A Judge Overturned South Africa’s Rhino Ban—Or Did He?

It looked like a win for those who support trade, but the ruling didn’t disparage the ban, either.

UPDATE: On April 5, 2017, the government's final application to appeal was denied, exhausting appeal options. The domestic trade will be legalized. Read more here.

Buying and selling rhino horn in South Africa may be legal again in the near future: Two rhino breeders, with thousands of pounds of stockpiled rhino horn, just won their suit to lift the moratorium on the domestic trade that has been in place since 2009.

The judge ordered the ban be set aside, and it was—but in keeping with legal practice, it was almost immediately reinstated when Minister of the Environment Edna Molewa filed an appeal with South Africa’s Supreme Court.

The lifting of the ban, though short-lived, is important because South Africa is considering asking for the ban on international trade in rhino horn to be lifted next year. This ruling will be seen by many as a sign that South Africa’s powerful hunting and wildlife breeding industry may have the power to nudge South Africa into making the big ask.

The ruling is good news to those who support the legalization of trade. South Africa is home to 80 percent of the world’s rhinos, and poaching to supply the Asian market for medicinal uses and status-symbol products. A legal trade helps satisfy demand, and when supply is high, prices stay low, minimizing the incentive to poach.

But those who oppose the trade say that supply and demand model is too simplistic. “The bottom line is that this judgment runs the risk of generating an even more extensive illegal trade in rhino horn,” said Ross Harvey, an economist and a senior researcher at the South African Institute of International Affairs who has studied the economics of the rhino horn trade.

Maybe a legal trade could meet the current demand, Harvey explained in a letter to the government, but we have to consider the fact that a legal trade might de-stigmatize the product, which would increase demand even more. We also have to consider the fact that law enforcement will likely not be able to distinguish between legal, farmed horn and illegal, poached horn. Plus that simplistic model assumes that law enforcement combined with the free market would shut down the illegal trade—but trafficking syndicates are pretty efficient at moving illegal products. Who’s to say the black market won’t remain a competitive, viable alternative to the legal market?

Here’s what you need to know about the ruling:

What was the suit about?

Trading in rhino horn internationally has been illegal since 1977, but South Africa continued to allow a domestic trade. When poaching numbers began to rise in 2008 and 2009, the minister of water and environment imposed a ban.

Who sued?

Two rhino “farmers” named John Hume and Johan Kruger. They raise rhinos to sell to zoos and safari parks, to be shot by trophy hunters, and to harvest their horns. Whereas a tusk is a tooth, horn is made from keratin, the same stuff in our fingernails and hair. For years, Hume, who owns more rhinos than anyone else in the world (more than 1,100), has been de-horning his rhinos. When the domestic trade ban went into effect, he had more than four U.S. tons of horn stockpiled. In today’s black market prices, that’s worth about $235 million.

Why did they sue?

The farmers made a number of arguments, but the main ones were constitutional. The South African constitution says citizens have a right to property and a right to choose their own trades. Hume argued that the ban deprived him of both: property, by making his rhino horn stockpile worthless, and his trade, by literally banning it. Furthermore, they said the ban was irrational and unlawful (legal terms we’ll get to later).

Hume also argued that the minister failed to consult him personally, which could potentially be a violation of administrative law. As one of the biggest rhino farmers on the planet, he would be “adversely affected” by the law, so the minister should have gotten in touch with him. Moreover, the minister didn’t follow the proper steps in notifying the public at large about the proposed ban and inviting their comments.

How did the judge rule?

The judge ruled in favor of the rhino breeders—on a technicality. He said that while the minister had no responsibility to consult Hume personally, she did have a responsibility to give the public opportunity to comment. There’s a host of regulations she should have followed, including publishing a notice of the proposed ban in at least one national newspaper. But she didn’t, and that alone was enough to invalidate the ban.

What else did he say?

While ultimately ruling in their favor, the judge disagreed with Hume and Kruger on several points: He said both that the ban was rational (meaning it was imposed with good reason) and that it was lawful (meaning the minister had the authority to impose it).

But on the constitutional issues, he demurred. There are competing rights: the right to have the environment protected for future generations, and the rights to freedom of trade and to property. Trade, the judge said, may be regulated by law, and the moratorium (because it is a moratorium, not a permanent ban) does not take away that trade for good. But when it comes to the argument about deprivation of property, “It suffices to mention that a valid point is made,” the judge wrote.

So how does the judge really feel about the ban?

He sides with the ministry on many of the big points, but he doesn’t have much love to spare for the ban.

Despite a report submitted to the court in which less than a third of 63 rhino experts said they believed the moratorium spurred poaching, the judge concluded the moratorium was likely harming rhinos: “The exact percentage [of poaching deaths] attributable to the moratorium is not known, but clearly, its role in adding to the surge cannot be excluded.”

He went on: “What disastrous implications would be brought about by the immediate lifting of the moratorium?” he continued. “I cannot think of any.”

What do the experts think?

That remark is “high-handed and short-sighted,” said Catherine Warburton, an environmental lawyer in South Africa and the vice-chair of the Environmental Law Association.

Maybe there won’t be an immediate effect (after all, even when trade was legal, it wasn’t open-season on rhinos—permits to buy and sell horn were required), but, Warburton said, he’s brushing over the real question, which is whether the trade affects rhino conservation in the long run.

That omission, she said, detracts from the ruling’s importance. “Without there being a ventilation of those issues, it’s not really a very helpful judgment, even to the applicants, who were supposedly successful.”

But it did send a clear message to the ministry—when you do something that’s going to affect a lot of people (such as making their property worthless overnight), you’ve got to follow procedure. Lackadaisical procedure-following is an ongoing problem with rule makers in South Africa, Warburton said, and it’s endlessly frustrating for people who watch real change happen, only for it to be overturned in court on a technicality. (This rhino horn case wasn’t the first time).

There was one other curious omission, said Michael Kidd, a professor at South Africa’s University of Kwazulu-Natal law school. The judge didn’t inquire about the domestic market for rhino horn.

There really isn’t one, Kidd said. “Who would be buying rhino horn in South Africa unless he or she were intending to export it to the East?”—which would be illegal.

What’s next?

The rhino horn trade ban is in place while Minister Molewa appeals the ruling.

The Supreme Court of Appeal could do one of several things:

  • Uphold the decision overturning the ban on a technicality. That would allow the minister to propose a new ban and follow the correct procedures the second time around.
  • Uphold the decision overturning the ban on more substantive issues (say, constitutionality). That would make it a lot harder to put a new ban in place. This is unlikely, Kidd said, since deciding on a technicality is simpler and easier.
  • Overturn the decision. Things would go back to how they were, ban and all. This is also unlikely, since the procedural flaw is pretty clear.

The bottom line: Not much is changing right now, but the fight isn’t over yet. Expect to hear a lot more out of South Africa about the rhino horn trade.

This story was produced by National Geographic’s Special Investigations Unit, which focuses on wildlife crime and is made possible by grants from the BAND Foundation and the Woodtiger Fund. Read more stories from the SIU on Wildlife Watch. Send tips, feedback, and story ideas to ngwildlife@natgeo.com.

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