The concept has two main aspects: the principle of fair hunting and humane hunting practices. Theroux paraphrases Oscar Wilde about fox hunting: "the unspeakable, in full pursuit of the inedible".
THE WILDLIFE INDUSTRY
Controlling the movements of large predators in and out of the country and within the country has also become important.80. In some parts of the country, game farming is economically more important than in others.
HUNTING
This involves stunning an animal instead of shooting it so that a photo can be taken of the hunter with the animal. It is argued that the principle of fair pursuit is a completely anthropocentric principle, which can have no meaning to the animal being hunted and is further evidence of the fact that trophy hunting is in principle a sport.
CURRENT LEGAL FRAMEWORK
National Environmental Management Amendment Act
Amendment Act 72 came into force on 1 May 2005 and amended NEMA to ensure the appointment of Environmental Management Inspectors (EMls) either by the Minister or by an MEe for the purposes of investigation, monitoring and enforcement of the provisions of NEMA and other specified environmental management laws. The specified laws include the Biodiversity Act and all regulations made pursuant to it.173 Therefore, EMLs can be mandated to enforce the final regulations. It is accepted that one of the main ways in which the current legislative framework does not protect large carnivores is that the provinces have different capacities to implement and enforce the laws.
The designation of EMls174 empowered to enforce the Biodiversity Act and the Final Regulations may address this.
National Environmental Management: Biodiversity Act
The Act requires that the principles set out in WNOB must be applied in the implementation of the ACT.176 Since the principles will in any case apply by virtue of section 2 of WNOB, this is banal. The Act also provides for the creation of the South African National Biodiversity Institute ('SANBI')177 in Chapter 2. A BMP in respect of a species must be aimed at the long-term survival of the species and be consistent with applicable legislation and policy any relevant planning instruments.179 It is suggested that BMP plans can be an alternative way to manage large predators to the current system of regulations or norms and standards.
Before approving such a plan, the Minister (DEAT) must approve an appropriate person, organization or body of state willing to be responsible for implementing the plan180 and follow a prescribed consultation process.181 The Minister may also undertake biodiversity management. agreements about the implementation of a biodiversity management plan182 The law is silent about the enforcement of such agreements. The law also establishes certain tasks of the minister with regard to the trade in TOP species188, including monitoring compliance with the licensing system for limited activities and with the relevant international agreements189. 194The amount of R20,000 is calculated based on the formulas in section 98(2) of the Biodiversity Act and in section 92(1) of the Magistrates Court Act 32 of 1944 and may therefore change from time to time.
National Environmental Management: Protected Areas Act
There is therefore the possibility of allowing hunting in national parks and special nature reserves either in terms of regulations (by obtaining a permit from the administrative authority) or in terms of the law itself,215 provided that in any case the management plan allows for this. The effect of the section is that the person from whose land the animal escaped or on whose land the animal was caught or captured has ownership for the purposes of the Act. Section 2(1)(b) does not require that the land on which the animal is hunted or captured must be sufficiently fenced, as is the case with section 2(1)(a); it only provides that ownership of game taken "on another person's land without the consent of the owner or lawful possessor" belongs to the owner of the land.
Therefore, the law potentially applies to any activity involving a large predator provided that the large predator is in captivity or under the control of the person concerned. Officials of each branch of the Society for the Prevention of Cruelty to Animals are authorized to implement the provisions of the law. 227. The purpose of this law is simply to promote animal welfare by controlling the exhibition of animals and the treatment of exhibited animals.
National wildlife policy
- National Biodiversity Strategy and Action Plan
- Draft Policy on Game Farming
This applies in Gauteng province, but has been completely repealed in Mpumalanga province by the Mpumalanga Nature Conservation Act.255 The latter also repealed all relevant Bophuthatswana, Lebowa and KaNgwane legislation in Mpumalanga and the North-West Province. All conservation ordinances regulate the hunting, capture, transport and sale of large carnivores and other wildlife through a complex system of permits and licenses. All provinces have legislation dealing with, first, species considered pests or 'problem animals' and, second, individual animals 'causing damage',265.
The Gauteng and Cape Nature Conservation Ordinances allow for species to be declared "problem animals". Some provinces have imposed a voluntary moratorium on the issuance of permits for the captive breeding of large carnivores until final regulations come into force. DEAT asked the provinces to introduce the moratorium in 1997 in the wake of the Cook report.
LAW REFORM PROCESS
283'Final Draft Report to the Minister of Environmental Affairs and Tourism by the Panel of Experts on Professional and Recreational Hunting in South Africa', 25 October 2005. Following the Panel's report, a second set of draft regulations for threatened or protected species and draft national norms and standards for the regulation of the hunting industry ('the draft national norms and standards for hunting') were published in May 2006. Press reports at the time indicated that a further draft of the regulations would be published in 2007 following further consultation on the issue of 'nuisance animals' .288.
The final regulations lack specific provisions regarding the implementation of CITES, which formed Chapter 4 of the 2006 regulations. No official version of the Norms and Standards for Hunting has been published with the regulations. It appears from statements made by the Minister (DEAT) to the press that revised norms and standards will be published at a later date and that they will form a framework for provincial legislation and further streamline the admissibility.,29o.
THE FINAL REGULATIONS
Definitions and concepts
- Wildlife facilities
- Kinds of permits for restricted activities
- Control of canned hunting
- Permit applications which must be refused and prohibited activities
A professional hunter under the regulations is one who is licensed under provincial law. However, a dispensation issued under provincial legislation is not considered a permit or dispensation under the regulations. The written consent of the owner is not required for the control of a harmful animal by a provincial department.316.
320 In these circumstances, the issuing authority is authorized to revoke permits in accordance with Article 93 of the Biodiversity Act. It should be emphasized that the provisions of the regulations only apply to TOP-listed species and the definition of 'animal causing damage' is limited to an individual of a TOP-listed species that meets the other criteria of Regulation 1. As elephants are TOP-listed species, culling would be limited activity that requires a permit in terms of the final regulations.
Similarly, the purchaser of such a captive-bred animal must certify that the species was not purchased or acquired for hunting, which is prohibited by the regulations. In considering a registration application, the issuing authority must take into account the conservation status of the species to which the application relates (critically endangered, threatened, vulnerable or protected), the purpose of the facility, any other relevant information and relevant legal requirements and (except in the case of scientific institutions ), whether the facility is prepared to microchip every single specimen of a listed TOP species it deals with.
The Scientific Authority
However, it is argued that animal welfare groups should have the opportunity to get input into codes of good practice, as the criteria for hunting can affect the welfare of the animal being hunted. Rule 54, subsection 2, stipulates that no appeal can be made against the minister's decision in his or her capacity as issuing authority. A person convicted of an offense under the regulations shall be liable to a fine of RI 00 000 or three times the market value of the specimen in respect of which the offense is committed, whichever is greater, or to imprisonment for a term not exceeding five years, or both.
It is argued that linking the amount of the fine to the value of the specimen in relation to which the offense was committed is an appropriate approach in relation to large carnivores where the commercial value, for example of a trophy lion, can be much more than RI00 000. However, Article 29( 4) The Environmental Protection Act384 provides for the imposition of fme in the amount of 0,000 RIO and further fme up to three times the market value of the thing in connection with which the offense was committed. Other concerns were about the capacity of the provinces to manage the new system.388.
Critique of the final regulations
The practical effect of the final regulations is that provincial agencies have an additional, complex system of permitting to implement and maintain. National legislation that applies uniformly to the country as a whole takes precedence over provincial legislation, which i.a. is necessary to protect the environment (section l46(2)(c)(vi)). Perhaps the most controversial provisions in the final regulations are those relating to ethical hunting.
One of the difficulties in responding legislatively to the canned hunting issue is how to define an animal that is sufficiently wild that its hunting can be considered to meet the fair hunting principle. These comments were made in the context of the 2006 regulations, but it is suggested that they apply equally to the final regulations. Review of the legal framework governing captive breeding and hunting of large (www.ifaw.org) predators in South Africa November 2005: report prepared.
