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Scoping Report: Investigating the Challenges Facing Compliance

Monitoring and Enforcement of South Africa’s Biodiversity Legislation and Recommendations for Improvement

The Endangered Wildlife TrustOctober 2012

Summary Report

Scoping Report: Investigating the Challenges Facing Compliance Monitoring and Enforcement of South Africa’s Biodiversity Legislation and Recommendations for Improvement

ACKNOWLEDGEMENTS:

This report was funded by the Howard G Buffet Foundation. The report was

adapted from the offi cial results of a formal investigation undertaken by external

consultants Envolve1 . The report was made possible through the contribution

of information from the respondents and experts that participated, for which

they are greatly thanked. Yolan Friedmann, Harriet Davies-Mostert and Marie

Parramon-Gurney provided valuable editorial and other comments.

DISCLAIMER:

The views contained in this report refl ect those of various respondents and

experts and do not necessarily represent the views of the Endangered Wildlife

Trust.


TABLE OF CONTENTSLIST OF ACRONYMS ii

GLOSSARY OF TERMS vi

EXECUTIVE SUMMARY 1

INTRODUCTION 7

METHODOLOGY 9

THE EFFECTIVENESS OF COMPLIANCE MONITORING AND ENFORCEMENT 14

ANALYSIS OF THE PROMINENT CONSTRAINTS 18

RECOMMENDATIONS FOR IMPROVED COMPLIANCE MONITORING AND ENFORCEMENT 24

NOTES 30

REFERENCES 34

i


LIST OF ACRONYMSACSA Airports Company South Africa

AFU Asset Forfeiture Unit

AG Admission of Guilt Fine

BCU Biodiversity Crime Unit

CAS Criminal Administration System of the SAPS

CIS Corporate Investigation Services

CITES Convention on the International Trade of Endangered Species of

Wild Fauna and Flora

CPA Criminal Procedure Act (Act 51 of 1977)

DAEARD Department of Agriculture, Environmental Affairs and Rural

Development (KwaZulu-Natal)

DACERD Department of Agriculture, Conservation, Environment and Rural

Development (North West)

DAFF Department of Agriculture, Forestry and Fisheries

DEA Department of Environmental Affairs (National)

DEADP Department of Environmental Affairs and Development Planning

(Western Cape)

DEDTEA Department of Economic Development, Tourism and

Environmental Affairs (Free State)

DETEC Northern Cape Department of Tourism, Environment and

Conservation (Northern Cape)

DPCI Directorate for Priority Crime Investigations (the Hawks)

DPP Director of Public Prosecutions

DSO Directorate of Special Operations

DWA Department of Water Affairs

ECA Environment Conservation Act (Act 73 of 1989)

ii


EKZNW Ezemvelo KZN Wildlife

EMI Environmental Management Inspectorate/ Inspectors (depending

on the context)

EMPR Environmental Management Programme

EWT Endangered Wildlife Trust

GDARD Gauteng Department of Agriculture and Rural Development

(Gauteng)

HAWKS DPCI

ICM Act National Environmental Management: Integrated Coastal Man-

agement Act (Act 24 of 2008)

Interpol International Criminal Police Organization

IRFA Intergovernmental Relations Framework Act (Act 13 of 2005)

KNP Kruger National Park

KZN KwaZulu-Natal

LEMA Limpopo Environmental Management Act (Act 7 of 2003)

MARPOL Marine Pollution: International Convention for the Prevention of

Pollution from Ships

iii


MCM Marine and Coastal Management

MEC Members of the Executive Council

MLRA Marine Living Resources Act (Act 18 of 119)

MPA Marine Protected Area

MTPA Mpumalanga Tourism and Parks Agency

NATJOINTS National Joint Committee

NCER National Environmental Compliance and Enforcement Report

NCO Nature Conservation Ordinance

NEMA National Environmental Management Act (Act 107 of 1998)

NEM: BA National Environmental Management: Biodiversity Act (Act 10 of

2004)

NEM: PAA National Environmental Management: Protected Areas Act (Act

57 of 2003)

NIA National Intelligence Agency

NSPCA National Society for the Prevention of Cruelty to Animals

NWCRU National Wildlife Crime Reaction Unit

NPA National Prosecuting Authority

PAJA Promotion of Administrative Justice Act (Act 3 of 2000)

POCA Prevention of Organised Crime Act (Act 121 of 1998)

PROVJOINTS Provincial Joint Committee

SAHRA South Africa Heritage Resources Act (Act 25 of 1999)

SANBI South African National Biodiversity Institute

SANParks South African National Parks

iv


SAPS South African Police Services

SARS South African Revenue Services

SANDF South African National Defence Force

SEMA Specifi c Environmental Management Act

SOPS Standard Operating Procedures

TOPS Threatened or Protected Species

TOR Terms of Reference

TRAFFIC Trade Records Analysis of Flora and Fauna in Commerce

WCECF Western Cape Environmental Crime Forum

WCO World Customs Organisation

v


GLOSSARY OF TERMSAdmission of guilt fi nes (J534) means fi nes paid for less serious environmental

offences in terms of Section 56 of the Criminal Procedure Act, 51 of 1977

(there is also an alternative process in section 34G of NEMA). The monetary

limit of J534 fi nes is R2500.

Acquittal means a not guilty verdict imposed by a court of law after a trial and

the state has failed to prove the guilt of an accused beyond reasonable doubt.

Bio-prospecting means any research on, or development or application of,

indigenous biological resources for commercial or industrial exploitation, and

includes -

(a) the systematic search, collection or gathering of such resources or

making extractions from such resources for purposes of such research,

development or application;

(b) the utilisation for purposes of such research or development of any

information regarding any traditional uses of indigenous biological

resources by indigenous communities; or

(c) research on, or the application, development or modifi cation of, any such

traditional uses, for commercial or industrial exploitation.

vi


Compliance the word ‘compliance’ has been defi ned as ‘obedience to a

request or command’2. In legal and regulatory policy, the state of ‘compliance’

describes an ideal situation in which all members of a legal community adhere

to the legal standards and requirements applicable to that community’s

activities3.

Compliance Monitoring is undertaken in order to assist compliance, it is a tool

to assess compliance with the prescribed legal requirements and permitting

conditions4.

Conviction means a guilty verdict imposed by a court of law after a trial has run

and the state has proved the guilt of the accused beyond reasonable doubt.

Docket means criminal dockets registered with the South African Police

Service.

Enforcement while compliance denotes a particular state of adherence to

a set of legal requirements or standards, ‘enforcement’ refers to ‘the actions

that governments and others take to achieve compliance within the regulated

community’ and to correct or halt situations where such compliance is not

present. In the regulatory cycle, ‘enforcement’ describes the actions taken in

response to detected non-compliance, including punishment of the violator,

and/or actions taken to ensure that harm to the environment is halted and/or

rehabilitated5.

vii


J175 Summons means a summons issued by a prosecutor, who is able to set up

to R5000.00 admissionof guilt fi ne.

Nolle prosequi is a term used to describe a situation where the state declines to

prosecute in a specifi c matter.

Section 105A agreement means a plea and sentence agreement entered into

between the accused and the prosecutor in terms of section 105 of the Criminal

Procedure Act, 51 of 1977, in which the accused pleads guilty and the terms and

conditions of the sentence are set out and confi rmed by the court. This is also

referred to informally as a plea bargain.

viii


1

EXECUTIVE SUMMARYThis report represents the summary fi ndings of a scoping exercise to examine

the status of compliance monitoring and enforcement of South Africa’s

biodiversity and conservation legislation6, identify weaknesses and gaps and

subsequently make recommendations for improvement.

SUMMARY OF KEY FINDINGS Y FINDINGS

• Overall challenges

The most signifi cant challenges impairing effective enforcement and

compliance monitoring include the lack of capacity and skills as well as

corruption, or preceived corruption, with capacity constraints (i.e. a lack of

training and adequate resources) emerging as the main factor hampering

effective compliance monitoring and enforcement. For the Environmental

Management Inspectorate (Green Scorpions), building skilled and trained

personnel has been one of the Inspectorate’s keys to their success.

Notwithstanding provision for additional resources and the realignment

of structures, the retention of staff, especially those with experience and

commitment, however remains a major challenge for the Inspectorate7.


2

• Intrinsic challenges related to the legal framework

In addition to the comprehensive legal review8, it was also found, through

interviews with various stakeholders, that the following legislative provisions

are hampering effective compliance monitoring and enforcement:

- Lack of harmony between defi nitions in the National Environmental

Management Biodiversity Act, 10 of 2004 and the accompanying

Threatened or Protected Species Regulations (TOPS).

- Problematic provisions on the enforcement powers of offi cials in

biodiversity, conservation and provincial legislation.

- Inadequate monitoring and enforcement at ports of entry and exit in

TOPS and the Convention on the International Trade of Endangered

Species of Wild Fauna and Flora (CITES) legislation.

One of the methods used to smuggle wildlife contraband.


3

- Confl icting and confusing regulations - Provincial laws contain some

regulatory provisions on similar issues to those governed by national

legislation. This sometimes leads to confl ict and confusion, especially

with the issuing of permits. There is also the problem of concurrent

jurisdiction with provincial and national legislation, which results in

ineffective enforcement of biodiversity and conservation legislation.

- Problematic provisions in bio-prospecting legislation - The defi nition

of bio-prospecting is creating compliance challenges in the cosmetic,

industrial, and beverage industry and bioprospecting related fee

structures are proving problematic to interpret and implement.

• Challenges related to criminal prosecutions and the capturing of

enforcement data

In respect of criminal prosecutions the general sentiment seems to be that the

National Prosecuting Authority (NPA) is frequently unsuccessful in securing

convictions for offenders who contravene biodiversity and conservation

legislation. The accuracy of this sentiment could not be measured due the

lack of accurate statistics in this regard. Sourced case reports showed there

were quite a few successful prosecutions, and often signifi cant sentences.

The factors contributing to unsuccessful prosecutions include the gaps in,

and constant changes to the legislation, as well as a skills shortage among

enforcement offi cials. Where contraventions are detected, offenders are

often not brought to book because they are not prosecuted effectively. This

is largely due to inexperience on the part of many prosecutors in the NPA

especially in the lower levels, and at one-man stations.

Lastly, a gap in the accurate accumulation and recording of data on the

enforcement of biodiversity and conservation legislation was identifi ed.

Failure to record case data correctly, hinders the identifi cation of problem

areas in enforcement and therefore no specifi c management measures

nge

spect of crim

ional Prosecu

victions for o

slation. The a

accu

beverage

proving proble

d to criminal pr

osecution

of

s in ospe

mpli

ry and

atic to interpr

osecutions and

e general sent ment seems to

y unsuccessful i

diversity and co

not be measur

se reports s

aptu

who contravene

cy of this sentiment could

stics in this regard. Sourced c

uccessful prosecutions, and often

ibuting to unsuccessful prosecutions

hanges to the legislation, as well as a sk

ffi cials. Where contraventions are dete

t to book because they are not prose

xperience on the part of man


4

are developed to address such problem areas. This problem is being

experienced across the board, in all enforcement agencies, and is

attributable to a range of factors, such as the use of different data

collecting methods and inconsistency in the reporting of cases by other

law enforcement agencies.

SUMMARY OF KEY RECOMMENDATIONS

Based on the constraints and challenges listed above, the following

recommendations were made:

• Training and Capacity Building

A holistic approach should be adopted whereby all role-players are

regularly and effectively trained through greater use of peer-learning

methods. This seems to be happening at a higher management level,

however forums and working groups are required for lower level staff on

the ground as well. Training is also needed in agencies and institutions

such as the Asset Forfeiture Unit (AFU), customs, and the SAPS border

police. It is also strongly recommended that offi cials in both the various

provincial and national departments of environmental affairs obtain

further specialised training in terms of the regulation and implementation

of the TOPS Regulations, prior to being mandated with the

implementation thereof.


5

• Appointment of environmental management inspectors

The Environmental Management Inspectorate should be bolstered by the

appointment of additional Environmental Management Inspectors (EMIs),

the appointment of more EMI Grade 1 offi cials who have the power to sign

off on notices, and the appointment of municipal offi cials as EMIs.

• Continuation of effective cooperation and international cooperation

Improved cooperation between relevant authorities should be achieved

by the creation and expansion of new inter-governmental working groups

and crime forums which will undoubtedly contribute to better cooperation

between relevant authorities. It is, however, critical that the Department

of Environmental Affairs (DEA) and the different provinces (through

these structures) ensure consistency and standardisation in relation to

conservation approaches and policies. National priorities also need to be

clearly delineated to ensure that suffi cient resources are applied to the most

pressing issues.

• Improved system of capturing enforcement data

Accurate, up-to-date statistics on enforcement activities should be captured

by a web-based information system. The huge variation in organisational,

procedural and IT systems and resources between the various authorities

means that this may not be possible at the moment, but this hurdle needs

to be overcome in time with a centralised database being established to

gather the relevant information.


6

• Amendment of legal regime

All comments made as part of the detailed legislative review should

be considered and the legislation amended where necessary. The

Endangered Wildlife Trust (EWT) will be approaching the relevant

department/s to commence a process of motivating and advocating for

such changes.

Searching passengers and luggage, a practical

demonstration.


7

INTRODUCTIONAlthough compliance monitoring and enforcement of South Africa’s

environmental legislation is the legal mandate of government, there is a clear

role for NGOs and civil society involvement in strengthening the existing

environmental compliance and enforcement measures. The Endangered

Wildlife Trust (EWT) embraced this role with support from the Howard G.

Buffett Foundation and launched its Compliance and Enforcement Project

in October 2008. This project supports and reinforces existing governmental

organisations that have the relevant mandate and allocated powers to ensure

compliance and enforcement.

As part of this project, a scoping exercise was conducted in 2009-10 to evaluate

the status of compliance and enforcement of South Africa’s environmental

regulatory regime. Following this, the EWT worked with external consultants

Envolve9 to undertake a formal investigation into the effectiveness of the

current system of compliance monitoring and enforcement of South Africa’s

biodiversity and conservation legislation.

The investigation examined the relevant legislation highlighting any

problematic provisions, analysed national statistics on enforcement contained

in the National Environmental Compliance and Enforcement Reports published

annually by the Department of Environmental Affairs, considered the results

of previous studies, scrutinized relevant available case law and assessed the

capacity and effectiveness of the various enforcement bodies and the criminal

justice system. This investigation culminated in a report containing an in-depth

analysis of the gaps/constraints and recommendations for improvement of

compliance monitoring and enforcement of national and provincial biodiversity

and conservation legislation in South Africa.


8

Due to the confi dential nature of some of the information contained in the

report, the report was subsequently adapted to exclude any confi dential

information, carefully ensuring that no facts were altered or changed thereby

making it accessible and suitable for a public audience. The confi dential sections

mostly relate to the legislative review which highlights various shortcomings

and problematic provisions in the legislation. Making this information publicly

available could alert potential transgressors to shortcomings or errors in the

legislation, which may be used to escape liability, and would only frustrate the

purpose of the review. In addition, the confi dentiality of some offi cials who

contributed to the interviews and questionnaires has been respected.

Going forward, the EWT will identify which of the recommendations

contained in this report the NGO sector can undertake and will

encourage all relevant stakeholders to implement the full scope of the

recommendations made.

Snares used to catch wildlife


9

METHODOLOGYThe investigation entailed analysing 1) relevant legislation; 2) national statistics

on enforcement contained in the National Environmental Compliance and

Enforcement Reports published annually by the Department of Environmental

Affairs; 3) the results of previous studies; 4) relevant available case law; and

5) the capacity and effectiveness of the various enforcement bodies and the

criminal justice system.

The investigation involved the following methodology:

• Review of the following legislation in order to determine the enforcement

powers provided, and any problematic provisions hampering

enforcement -

- National Environmental Management Biodiversity Act, Act 10 of 2004

(NEM: BA).

- National Environmental Management Protected Areas Act, Act 57 of

2003 (NEM: PAA), the discussion is however limited to biodiversity

and conservation issues.

- The provincial conservation legislation in all nine provinces, which

includes the Nature and Environmental Conservation Ordinance 19

of 1974 (Western Cape, Eastern Cape, Northern Cape, and North

West); the Nature Conservation Ordinance 12 of 1983 (Gauteng

and North West); the Nature Conservation Ordinance 8 of 1969

(Free State); the Nature Conservation Ordinance 15 of 1974 (Kwa-

Zulu Natal); the Mpumalanga Nature Conservation Act, 10 of 1998

(Mpumalanga); and the Limpopo Environmental Management Act,

7 of 2003 (Limpopo). Due to the current and pending amendment


10

processes, this is limited to the enforcement of the legislation and

does not include an evaluation of the actual provisions, although

limited comments thereon have been provided.

• Drafting a generic questionnaire for use in interviews with key identifi ed

individuals;

• Conducting interviews, in person where possible, otherwise telephonically;

• An assessment of -

- National Environmental Compliance and Enforcement Reports

(NECER, 2008-9 and 2009-10), published by the Department of

Environmental Affairs;

- Recent case law10 on biodiversity and conservation enforcement. Due

to the fact that the bulk of case law on biodiversity compliance and

enforcement are unreported and often not transcribed, unreported

case law was further determined through interviews.

- Recent developments in initiatives aimed at improving compliance

monitoring and enforcement, such as the National Wildlife Crime

Reaction Unit (NWCRU) and the establishment of dedicated or

specialised prosecutors;

- Assessments of answers to questionnaires and other data already

obtained by the EWT that are relevant to the subject; and

- Results from interviews with key stakeholders.

Cautionary remarks about methods

The following remarks regarding the methodology should be noted:

• The general legal review is largely based on a desktop study, comprising a

review of the current key legislation. The legal review was limited in scope

(number of statutes analysed) due to budget and time constraints. Some of

the problems identifi ed came to the fore during the review, while others were

identifi ed through previous regular personal interaction with enforcement

offi cials and prosecutors.


11

• The interview questionnaire was directed at key role-players, containing 54

detailed questions on both the effectiveness of biodiversity and conservation

legislation as well as the effectiveness of the enforcement thereof.

• The questionnaire was distributed widely, however only a small number of

responses were received, these were followed up on, and additional persons

were contacted. The primary reasons for the poor responses to the written

questionnaire were that the recipients had fatigue and busy schedules.

• Respondents preferred telephonic interviews over the written questionnaire,

as these were less time consuming.

• Certain key individuals were specifi cally targeted in order to obtain

information on particular issues that came to the fore. This approach proved

to be a successful means of obtaining valuable information.


12

Institutions Number of individuals

initially aimed to

interview

Number of individuals

interviewed through

generic questionnaire

Targeted interviews

with experts to

obtain additional

specifi c information

Provincial

conservation

agencies (excluding

provincial parks

agencies/boards)

At least two

individuals in each

of the nine provincial

agencies

One individual each

from four of the nine

provincial conservation

agencies

One additional

targeted interview

Department of

Environmental

Affairs (DEA

National level)

Five individuals

At least one individual

responsible for

1. Threatened or

Protected Species

Regulations

(TOPS),

2. CITES,

3. Bio-prospecting,

4. Investigations,

and

5. Training

One offi cial from the

national Department

of

Environmental Affairs

Four additional

targeted interviews

National Prosecuting

Authority (NPA) and

the Directorate of

Public Prosecutions

(DPP)

One individual from

the NPA and one

individual from each

DPP

Four individuals Three additional

targeted interviews

South African

Police Service

(SAPS)

Four individuals Four individuals One additional

targeted interview


13

SANParks including

one from Corporate

Investigation

Services (SANParks)

Two individuals None of the individuals

contacted responded

to the questionnaire

or the request for an

interview. Informal

contact was however

established.

Additional persons Two NGO

representatives

Two additional

targeted interviews

The conclusions and recommendations contained in this report are based on

interview responses, the evaluation of the legislation as well as all the other

material evaluated, including the NECER and previous studies undertaken by

the EWT.


14

THE EFFECTIVENESS OF COMPLIANCE MONITORING AND ENFORCEMENTHOW EFFECTIVE IS COMPLIANCE MONITORING AND ENFORCEMENT OF

BIODIVERSITY AND CONSERVATION LEGISLATION, AND WHAT ARE THE

MAIN CONSTRAINTS?

The respondents and statistics provided below are derived from the generic

questionnaire surveys. Although it is acknowledged that the sample sizes

for individual respondent groups presented here are too small to be an

accurate representation of the groups, they are presented here for interest.

This fi rst section aims to get a very broad answer to the questions about the

effectiveness of compliance monitoring and enforcement of biodiversity and

conservation legislation, and what the main short comings and constraints

are.


15

IS THE CURRENT SET OF ENVIRONMENTAL LEGISLATION, RELATING TO

BIODIVERSITY AND CONSERVATION, ADEQUATE AND EFFECTIVE IN SO

FAR AS IT PERTAINS TO YOUR WORK?

N Yes Partly No

SAPS 4 25% 50% 25%

NPA 4 50% 50% 0%

Government 5 40% 60% 0%

NGO 2 50% 0% 50%

No

Partly

Yes

All Respondents

Pracitcal demonstration of search and seizure.


16

HOW EFFECTIVE ARE THE ENFORCEMENT AGENCY (IES) YOU WORK

WITH, IN DETECTING NON-COMPLIANCE?

HOW EFFECTIVE ARE THE ENFORCEMENT AGENCY (IES) YOU WORK

WITH IN TAKING APPROPRIATE STEPS WHERE NON-COMPLIANCE HAS

BEEN DETECTED?

Not in a position to answer

SAPS 4 0% 75% 0% 25%

NPA 4 0% 0% 75% 25%

Government 5 0% 80% 20% 0%

NGO11 2 0% 25% 25% 50%

Very

Effe

ctiv

e

Inef

fect

ive

N

All Respondents

Not

in a

pos

ition

to a

nsw

er

SAPS 4 0% 100% 0% 0%

NPA 4 25% 25% 25% 25%

Government 5 0% 100% 0% 0%

NGO12 2 0% 25% 25% 50%

Very

Effe

ctiv

e

Inef

fect

ive

N Not

in a

pos

ition

to a

nsw

er

Not in a position to answer

All Respondents


17

SAPS 4 50% 50% 0% 0%

NPA 4 0% 100% 0% 0%

Government 5 0% 80% 20% 0%

NGO 2 0% 25% 25% 100%

Very

Effe

ctiv

e

Inef

fect

ive

N Not

in a

pos

ition

to a

nsw

er

HOW SUCCESSFUL HAS YOUR ENFORCEMENT AGENCY / DIRECTORATE

BEEN IN THE TAKING OF ENFORCEMENT ACTION?

No answer

Unsuccessful

Successful

Very successful

All Respondents

THE MOST PROMINENT AND SERIOUS SHORTCOMING(S) AND

CONSTRAINT(S) EFFECTING THE EFFECTIVENESS OF COMPLIANCE

MONITORING AND ENFORCEMENT OF BIODIVERSITY AND

CONSERVATION LEGISLATION

Lack of understanding of law by cultural groups

Lack of legal precedent

Lack of collaboration

Corruption

Legislation

Capacity

0 0.1 0.2 0.3 0.4 0.5 0.6 0.7 0.8

Proportion of respondents


18

ANALYSIS OF THE PROMINENT CONSTRAINTSTHE PROMINENT CONSTRAINTS EFFECTING COMPLIANCE MONITORING

AND ENFORCEMENT OF BIODIVERSITY AND CONSERVATION

LEGISLATION

The following have been identifi ed as the major constraints affecting effi cient

compliance monitoring and enforcement.

CAPACITY, TRAINING AND RESOURCESCapacity constraints emerged as the main factor hampering effective

compliance monitoring and enforcement. The core obstacles include a lack of

training and adequate resources in many departments.

In terms of the Environmental Management Inspectorate (more commonly

referred to as the Green Scorpions), building skilled and trained personnel has

been one of the Inspectorate’s keys to their success.

Through the institutionalisation of training programmes and collaboration

with international environmental organisations, the Inspectorate has

managed to build capacity within many institutions in a relatively short space

of time. However, notwithstanding provision for additional resources and

the realignment of structures, the retention of staff, especially those with

experience and commitment, remains a major challenge for the Inspectorate13.


19

Allegations of corruption regarding the issuing of permits, especially by the

conservation authorities in some provinces, as well as in the South African

Police Service (SAPS) is concerning. It should be noted that the perception that

corruption is rife, is based on interviews with various offi cials and that while this

view is concerning, it is not refl ected in reported formal action against corrupt

offi cials, but remains a perception. A number of respondents (targeted as part of

the investigation) mentioned corruption specifi cally with regard to the issuing of

both TOPS and CITES permits. As far as subsequent enforcement is concerned,

selective enforcement was mentioned as a sign of possible corruption. being

witnessed fi rsthand was received. Attempts to obtain more specifi c information

on this were unsuccessful. It is impossible to, in light of the lack of detail provided,

to accurately ascertain whether the perception stems from personal views, or

real evidence.

Added to this, some prosecutors were unaware that the Prosecutor’s manual

was updated in 2010 and were therefore not using this resource. A respondent

from the DEA mentioned that the major issues are the lack of a suffi cient number

of enforcement offi cials, as well capacity problems, and cited the fast turnover

rate of offi cials as the reason for the lack of experience amongst such offi cials.

It was highlighted by a member of SAPS that longstanding cultural practices

are sometimes in confl ict with legislation. When members of these cultural

groups are arrested and taken to court, it creates the result of some communities

developing attitudes of indifference or animosity towards enforcement offi cials.


20

ISSUES REGARDING BIODIVERSITY AND CONSERVATION LEGISLATION The following legislative challenges that could potentially hamper effective

compliance monitoring and enforcement were highlighted during interviews

with various key stakeholders:

• Lack of harmony between defi nitions in National Environmental

Management Biodiversity Act, 2004 and the accompanying Threatened

or Protected Species Regulations (TOPS) - The fi rst problem relating to

the legislation governing the issuing of permits is confusion regarding

the types of permits required to conduct a restricted activity with a listed

species. Secondly, it was found that the various defi nitions contained in

the current legislation are confl icting and therefore problematic.

• Ports of entry and exit in TOPS and CITES - The National Society for

the Prevention of Cruelty to Animals (NSPCA) indicated that the TOPS

regulations should be amended to prescribe ports of entry for wildlife

products, in order to align the TOPS and CITES regulations. Currently

the only port of entry/exit which has a division of nature conservation

offi cials based in a dedicated offi ce, at an airport, although not manned

24 hours a day, is Oliver Tambo International Airport in Johannesburg. It

should be noted that there are other airports where offi cials are available

if called in specifi cally, although these airports have no dedicated offi ce

on site. It is well known that airports such as Lanseria, Cape Town and

King Shaka International are also used for the illegal import and export of

wildlife products. Steps need to be taken to increase the compliance and

enforcement components at these ports of entry and exit. It is strongly

recommended that the CITES-listed ports of entry and exit should be

recognized by the TOPS regulations as the only accepted ports of entry

and exit, and that the DEA, together with all the relevant provincial


21

departments, should implement measures to increase the compliance and

enforcement components at these ports of entry and exit.

• Confl icting and confusing regulations - There are some issues that have

arisen due to the fact that provincial laws contain regulatory provisions

on similar issues to those governed by national legislation, which leads to

confl ict and confusion. This is particularly true with the issuing of permits.

In addition, biodiversity enforcement and compliance has been fragmented

for a long time due to the concurrent competence of national government

and provincial governments with regard to nature conservation. This results

in ineffective enforcement of biodiversity and conservation legislation.

22 Scoping Report: Investigating the Challenges Facing Compliance Monitoring and Enforcement of South Africa’s Biodiversity Legislation and Recommendations for Improvement

• Problematic provisions in bio-prospecting legislation - The defi nition of

“bio-prospecting” is creating compliance challenges in the cosmetic,

industrial, and beverage industry and bio-prospecting related fee

structures are proving problematic to interpret and implement14.

CHALLENGES TO SUCCESSFUL PROSECUTIONSThe general sentiment is that the National Prosecuting Authority (NPA) is

often unsuccessful in securing convictions for offenders who contravene

biodiversity and conservation legislation. The accuracy of this sentiment

could not be measured due to the lack of accurate statistics in this regard.

Sourced case reports showed there were quite a few successful prosecutions,

and often signifi cant sentences. The factors contributing to unsuccessful

prosecutions include the gaps in, and constant changes to the legislation as

well as a skills shortage in enforcement offi cials. Corruption could also possibly

be a contributing factor. Where contraventions are detected, offenders are

often not brought to book because they are not prosecuted effectively. This

is largely due to inexperience on the part of many prosecutors in the NPA

especially in the lower levels, and at one-man stations. Successful prosecutions

depend on thorough investigations. Some enforcement offi cials are however

not knowledgeable or experienced enough to detect and investigate crime

effectively, which may result in cases either not being prosecuted, or being

prosecuted unsuccessfully15.This does however not detract from the fact that

there are many experienced and capable offi cials remaining in this fi eld. The

general perspective of such enforcement offi cials is that there is a good level

of expertise in biodiversity related prosecutions on state advocate level, but

not always on lower court level.

23Scoping Report: Investigating the Challenges Facing Compliance Monitoring and Enforcement of South Africa’s Biodiversity Legislation and Recommendations for Improvement

Despite the statistical shortcomings, major progress has been made in the last

few years with the training of prosecutors, the provision of resources such as

the Department of Environmental Affairs’ Prosecution guide, and the closer

cooperation between the NPA and the role-players involved in the investigation

of such offences, all contributing to the capacity and skills within the NPA.

UNSUCCESSFUL RECORDING OF ENFORCEMENT DATAThere is a major gap in the accurate accumulation and recording of data

on the enforcement of biodiversity and conservation legislation. The failure

to record case data correctly, hinders the identifi cation of problem areas in

enforcement, which in turn means that these problem areas are not managed

and addressed. This problem is being experienced across the board, in all

enforcement agencies, and is attributable to a range of factors.

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24

RECOMMENDATIONS FOR IMPROVED COMPLIANCE MONITORING AND ENFORCEMENTRECOMMENDATIONS FOR IMPROVED COMPLIANCE

MONITORING AND ENFORCEMENT OF BIODIVERSITY AND

CONSERVATION LEGISLATION

The following key recommendations are proposed for improved compliance

monitoring and enforcement:

AMENDMENTS TO THE LEGISLATIONIt is submitted that all comments and recommendations contained in the

chapter dealing with the legislative review16 should be considered and the

legislation amended where necessary. In addition, there were a number of

requests or recommendations which were raised during the investigation,

which also need to be dealt with in terms of the current legislation. Members

of the NPA suggested that it would be extremely helpful to prosecutors if

the CPA was amended to include rhino poaching offences as Schedule 5 or

6 offences, specifi cally for the purposes of bail17. Although not specifi cally

suggested, it would also be sensible to perhaps refer to a specifi c category

of species instead of a specifi c species in this regard. This would be practical

in the event that other species start facing the same risk as rhino, or if the

current threat to rhino diminishes.


25

The low penalties provided in some of the legislative provisions remains

a constraint. Although the provinces are in the process of amending their

provincial acts and ordinances, which will address this issue, it is submitted that

further amendments should be considered to further increase the penalties for

biodiversity and conservation related offences in both national and provincial

legislation. It is important to note that although penalties are often insuffi cient

to act as a deterrent, especially with regard to the provincial conservation

legislation, the main issue however remains the practical application of the

legislation, i.e. the lack of resources, capacity and personnel.

In order to address the major structural issues facing EMIs it may be necessary to

rethink the relevant legislative framework and possibly place all environmental

compliance and enforcement functions within a single institution18. Examples

include the Environment Agency, a British non-departmental public body of

the Department for Environment, Food and Rural Affairs; and the United States

Environmental Protection Agency. These two organisations are responsible

for all environmental crimes and not only those limited to biodiversity and

conservation issues. This is a rather ambitious proposal that has been the

subject of discussions since the formation of the Inspectorate. Ultimately it

may lead to a substantial improvement in the level of effectiveness of both

compliance and enforcement in this area. However, further assessment is

required to confi rm this.


26

TRAINING OF ALL ROLE-PLAYERSOngoing training is one of the major issues highlighted during the investigation

process. In the constantly changing area of environmental law, regular,

ongoing training is required in order to provide the necessary knowledge, skills

and confi dence to enforcement offi cials as well as offi cials mandated with

the issuing of permits. The various forums and working groups also play a

critical part in empowering offi cials through information sharing, collaboration

and support. Training is also required in other agencies and institutions, for

example, the SAPS, the AFU, Customs and the Border Police on biodiversity

and conservation enforcement. Offi cials require further specialised training,

especially on the implementation and enforcement of the TOPS regulations.

It must be noted that various training initiatives have been undertaken in the

past few years and much progress have been made in this regard.

APPOINTMENT OF ENVIRONMENTAL MANAGEMENT INSPECTORS (EMIS)

More EMIs need to be appointed in institutions that enforce biodiversity

and conservation legislation. In particular, more Grade 1 offi cials, who are

empowered to sign off notices, are required. Local authorities must play a

more prominent role in the compliance and enforcement of both biodiversity

and local protected areas. In 2009, a number of local government enforcement

personnel were in the process of being trained and were expected to have

been appointed as EMIs. However, to date, none of these offi cials have been

appointed as EMIs. The necessary structures and procedures need to be

developed as a matter of urgency in order to allow this to take place. The


27

investigation revealed that the bigger municipalities have the necessary

resources to deal with biodiversity issues and municipal offi cers are often the

fi rst to detect non-compliance. It was reported that municipalities are not

considered to be major role-players in biodiversity enforcement, as they do not

have a clear mandate to do so and are often forced to obtain the assistance of

provincial and national authorities.

The investigation further revealed a lack of reaction from some of these

authorities. Due to a lack of powers, municipal offi cials often use planning

and other by-laws as a tool to address biodiversity infringements. Municipal

offi cials will often conduct the basic investigation in cases of non-compliance,

after which these cases are handed to provincial authorities.

Rhino horn found in hand luggage


28

ADMISSION OF GUILT FINESFines lists provide a list of the maximum monetary value of admission of guilt

fi nes, per court district. This amount is set in terms of the CPA and is binding

on all peace offi cers, which include SAPS, EMIs and provincial enforcement

offi cials.

Admission of guilt fi nes (J534) means fi nes paid for less serious environmental

offences in terms of Section 56 of the CPA (there is also an alternative process

in section 34G of NEMA). The monetary limit of J534 fi nes is R2500.

In some magistrates’ districts the fi nes lists are however outdated. Fines

issued in terms of these outdated lists are insuffi ciently low and thus do not

deter would-be or repeat offenders. It is therefore recommended that the

fi nes list should be regularly updated and harmonised in areas where this is a

problem. Another alternative is the setting of admission of guilt fi nes in terms

of NEMA. Section 34G provides that the Minister may, by regulation, specify

offences in terms of NEMA or a Specifi c Environmental Managament Acts

(SEMA), in respect of which alleged offenders may pay a prescribed AG fi ne

instead of being tried by a court for the offence19. It needs to be emphasised

that this alternative would require the Minister to enact Regulations in terms

of NEMA fi rst. An EMI who has reason to believe that a person has committed

an offence specifi ed in terms of subsection (1) may issue the alleged offender

with a written notice referred to in section 56 of the CPA20. The amount of the

fi ne stipulated in this notice may not exceed the amount prescribed for

the offence21.


29

CONTINUATION OF EFFECTIVE CO-OPERATIONThe creation and expansion of new inter-governmental working groups and

crime forums will undoubtedly contribute to better cooperation between relevant

authorities. However, if signifi cant inroads are to be made in relation to biodiversity

legislation compliance and enforcement, it is recommended, and critical, that

DEA and the different provinces (through these structures) ensure consistency

and standardisation in relation to conservation approaches and policies. It is

also recommended that national priorities be clearly delineated to ensure that

suffi cient resources are applied to the more pressing issues. These priorities and

conservation approaches can then be supported across the country (by both

provincial and national departments) through the implementation of a uniform

compliance and enforcement strategy, including the use of formal operations to

target specifi c types of criminal activity22.

RECORDING OF ENFORCEMENT DATA ON A CENTRALISED DATABASEA single web-based information system that captures and hosts live statistics

should be developed. The huge variation in organisational, procedural and IT

systems and resources between the various authorities however means that

this is not a feasible option at the moment. If this hurdle could be overcome,

a centralised database would be recommended in order to gather relevant

information. Such a database needs to be user-friendly for enforcement offi cials

from across the board to be able to use it effectively. Furthermore, the loading of

information into such a database will need to be included as a mandatory task for

all enforcement offi cials on a regular basis, with regular training provided.


30

NOTES

1. Envolve was represented by Phil Snijman and Bianca Tosolari.

2. RE Allen (ed) The Concise Oxford Dictionary of Current English 8 ED

(1990).

3. Frances Craigie, Phil Snijman & Melissa Fourie, Chapter 3: Dissecting

Environmental Compliance and Enforcement, in Environmental

Compliance and Enforcement in South Africa: Legal Perspectives, Juta,

First Edition, 2009. Alexander Paterson & Louis J. Kotze (eds), Chapter 3.









6. The report assessed the following legislation the National Environmental

Management Act, Act 107 of 1998 (NEMA); the National Environmental

Management Biodiversity Act, Act 10 of 2004 (NEM: BA); the National

Environmental Management Protected Areas Act, Act 57 of 2003 (NEM:

PAA) limited to biodiversity and conservation issues; and the provincial

conservation legislation in all nine provinces (limited to the enforcement

of the legislation). It must be noted that this is not an exhaustive list

and other legislation also have a role to play in biodiversity management

(limited to the enforcement of the legislation).

7. Frances Craigie, Phil Snijman & Melissa Fourie, Chapter 4: Environmental

Compliance and Enforcement Institutions, in Environmental Compliance

and Enforcement in South Africa: Legal Perspectives, Juta, First Edition,

2009. Alexander Paterson & Louis J. Kotze (eds), Chapter 4.


31

8. The legal review highlights various shortcomings and problematic

provisions in the legislation. Making this information publicly available

could alert potential transgressors to shortcomings or errors, which may

be used to escape liability, and would only frustrate the purpose of the

review.

9. Envolve was represented by Phil Snijman and Bianca Tosolari. Due to the

nature of this study and the fact that it is such a specialist fi eld requiring

an existing knowledge of the playing fi eld, role-players etc, it was critical

that the external consultants appointed have the relevant experience and

expertise required.

10. From 2001 to 2011.

11. Responses are weighted because one respondent replied that in certain

provinces the enforcement agencies would be partially effective and in

other provinces ineffective.

12. Responses are weighted. One respondent replied that in certain provinces

the enforcement agencies are taking steps and are effective whereas in

other provinces they were not effective.

13. Frances Craigie, Phil Snijman, Melissa Fourie, Chapter 4: Environmental

Compliance and Enforcement Institutions, in Environmental Compliance

and Enforcement in South Africa: Legal Perspectives, Juta, First Edition,

2009. Alexander Paterson & Louis J. Kotze (eds).

14. This issue is dealt with in detail in the legislative review. Due to the

confi dential nature of the information contained in the legislative review,

this is however excluded from this report.

15. The perceived high level of corruption within enforcement agencies, which

should be detecting non-compliance, could also be a contributing factor to

the low level of detection of these specifi c offences.

16. Due to the confi dential nature of the information contained in this chapter

the legislative review is excluded from this report.

17. If an offence is listed in Schedule 5 of the CPA, it means that the accused


32

must show, (or has the onus or burden to show) that it is in the interests of

justice for him or her to be granted bail. If the offence is listed in schedule

6, it means that the accused must show exceptional circumstances exist

which necessitate he or she being granted bail. Thus if the offences are

listed in Schedule 5 or 6 it makes it much easier for the state to oppose bail

successfully. If offences are listed in Schedule 1 of the CPA, it means that the

state has the burden to show why it is not in the interests of justice to grant

the accused bail, and if they cannot do so, the accused will be granted bail.


Compliance and Enforcement Institutions, in Environmental Compliance and

Enforcement in South Africa: Legal Perspectives, Juta, First Edition, 2009.

Alexander Paterson & Louis J. Kotze (eds).


33

19. Section 34G(1) of NEMA.






Alexander Paterson & Louis J. Kotze (eds)


34

REFERENCESFrances Craigie, Phil Snijman & Melissa Fourie, Chapter 3: Dissecting

Environmental Compliance and Enforcement, in Environmental Compliance

and Enforcement in South Africa: Legal Perspectives, Juta, First Edition, 2009.

Alexander Paterson & Louis J. Kotze (eds), Chapter 3

Frances Craigie, Phil Snijman & Melissa Fourie, Chapter 4: Environmental



Alexander Paterson & Louis J. Kotze (eds), Chapter 4.

National Environmental Compliance and Enforcement Report (NECER),

2008-2009

National Environmental Compliance and Enforcement Report (NECER)

2009-2010

Photo credits:

• A. Pires • C. Spenser • H. Winshaw • R. Els • R. Coetzee

THE ENDANGERED WILDLIFE TRUST As a leading high-profi le player amongst the large number and variety of

conservation organisations in South Africa (governmental and civil society),

the EWT fi lls the key niche of conservation action, through applied fi eld-work,


35

research and direct engagement with stakeholders. With specialist progammes

and a large team of skilled fi eld staff deployed throughout southern Africa, the

EWT’s work supports the conservation of threatened species and ecosystems.

Priority interventions focus on identifying the key factors threatening biodiversity

and developing mitigating measures to reduce risk and reverse the drivers of

species extinction and ecosystem degradation. Through a broad spectrum of

partnerships and networks, the EWT responds to the key threats driving species

and ecosystem loss by developing innovative methodologies and best practice

guidelines which support reduced impact, harmonious co-existence and

sustainable living for all.

VISION STATEMENTA healthy planet and an equitable world that values and sustains the diversity

of life

MISSION STATEMENTThe Endangered Wildlife Trust is dedicated to conserving threatened species and

ecosystems in southern Africa to the benefi t of all people.

The EWT fulfi ls its mission by:

• Initiating and implementing conservation research and action programmes;

• Preventing species extinctions and maintaining biodiversity and ecosystem

functioning;

• Supporting sustainable natural resources use and management;

• Communicating the principles of sustainable living and empowering people

by capacity building, education and awareness programmes to the broadest

constituency; and

• Taking a strong leadership and advocacy role in promoting environmental

and social justice.

The Endangered Wildlife Trust was established in 1973 and is registered as a Non-profi t

organisation.

Registration number

015-502 NPO and PBO number

930 001 777.

The EWT is 501 (c) (3) compliant, US IRS Reg. EMP98-0586801.

ENDANGERED WILDLIFE TRUST

Physical Address:

Ardeer road, Building K2, Pinelands Offi ce Park

Modderfontein, Johannesburg

South Africa

Postal Address:

Private Bag X11, Modderfonetin,

Johannesburg,

South Africa

1645

Te:l: +27 11 372 3600Fax: + 27 11 608 4682

www.ewt.org.za

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