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[2017] ZAKZPHC 18
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Boswell v Member for the Executive Council for Economic Development, Tourism and Environmental Affairs (KwaZulu-Natal) and Others (3792/16P) [2017] ZAKZPHC 18 (25 May 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION,
PIETERMARITZBURG
CASE
NO: 3792/16P
In
the matter between:
BRIAN
STANLEY
BOSWELL APPLICANT
and
THE
MEMBER FOR THE EXECUTIVE
COUNCIL
FOR ECONOMIC DEVELOPMENT,
TOURISM
AND ENVIRONMENTAL AFFAIRS
(KWAZULU-NATAL) FIRST
RESPONDENT
EZEMVELO
KWAZULU-NATAL WILDLIFE SECOND
RESPONDENT
THE
MINISTER FOR THE DEPARTMENT OF
ENVIRONMENTAL
AFFAIRS THIRD
RESPONDENT
Date
of Hearing: 12 May 2017
Date
of Judgment: 25 May 2017
ORDER
The following order is
granted:
The application is
dismissed with costs including the costs of senior counsel.
JUDGMENT
D. Pillay J
Introduction
[1]
In
June 2014, the applicant applied to the first respondent, the MEC and
the second respondent, Ezemvelo, for a permit to sell and
export his
African elephants to an undisclosed captive facility in Dubai. Both
respondents refused the permit stating that clause
12(4) and (5) of
the National Norms and Standards for the Management of Elephants in
South Africa, 2008
[1]
(Norms and
Standards) issued by the third respondent, the Minister of
Environmental Affairs, under s 9 of the National Environmental
Management: Biodiversity Act 10 of 2004 (NEMBA) rendered such export
to a controlled environment unlawful. The applicant abandoned
his
challenge to both decisions preferring instead to challenge the
legality of clauses 12(4) and (5) of the Norms and Standards.
[2]
The
applicant contends that clauses 12(4) and (5) of the Norms and
Standards are
ultra
vires
the scope of the powers of the Minister granted in terms of ss 9 and
98 of NEMBA. He submits that these clauses prohibit a previously
lawful though regulated activity enabling the export of elephants to
captive facilities abroad. They prohibit absolutely all export
of
captive elephants except for their use in a circus, and then only
temporarily. Section 98(1) of NEMBA provides expressly for
the
publication of regulations in order to ‘restrict or prohibit
any act either absolutely or conditionally’.
In
contrast, s 9
(1)(
a
)(ii)
confines norms and standards to ‘restricting’ not
‘prohibiting’ of activities that impact on biodiversity
and its components. If the respondents intended to prohibit
absolutely the export of African elephants to a captive facility in
a
controlled environment then they ought to have done so by publishing
regulations instead of the Norms and Standards to achieve
this
objective.
[3]
The
respondents point to a plethora of laws regulating the environment
generally and the protection of elephants in particular.
They contend
that South Africa ratified the Convention on International Trade in
Endangered Species of Wild Fauna and Flora, 1973
(CITES). CITES
restricts the trade in African elephants. Having ratified CITES,
South Africa is constrained to permit the trade
in African elephants
only for the purposes of conservation. Clause 12(4) of the Norms and
Standards is aimed at giving effect to
the restriction in CITES.
Issues for
determination
[4]
The
principal challenge initially pleaded on the grounds of the Promotion
of Administrative Justice Act 3 of 2000 (PAJA) was directed
at the
decisions of the MEC and Ezemvelo refusing to grant the export
permits. Taking my cue from the applicant’s practice
directive
and heads of argument those grounds have fallen away. The central
issues now remaining for determination are whether:
(a)
the Minister acted outside the scope of his powers conferred under ss
9 and 98 of NEMBA by including clauses 12(4) and (5) in
the Norms and
Standards; and
(b)
clauses 12(4) and (5) of the Norms and Standards impose a restriction
or a prohibition of the export of elephants to a captive
facility in
Dubai.
[5]
It
is not the applicant’s case that the Norms and Standards are
irrational or unreasonable. Therefore the complaint is not
substantive but formal based on the Norms and Standards not being
authorised by the empowering statute.
Rule 16A Notice
[6]
The
relief sought is to declare clauses 12(4) and (5) of the Norms and
Standards invalid on the ground of legality and consequently
to
review and set aside the decisions refusing the permit. Counsel for
the applicant acknowledges that if he were to reapply for
a permit,
clauses 12(4) and (5) of the Norms and Standards would remain an
obstacle unless they are declared
ultra
vires
and therefore invalid. The striking down of a law albeit in the form
of the Norms and Standards raises constitutional issues.
[2]
It seeks to give effect to South Africa’s international
obligations discussed below.
[3]
The issues in dispute affect the environment.
[4]
[7]
Consequently,
the applicant ought to have given notice of his application in terms
of Rule 16A of the Uniform Rules of Court. The
respondents reminded
him to do so. Still he refused to give notice. To attempt to do so
now after I reserved judgment is too late.
New submissions and
authorities delivered to me by both sides on this and other matters
after I reserved judgment are inappropriate
and I will not refer to
them. Rule 16A(1)
(a)
provides:
‘
Any
person raising a constitutional issue in an application or action
shall give notice thereof to the registrar at the time of
filing the
relevant affidavit or pleading.’
[8]
I take ‘any
person’ to include the respondents. Afterall the aim of the
rule is to broaden participation in the deliberations
about a matter
of public interest. If an applicant does not see the dispute as one
that raises a constitutional question but a
respondent does, the
latter should be free to deliver a rule 16A notice.
[9]
Sub-rule
(9) gives the court a discretion to ‘dispense with any of the
requirements of this rule if it is in the interests
of justice to do
so.’ A penalty for failing to issue a Rule 16A notice is delay,
with or without a cost order. If I am inclined
to grant the relief
sought, then in the interests of justice, I will postpone my final
judgment until either party gives notice
and members of the public
having an interest have had an opportunity to participate in the
proceedings. If I refuse the application,
the status quo will remain;
that will be the end of the matter, for now at least.
Analysis
[10]
Laws
regulating the environment are a matrix of legislation, regulations,
norms and standards, directives and international agreements,
all of
which strive to comply with various provisions of the Constitution.
Thus, when the interpretation of any single rule governing
the
environment arises, various other laws applying to the sector may be
implicated, all of which must be interpreted contextually
and
synergistically.
[11]
The
status of the Norms and Standards derives its force firstly from s 9
of NEMBA. NEMBA applies to all organs of State in the national
and
provincial spheres of government.
[5]
South Africa gives effect to its international obligations on
biodiversity arising from its ratification of CITES under NEMBA
[6]
and the regulations. As the national management authority, the
Minister has to report bi-annually on legislative, regulatory and
administrative measures taken to enforce the CITES Convention.
[7]
The Norms and Standards is such a measure in the form of a notice
defined as ‘subordinate legislation’ in NEMBA.
[8]
As a rule of law it must be obeyed unless it is set aside. NEMBA must
be read with the National Environmental Management Act 107
of 1998
(NEMA), s 2 of which guides the application of NEMBA.
[9]
[12]
Norms
and standards apply nationwide, in a specific area or to a specific
category of biodiversity only.
[10]
Furthermore different norms and standards apply to different areas or
categories of biodiversity.
[11]
Manifestly the distinguishing purpose served by norms and standards
is its flexible application over wide geographic and bio-diverse
fields that are vulnerable to quick changes. Norms and standards are
distinguishable from regulations not only in the scope of
their
application but also in the process followed in publishing them. For
norms and standards, the Minister has to follow a process
of
consulting the cabinet members whose areas of responsibility may be
affected, the MEC and the public. The Minister must receive
and
consider all feedback from the consultations and public
participation.
[12]
In
contrast, in addition to the consultative and public participation
processes in s 99 and 100, regulations must be submitted
to
Parliament thirty days before publication. This parliamentary process
omitted for norms and standards fortifies the view that
they are
necessary for quick and flexible implementation.
[13]
Section
9(1)(
a
)(ii)
of NEMBA expressly mandates the publication of norms and standards
for the ‘restriction of activities which impact on
biodiversity
and its components’. To ‘restrict or prohibit any act
absolutely or conditionally’, regulations
are required in terms
of s 98 read with s 97 of NEMBA. According to the online Thesaurus
‘restrict’ means ‘limit’,
‘prohibit’
means ‘forbid’. Textually two distinct powers are
implied. ‘Restrict’ implies that
some activities will be
allowed but not others; whereas ‘prohibit’ means no
activities will be allowed. However, the
word ‘conditionally’
in s 98 dilutes the difference between ‘restrict’ and
‘prohibit’ in the
context because a conditional
prohibition can effectively be a restriction. As ‘restrict’
is akin to a coin with one
side permitting some activities and the
other side preventing, stopping and even prohibiting other
activities, the distinction
between the two words is semantic.
[14]
From
a narrow perspective of ss 9, 97 and 98 of NEMBA an interpretation of
‘restrict’ that includes ‘prohibit’
can be
dispositive of the dispute. But meaning comes from the context in
which the words are used. Ultimately that is where one
must look,
especially when a matrix of rules apply. Clause 12 provides:
‘
(4) No wild or captive elephant
may be –
(a) imported into the Republic; or
(b) exported from the Republic, for
the purposes of keeping it in captivity in a controlled environment,
except in terms of paragraph
11 (3) or 12 (5).
(5) Captive elephants which are part
of a bona fide circus may be temporarily imported or exported for a
limited, specified period,
not exceeding the period of performance,
for the sole purpose of use in the circus.’
[15]
Manifest
from the wording of clause 12(4) is the intention to stop the import
and export of all elephants, wild and captive, if
they are to be kept
in captivity in a controlled environment. A “controlled
environment”
‘
in relation
to elephant management means an enclosure designed to hold an
elephant in any way that-
(
a
)
prevents it from escaping; and
(
b
)
facilitates intensive human intervention in the form of provision of:
(i) food or water;
(ii) artificial
housing; or
(iii) veterinary or
health care;
and is less than
2000 ha;’
In
other words, if the elephants some have freedom of movement, do
not depend on considerable human intervention and are kept
in an area
greater than 2000 ha they may be imported and exported.
[16]
The
aim of clause 12(5) is to stop the import and export of captive
elephants that are part of a circus. This restriction on importing
and exporting captive elephants is twofold: it must be temporary, for
a specified period and the purpose must be for use in a circus.
[17]
The
keeping of elephants in captivity is a serious concern that the Norms
and Standards seek to regulate. Even the exception in
clause 11(3) to
restrict the keeping of captured elephants in captivity must be with
the approval of the Minister, and then only
in exceptional
circumstances, such as when international agreements permit or for
purposes of scientific research. Clause 12(3)
prescribes detailed
conditions for translocating elephants. Another restriction is in
clause 12(2), which permits the translocation
of calves and bulls but
if wild and captive elephants are translocated it may be for
‘purposes of temporary captivity’.
[18]
Clearly
clauses 12(4) and (5) co-exist in a matrix of other conditions in the
Norms and Standards aimed at protecting elephants.
Striking down
clauses 12(4) and (5) will leave clause 12(2) intact. Therefore the
remedy the applicant seeks will not assist him
as elephants may not
be kept in captivity except temporarily. Aside from the application
of the Norms and Standards to the applicant’s
proposed export
of his circus elephants, an issuing authority, that is, the Minister,
the MEC or an organ of State such as Ezemvelo,
may on application
issue a permit conditionally or unconditionally; refuse to issue a
permit or defer its decision in certain circumstances.
[13]
Their decisions must be consistent with the NEMBA, the national
environmental principles, national bio-diversity framework, any
other
relevant plans, international agreements binding on South Africa,
PAJA and any prescribed requirements. Section 92A(1)(
a
)
of the NEMBA enables the respondents to refuse to issue a permit if
performing a restricted activity is likely to have a negative
impact
on the survival of threatened or protected species. A ground of
refusal in terms of sub-secs 92A(1)(
a
)
or (
b
)
does not additionally have to be incorporated in any regulation in
terms sub-sec 92A(1)(
c
),
as counsel for the applicant suggests. A refusal in terms sub-sec
92A(1)(
c
)
is an independent ground; furthermore it refers to a refusal under
‘any regulation’. As it turns out two such regulations
exist.
[19]
To secure a
permit the applicant’s proposed export of his circus elephants
must comply with the Regulations and Notices to
the NEMBA.
[14]
The purpose of its 2007 Regulations is to regulate the permit system
in chapter 7 of the NEMBA applicable to restricted activities
involving species listed as threatened or protected.
[15]
Regulation 1(1) defines ‘controlled environment’
differently from the Norms and Standards to apply to all plant and
animal species listed in the schedules to the regulations.
[16]
It defines ‘Norms and Standards’ to mean any national
norms and standards issued in terms of s 9 of the NEMBA to the
extent
that they apply to:
‘
(i)
restricted activities involving listed threatened or protected
species.’
[20]
The
Minister may publish a list of ‘critically endangered species’,
‘endangered species’, ‘vulnerable
species’
and ‘protected species’ as defined for protection
in
terms of section 56 (1) of the NEMBA.
[17]
The 2007 Regulations cross-refers to the
‘
listed
threatened or protected species’ which means ‘a species
listed as a threatened or protected species’ and
‘threatened
species’ which means ‘indigenous species listed as
critically endangered, endangered or vulnerable
species’.
[18]
Notice
of such a list published in 2007 includes the African Elephant as a
category
of
“
Protected
Species”
that
is an
‘
indigenous
species of high conservation value or national importance that
require national protection’
.
[19]
Regulation 10 lists factors to be considered by the issuing authority
when it issues a permit. It includes whether the species
is listed in
terms of s 56 of NEMBA as critically endangered, endangered,
vulnerable or protected species. Regulation 11 requires
additionally
a risk assessment and stipulates other requirements.
[21]
In
addition to the 2007 Regulations the CITES Regulations were issued
under NEMBA.
[20]
The CITES
Regulations defines ‘species’ broadly to include an
animal that does not interbreed.
[21]
It lists African elephants as qualifying for special protection under
Appendix II.
[22]
A Management
Authority may issue permits for importing and exporting of species
listed in the schedules in the format of a prescribed
Appendix. The
export of elephants requires a permit
[23]
and a finding by the Scientific Authority that the export or import
will not be detrimental to the survival of the species.
[24]
Export and import permits are valid for limited periods of six and
twelve months respectively.
[25]
Regulation 10(13) confers discretion on the Minister and the MEC as
the management authorities to grant or refuse to grant a permit
subject to certain conditions.
[22]
The
power to issue permits regarding elephants therefore originates in
the CITES Regulations. The Minister gives notice of how that
discretion will be exercised in
clauses
12(4)
and (5) of the Norms and Standards. Although NEMBA does not declare
it an offence to import or export elephants without a
valid permit,
reg 16(1) of the CITES Regulations
does,
rendering it punishable on conviction by a fine of as much as R5
million or imprisonment not exceeding five (5) years which
accelerates on subsequent transgressions to a fine of R10 million or
imprisonment not exceeding ten years.
Conclusion
[23]
In
summary, the applicant’s challenge to the legality of the Norms
and Standards must fail. On the interpretation of s 9 consistently
with ss 97 and 98 of NEMBA alone the word ‘restrict’ is
not a prohibition against the export of elephants but a limitation
on
the circumstances in which they may be exported. The applicant’s
legality challenge is not substantive but formal based
on the Norms
and Standards not being authorised by the empowering statute. In
other words, once the Minister publishes regulations
stopping the
export of elephants other than for conservation that would dispose of
the alleged legal deficit and with it the applicant’s
hopes of
exporting his elephants for any other purpose. As it turns out the
Minister has published two regulations that prohibit
the import and
export of elephants without a permit. The applicant does not
challenge the reasonableness of the conditions except
to object to
the 2000 ha required to keep elephants captive. This objection
emerged tangentially. The applicant makes out no case
to support a
finding that the spatial restrictions are unreasonable.
Order
[24]
The
application is dismissed with costs including the costs of senior
counsel.
____________________
Pillay
J
APPEARANCES
Counsel
for the Applicant : C.G Van Der Walt
Instructed
by : J Leslie Smith & Company Inc
Tel:
(033) 845 9700
Ref:
Mr W Smith/tm/6FL1016
Warrensmith@jleslie@co.za
Counsel
for the 1
st
and 2
nd
Respondent : A.A Gabriel SC
Instructed
by : Messers, PKX Attorneys
Tel:
(033)
347 5354
Ref:
M Potgieter
Mail@PKX.co.za
Joanne@PKX.co.za
Date of Hearing : 12 May
2017
Date of Judgment : 25 May
2017
[1]
GN 251 in
GG
30833 of 29 February 2008.
[2]
Section 231 of the
Constitution
of the Republic of South Africa, 1996.
[3]
Section 172 of the
Constitution.
[4]
Section
24 of the Constitution.
[5]
Section 4(2)(
b
)
of NEMBA.
[6]
Section 5 of
NEMBA.
[7]
Reg 3(2)(
d
)
of
the
Convention on International Trade in endangered Species of Wild
Fauna and Flora Regulations, 2010 (the
CITES
Regulations)
[8]
Section 1(1) of
NEMBA.
[9]
Sections 6 and 7
of NEMBA.
[10]
Section 9(3) of
NEMBA.
[11]
Section 9(4) of
NEMBA.
[12]
Section 9(2) read
with ss 99 and 100 of NEMBA.
[13]
Section 88 (1) and
(2) of the NEMBA.
[14]
GN 152 in
GG
29657
of 23 February 2007.
[15]
GNR 152 of 23
February 2007,
Reg
2(
a
).
[16]
Reg 2(1) read with
the definition of controlled environment.
[17]
Section 56(1) of
the NEMBA read with s 1(1).
[18]
Reg 1(1).
[19]
GN R151 in
GG
29657 of 23 February 2007 as amended by GN 1187 in
GG
30568
of 14 December 2007.
[20]
GN R173 in
GG
33002 of 5 March
2010.
[21]
Reg 1 of CITES
Regulations.
[22]
Reg 2(1) and
(2)(b) CITES Regulations.
[23]
Reg 6(1) CITES
Regulations.
[24]
Reg 6(3)(c)
CITES Regulations.
[25]
Reg 10(2) and (3)
CITES
Regulations.