provincial levels. Reconciling and interpreting the various regulatory measures require a substantial effort: national and provincial regulatory measures appear incoherent and are particularly fragmented. National legislation constantly remained abreast of international expectations, whereas provincial legislation significantly lagged behind. Although South Africa prioritises the fight against wildlife crime, the regulatory framework has several shortcomings. National legislation, specifically the NEMBA and NEMPAA (including the subordinate regulations), currently regulates restricted activities that may harm certain endangered and vulnerable wildlife species, whereas respective provincial legislations seek to protect a much larger pool of indigenous wildlife species from illegal activities. The provincial legal framework contains detailed permit and certificate systems that specifically regulate the hunting of game species in different areas.
The legal analysis presented in this article emphasises that the combatting of wildlife crime in South Africa currently operates according to four steps. The first step is to define, categorise and list a specific pool of wildlife species that requires protection. The second step involves identifying activities that are potentially detrimental to the survival of a specific wildlife species and that must be restricted and regulated through legislation. The third step is to administer and maintain permit systems that limit and regulate restricted or prohibited activities. The fourth step involves criminally prosecuting a person who performs a restricted or prohibited act towards a listed wildlife species without a permit, or a permit holder who acts outside his or her permit conditions. Numerous government departments participate in the compliance and enforcement of this legislation, which can lead to an ineffective duplication of efforts. This fragmented approach significantly detracts from the legal conceptualisation of wildlife crime in South Africa.
South African legislation and regulations at the national and provincial levels describe the regulation and combatting of activities at levels 1 and 2 in more detail compared to those at levels 3 and 4. A complex permit system regulates (or prohibits) certain listed activities (so-called restricted activities as defined in section 1 of the NEMBA) towards certain wildlife species, whereas the (South African) Convention on International Trade in Endangered Species of Wild Fauna and Flora, 1973 (CITES) regulations regulate international trade in endangered species. Although the activities at levels 3 and 4 are part of the restricted activities as listed in the NEMBA and provincial legislation, their regulation is approached with more caution than that at levels 1 and 2. A notable source of legal uncertainty is the provincial ordinances that date back to the previous regime and still appear on the statute books. Over the years, these ordinances have not been aligned with the CITES, NEMA, NEMBA or NEMPAA provisions. To achieve such alignment, some provinces have ratified new nature conservation legislation. However, this only further complicated the position, as the new provincial legislation did not repeal the previous provincial ordinances.
Measured against the UNODC’s proposals for the development and implementation of national legislation to combat wildlife crime, there are further shortcomings in the South African regulatory framework, namely (a) the absence of a clear distinction between the activities, prosecution and sentencing of organised crime groups versus subsistence hunters; (b) the lack of regulatory measures that deal with related serious crimes within the context of wildlife crime; (c) the vagueness of regulatory measures dealing with the processing of wildlife species into marketable byproducts; and (d) the lack of regulatory measures that deal with the unique challenges that the internet (and internet sales) present to combatting wildlife crime. Further shortcomings relate to the effectiveness and execution of compliance and enforcement measures, namely (a) the high level of corruption in the relevant government departments; (b) a shortage of environmental management inspectors; (c) a shortage of, among other things, equipment and knowledge among government officials to conduct their enforcement mandates effectively; and (d) the ignorance of authorities to enforce and apply the complex regulatory measures.
In conclusion, some practical recommendations are made. The fragmented legal framework that regulates biodiversity management and nature conservation in South Africa must urgently undergo a process of legal reform. In its existing form, it seriously detracts from the conceptualisation of wildlife crime in the South African context. It is recommended that the NEMBA (or the NEMPAA) be amended or that a separate comprehensive regulation be promulgated in terms of the NEMBA (or the NEMPAA). This regulation should amalgamate all related aspects of wildlife crime, namely: (a) a definition of wildlife crime; (b) a list of activities that form part of wildlife crime (preferably differentiated in terms of levels, as set out in the previous article) accompanied by the existing lists of listed wildlife species, protected areas, weapons and hunting methods, and combined with clear regulatory measures and a detailed permit and certificate system that regulates each level of activities and outlines penalties for offenders; (c) a list of serious related crimes used to facilitate wildlife crime combined with clear regulatory measures and an outline of penalties for offenders; (d) a strategy for establishing cooperative governance in the context of wildlife crime; (e) a strategy for the alignment of national and provincial legislation; and (f) the tangency points with South African customs, organised crime, cybercrime and arms control legislation.
Keywords: biodiversity; biodiversity law; environmental crime; environmental law; game poaching; illegal wildlife trade; NEMBA; serious crimes; South Africa; wild animals; wildlife crime; wildlife species
- This article’s featured image was compiled on Canva.
Lees die volledige artikel in Afrikaans
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