Vorster and Another v Department of Economic Development, Environment and Tourism, Limpopo Province, and Others

• Jurisdiction: South Africa
• Judge: Fabrucius AJ
• Judgment Date: 05 May 2006
• Hearing Date: 28 April 2006
• Docket Number: 38733/2005
• Citation: 2006 (5) SA 291 (T)
• Counsel: A P J Els for the applicants N Davis SC for the respondents
• Court: Transvaal Provincial Division

Fabricius AJ:

[1] The African elephant, whose fate is to be shot after having E been classified as a 'damage-causing animal' (DCA), one can reliably presume, does not care whether the so-called hunter who pulls the trigger is a resident of South Africa or a 'client' as defined in the Limpopo Environment Law Management Act 7 of 2003. Such a 'client' is a person who is not normally resident in the Republic, who pays or rewards any other person for or in connection with the hunting of the F wild or alien animal. The respondents, however, do care, they say, and the question herein is whether that caring attitude is lawful in terms of the mentioned Act.

[2] During 2005 the first applicant (herein after referred to as 'applicant') applied for a permit in the following terms: G

'As you are well aware, we have an ever-increasing problem with elephant, to such an extent that it becomes high risk to import new animals onto the farm because the security of the fence cannot be guaranteed. This urges us to apply for damage-causing elephant hunt permits, preferably with CITES but, alternatively, not. We trust you H will understand our dilemma as August is our best time price-wise to import game.'

Applicant alleges, and this is not in dispute, that CITES is the acronym for the Convention on International Trade in Endangered Species of wild fauna and flora. It came into force in South Africa on 13 October 1975 and South Africa, together with other member countries, acts by regulating and monitoring international trade in species which I are, or may be, effected by trade. The primary object of CITES is the control of international trade in endangered species and their products.

[3] The permit was issued during July 2005, the relevant paragraphs of which read as follows: J

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'Your application to utilise two elephants by the local hunter, has been approved and your (sic) reminded to ensure that the A permit is issued to the right person to avoid the confusion that took place in the beginning of the year and also to inform you that this is the last approval to hunt on your farm for the year 2005. The following conditions must be observed, failing of which the permit will be withdrawn, ie the local officer must be present during the hunts and report back to Head Office.' B

Applicant was dissatisfied, essentially, on the basis that the condition that the hunter should be a local hunter is 'ultra vires and of no force and effect', as it was put in prayer 2.1 of the notice of motion, which is the relief that applicant sought in these proceedings'. (Applicant did not persist in the other relief sought in the notice of motion, the result of which, in my view, is C that other factual debates and certain points in limine are no longer relevant and need not be decided except insofar as I indicate otherwise hereunder.)

[4] Third respondent is the senior manager and is the official responsible for the issuing of permits and, as a result, she deposed to the main answering affidavit. What is CITES? As already D stated, it is an international agreement between governments. Its aim is to ensure that international trade in specimens of certain wild animals and plants does not threaten their survival. A brief background may be appropriate: Annually, international wildlife trade is estimated to be worth millions of dollars and includes hundreds of millions of E plant and animal specimens. The trade is diverse, ranging from live animals and plants to a vast array of wildlife products derived from them, including food products, exotic leather goods, wooden musical instruments, timbers, tourist curios and medicines. Levels of exploitation of some animal and plant species are high in the trade and, together with other factors, such as habitat loss, is capable of F heavily depleting their populations and even in bringing some species close to extinction. Many wildlife species are not in danger but the existence of an agreement to ensure the sustainability of the trade is important in order to save these resources for the future. It is an international agreement to which States adhere voluntarily. Although the parties thereto (those States who have agreed to be bound thereby) G have to implement the convention, it does not take the place of national laws. Rather, it provides a framework to be respected by each party, which has to adopt its own domestic legislation to ensure that CITES is implemented at the national level.

[5] CITES works by subjecting international trade in specimens H of selected species to certain controls. All import, export and introduction from the sea of species covered by the convention has to be authorised in terms of a licensing system. Each party to the convention must designate one or more management authorities to administer that licensing system. The species covered by CITES are I listed in three appendices, according to the degree of protection they need. Appendix I includes species threatened with extinction. Trade in specimens of these species is permitted only in exceptional circumstances. An example is the chimpanzee, the gorilla and the urangutang. Appendix II includes species not necessarily threatened with extinction but in which trade must be J

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controlled in order to avoid utilisation incompatible with their survival. The Convention states A that Appendix II shall include:

'(a)

All species which, although not necessarily now threatened with extinction, may become so unless trade in specimens of such species is subject to strict regulation in order to avoid utilisation incompatible with their survival; and

(b)

other species which must be subject to regulation in order that trade in specimens of certain species referred to in subpara B (a) may be brought under effective control.'

[6] The other provisions of the convention are not relevant for present purposes. Elephants have been classified into the southern African elephants (those happily 'residing' in Botswana, Namibia, South Africa and Zimbabwe), which are all included in Appendix II, and C those other elephants which are included under Appendix I. The third respondent says that, as a result of the above, unless trade in specimens (which includes ivory and trophies) of such Appendix II species is subject to strict regulation, the mentioned species may become extinct. Further, the strict regulation is necessary to ensure that the upliftment of the international ban on ivory trade does not D result in a threat to the existence of the elephant species. It is accordingly stated in the answering affidavit that s 69 of the Limpopo Act prohibits certain acts without a CITES permit such as, for example, the export of ivory or the trophy of an elephant. Accordingly, the granting of permits for the hunting of elephant is strictly controlled. E She states that, in every instance where a foreign hunter ('client' as defined) is involved in a permit to hunt a CITES listed animal, the issue of such a permit is a first step for any potential export of specimens of that animal such as ivory or trophies. In order to manage and control this and to effectively manage and control the environment, strict control should be exercised over the issue of such permits, F which are then commonly known as CITES permits, according to the answering affidavit. Third...