Provinces Issue Export Permits.
The Minister is Irrelevant
Under South African law, it is the Provinces, and ONLY the Provinces that have the power and obligation to issue or deny export permits for horn. Any attempt by the Minister to influence that decision would violate the Constitution.
There is a common belief in South Africa that an export permit to sell rhino horn into international markets can only be granted by the Department of Forestry, Fisheries and the Environment, and that the department can only issue such a permit if granted specific permission by the Minister.
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This is wrong on both counts.
Provinces Issue Permits. Not the National Department.
South Africa has ten designated CITES Management Authorities - one national, and nine in the Provinces. When rhino horn comes from a national Protected Area, it is the national Management Authority - the Minister - who must decide whether or not to issue an export permit. If the horn comes from any other area, the MEC of the relevant province is the only party empowered to issue or deny an export permit. In such a case, the Minister has no power to alter the MEC’s decision.
The legal foundation for this can be found in the National Environmental Management: Biodiversity Act, 2004 (“The Act”), and its amendments. The Act declares its relevance to export permits for rhino products in section 87, stating
The purpose of this Chapter is to provide for the regulation of the issuing permits authorizing -
(a) restricted activities involving specimens of –
(i) listed threatened or protected species in terms of section 57(1)
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The next section (88) tells us that,
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A person may apply for a permit by lodging an application on the prescribed form to the authority
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An issuing authority may –
(a) request the applicant to furnish any additional information before it considers the application;
(b) require the applicant to comply with such reasonable conditions as it may impose before it grants the application;
(c) issue a permit unconditionally or issue it subject to conditions; or
(d) refuse a permit.
The obvious next question is, “Who is the ‘issuing authority?’” This is answered in Act No. 14 of 2013: National Environment Management Laws Act, 2013, which was gazetted on 24 July 2013. That document amends The Act to add language to Chapter 1 saying,
(j) by the substitution for the definition of “issuing authority” of the following definition:
“’issuing authority’, in relation to a permit or registration regulating a matter mentioned in section 87, means –
(a) the Minister as contemplated in section 87A(1) or (3); [or]
(b) the MEC as contemplated in section 87A(2) or (3)
This can only be understood when one reads further in that same document of 24 July 2013 to see the amendment creating the crucial aforementioned section 87A. That section, created by the 2013 amendment and reproduced here in its entirety, says the Minister is the ‘issuing authority’ when the specimen is located in a national protected area or otherwise belongs to government (text underlined in red), and the MEC is the ‘issuing authority’ for all other export permit applications (text underlined in green).
Further evidence of the summary offered herein can be found on the Department of Forestry, Fishers and Environment (“DFFE”) website, in the section addressing TOPS permits and applications. That site states, "Minister (DEA) is the issuing
authority for a permit ... relating to the carrying out of restricted activities involving any TOPS listed species: in a national protected area,” and, “applied [for] or by an official on behalf of a provincial department or .. an organ of state.” But the, “MEC (provinces) issues permits for the activities not mentioned above.”
There is even a section in DFFE's website explaining that no less august a power than the Constitution itself vests this crucial power in the Provinces.
Indeed, this is exactly what we see when we look at actual export permits, like the one shown here. They are ALL issued by the Provinces, and NOT by the national department.
Each province in South Africa has the power to grant or deny applications to export rhino horn internationally.
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National government holds no power in this regard.
The Minister has no power to influence a Province's decision to issue or deny an export permit.
In 2014, Minister Edna Molewa issued the General Notice shown here (with colourful highlighting added at no extra charge). In that notice, the Minister announced her desire to be copied on all applications to export rhinoceros specimens for international trade.
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This announcement is quite helpful in that it is clear that such international trade is allowed, and it is the Provinces that issue the export permits.
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Where the notice was less helpful was in the subsequent confusion around whether this demand gave the Minister a 'veto' right over
any Provincial decisions.
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It does not.
The notice entitles the Minister to be notified of an application. And it entitles her to offer her opinion on that application. It does not, and cannot, shift
control over that decision to the Minister. It does not even give a Province the right to delay their decision while they wait for the Minister to voice her opinion.
The limits on the Minister's power, and the fact that she is Constitutionally prohibited from determining the outcome of an export permit application are laid out very clearly in a recent court judgment of December 2020.
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That ruling made the point that,
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"Organs of the State ... exercise no public power or perform no function unless conferred upon them by law."
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And,
"In the absence of authority, organs of the state or their functionaries have no authority to exercise any public power or perform any public function."
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In other words, since the law gives the Minister no power to influence the decisions of the Provinces, any attempt by her to do so would be invalid.
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With that in mind, the Court turned its attention to the question of export permits and said,
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"The fact that the [Minister] requires the [Provinces] to submit all applications relating to authorisation of international trade in rhinoceros to the National Department for consideration and recommendation before making a final decision is of no consequence. This is an internal measure to ensure that the Provincial Governments comply with the policy determined by the National Government to ensure that the approval of the application for an export permit by the Provincial governments comply with the international covenant and treaties for which the National Government is a signatory."
The Court's view in this case was not at odds with the stated views of the Minister herself, and of the Department. Indeed, in a letter issued by the Department a month before this ruling, we see the exact same points made. Even some of the same language was employed.
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That letter states,
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"The notice does not change ... who is responsible for making decisions on applications relating to rhinoceros specimens.... Provinces issue these permits."
The Minister is entitled to be told when an application for an export permit has been filed. But she is not allowed to alter the legal decision of the Province with regard to that application.
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Moreover, a Province may not delay the decision they are obliged by law to issue within a specific timeframe, simply because they are waiting for the Minister to offer her opinion. Provinces remain bound by the time limits enshrined in law, and the Minister, if she wishes to opine, is obliged to do so before the Province's answer is due, or to see her opinion ignored.
