Reportable:
Circulate to Judges:
Circulate to Mag istrates:
Circulate to Regional Mag istrates:
YES /NO
YES/NO
YES/NO
YES/NO
IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION , KIMB E RLEY)
HENDRICK (WICUS) DIEDERICKS
And
MEC FOR AGRICULTURE, ENVIRONMENTAL
AFFAIRS , RURAL DEVELOPM EN T AND LAND
REFORM (NORTHERN CAPE)
MIN ISTER OF FORESTRY , FISHERI ES AND
THE ENV IRO NMENT
Coram: Tlaletsi JP et Le ver J
JUDGME NT
Lever J:
Case N o: 295/2023
Applicant
l st Respondent
2nd Re spondent
1. The applicant in this m atter is registered as a conservation operation for
Rhinoceros for non-commercial purposes. In fact, applicant's permit to run
Page 1 of 42
such conservancy is annexed to the founding affidavit as annexure "FA 7". The
said permit authorises the applicant to run the conservancy as a "Wildlife
Trader: Rhino Breeding (Non Commercial Purposes)". The applicant
describes his conservancy as breeding rhino to help ensure the survival of the
species and play a part in the prevention of its extinction. This self-description
by the applicant is not disputed by the respondents and is accepted by this
court.
2. The applicant's property on which such conservancy is run is some thirty-three
thousand (33,000) acres. Although the court was made aware of the name of
such conservancy and its location, it is deemed prudent not to repeat this
information as it is common cause between the parties that poaching of rhino
is the main threat to the very survival of the species. For the same reason it is
also deemed prudent not to disclose the numb er of rhino on the conservancy.
In any event, as will emerge presently, none of this information is relevant to
the question before this court for decision.
3. The only issue that is relevant for the purpose of context, is that it is
inordinately expensive to maintain these animals and protect them from
poachers. This is not disputed or contested by the respondents. It is also
common cause that the applicant has operated this rhino conservancy at great
personal cost for more than ten years.
Page 2 of 42
4. Applicant wants to offset the cost of maintaining and protecting these animals
from poaching by harvesting and then selling the horn of living animals, w ho
were born in captivity, in a sustainable manner which is not harmful to any
such living animal. It is not in dispute that the applicant is lawfully in
possession of rhino horn originating from White Rhinoceros ( Ceratotherium
Simum Simum ). The applicant does not seek to make a commerc ial profit out
of this trade in wh ite rhino horn. The proceeds of such sales w ill be ploughed
back into conservation of the rhino. T he applicant sets out that it costs him in
the region of twenty million Rand annually to feed, protect and propagate
these animals. Applicant contends that he is running out of money to do so and
the only way he can sustain his rhino conservancy is if he can monetise some
of the rhino horn which he has sustainably harvested from the anima ls he
protects. T his also, having regard to the way the respondents opposed the
application must be accepted as uncontested by the respondents.
5. Applicant contends that the existing international treaty being the Convention
on the International Trade in Endangered Species of Wild Fauna and Flora
(CITES) as it was adopted by South Africa and the way it was incorporated
into our domestic law, already makes provision for such trade. This is disputed
by both first and second respondents.
6. The applicant applied for a number of pennits to export the horn originating
solely from the White Rhinoceros, bred in the circumstances outlined above
Page 3 of 42
on his conservancy. The first respondent had not dealt with these applications
and the applicant launched a hybrid application in respect of ten ( 10) such
applications seeking an order compelling the first respondent to make the
necessary decisions and which foresaw the possibility of a review if the
decisions were not properly taken.
7. On the 31 March 2023 my brother Nxumalo J issued the order compelling the
first respondent to make the necessary decisions together with certain ancillary
relief.
8. Then in a letter dated 21 April 2023 the first respondent made her decision and
refused the relevant permits. Her reasons for refusing the said permits as set
out in the said letter were:
"4.1 the South African population of the white rhinoceros Ceratotherium
simum simum is included in Appendix II of the Convention on
International Trade in E ndangered Species of Wild Fauna and F lora
(CITES) for the exclusive purpose of allowing international trade in
live animals to appropriate and acceptable destinations and the
export of hunting trophies;
4.2 all other specimens, including the horn, are deemed to be specimens
of species included in Appendix I, meaning that the export of
specimens for commercial purposes is prohibited (Article III);
4.3 the non-detriment findings for the white rhinoceros Ceratotherium
simum simum made by the Scientific Authority, published under
Government Notice No. 575 in the Government Gazette No. 40021
of 2 7 May 2016, does not provide for the trade in rhino horn;
4.4 the applicant did not obtain import permits from the State ofimport."
Page 4 of 42
9. Thereafter, the record of decision was made available and the applicant filed
a supplementary founding affidavit as well as an amended Notice of Motion
under the provisions of Rule 53( 4) of the Un iform Rules of Court (the Rule/s).
The substantive relief now sought by the applicant in the amended Notice of
Motion reads as follows:
"l. The administrative action taken by the first respondent ('the MEC') -
which constitutes a decision to refuse to grant permits to the applicant to
export rhino horn as embodied in her letter to him on the 21 April 2023 -
is reviewed and set aside on the basis that it contravenes the principle of
legality in section 1 ( c) of the Constitution and/or various provisions of
section 6(2) of the Promotion of Administrative Justice Act 3 of 2000
('PAJA').
2. It is declared that:
2.1 The exemption contained in Article VII( 5) of the Convention on
International Trade in Endangered Species of Wild Fauna and Flora
(CITES) is part of South African domestic law.
2.2 In circumstances where the Management Authority is satisfied that
the rhino horn comes from a white rhinoceros Ceratotherium simun
simun (sic) that was bred in captivity for conservation purposes:
2.2.1 The Management Authority shall, upon application, issue a
permit/certificate to that effect;
2.2.2 A certificate shall be accepted in lieu of any permits and
certificates required under the provision of Article III, IV or V
of CITES;
2.2.3 An import permit from the State oflmport is not a requirement
for the export of rhino horn from South Africa by a person
who has been issued with a permit/certificate.
3. The MEC is directed to issue the applicant with a permit/certificate within
7 days of this order.
4. Alternatively to paragraph 3, the MEC is directed to take a decision on
whether to issue the applicant with a certificate within 7 days of this order
and to notify the applicant and his attorney of the decision and in the event
and to notify the applicant and his attorney of the decision and in the event
that the decision is to refuse to grant a permit/certificate to the applicant,
Page 5 of 42
the MEC must simultaneously provide her reasons as contemplated by
section 5 of PAJA and a record as contemplated by rule 53.
5. T hose respondents w ho oppose the relief sought in this notice of motion
are jointly and severally liable to the applicants (sic) for the costs of this
application.
6. Further and/or alternative relief."
1 O.Having regard to the written submi ssions, the latest practice notes and oral
subm issions made by the respective parties, it seems that they all agree that
the central issue in this case is w hether Article VII paragraph 5 of C ITE S has
been incorporated into South African dom estic law .
I I .In these circum stances, although it ma y seem counterintuitive to do so, it
wo uld be useful to give an overview of the architecture and work ings of the
C ITES Convention and then proceed to establish how C ITES was
incorporated into South African domestic law.
12.Th e questions to be decided by this court in the circumstances are whether, as
the applicant contends, Article V II paragraph 5 has been incorporated into
South African domestic law or whether, as the respondents contend, that the
manner in which the CITES treaty was incorporated into South African
domestic law was through the domestic 2010 CITES regulations (Annexure
"FA1 O") and the Minister deliberately did not include Article VII paragraph 5
Page 6 of 42
in our domestic law as part of stricter measures allowed by Article XIV of
CITES.
13.It will then be necessary to consider whether the impugned decision stands to
be set aside.
14.The outstanding issues will then be considered in the light of the conclusions
and rulings in respect of the questions set out above.
15. Turning now to an overview of the CITES Convention, its provisions insofar
as they are relevant to this application and how they operate.
16.CITES is a specific multilateral treaty dealing with environmental law, that
seeks to regulate international trade in specimens of endangered species of
wild fauna and flora. I think it is fair to repeat the formal title of the treaty
because the title itself shows the emphasis on wild fauna and flora. The fonn al
title of the treaty is: "Convention on the International Trade in Endangered
Species of W ild Fauna and Flora" (CITES). A copy of the Cites Convention is
annexed to the founding papers as annexure "FA6".
17.CITES regulates trade in endangered species. It does not as a blanket provision
prohibit international trade in endangered species. CITES works by
classifying wild fauna and flora according to how endangered they are
perceived to be. The most endangered and closest to extinction are listed in
Page 7 of 42
Appendix I. Those not in imm ediate danger of extinction but may be
threatened by extinction if trade is not regulated are listed in A ppendix II.
These are the appendices that are relevant to the application before us.
18.Th e strictest requirements are required for the species listed in Appendix I.
T hese require an export permit from the State Party w here the relevant
specimen originates. It also requires an import permit from the State Party
w hich is the end destination of the specimen concerned. Each of these has their
own strict requirements. These requirements are governed by Article III
paragraphs 2 and 3 respectively of CITES.
19.Species listed in Appendix II require an export permit from the State Party
which is the source of the specimen but no import permit is required from the
state party w here the relevant specimen is sent. These requirements are
governed by Article IV of C ITES.
20.lt is commo n cause that the white rhino is listed in Appendix II, but that its
horn is listed in Appendix I. In respect of w ild white rhino, trade in its horn is
governed by the rules applicable to Appen dix I, which as we have seen is
regulated by Article III of CITES .
21.However, the rules of trade in the C ITES Convention itself are completely
different for specimens that come from captive breeding operations (CBO's),
Page 8 of 42
such as the applicant's conservancy. Many of the restrictions that govern
international trade in species taken from the wild are relaxed if the specimen
comes from a CBO. This recognises that CBOs aim to achieve propagation of
the species concerned through breeding programmes. In other words, by
encouraging breeding of the species concerned they provide a buffer against
the extinction of that species. This is why they are exempt from the onerous
restrictions contained in Article III of CITES. This is underscored by the
provisions of Article VII of CITES.
22.Article VII of CITES makes prov1s10n for 'exemptions'. Article VII
paragraphs 4 and 5 illustrate how this aspect of CITES works. The relevant
paragraphs provide:
"4. Specimens of an animal species included in Appendix I bred in
captivity for commercial purposes, or of a plant species included in
Appendix I artificially propagated for commercial purposes, shall be
deemed to be specimens included in Appendix II.
5. Where a Management Authority of the State of export is satisfied
that any specimen of an animal species was bred in captivity or any
specimen of a plant species was artificially propagated, or is a part
of such an animal or plant or was derived therefrom, a certificate by
the Management Authority to that effect shall be accepted in lieu of
any of the permits or certificates required under the provisions of
Article III, IV or V."
23.From the context Article VII paragraph 5 deals with animals or specimens bred
in captivity for non-commercial purposes, such as conservation. If the animal
is bred in captivity one of these exemptions will, depending upon the question
Page 9 of 42
as to whether the animal was bred for commercial or conservation purposes,
be triggered.
24.It is contended on behalf of the applicant that since the animals in his
conservancy are bred for non-commercial purposes, the exemption set out in
Article VII paragraph 5 applies to white rhino horn originating from animals
bred on applicant's conservancy.
25 .In summary, what we have seen from the architecture of CITES is that an
important distinction is made between wild animals and animals bred in
captivity. Trade in wild animals or specimens thereof listed in Appendix I can
only take place if the onerous conditions stipulated in Article III are complied
with. However, if animals listed in Appendix I are bred in captivity for
commercial purposes, then Article VII paragraph 4 provides that such animals
or specimens thereof may be traded under the less onerous conditions set out
in Article IV. If animals or specimens thereof, listed in Appendix I, are bred in
captivity for non-commercial purposes, such as conservation, then the
provisions of Article VII paragraph 5 provide that such animal or specimen
derived therefrom may be traded without having to comply with articles III,
IV or V of CIT E S. What Article VII paragraph 5 requires in those
circumstances is a certificate from the Management Authority, in this case the
MEC, that they are satisfied that the relevant animal or specimen derived from
Page 10 of 42
such animal, is an animal or is derived from an animal that was bred in
captivity for non-commercia l purposes. App licant contends that in such
circumstances nothing else is required for international trade in respect of that
particular specimen.
26.The above overview represents the basic architecture of CITES. There are,
however, other provisions of CITES that assist State Parties to regulate and
control the permits required for trade in endangered species. Key to applying
the permit system required by CITES is to be able to know and identify the
circumstances in which the anima l or specimen is derived. To assist w ith this
'source codes' were developed and officially adopted through the CITES
governing mechanism.
27.The MEC has adopted the position in paragraph 561 of her answering affidavit
that: " ... , that the trade in Appendix I specimens is most definitely not
regulated in accordance with the source code assigned to the specimen." The
evidence that the MEC is wrong in this regard is so overwhelming that it is
just as well to dispose of this issue before proceeding any further. The G uide
to use of the 'source codes', an official publication of CITES annexed to the
replying affidavit as annexure "RA 12" establishes beyond doubt that it does
apply to trade in Appendix I specimens. The South African CITES
1 There are two paragraphs numbered 56 in the MEC's answering affidavit. The position the MEC takes is set
out in the second such paragraph.
Page 11 of 42
REGULATIONS 2010, a copy of which is annexed to the founding affidavit
as "FA 1 O" has a sample application form required to apply for a permit under
CITES, this samp le application form required by South African Regulations,
clearly requires a source code to be provided by the applicant for a CITES
permit. Finally, the Deloitte audit, being annexure "RA23" clearly shows from
data provided by the Minister's Department to the CITES Secretariat that such
source codes have been widely used in and by South Africa as a State Party
over an extended period.
28. The source code "W'' indicates an animal from the wild. Trade in a specimen
that derives from this animal would be subject to the strict requirements set
out in Article III paragraphs 2 and 3 of CITES. The source code "D" indicates
an animal bred in captivity for commercial purposes. Trade in a source code
"D" specimen would be governed by Article VII paragraph 4 as read with
Article IV. The source code "C" indicates an animal or a specimen derived
therefrom that was bred in captivity for non-commercial purposes such as
conservation. Source code "C" specimens are subject to a certificate from the
MEC that the relevant specimen derives from an animal bred in captivity for
conservation purposes. Then the requirements of A11icle VII paragraph 5 are
applicable in those circumstances if the said Article VII paragraph 5 has been
incorporated into our domestic law.
Page 12 of 42
29.It is clear from the above that source codes are central to the way CITES works
and allows State Parties, whether they represent the exporting source or the
importing destination to properly comp ly with their obligations under CITES.
'Source codes' are not to be confused with 'purpose codes' which serve an
entirely different function. This is the necessary overview of the architecture
of CITES and how CITES works.
30.In short, the history of how South Africa became a State Party to CITES
commenced when the United Nations Environmental Programme (UNEP)
convened a global conference in Washington DC during the week of 3 March
1975. South Africa sent a delegation to this conference. At the end of this
conference a multilateral treaty, the CITES Convention, was prepared. South
Africa signed this treaty on the 15 June 1975.
31.Resolutions were obtained from both Houses of Parliament approving and
authorising the ratification of the CITES Convention. The South African
instrument of ratification was lodged with the nominated depository state on
the 15 July 1975. The South African instrument of ratification is annexed to
the replying affidavit as annexure "RA9".
32.At the time of lodging this instrument of ratification, South Africa as a State
Party, acceded to the CITES Convention without any reservations being
registered or deposited. In other words, at the time of accession to the CITES
Page 13 of 42
Treaty no part of such treaty was specifically excluded from South Africa's
acceptance of the said treaty. Accordingly, the entire CITES treaty is binding
on South Africa in its relationships with the other state parties to the CITES
treaty. All of this is common cause between the parties.
33.Acceding to the Cites Convention incun-ed the obligation to incorporate the
terms of the CITES Convention into South African domestic law. It also
incun-ed the obligation to enforce the provisions of the C ITES Convention
domestically. Also, South Africa as a State Party to CITES incun-ed certain
other obligations at an international relations level.
34. In terms of incorporating an international treaty into South African domestic
law, South Africa is a dualist not a monist state. It has been a dualist state at
all times material to the present application. This is illustrated by a line of
cases starting with the decision of Steyn CJ in 1965, in the case of Pan
American Airways v S A Insurance Co. Ltd., which sets out the position as
follows:
"It is common cause, and trite law I think, that in this country, the
conclusion of a treaty, convention or agreement by the South African
Government with any other Government is an executive and not a
legislative act. As a general rule, the provisions of an international
instrument so concluded, are not embodied in our municipal law except by
legislative process .... In the absence of any enactment giving the relevant
provisions the force of law, they cannot affect the rights of the subject."2
2 Pan American World Airways Incorporated v S.A. Insurance Co. Ltd. 1965 (3) SA 150 (A) at 161C -D.
Page 14 of 42
3 5. This statement of the law quoted above has been repeatedly endorsed by our
courts right up until the Constitution took effect on the 4 February 1997 .3
36. The question of international treaties or conventions being incorporated into
our domestic law has been codified in section 231 of our Constitution4 • The
relevant section reads:
"231 (I) The negotiating and signing of all international agreements is
the responsibility of the national executive.
(2) An international agreement binds the Republic only after it
has been approved by resolution in both the National Assembly and
the National Council of Provinces, unless it is an agreement referred
to in sub-section (3).
(3) An international agreement of a technical, administrative or
executive nature, or an agreement which does not require either
ratification or accession, entered into by the national executive,
binds the Republic without approval of the National Assembly and
the National Council of Provinces, but must be tabled in the
Assembly and the Co uncil within a reasonable time.
( 4) Any international agreement becomes law in the Republic
when it is enacted into law by national legislation; but a self
executing provision of an agreement that has been approved by
Parliament is law in the Republic unless it is inconsistent with the
Constitution or an Act of Parliament.
(5) The Republic is bound by international agreements which
were binding upon the Republic when this Constitution took effect."
3 See: S v Tuhadeleni 1969 (1) SA 153 (A) at 173-5; Maluleke v Minister of Internal Affairs 1981 (1) SA 707 (B) at
712H; Binga v Administrator-General for South West Africa 1984 (3) SA 949 (SWA) at 968B -C; S v Muchindo
1995 (2) SA 36 (W) at 38H-I; and AZAPO & Others v President of the Republic of South Africa 1996 (4) SA 671
(CC) at para [26).
4 Act 108 of 1996.
Page 15 of 42
37. It is common cause that the CITES Convention is not a self-executing treaty
because it is not an international agreement of a technical, administrative or
executive nature. South Africa therefore required the specific incorporation of
CITES through national legislation before it became part of South African
domestic law.
38.The Constitution took effect on 4 February 1997; however, section 231 of the
Co nstitution merely codified the position as it had been when both the 1961
and 1983 Co nstitutions were in effect. T his is illustrated and confirmed by the
judicial decisions already referred to above. 5
39.Subsequent to the present Co nstitution coming into effect this approach was
confirmed by the Co nstitutional Co urt in the case of G lenister v The President
of the Rep ublic of South Africa, where the position was set out as follows:
" ... An international agreement that has been ratified by Parliament under
section 231 (2), however, does not become part of our law, until and unless
it is incorporated into our law by national legislation. An international
agreement that has not been incorporated into our law cannot be a source
of rights and obligations."6 (references om itted)
40.Desp ite South Africa having a dualist system in relation to incorporation of
international treaties into domestic law, very few multilateral environmental
5 See: footnotes 2 and 3 above.
6 Glenister v President of the Republic of South Africa 2011 (3) SA 347 (CC) at para (92).
Page 16 of 42
treaties were incorporated into South African domestic law during the 1970s
and 1980s. The applicant sets out the reason for this in his replying affidavit.
Essentially, the reason for this is that prior to the current constitutional
dispensation environmental matters and conservation matters we re not
administered at national government level, but these issues were administered
by the then existing provinces. This is common cause between the parties.
41. Two of the most important multi lateral environment treaties were affected by
this problem. Namely , CITES and the Convention on Biodiversity (the CBD).
These treaties were not incorporated into our domestic law until 2004 when
national legislation was enacted that incorporated these two treaties into our
domestic law.
42.The National Environmental Management: Biodiversity Act7 (NEMBA) is the
national legislation that incorporates both CITES (1975) and the CBD ( 1992)
into our domestic law. Although how precisely CITES was incorporated by
NEMBA into domestic law is contested by the parties. In short, the applicant
contends that NEMBA itself incorporates the CITES treaty into domestic law
and the respondents contend that CITES was incorporated into domestic law
by the regulations promulgated in terms of NEMBA some six years after
NEMBA came into effect. These opposing arguments will be set out in greater
777 Act 10 of 2004.
Page 17 of 42
detail later m this judgment, before consideration will be given to such
arguments.
43.Section 5 of NEMBA reads: "This Act gives effect to ratified international
agreements affecting biodiversity to which South Africa is a party, and which
bind the Republic." This reference, on the applicant's argument, incorporates
into South African domestic law the ratified but up to that point the
unincorporated multilateral treaties and conventions dealing with biodiversity,
namely, CITES and the CBD.
44.Chapter 4 of NEMBA is entitled "THREATENE D OR PROTECTED
ECOSYSTEMS AND SPECIES". In this chapter section 5 l(c) referrers to
CITES and reads: "The purpose of this chapter is to give effect to the
Republic's obligations under international agreements regulating international
trade in specimens of endangered species;". Section 57(1 A) in chapter 4 of
NEMBA refers to CITES by name and read with section 87(e) in chapter 7 of
NEMBA provides: "A person may not import, export, re-export or introduce
from the sea, a specimen of a species listed in terms of the Convention on
International Trade in E ndangered Species of Wild Fauna and Flora (CITES)
without a permit issued in terms of Chapter 7."
45.Chapter 7 ofNEMBA is entitled "PERMITS ". The wording of section 87(e)
in effect make s provision for the permits required by CITES. Section 87 A(2)
Page 18 of 42
makes it clear that in the case of the applicant's applications for a permit that
the MEC (first respondent) is the issuing authority responsible for deciding
the applicant's application for a permit.
46. Section 88(2)(b) of NEMBA provides that the issuing authority, in this case
the MEC , may require the applicant to comply with reasonable conditions
before she issues a permit to him.
47.Section 88(3)(e) provides that: "A decision of the issuing authority to issue or
refuse a perm it or to issue it subject to conditions, must be consistent with -
any applicable international agreements binding on the Republic."
48. This is a brief overview of the history of CITES and its incorporation into our
domestic law.
49.Mr Hopkins SC, who appeared for the applicant in this matter, submits that in
the present context it has always been necessary for international treaties to be
incorporated into domestic law by national legislation and that nothing less
than national legislation will suffice.
50.Mr Hopkins submitted that once South Africa ratified the whole of CITES
without reservation, it incurred the concomitant obi igation to incorporate the
whole of the CITES Convention into its domestic legal order.
Page 19 of 42
51.Mr Hopkins argued that the whole of CITES is binding on South Africa
because South Africa ratified the whole of the Convention without any
reservations, ipso facto the MEC's decision on the applicant's applications had
to be decided in a manner that is consistent with all the provisions of CITES,
including Article VII paragraph 5 thereof. In support of this argument Mr
Hopkins referred to section 88(3)( e) of NEMBA . Where he points out that the
MEC 's decision to grant or refuse the relevant permit" ... must- be consistent
with any applicable international agreements binding on the Republic."
52.Mr Hopkins concludes that at a factual level, the national legislature required
the MEC to take into account the fact that the applicant was applying to export
rhino horn origination from white rhinoceros, bred in a rhino conservancy that
is registered as a captive breeding operation for non-commercial purposes.
When doing so, the MEC should have taken into account the fact that the
applicant did not require either an export permit nor an import permit, because
Article VII (5) of CITES exempts him from these requirements.
53. Ms Ellis SC , w ho appeared for both the first and second respondents herein,
opened her argument with the submission that there are three requirements,
but from the context she must mean methods , in which an international treaty
can be incorporated into South African domestic law. The first method, or as
Ms Ellis puts it 'requirement', is that the provisions of the relevant treaty be
Page 20 of 42
incorporated into the text of an act. Ms Ellis contends that this is not the case
with NEMBA, that the provisions of CITES are not incorporated into
NEMBA. Ms Ellis concludes that the first 'requirement' (method) is not met.
Ms Ellis contends that for this reason Mr Hopkins's submission that NEMBA
incorporated the CITES treaty into South African domestic law cannot be
correct.
54.The second ':requirement' (method) Ms Ellis submits is that the international
agreement may be included as a schedule to a South African Act. Ms Ellis
points out that the CITES convention is not included as a schedule to NEMBA.
55.Ms Ellis submits that the third method in which an international agreement
may be incorporated into South African domestic law is when an enabling act
authorises the Executive to bring the agreement into effect by way of a
Proclamation or Notice in the Government Gazette.
56. Ms Ellis implied that international treaties may only be incorporated into
South African domestic law by one of these three methods, in her words
'requirements'. Save for a vague reference to an older edition of Professor
Dugard 's work on 'International Law', she gave no authority for such
proposition. This aspect will be considered in greater detail later in this
judgment.
Page 21 of 42
57.Ms Ellis submits that the third method of incorporation was the method used
for the incorporation of C ITES into our dom estic law. To substantiate this
subm ission Ms Ellis argues that this is what is implied w hen sections 2 and 5
are read together with section 97 ofNEMBA.
58.Ms Ellis correctly points out that CITES needs to be incorporated into our
domestic law. If it is not so incorporated it may well create obligations on the
part of South Africa to other state parties to the convention, but it wi 11 have no
application to South African subjects.
59.Ms Ellis po.ints out that under the definition of 'national legislation' contained
in section 239 of the Constitution, subordinate legislation ma de in terms of an
Act of Parliament is 'national legislation' for the purposes of section 231 ( 4)
of the Constitution. Section 23 1 ( 4) deals w ith the domestication into South
African law of an international agreement.
60.Ms Ellis then contends that A rticle V II paragraph 5 of CITES was not
incorporated into South African domestic Law because the then M inister did
not mention that paragraph of the said Article in the domestic C ITES
regulations that we re promu lgated in 20 l 0, being annexure "FA IO" to the
founding affidavit.
Page 22 of 42
61.Ms Ellis argued that the Minister did not simply forget to mention Article VII
paragraph 5 of the CITES convention when she promulgated the regulations
being annexure "FA l 0", but that this was deliberately omitted by the Minister
as part of 'stricter domestic measures' that South Africa was entitled to adopt
under article XIV of CITES. She further contended that these 'stricter
dome stic measures' may be taken unilaterally by any state party to CITES.
62.Ms Ellis points out that article VII paragraph 4 of CITES is specifically
provided for in Regulation 11 ( 4) ·of the 20 IO CITES regulations, being
annexure "FA l 0". However, she argues that no provision is made for Article
VII paragraph 5 of CITES in the said regulations. R eferring to the wording of
section 57( 1 A) of NEMBA and contends that this is proof that the Minister
did not simply forget to deal with Article VII paragraph 5 of C ITES.
63.Ms E llis then argues that resolutions of the Cong ress of the Parties (COP) are
not binding on the State Parties, that they are merely aids to interpretation of
the provisions of CITES. Ms Ellis argues that it follows from this that it does
not necessarily mean that when use of the source code "C" is used in the South
African context that South Africa has adopted Article VII paragraph 5 of the
CITES convention.
64.Ms E llis further contends that use of a source code cannot indicate that an
exemption has been incorporated into South African domestic law. She
Page 23 of 42
consequently contends that article VII paragraph 5 has not been incorporated
into South African domestic law.
65.Ms Ellis then refers this court to correspondence from a certain Mr De
Meulenaer, Chief of the science unit at the C ITES secretariat. Ms E llis submits
that this correspondence from Mr De Meulenaer came into existence in the
context of Mr Lewitton, the deponent to annexure "FA 11" approaching Mr
Tejane, an official in the second respondent's office charged w ith the
management of C ITES w ithin the Minister7s office, to establish whether
article VII paragraph 5 was a part of South African dom estic law. T he letter
from Mr D e Meulenaer was a response to a letter from Mr Tejane seeking
information on this issue. Ms E llis relies on this letter from Mr De Meulenaer
and placed some emphasis on its contents. The said letter is annexure "AA35 "
to the answe ring affidavit. In these circum stances it is necessary to quote the
substance of such letter in its entirety so as not to distort its context. The
substance of the said letter reads:
"Dear MrTjiane ,
The population of (sic) South Africa of Ce ratorherium simum simum is included in Appendix II for
the exclusive purpose of allowing international trade in live animals to appropriate and acceptable
destinations and hunting trophies. All other specim ens, including rhino horn, shall be deemed to be
specimens of species included in Appendix I and the trade in them shall be regu lated accordingly.
Acco rdingly, the export of horn from w hite rhinos by South Africa is only possible under the
provisions of Article Ill of the Conve ntion, pertaining to Append ix-J listed species. This means that
an export permit ma y be issued by South Africa only if the specimen was legally obtained; the trade
wi ll not be detrimental to the survival of the species; and an import permit has already been issued.
The import permit is to be issued by the Ma nagement Authority of the State of import, and only if
Page 24 of 42
the specimen is not to be used for primarily commercial purposes and if the import will be for
purposes that are not detrimental to the survival of the species.
In case the horn is derived from captive bred white rhinoceroses, the exemptions provided in Article
V II, paragraph 5 could apply: Where a Management Authority of the State of export is satisfied
that any specimen of an animal species was bred in captivity. or is a part of such an animal or was
derived therefrom, a certificate by the Manageme nt Au thority to that effect shall be accepted in lieu
oft he permits or certificates required under the provisions of Article Ill. This exemption is however
not provided for in South Africa's national C ITES legislation, and for the export of horn from wild
or captive bred white rhinos from South Africa, all the provisions of Article Ill continue to apply,
including the need for an export permit and the preceding issuance of an import pennit, issued only
on the condition that trade is primarily for non-commercial purposes.
Article VII, paragraph 4. specifies that specimens of an animal species included in Appendix I bred
in captivity for commercial purpose shall be deemed to be specimens of species included in
Appendix 11. The implementation of this provision is addressed in Resolution Conf. 12.10 (Rev.
Co P 15) on Registration of Operations that breed Appendix-I animal species in captivity for
comm ercial purposes. Its paragraph 8 provides that Parties agree to restrict imports for primarily
commercial purposes of captive-bred specimens of Append ix-I species to those produced by
operations included in the Secretariat's Register, and shall reject any document granted under
A1ticle VII, paragraph 4, if the specimens concerned do not originate from such an operation. South
Africa could verify that the horns are derived from anima ls that are bred in captivity as defined in
R esolution I 0.16 (Rev.), and ·captive bred for commercial purposes' as defined in paragraph I of
Re solution Conf. 12.10 (R ev. Co P 15). However , there are no captive breeding operations for
Ceratotherium simwn simum registered with the Secretariat in accordance w ith the provisions of
R esolution Conf. 12.10 (rev. CoP 15)."' (m y emphasis)
66.Ms E llis relies upon the underlined portion of Mr De Me ulenaer's letter to
support her argument that article VII paragraph 5 was not incorporated into
South African domest ic law. Ms Ellis contends that the applicant has article
V II paragraph 4 that it might implement, as Ms E llis contends Article V II
paragraph 4 is part of South African domestic law, but that applicant is not
registered as a captive breeding operation for commercial purposes with the
secretariat of CITES, so this avenue would also be closed to the applicant.
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67.Ms E llis then concludes that the applicant is not entitled to the relief he claims
as article VII paragraph 5 has not been incorporated into South African
domestic law.
68.There were two further peripheral issues to be dealt with raised by the first
and second respondents. The first being the Minister's counterapplication.
During the oral argument Ms Ellis on behalf of the Minister accepted a tender
that had been previously made by the applicant and accordingly the Minister's
counterapplication is no longer an issue for us to consider. The second issue is
the issue of misjoinder and/or non-joinder of Michelle Pfab as the third
respondent herein.
69.The basis of the misjoinder or non-joinder argument is two-fold. Firstly, there
was no formal application to join her under Rule 10. Secondly, Ms Pfab is not
the head of the South African Scientific Authority created to assist with aspects
of the application CITES w ithin South Africa.
70.These are the issues raised by the respondents. In reply the applicant submi tted
firstly that the case made out by the respondents in oral argument is not the
case it made out in the answering papers filed by them. Accordingly, Mr
Hopkins submitted that their arguments amounted to legal subm issions that
were not based on facts set out in the affidavits filed on their behalf. That in
certain respects their current arguments are factually at odds with the
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arguments raised in their answering affidavits. Mr Hopkins subm itted that
there ought to be some consequences for the manner in which the first and
second respondents have conducted their case.
71.F or present purposes I need only go so far as to state that insofar as the oral
arguments made on behalf of th~ first and second respondents are at odds with
the factual arguments made <?n the affidavits filed by the said respondents that
the first and second respondents had abandoned the case made out by them in
their answering affidavits. In any event, it was ?lear from the manner that Ms
Ellis conducted the case on behalf of the first and second respondent's that
they had abandoned the case made out by them in their answering affidavits.
72.It is convenient to first deal with the arguments raised by Ms Ellis on behalf
of the first and second respondents. The first issue to be considered is the
methods available to incorporate an international treaty into South African
domestic law. Professor Dugard in the 5th edition of his work on International
Law deals with this question as follows:
"Three principal methods are employed by the legislature to transform
treaties into municipal law. In the first instance, the provisions of a treaty
may be embodied in the text of an Act of Parliament; secondly, the treaty
may be included as a schedule to a statute; and thirdly, an enabling Act of
Parliament may give the executive the power to bring the treaty into effect
in municipal law by means of proclamation or notice in the Government
Gazette. Mere publication of a treaty for general information does not
constitute an act of transformation."8 (references omitted)
8 John Dugard et al 'International Law from a South African Perspective'., pages 79-80.
Page 27 of 42
73.Chief Justice Ngcobo in Glenister II deals with the same issue as to how an
international treaty may be incorporated into South African domestic law.
Ngcobo CJ quotes Dugard's work set out above with approval and sets out the
position as follows:
"For an international agreement to be incorporated into our domestic law
under section 231 ( 4 ), our Constitution requires, in addition to the
resolution of Parliament approving the agreement, further national
legislation incorporating it into domestic law. There are three main
methods the legislature appears to fol_low in incorporating international
agreements into dome stic law: (a) the provisions of the agreement may be
embodied in the text of an Act; (b) the agreement may be included as a
schedule to a statute; and ( c) the enabling legislation may authorise the
executive to bring the agreement into effect as domestic law by way of a
proclamation or notice in the Government Gazette."9 (references om itted)
74.From the way that both Professor Dugard and Chief Justice Ngcobo dealt w ith
this question, it is clear that these three 'principal' or 'main m ethods' of
incorporation are by no means a closed or exclusive list. T hey are simply the
most com m only used methods of incorporation into domestic law.
75.In these circumstances Ms Ellis characterising them as a 'requirement' by use
of that wo rd, is clearly misplaced. T he irony of Ms Ellis using this
characterisation in these circumstances arises from the fact that one of her
clients, the Minister, in her answering affidavit argues that C ITES was
9 Glenister v President of the Republic of South Africa (Glenister II) (2011) ZACC 6; 2011 {3) SA 347 (CC) at para
(99).
Page 28 of 42
incorporated by reference in the then existing provinces Ordinances.
Incorporation by reference is clearly an option for incorporation of a treaty
into dome stic law even though this may not be the most commonly used
method.
76. Whether NEMBA incorporated CITES by reference will be considered
presently. First, consideration will be given to M s Ellis' argument that CITES
was incorporated by way of the 20 10 C ITES regulations.
77 .Ms Ellis on behalf of the first and second respondents contends that the CITES
treaty was incorporated into domestic law by way of the third option set out
by Professor Dugard and Chief Justice Ngcobo, being by way of the enabling
legislation (NEMBA) authorising the executive to bring the treaty into effect
as domestic law by way of a proclamation or notice in the Government
Gazette. Ms Ellis argues that this is implied if one reads sections 2, 5 and 97
ofNEMBA together.
78.Section 2 of NEMBA reads as follows:
"2 Objectives of the Act
The objectives of the Act are-
(a) within the framework of the National Environmental Manag eme nt Act, to provide
for-
(i) the management and conservation of biological diversity within the
Republic and of the components of such biological diversity within the
Republic;
(iA) the need to protect the ecosystem as a whole, including species which
are not targeted for exploitation;
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(ii) the use of indigenous biological resources in a sustainable manner; and
(iii) the fair and equitable sharing among stakeholders of benefits arising
from bioprospecting involving indigenous biological resources;
(b)to give effect to ratified international agreements relating to biodiversity w hich are
binding on the Republic;
(c) to provide for co-operative governance in biodiversity management and
conservation; and
(d)to provide for a South African National Biodiversity Institute to assist in achieving
the objectives of this Act."
79. Section 5 of NEMBA reads as follows:
"s. This Act gives effect to ratified international agreements affecting biodiversity to which South
Africa is a party, and which bind the Republic:·
80.Ms Ellis submitted that the above sections of NEMBA be read with section 97
ofNEMBA. The then Minister who promulgated the 2010 C ITES regulations
relied upon section 97( I )(b )(iv) in promulgating the said regulations. The said
regulations are annexed to the founding affidavit as annexure "FAl 0". Section
97(1)(b)(iv) ofNEMBA reads as follows:
"97( 1) The Minister may make regulations relating to-
(b)(iv) the facilitation of the implementation of an
international agreement regulating international trade
in specimens of species to w hich the agreement applies
and which is binding on the Republic."
8 1.Section 2 and section 5 of NEMBA refer to international agreements which
are binding on the Repub lic. The said sections ofNEMBA gives effect to those
international agreements. The only two international agreements wh ich South
Africa is a state patty to and w hich are binding on the Rep ublic are: Firstly,
C ITES and secondly, the Convention on Biodiversity (the CBD).
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82.Ms Ellis' reliance on the letter from Mr De Me ulenaer of the CITES Science
Unit to support her argument for the exclusion of Article VII paragraph 5 of
CITES in South African domestic law cannot be sustained for three reasons:
Firstly, Mr De Meu lenaer does not set out the basis for his conclusion that
Article VII paragraph 5 is not provided for in our national CITES legislation;
Secondly, this is the very question this court is tasked w ith deciding; and
Finally, Mr .De Meulenaer's letter was written as a response to the letter of Mr
Tejane. Mr .Tejane's letter is not included in the papers and both the applicant
and this court have been deprived of knowing the context in which Mr De
Meulenaer wrote his response and more significantly, the applicant has been
deprived of the opportunity of dealing with such context.
83.Ms Ellis' contention that the 2010 CITES regulations ("FAl0") is the
mechanism that incorporated CITES into our domestic law and that the
Minister excluded Article VII paragraph 5 of CITES from our domestic law
as part of stricter domestic measures allowed under Article XIV of CITES by
merely not dealing with Article VII paragraph 5 in the said regulations is
untenable because the underlying purpose of the CITES treaty is for all state
parties to the treaty to enforce a uniform approach to trade in threatened
species or specimens thereof or enforce the stricter domestic laws of a
particular state party. It is implicit in this that if there are any stricter domestic
laws of a particular state party that the secretariat of C ITES needs to be
Page 31 of 42
properly informed of the nature and extent of such stricter domest ic meas ures
so that state parties to CITES can properly apply and enforce such stricter
measu res for them to comp ly with their own obligations under the C ITES
treaty.
84.Not only is it implied that a state party wishing to enforce stricter domestic
measures must specifically and pertinently inform the secretariat of CITES of
these stricter domestic measures, but such detailed information is also required
by way of a CITES conference resolution, Conf. 4.22, which is annexed as
annexure "RA16 ".
85.The applicant has pointed out that only two state parties to CITES have lodged
such stricter domestic measures with the secretariat of CITES, being New
Zealand and Israel. The relevant documents are annexed to the replying
affidavit as annexures "RA 18" and "RA 19" respectively.
86.Ms Ellis' argument that the Minister adopted stricter provisions by simply not
dealing w ith or providing for Article V ll paragraph 5 in the 20 IO regulations
is untenable because it does not meet either the imp lied standard alluded to
above, or the requirements of the resolution adopted as Conf. 4.22 a copy of
which is annexure "RA 16".
Page 32 of 42
87. If a stricter measure contemplated under Article XIV of CITES can be
established by simply omitting to deal w ith Article VII paragraph 5 it would
make it difficult if not impossible for other state parties to CITES to fulfil their
obligations to South Africa under the CITES treaty because they wo uld have
no clear statement of what their obligations to South Africa are under the
stricter provisions that are suggested by Ms Ellis to have been established 'by
om ission'. This is especially so where South Africa acceded to the CITES
treaty without reservation or qualification.
88.ln short, the only way stricter requirements can be enforced and given effect
to by state parties to CITES is if they are positively and explicitly set out and
registered w ith the secretariat of C ITES. For this reason alone, the contention
that the failure to deal with Article VII paragraph 5 in the 2010 regulations
amounts to a stricter domestic requirement must fail. It is simply untenable in
the circumstances.
89.Ms Ellis' contention that source code "C" in the South African context does
not mean that the exemption contemplated in Article VII paragraph 5 applies
in South African law, is equally untenable. The whole point of having a
uniform set of 'source codes' is that all state parties to CITES w ill know w hich
rules to apply in respect of trade in a particular case. Source code "C " can only
be applied to Article VII paragraph 5 of CITES. It has no other purpose if it
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could be applied in a different context in individual state parties to CITES it
would undermine the whole system of regulating trade under CITES.
90.In any event Ms Ellis has not provided an explanation as to what the South
African context to source code "C" is or why source code "C" should exist in
a different context in South Africa as to what has been agreed by the state
parties to CITES. The evidence that source code "C" has been used in South
Africa is overwhelming. In the context of CITES it cannot mean anything else
but that Article VII paragraph 5 has been incorporated into South African
dome stic law as part of CITES.
91.Both the first and second respondents have chosen not to engage with the
evidence that source code "C" has in fact been used over an extended period
in South Africa. There is only one conclusion that can be drawn from this fact
and that is Article VII paragraph 5 is part of our domestic law under CITES.
Even the specimen application form for a perm it that forms part of the relevant
20 IO regulations specifically provides for source code "C". This shows that
the Minister who promulgated the said regulations ("FA 1 O") understood the
purpose and function of source code "C" within the context of CITES and that
indeed Article VII paragraph 5 is part of our domestic law.
92.In my view reading sections 2, 5 and 97 ofNEMBA, Parliament incorporated
CITES into our domestic law through NEMBA itself and intended to
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operationalise it, as is normally the case with legislation, through regulations.
In my view Article VII paragraph 5 is part of South African domestic law.
93.At this point we need to consider the impugned decision itself. Paragraph 4 of
the first respondents letter dated 21 April 2023 contains four sub-paragraphs
which purport to be the MEC's (first respondent's) reasons for refusing the
applicant's request for export permits. These sub-paragraphs are quoted in full
in paragraph 8 of this judgment above. ·The first such sub-paragraph is not a
reason per se, it is really a statement of fact that is not contentious between
the parties.
94.The second sub-paragraph states: "all other specimens, including the horn, are
deemed to be specimens of species included in Appendix I. meaning that the
export of specimens for commercia l purposes is prohibited (Article III)".
Export of specimens of White Rhino horn is regulated under Atticle III of
C ITES if it involved an animal from the wild. However , what the MEC failed
to consider was that the applicant's rhino horn which he wished to export did
not originate from the w i Id but from a CBO on his conservancy. In these
circumstances Article VII and not Article III is applicable. Accordingly, the
MEC considered irrelevant factors and did not consider relevant factors. This
is a ground for setting aside such decision under PAJA.
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95.The third sub-paragraph of paragraph 4 of the said letter from the MEC
constitutes her second reason for rejecting the relevant application. T his sub
paragraph reads: "the non-detriment findings for the white rhinoceros
Ceratotherium simum simum made by the Scientific Au thority, published
under Government Notice No. 575 in the Government Gazette No . 40021 of
27 May 20 I 6, does not provide for the trade in rhino horn;" Non-detriment
findings are not required when Article V II paragraph 5 is applicable. Again, in
these circumstances, the MEC considered irrelevant factors and did not
consider relevant factors. Th is is a ground for setting aside the impugned
decision under PAJA.
96.The final decision relied upon by the MEC reads as follows: "the applicant did
not obtain import permits from the State of import." As can be seen from what
is set out above, no import permit is required when the exemption catered for
in Article VII paragraph 5 is applicable. T he applicant has run his conservancy
for a decade. It is clearly aimed at conservation. It is clearly a captive breeding
operation. It cannot be disputed that it is not run for commercial purposes. The
applicant is entitled to the exemption provided for in Article V II paragraph 5.
In these circumstances the MEC has made an error of law in reaching the
imp ugned decision. Th is is also a ground for setting such decision aside under
PAJA.
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97 .All three reasons relied upon by the MEC cannot be sustained m the
circumstances and the impugned decision stands to be set aside.
98.ln these circumstances, save for the relief sought in paragraph 3 of the
amended Notice of Motion, the applicant is entitled to the alternative relief he
seeks under paragraph 4 together with the other substantive relief sought in
terms of such amended Notice of Motion.
99.The next issue to be considered is the peripheral issue of the Joinder of Ms
Pfab. It is a peripheral issue because whatever decision we make on this issue
will not change the outcome of the position we take on the outcome of the
main issue set out above. The only thing that would be affected by a decision
on this question is the issue of costs related to the question of the joinder itself.
Nothing else will be affected by this issue.
I 00. Respondents' objection to the joinder of Ms Pfab, as set out above is two
fold. Firstly, they object because the joinder was not effected by an application
under the provisions of Rule 10. Secondly, respondents object because Ms
Pfab is not the head of the 'Scientific Authority'. Ms E llis in her oral address
to us on this question devoted approximately three sentences to this issue.
10 I. Mr Hopkins in dealing with this question in reply, on the first question
pointed out that although Ms Pfab was not a party to the initial application she
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was joined under the provisions of Rule 53 when the Notice of Motion was
amended for the review. Mr Hopkin s submitted the papers in the m atter we re
then served on Ms Pfab. Thus, Mr Hopkin s submi tted a joinder under the
provisions of Rule 10 was not required in the circumstances.
102. On the second question, Mr Hopkins submitted that Ms Pfab was the co
ordinator of the 'Scientific Authority'. T hat the correspondence and
documents filed of record originating from the office of the second respondent
(the Minister) referred enquiries in the matter to Ms Pfab. That in these
circumstances it did not matter that Ms Pfab was not the head of the 'Scientific
Authority'. On Mr Hopkin 's submi ssion she was the person who could assist
both the applicant and the court with infonnation that could have been of
assistance in resolving this matter.
103. In m y view Mr Ho pkins is correct in his submissions on both questions.
Accordingly, the Misjoinder/Non-joinder application stands to be dismissed.
104. In relation to costs, m y view is that the 'joinder' question is truly a
peripheral issue. In all the circumstances of the case I think that it wo uld be
equitable that costs in this issue simply be dealt w ith as 'costs in the cause'.
Page 38 of 42
105. In relation to costs of the review itself, Ms E llis took the position that costs
should be costs in the cause and Mr Hopkins sought to invoke the Biowatch
principle on the basis that the present review involved 'constitutional issues'.
106. It is not necessary in the circumstances to deal with the Biow atch Principle
m the circumstances where the review is successful and the applicant is
entitled to the bulk of the relief he seeks in the amended No tice of Motion'.
The issue is important to both the applicant and the respondents in this matter.
Both sets of the respective parties emp loyed senior counsel in this m atter. In
these circumstances, it is appropriate to award costs on scale "C".
l 07. The last question to be decided relates to the respondents' application to
strike out. This matter was originally set down for 3 days argument. When it
first came before us, we took the unusual position that as the application to
strike out was so wide ranging, we needed to decide this issue first so that we
could know what evidence was before us in order to sensibly engage the
respective parties on the relevant issues. To illustrate our concerns the
respondents sought to strike out approximately 116 passages/paragraphs and
certain associated annexures. This necessitated us hearing the application to
strike out on one of the days reserved for these proceedings and necessitated
a postponement to allow us to decide the striking out issue and thus w hat
evidence was properly before the court. The costs occasioned by this
Page 39 of 42
postponement were reserved for our decision in this matter to afford the parties
involved the opportunity of making submissions on this question.
108. Of the 116 passages/paragraphs the respondents sought to have struck from
the papers they succeeded to have only 1 paragraph struck out. Clearly, this
overbroad and unwarranted 'shotgun' approach •• by the applicants in the 'strike
out' application (present resp·ondents) was not warranted in the circumstances.
It was the direct cause of our '·heed to postpone the • matter. In these
circumstances, it is only equitable that the respondents herein, jointly and
severally the one paying the other to be absolved, should pay the wasted costs
occasioned by such postponeme nt.
In the circum stances, the following order is made:
1. The administrative action taken by the first respondent ('the :MEC') -
wh ich constitutes a decision to refuse to grant permits to the applicant to
export rhino horn as embodied in her letter to him on the 21 April 2023 -
is reviewed and set aside on the basis that it contravenes the principle of
legality in section I ( c) of the Constitution and/or various provisions of
section 6(2) of the Promo tion of Adm inistrntive Justice Act 3 of 2000
('PAJA').
2. It is declared that:
2.1 The exem ption contained in Article VII(5) of the Convention on
International Trade in Enda ngered Species of Wild Fauna and Flora
(CITES) is part of South African domestic law.
2.2 In circumstances where the Management A uthority is satisfied that
the rhino horn comes from a white rhinoceros Ceratotherium simum
simum that was bred in captivity for conservation purposes:
Page 40 of 42
2.2. 1 The Management Authority shall, upon application, issue a
permit/certificate to that effect;
2.2.2 A certificate shall be accepted in lieu of any permits and
certificates required under the provision of Article III, IV or V
of CITES ;
2.2.3 An import permit from the State oflmport is not a requirement
for the export of rhino horn from South Africa by a person
who has been issued with a permit/certificate.
4. The MEC is directed to take a decision on whether to issue the applicant
with a certificate within 7 days of this order and to notify the applicant and
his attorney of the decision and in the event that the decision is to refuse to
grant a permit/certificate to the applicant, the MEC must simultaneously
provide her reasons as contemplated by section 5 of PAJA and a record as
contemplated by rule 53.
5. The respondents are to pay the costs of this review application,jointly and
severally, the one paying the other to be absolved. Such costs are to be paid
on scale "C".
6. The wasted costs occasioned by the postponement of this matter in
December 2024 are to be paid by the respondents, jointly and severally, the
one paying the other to be absolved. Such costs are to be paid on scale "C".
7. The application in relation to the misjoinder/non-joinder of Ms Pfab is
dismissed and the costs of such application are to be costs in the cause.
Such costs are also to be paid on scale "C".
L. G. Lever
Judge
Northern Cape Division Kimberley
I agree,
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Judge President
Northern Cape Division Kimberley
Appea rances:
For the Applicant - Kevin Hopkins SC oio PGMO Attorneys.
For the Respondents - Isabelle E llis SC oio State Attorney.
Date of Hearing: 4 Augu st 2025
Date of Judgm ent: 31 October 2025
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