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[2026] ZANCHC 61
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MEC for Agriculture, Environmental Affairs, Rural Development and Land Reform (Northern Cape) and Another v Diedericks (National Society for the Prevention of Cruelty to Animals intervening as Amicus Curiae) (295/2023) [2026] ZANCHC 61 (3 July 2026)
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THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
Reportable/
Not
Reportable
Case
no:
295/2023
In
the matter between:
MEC
FOR AGRICULTURE, ENVIRONMENTAL
AFFAIRS,
RURAL DEVELOPMENT AND
LAND
REFORM (NORTHERN
CAPE)
First Applicant
MINISTER
OF FORESTRY, FISHERIES AND
THE
ENVIRONMENT
Second Applicant
and
HENDRIK
(WICUS)
DIEDERICKS
Respondent
NATIONAL SOCIETY FOR
THE PREVENTION
OF
CRUELTY TO
ANIMALS
Amicus Curiae
Neutral
citation:
MEC for
Agriculture, Environmental Affairs, Rural Development and Land Reform
(Northern Cape)
and Another v Diedericks
(
National Society for the Prevention
of Cruelty to Animals intervening as Amicus Curiae
)
(
295/2023
) 3
July 2026.
Coram:
Tlaletsi JP
et
Lever J.
Heard
:
29 April 2026
.
Delivered
:
3 July 2026
.
Summary:
Application for Leave to Appeal –
Section 17(1)(
a
)(i)
and (ii) of the
Superior Courts Act 10 of 2013
–
Whether
the envisaged appeal has reasonable prospects of success
–
Whether
there is some other compelling
reason why the appeal should be heard –
None
established
– Leave to appeal is refused.
ORDER
1.
The application for leave to appeal is dismissed with costs.
JUDGMENT
Tlaletsi
JP
[1]
This
is an opposed application for leave to appeal to the Supreme Court of
Appeal (SCA) against the whole of the Judgment and order,
including
all the orders for costs of the above Full Bench handed down on 31
October 2025.
[1]
[2]
The National
Society for the Prevention of Cruelty to Animals (“the NSPCA”)
was not a party to the proceedings before
the Full Bench. It joined
the proceedings as
amicus
curiae
only in this application for leave to appeal. However, its
application to lead further evidence was unsuccessful. Reasons for
the refusal to allow the NSPCA’s application to lead further
evidence were given at the hearing of the application for leave
to
appeal. Its submissions are therefore based on the existing record
and the points of law it wishes to raise.
[3]
The order
appealed against is on the following terms:
1.
“
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 simum
simum
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 of Import 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 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.
4.
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”.
5.
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”.
6.
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”.
”
[4]
The
Superior Courts Act
[2]
(“SC
Act”) regulates the applications for leave to appeal in the
Superior Courts. Section 17(1) provides that:
“
(1)
Leave to appeal may only be given where the judge or judges concerned
are of the opinion that—
(a)
(i)
the appeal would have a reasonable prospect of success; or
(ii)
there is some other
compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration;
(b)
the decision sought on appeal does not fall within the ambit of
section 16(2)(a); and
(c)
where the decision sought to be appealed does not dispose of all the
issues in the case, the appeal
would lead to a just and prompt
resolution of the real issues between the parties.”
[5]
The
SCA considered s 17(1)(
a
)
in
MEC
for Health: Eastern Cape v Mkitha
[3]
and held that:
“
Once
again it is necessary to say that leave to appeal, especially to this
court, must not be granted unless there truly is a reasonable
prospect of success. Section 17(1)(
a
)
of the
Superior Courts Act 10 of 2013
makes it clear that leave to
appeal may only be given where the judge concerned is of the opinion
that the appeal would have a
reasonable prospect of success; or there
is some other compelling reason why it should be heard.
An
applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic chance
of
success on appeal. A mere possibility of success, an arguable case or
one that is not hopeless, is not enough. There must be
a sound,
rational basis to conclude that there is a reasonable prospect of
success on appeal.”
[6]
It
is apparent from the foregoing that
s 17(1)(
a
)
of the SC Act prescribes the threshold for leave to appeal. It
provides two alternative bases upon which leave may be granted,
namely where the court is satisfied either that “the appeal
would have a reasonable prospect of success” or that “there
is some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration”.
The use of the disjunctive “or” makes it clear that these
requirements are alternative and not cumulative. Accordingly,
an
applicant need not establish both grounds. It suffices if either is
present, although reliance may be placed on both where
appropriate.
[4]
In
the present matter, the applicants rely on both reasonable prospects
of success and, in the alternative, the existence of some
other
compelling reason why the appeal should be heard.
[7]
Where
the applicant demonstrates either that the appeal would have a
reasonable prospect of success or that there is a compelling
reason
for the appeal to be heard, leave to appeal should be granted. On the
other hand, s 17(1)(
b
)
and (
c
)
constitutes contingent jurisdictional requirements, which are
triggered only where the nature of the decision sought to be appealed
so requires.
[5]
Section
17(1)(
b
)
operates in conjunction with s 16(2)(
a
),
which permits the dismissal of an appeal where the decision sought
would have no practical effect or result. Section 17(1)(
c
),
in turn, applies only where the decision sought to be appealed does
not dispose of all the issues in the case, thereby requiring
consideration of whether an appeal would lead to a just and prompt
resolution of the real issues between the parties. In
Smartpurse
Solutions (Pty) Ltd (applicant for leave) v FirstRand Bank, In re:
FirstRand Bank Ltd v Smart purse Solutions (Pty) Ltd
[6]
,
the court, having found that the applicant had based its application
for leave solely on the contention that the envisaged appeal
had
reasonable prospects of success, held as follows:
“
If
the applicant demonstrates that the appeal would have a reasonable
prospect of success (and the requirements in section 17(1)(b)
and (c)
are also met), the court must grant the leave that is sought. The
exercise of the power to grant leave is then not in the
court’s
discretion.”
[7]
(Footnote
omitted.)
[8]
In
Caratco
(Pty) Ltd v Independent Advisory (Pty) Ltd
[8]
,
the
applicant for leave to appeal advanced the grounds that the
contemplated appeal enjoyed reasonable prospects of success and
that
other compelling reasons existed for it to be heard. The application
was thus premised on both s 17(1)(
a
)(i)
and (ii) of the SC Act. The SCA made the following instructive
observations:
“
In
order to be granted leave to appeal in terms of s 17(1)
(a)
(i)
and s 17(1)
(a)
(ii)
of the
Superior Courts Act an
applicant for leave must satisfy the
court that the appeal would have a reasonable prospect of success or
that there is some other
compelling reason why the appeal should be
heard. If the court is unpersuaded of the prospects of success, it
must still enquire
into whether there is a compelling reason to
entertain the appeal. A compelling reason includes an important
question of law or
a discrete issue of public importance that will
have an effect on future disputes. But here too, the merits remain
vitally important
and are often decisive. Caratco must satisfy this
court that it has met this threshold.”
[9]
In
Ramakatsa
and Others v African National Congress and Another
[9]
,
the SCA further made the following insightful observations:
“
Turning
the focus to the relevant provisions of the
Superior Courts Act (the
SC Act), leave to appeal may only be granted where the judges
concerned are of the opinion that the appeal would have a reasonable
prospect of success or there are compelling reasons which exist why
the appeal should be heard such as the interests of justice.
This
Court in
Caratco,
concerning
the provisions of s 17(1)
(a)
(ii)
of the SC Act pointed out that if the court is unpersuaded that there
are prospects of success, it must still enquire into
whether there is
a compelling reason to entertain the appeal. Compelling reason would
of course include an important question of
law or a discreet issue of
public importance that will have an effect on future disputes.
However, this Court correctly added that
‘but here too the
merits remain vitally important and are often decisive’. I am
mindful of the decisions at high court
level debating whether the use
of the word ‘would’ as opposed to ‘could’
possibly means that the threshold
for granting the appeal has been
raised. If a reasonable prospect of success is established, leave to
appeal should be granted.
Similarly, if there are some other
compelling reasons why the appeal should be heard, leave to appeal
should be granted. The test
of reasonable prospects of success
postulates a dispassionate decision based on the facts and the law
that a court of appeal could
reasonably arrive at a conclusion
different to that of the trial court. In other words, the appellants
in this matter need to convince
this Court on proper grounds that
they have prospects of success on appeal. Those prospects of success
must not be remote, but
there must exist a reasonable chance of
succeeding. A sound rational basis for the conclusion that there are
prospects of success
must be shown to exist.”
[10]
It
appears from the foregoing that an applicant for leave to appeal must
satisfy this Court that the envisaged appeal enjoys a reasonable
prospect of success or that there exists some other compelling reason
why the appeal should be heard. To succeed, the applicant
must show
on proper grounds that the prospects of success are realistic and not
remote. Something more than a mere possibility
of success, or that
the case is arguable on appeal, or that it is not hopeless, is
required. There must, in other words, be a sound
and rational basis
for concluding that reasonable prospects of success exist.
[10]
Alternatively, an applicant may succeed by demonstrating compelling
reasons why the appeal should be heard in the interests of
justice.
Such compelling reasons may include an important question of law or a
discrete issue of public importance with implications
for future
disputes.
[11]
The applicants
have raised several grounds in support of the application for leave
to appeal. At this stage, it is important to
identify the real issues
that the Full Bench had to decide. In essence, the Full Bench had to
address a question of private international
law concerning how and to
what extent the provisions of the Convention on the International
Trade in Endangered Species of Wild
Fauna and Flora (“CITES”)
were incorporated into South African law. It is common cause that
South Africa ratified this
treaty in 1975.
[12]
It is
therefore important that the grounds of appeal be considered in light
of the issues the Full Bench had to decide. I mention
this aspect
because a substantial number of the intended grounds of appeal go far
beyond the issues that were for determination.
Of further importance
to note, is that the second applicant had placed a version in her
answering affidavit as to how CITES was
domesticated into our law.
The Minister said that CITES was incorporated into domestic law in
the 1970s and 1980s by “reference”
in various provincial
ordinances. However, the respondent’s case is that CITES was
incorporated via the National Environmental
Management: Biodiversity
Act 10 of 2004 (NEMBA). There is therefore a difference of opinion
between the parties on this fundamental
issue which stood for
determination.
[13]
In
summary, the starting point is the Constitution
[11]
,
which is the basic and supreme law of the Republic. Section 231
provides
that:
“
(1)
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
subsection (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
by the National Assembly and the
National Council of Provinces, but must be tabled in the Assembly and
the Council 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
on the
Republic
when this Constitution took effect.”
[14]
The
Full Bench found that s 2 of NEMBA
[12]
sets out the
objectives of this Act, which includes giving effect to ratified
international agreements that relate to biodiversity and that
are
binding on the Republic. Section 5 of NEMBA
[13]
also provides for the application of international agreements. It
states that NEMBA gives effect to ratified international agreements
affecting biodiversity to which South Africa is a party and which
bind the Republic. These provisions make it clear that Parliament
incorporates CITES into South African law. Section 97 of NEMBA
provides guidance on how CITES is operationalised.
[15]
With this
background of the obligatory statutory framework on which organ of
state is responsible for negotiating and signing international
agreements, and how they are ratified and ultimately become law in
the Republic, I proceed to consider the grounds of the application
for leave to appeal. Where possible, grounds that relate to the same
issue will be grouped together.
[16]
The
applicants contend that the Court erred in holding that, by reading
ss 2, 5 and 97 of NEMBA, Parliament incorporated CITES
into
South African law.
[14]
They argued that this finding is irreconcilable with the requirement
of s 231(4) of the Constitution in that the provisions
of CITES:
(a) are not embodied in the text of NEMBA; (b) are not
included as a schedule to NEMBA; and (c) were not
brought into
effect by means of a proclamation or notice in the Government
Gazette.
[17]
As noted
above, in the impugned judgment we found that the whole of CITES was
incorporated into South African law through the promulgation
of
NEMBA. We provided reasons for this finding. We found that although
CITES was ratified in 1975, it, together with other conventions,
was
not incorporated into our domestic law. After the new constitutional
order, steps were taken to correct this situation.
[18]
There is no
doubt that NEMBA was enacted as national legislation to incorporate
previously ratified international environmental
law treaties and
conventions concerned with biodiversity, i.e., CITES of 1975 and the
Convention on Biological Diversity of 1992.
As shown above, s 5
of NEMBA specifically states that it gives effect to ratified
international agreements affecting biodiversity
to which South Africa
is a party and which bind the Republic. This is the same wording as
s 2(
b
)
of NEMBA’s objectives. Section 51(
c
)
of Chapter 4 of NEMBA also provides that the purpose of the Chapter
is to give effect to the Republic’s obligations under
international agreements regulating international trade in specimens
of endangered species. This is a reference to CITES. Section
57(1)
prohibits the carrying out of a restricted activity involving a
specimen of a listed threatened or protected species without
a permit
issued in terms of Chapter 7. Chapter 7 provides that its purpose is
to regulate the issuance of permits, and s 88
sets out the
procedure for permit applications.
[19]
With these
specific provisions, it is neither necessary nor required that the
provisions of CITES be embodied in the text of NEMBA;
nor that they
be included as a schedule to NEMBA; nor that they be brought into
effect by proclamation or notice in the Government
Gazette.
[20]
The Full Bench
further found that the incorporation of the whole of CITES meant that
Articles VII(4) and (5) of CITES were also
domesticated as part of
our law. During the argument in the Main application, Ms Ellis SC,
appearing on behalf of the applicants,
submitted that CITES was
incorporated by the Minister through the 2010 Regulations issued
under NEMBA. She submitted that, with
this domestication, the entire
CITES was not incorporated. This submission is clearly inconsistent
with the case made in the answering
affidavit, which stated that
CITES was incorporated by “reference” in various
ordinances in the 1970s and 1980s. What
was incorporated through the
2010 Regulations, she argued, was the provision for South Africa’s
adoption of stricter domestic
measures regarding the conditions for
trade, taking, possession or transport of species or specimens of
species included in Appendices
I, II
and III of CITES.
[21]
Section
97(1)(
b
)(iv)
of NEMBA provides that the Minister may make regulations relating to
“
the facilitation of the
implementation and enforcement of an international agreement
regulating international trade in specimens
of species to which the
agreement applies and which is binding on the Republic
”
.
It is apparent from
s 97(1)(
b
)(iv)
that the regulations promulgated by the Minister are intended only to
facilitate the implementation and enforcement of an
international
agreement that has already been incorporated.
[22]
The
Minister does not have the power to incorporate into our domestic law
any treaty or convention. That role is reserved for Parliament.
[15]
Section 231(4) of the Constitution specifically decrees that any
international agreement becomes law in the Republic when it is
enacted into law by national legislation.
[16]
Even if CITES had self-executing provisions, they would require
approval by Parliament before they become law in the Republic.
A
proviso is that such self-executing provisions should not be
inconsistent with the Constitution or an Act of Parliament.
[23]
Although Ms
Ellis persisted with her later argument that CITES was incorporated
by the Minister through the 2010 Regulations, Mr
Morrison SC,
appearing for the
Amicus,
correctly conceded that the Minister could not have incorporated
CITES through those Regulations, as there is no specific authority
from Parliament authorising the Minister to incorporate the treaty.
This concession is well founded. There is no reasonable possibility
that the SCA would find otherwise.
[24]
When South
Africa ratified CITES, it made no reservations. Consequently, the
entire CITES regime is binding on South Africa. The
applicants
presented no evidence to support the claim that South Africa adopted
stricter domestic measures. The 2010 Regulations
cannot be regarded
as strict domestic measures. They were never intended to be such
measures. Stricter measures can be adopted
only after the convention
has been incorporated.
[25]
Conference
of the Parties to CITES Resolution 4.22
[17]
provides
that, should a state party adopt stricter domestic measures under
Article XIV of CITES, it must inform the Secretariat
of the
existence, adoption or amendment of such measures. In addition, the
state party must provide the Secretariat with a copy
of its laws,
regulations, decrees, and other documents that establish such
measures. The Secretariat is thereafter required to
attach copies of
the information regarding the stricter measures submitted by the
state party to a notice to all state parties
for notification. This
requirement has not been met by South Africa, as it has not adopted
the alleged stricter measures, and the
Secretariat has not circulated
any information containing South Africa’s stricter measures to
the other parties. Ms Ellis
could also not refer us to any provision
purporting to be a stricter measure.
[26]
The
applicants contend that the Court erred in finding that the
respondent, by selling rhino horn, does not seek to make a commercial
profit. It is common cause that the registration certificate
(Annexure FA7) for the respondent’s Rockwood operations clearly
states that it is a captive breeding operation for non-commercial
purposes. The purpose of selling the rhino horn is to plough
the
proceeds back into its operations. The applicants tendered no
evidence to challenge the respondent’s averments in this
regard. Applying the Plascon-Evans
[18]
rule, the respondent’s version must be accepted.
[27]
Ms Ellis
appears to argue that the application for leave to appeal is based on
the premise that international trade in rhino horn
is strictly
prohibited, and that, as a result, the order granted is incompetent.
That is not the correct position. The trade is
regulated, not totally
prohibited. In a Non-Detrimental Finding issued by the South African
Scientific Authority, it is recognised
that funds are needed to
conserve the white rhino species and that increased revenue generated
from the sale of rhino in regulated
circumstances will benefit rhino
conservation. This is what the respondent seeks to do. His evidence
is that Rockwood, his private
rhino conservancy, has approximately
350
(three hundred and fifty)
rhinos roaming 33 000
(thirty-three thousand)
acres.
Maintaining and protecting them costs him approximately R20 million
per annum. It is a costly operation to run. He needs
money to sustain
it. This evidence was not challenged by the applicants.
[28]
The
respondent presented the Deloitte report as evidence of the domestic
implementation of Article VII, paragraph 5, of CITES in
South Africa.
The report was one of the subjects of the applicants’
unsuccessful application to strike out.
[19]
In
the ruling on that application, the invitation to the applicants to
address the Deloitte report before the hearing on the merits
of the
review application was not accepted. The Deloitte report, therefore,
remained uncontroverted evidence of multiple instances
in which a
specimen was exported from South Africa under the source code
classification “C”.
[29]
The applicants
further contend that the Full Bench erred in finding that CITES draws
a distinction between “wild” animals
and animals “bred
in captivity”. It is unclear what this ground is intended to
convey. CITES itself draws this distinction.
In relation to Appendix
1 animals, CITES regulates trade in specimens from wild animals under
Article III and in specimens from
captive-bred animals under Article
VII. There is therefore no merit in this contention.
[30]
The
applicants further contend that the Full Bench erred in finding that
CITES applies different rules of trade to “wild”
specimens as opposed to those “bred in captivity”. Again,
what the applicants fail to recognise is that CITES itself
makes this
distinction. In relation to Appendix I animals, CITES regulates trade
in specimens from wild animals under Article III,
and trade in
specimens from captive-bred animals under Article VII. CITES
distinguishes between captive breeding operations for
commercial
purposes under Article VII(4) and those bred for non-commercial or
conservation purposes under Article VII(5). CITES
uses “source
codes” to assist with the correct classification. These source
codes are fully explained in clauses 2
to 7 of “A Guide to the
Application of the CITES source codes”.
[20]
[31]
The source
codes were created to ensure that all states parties to CITES
correctly identify and thereafter disclose to the Secretariat
and
other states parties the origin of the traded specimen. The
specimen's origin determines which rules regulate trade in relation
to that specimen.
[32]
Trade in rhino
horn from a wild animal is regulated by Article III, and its source
code is “W”. Trade regulations are
very strict, as set
out in Article III(2) and (3). Trade in rhino horn from a rhino bred
for commercial purposes in a captive breeding
operation is classified
under source code “D”. Trade in these specimens is
regulated by Article VII(4), which has considerably
fewer trade
restrictions. However, source code “C” refers to trade in
rhino horn taken from a rhino bred in a captive
breeding operation
for a non-commercial purpose, such as at the Rockwood conservancy. It
is regulated by Article VII(5), which
has less restrictive trade
requirements. As shown above in the Deloitte report, source code “C”
has been used multiple
times in South Africa.
[33]
On behalf of
the
Amicus
,
Mr Morrison submitted that conservation and welfare issues are
intertwined. He referred us to s 2(
a
)(iiA)
of NEMBA, which provides, as one of the objectives of the Act, “the
consideration of the well-being of animals in the
management,
conservation and sustainable use thereof”. He submitted that
the Full Bench failed to take this aspect into account
when it
considered how CITES was incorporated into South African domestic
law. As a result, he contended, leave to appeal should
be granted,
not necessarily on the basis of reasonable prospects of success, but
because this is a public interest issue that qualifies
as a
compelling reason for leave to appeal. He argued that it should be
left to the SCA to decide whether welfare considerations
were
relevant.
[34]
I fail to see
the relevance of welfare considerations or the treatment of animals
in determining whether, when and how an international
treaty was
incorporated into South African domestic law. Welfare considerations
must be taken into account by the MEC when issuing
licences or
permits for captive operations. The NSPCA is also entitled to visit
and monitor these operations and to take appropriate
action when they
do not meet the required standard or contravene legislative
prescripts. This contention is not compelling and
does not warrant
the attention of the SCA.
[35]
The applicants
contend that the Full Bench erred in ordering them to pay the costs
arising from the December 2024 postponement,
when a ruling on the
application to strike out was reserved. Three days had been allocated
for the hearing. Paragraphs 61 to 64
of the judgment on the
application to strike addressed this point. Reasons were given for
how the Full Bench exercised its discretion.
This ground would not
have a reasonable prospect of success on appeal.
[36]
In conclusion,
I am not persuaded that the appeal has a reasonable prospect of
success and/or that there are compelling reasons
for the Supreme
Court of Appeal to hear it. The application for leave to appeal
should be dismissed. Costs should follow the result.
[37]
In these
circumstances, the following order is made:
1.
The
application for leave to appeal is dismissed with costs.
LP
TLALETSI
JUDGE
PRESIDENT
NORTHERN
CAPE DIVISION
I
agree,
LG
LEVER
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE DIVISION
Appearances
For
the Applicants:
Adv
Isabelle Ellis SC (with
Adv
Rasivhetshele)
Instructed
by:
The
State Attorney
For
the Respondent:
Adv
K Hopkins SC
Instructed
by:
PGMO
Attorneys, Kimberley
For
the
Amicus Curiae
:
Adv
L Morrison SC (with Adv S Martin (Ms))
Instructed
by:
Gittins
Attorneys, Johannesburg.
[1]
The
impugned judgment is
Diedericks
v MEC for Agriculture, Environmental Affairs, Rural Development and
Land Reform, Northern Cape and Another
2026 (1) SA 574 (NCK).
[2]
10
of 2013.
[3]
(1221/2015)
[2016] ZASCA 176
(25 November 2016) paras 16-17.
[4]
Smartpurse
Solutions (Pty) Ltd (applicant for leave) v FirstRand Bank, In re:
FirstRand Bank Ltd v Smart purse Solutions (Pty)
Ltd
[2025] 1 All SA 552
(GJ) para 7.
[5]
See
for example
Firefly
Investments 288 (Pty) Ltd v City of Johannesburg Metropolitan
Municipality and Another
2026 JDR 1386 (GJ) para 52;
Shelving
Man (Pty) Ltd v Dawood
2015 JDR 1417 (KZD) para 5.
[6]
Supra
fn
4 para 11.
[7]
See
also
para 9.
[8]
2020
(5) SA 35
(SCA) para 2.
[9]
(724/2019)
[2021] ZASCA 31
(31 March 2021);
[2021] JOL 49993
(SCA) para 10.
[10]
See
also
S
v Smith
2012 (1) SACR 567
(SCA) para 7.
[11]
The Constitution of the Republic of South Africa, 1996.
[12]
2.
Objectives of Act
The objectives of this
Act are-
(a) within the
framework of the National Environmental Management Act, to provide
for-
(i)
the management and conservation of biological diversity within the
Republic and of the components
of such biological diversity;
(iA) the
need to protect the ecosystem as a whole, including species which
are not targeted for exploitation;
(ii)
the use of indigenous biological resources in a sustainable manner;
(iiA) the
consideration of the well-being of animals in the management,
conservation and sustainable use thereof; 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 which
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.
[13]
Application
of international agreements
This
Act gives effect to ratified international agreements affecting
biodiversity to which South Africa is a party, and which
bind the
Republic.
[14]
Diedericks
v MEC for Agriculture, Environmental Affairs, Rural Development and
Land Reform, Northern Cape and Another
(
Supra
fn 1)
para
92.
[15]
Minister
of Finance v Afribusiness NPC
2022 (4) SA 362
(CC) para 103:
“
Ordinarily,
the purpose served by regulations is to make an Act of Parliament
work. The Act itself sets the norm or provides the
framework on the
subject-matter legislated upon. Regulations provide the sort of
detail that is best left by Parliament to a
functionary, usually the
Minister responsible for the administration of the Act, to look
beyond the framework and
–
in minute detail
–
to ascertain what is
necessary to achieve the object of the Act or to make the Act work.”
[16]
Glenister
v President of the Republic of South Africa and Others
2011 (3) SA 347
(CC) paras 98-100.
[17]
See
Resolution 4.22 of the Fourth Meeting of the Conference of the
Parties titled Proof of Foreign Law
https://cites.org/sites/default/files/documents/COP/20/resolution/E-Res-04-22.pdf
.
[18]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E-635C.
[19]
The
judgment on the application to strike is
MEC
for Agriculture, Environmental Affairs, Rural Development and Land
Reform (Northern Cape) and Another v Diedericks
(295/2023)
[2025] ZANCHC 4
(24 January 2025).
[20]
The
guide is an official user manual posted on CITES website
www.cites.org
.It
is published by the CITES Secretariat for all states parties.