by Don Pinnock

Are governments doing enough to stop wildlife crime?

The South African law is failing to protect its wildlife

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Given the importance of wildlife in South Africa’s tourism industry and its international reputation, it may come as a surprise that the legal protection of wild animals in South Africa is in a state of neglect. There are so many loopholes, disputes over mandates, outdated laws and non-compliances that the welfare of creatures we claim to protect, and which stands at the centre of the ‘wildlife economy’, is being ignored.

According to a report soon to be released by the Centre for Environmental Rights and the Endangered Wildlife Trust, the maze and minefield of national, provincial and local wildlife laws and regulations are complex, outdated and—for administering officials—often baffling. In key wildlife legislation, wild animals simply don’t exist.

But possibly, the biggest problem is that the welfare of wild animals has fallen through the cracks. The report finds that captive wild animals under human control straddle the divide between inter-departmental, national and provincial jurisdiction. This is because of a statutory regime, which the report says is “unintended and unsuited to addressing the issue of their welfare”. The result is minimal protection.

The Department of Agriculture, Forestry and Fisheries (DAFF) is mandated to regulate animal welfare. But wild animals fall under the jurisdiction of the Department of Environmental Affairs and the different provincial conservation agencies, which have no firm mandate in relation to welfare and operate in terms of their own varying pieces of legislation.

According to DEA spokesman, Albi Modise, his department could not comment on the mass-killing of captive-bred lions, which took place in the Free State because, he said, their welfare fell under the mandate of the Department of Agriculture, Forestry and Fisheries (DAFF) and was, therefore, not the DEA’s concern.

When approached on this statement by a journalist, DAFF refused to comment and said the lions weren’t their responsibility either, but rather that of the Free State Department of Economic and Small Business Development, Tourism and Environmental Affairs.

The risks posed by the legal regime not only involve animals. Poor regulation also increasingly poses risks to humans. Despite frequent—and often fatal—attacks by captive predators in facilities across South Africa, no action has been taken to prevent such occurrences.

In 2017, a child was mauled by a lion in Lephalale, Limpopo, a man was killed by a lion in Mpumalanga, two people were attacked by a cheetah at Emdoneni in KwaZulu-Natal and a guide was killed by a crocodile at Le Bonheur Crocodile Farm. In 2018, a woman was killed by a lion in the Dinokeng Game Reserve and a reserve owner was attacked by a lion at Marakele Animal Sanctuary.

The welfare of wild animals has been a slow starter. For thousands of years, they were merely a resource to be exploited. It was only in 2008 that a definition of animal welfare was adopted by the World Organisation for Animal Health. This was based on freedom from hunger, thirst, discomfort, injury, pain, disease, fear, distress and the freedom to express natural behaviour.

A draft declaration presented to the United Nations in 2000 calling for animals to be recognised as sentient beings with the capacity for feelings and conscious awareness has yet to be adopted.

In South Africa, there’s no shortage of laws concerning animals. The report lists 18 pieces of national legislation, eight biodiversity management plans, 19 norms and standards notices and procedures, 10 pieces of provincial legislation and two international conventions/treaties, which inform the protection of wild animals. Their goal, however, is not welfare.

In almost all these pieces of legislation, animals—including wild ones—are considered to be property and a resource. The underlying perception is that they are an agricultural issue concerning commercial exploitation. For this reason, welfare is generally seen to be uneconomical, expensive and time-consuming. And although not the focus of the report, it is worth noting that none of South Africa’s conservation legislation provides any protection for exotic wild animals other than their import or export under CITES regulations.

Possibly the clearest indicator of the low priority given to animal welfare in South Africa is that its main guardian in the country, the National Society for the Prevention of Cruelty to Animals (NSPCA), is not even funded by the state and is forced to rely on charity.

After an extensive review of the jurisdictional divisions, outdated and inadequate laws, the treatment of animal cruelty cases and the focus on economic progress, the report’s conclusion is extremely worrying: the welfare of wild animals in South Africa is not a priority.

In terms of the Game Theft Act, in fact, wild animals simply don’t exist. This is because it deems any animal adequately fenced in, on private or public property, to be owned and, therefore, no longer wild.

Given the mix of provincial departments that regulate conservation across the country and the very limited budgets available, implementing and enforcing wildlife legislation is not a simple task. The report found the system too opaque. Enforcement tends to take place only in well-publicised cases of cruelty to wildlife and then by the NSPCA, rather than by environmental management inspectors, who do not have a mandate in this regard.

There are, however, some good stories. The first is the National Norms and Standards for Elephants, which has fine-grained welfare rules for captured elephants and even acknowledges them as sentient beings. Unfortunately, these rules have had little impact on the lives of the elephants used for tourism in the many captive elephant facilities.

Second, hopeful moves are the norms and standard requirements of the Limpopo Department of Economic Development, Environment and Tourism (LEDET). Its captivity permits have a welfare compliance and breeding is prohibited unless specifically authorised.

The tragedy is that wild animals in South Africa have been reduced to profit-making machines. This can be seen in the type of arguments the Department of Environmental Affairs makes in defence of trophy hunting and the sale of rhino horn and lion bones.

According to the report, for wild animal welfare to improve, outmoded thinking about the protection of wild animals needs to fall in line with the scientific development in the understanding of animals and biodiversity requirements. It also needs to respond to the growing public concern about the ethical treatment of animals. A reform is urgently needed, but getting the many administrations to agree will be a herculean task.

The aim of the report is to start a debate about the welfare of wild animals among all those people—government or private—under whose protection they fall. Initial steps would be to standardise conservation across all provinces. It’s also necessary to mandate and incorporate welfare provisions in permit conditions, strictly enforce them and make them accessible to public scrutiny. The system should be electronic and run by well-trained officials.

Without these steps, the future of South Africa’s wildlife upon which so much of our tourism depends, and which is part of our natural heritage to be protected for future generations, will be in jeopardy.

But the issue is bigger than that. It’s simply unacceptable to be cruel to animals and our legislative system has to ensure that we never are.

Don Pinnock

Article first appeared in Daily Maverick, June 2018

Last year a scathing report by the Environmental Investigation Agency showed that the key countries affected by wildlife crime have failed to halt poaching and illegal trafficking of endangered animals as a result of widespread corruption and inadequate law enforcement, thus putting increasing numbers of species at risk of extinction.

The key finding was that wildlife crime—a multibillion-dollar-a-year business run by large international syndicates—remains a high-profit, low-risk venture, largely because of inaction on the part of governments who have publicly committed themselves to end the crisis but have failed to turn their obligations into effective action.

The report investigated the extent to which 15 countries, at the centre of the global wildlife crime pandemic, have implemented the provisions of the 2014 London Declaration on Illegal Wildlife Trade to which they are signatories.

While the governments, including that of South Africa, have put much of the legal and administrative infrastructure in place, including laws and special investigative, prosecuting and enforcement units, and while they have established intergovernmental bodies, treaties and mechanisms, much of this machinery is not being employed efficiently to stem the tide. As a result, according to the Conservation Action Trust, “many commitments made on paper have not been translated into action.”

Legislation may provide for very punitive sentences for wildlife crimes but the full force of the law is only rarely brought to bear and the imposed penalties are frequently not severe enough to deter other poachers and traffickers. In very few instances is the full suite of laws available to prosecute these crimes, including money laundering and the freezing of assets, employed to bring about the strongest possible sentences.

The report demonstrated that widespread government corruption is one of the biggest problems. With the exception of Botswana, the United States and the United Kingdom, all of the countries investigated scored below 50 on the Transparency International Corruption Perception Index, which ranks governments on a scale of zero (highly corrupt) to 100 (very clean). What’s more, “although all 15 countries have legislation that criminalises corruption and have anti-corruption units or mechanisms, there are very few cases reported publicly in which corrupt officials associated with wildlife crime have been prosecuted”.

The findings indicated that the countries have not done enough to raise awareness of wildlife crime or to reduce the demand for illegal wildlife products. By not destroying seized stockpiles of poached and trafficked wildlife parts and products and by maintaining legal domestic markets, many actually promote the continued demand and provide opportunities for the laundering of these goods.

With regards to South Africa’s efforts to eradicate wildlife crime, the report acknowledges progress in several areas, noting, for instance, that hundreds of magistrates, prosecutors and border officials have received training in wildlife issues and that there has been an increase in the number of arrests, convictions and stronger sentences.

Many problems remain, however.

  • “Provincial and federal wildlife enforcement agencies are under-funded”, especially those in the important provinces of Limpopo and Mpumalanga, while the functioning of the National Wildlife Crime Reaction Unit “has been hindered due to lack of resources and cooperation from provincial authorities and police”.
  • The Environmental Management Inspectorate remains without a prosecutorial mandate and substantial differences between provincial wildlife laws create “numerous loopholes which undermine effective law enforcement”.
  • Perhaps most troubling is the fact that the country ranks low on the Corruption Index (44) indicating that bribery and fraud among officials is a major problem. This is exacerbated by the fact that “there is no effective anti-corruption strategy within the police and the department of environmental affairs is also lacking a specific anti-corruption programme”.
  • The report highlighted another issue that gets little attention in the media: South African laws provide scant protection for non-native species, including tigers. This is particularly worrying as “a minimum of 280 captive tigers are held in 44 facilities” and there is a “growing trade in tigers and their parts and products from South Africa”.
  • Between 2006 and 2015, “212 live tigers, 25 tiger ‘trophies’ and 20 tiger skins” were exported from South Africa, raising concern over the possibility that tiger bones are being laundered into the legal market as lion bones.
  • The report identifies a number of priority actions, which the countries need to take urgently by issuing the necessary “directives assigning political and financial resources to combat wildlife crime”.
  • These included:
  • Addressing legal loopholes and strengthening law enforcement, as well as the investigation and prosecution of wildlife crime by providing sufficient resources and funding;
  • Making sure that wildlife crime is prosecuted using laws which carry the highest possible sentences;
  • Investigating and prosecuting government officials linked to corrupt practices;
  • Closing domestic markets for threatened species and destroying stockpiled wildlife products; and
  • Researching and implementing “professional, targeted demand reduction campaigns”. 
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