Humane Society International – Africa Trust and Others v Minister of Forestry, Fisheries and the Environment & Another (Elephant, Leopard and Black Rhino hunting and export quota interim interdict)
21 April 2022
The judgment of the Western Cape High Court, Cape Town is available here.
- Neutral citation: Trustees for the time being of the Humane Society International – Africa Trust and Others v Minister of Forestry, Fisheries and the Environment and Another (6939/2022) [2022] ZAWCHC 55
- Judge: Gamble, J
- Hearing: 18 and 23 March
- Judgment delivered: 21 April 2022
- Outcome: The Minister’s decision to allocate hunting and export quotas for elephant, black rhino and leopard for the 2022 year is interdicted from being implemented or given effect to in any way, pending determination of the relief sought in Part B of the application.
Summary
The Applicants, the Humane Society International – Africa Trust, applied for an interim interdict preventing the Minister of Forestry, Fisheries and the Environment from implementing the 2022 quota for the hunting and export of trophies from leopard, elephant, and black rhino from South Africa. The interdict was sought pending the outcome of a review of the Minister’s 2022 quota decision.
Leopards, black rhino and elephants are listed in Appendix I of CITES due to their status as threatened with extinction and affected by trade. Leopards are also classified as vulnerable, black rhinos as endangered and elephants as protected under the Threatened and Protected Regulations made under National Environmental Management: Biodiversity Act.
In October 2021 the Minister invited comments on a draft quota for these 3 species for the 2021 year. The Applicants submitted comments on the proposed draft. On 25 February 2022, after the public consultation process had concluded, the Minister announced her final determination of the hunting and trophy quota deferring the 2021 determination to the 2022 year.
One of the legal requirements prior to any such quota being determined is for a country’s scientific authority to produce a report (referred to as a Non-Detriment Finding (NDF)) on the impact of actions relating to the international trade in specimens of the listed species, plus a public participation process on a draft quota. No NDF for elephant had been published, and only a draft NDF for black rhino had been produced. An NDF for leopard had been published but concluded that that legal local and international trade in live animals and the export of hunting trophies at present posed a high risk to the survival of this species in South Africa.
The applicants relied on their rights relating to procedural fairness in the public participation process in challenging the Minister’s decision to ‘roll over’ the quota to another year. This, they argued, was not authorised by NEMBA or CITES and resulted in no public participation for the 2022 quota and offended their legitimate expectation that the draft determination related to the same year’s quota. The applicants also successfully argued that NEMBA contained specific legislative procedural requirements for the publication of valid regulations which required Parliamentary oversight and promulgation in the gazette which had not occurred.
The court was satisfied that the Applicants met the requirements for an interim interdict and ordered that, pending the outcome of the review, the hunting and export quota for 2022 is interdicted from being implemented.