Status quo of compliance monitoring and …...Page 2 Status quo of compliance monitoring and enforcement of biodiversity and conservation legislation in South Africa TABLE OF CONTENTS

The Endangered Wildlife Trust, Status of Compliance Monitoring and Enforcement of Biodiversity and Conservation legislation in South Africa, May 2012

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Status quo of compliance monitoring and enforcement of biodiversity and

conservation legislation in South Africa

The Endangered Wildlife TrustMay 2012

Page 2Status quo of compliance monitoring and enforcement of biodiversity and conservation legislation in South Africa

TABLE OF CONTENTS

Status quo of compliance monitoring and enforcement of biodiversity and conservation legislation in South Africa i

Acknowledgements:This report was funded by the Howard G Buffet Foundation. The report was adapted from the official re-sults 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 reflect those of various respondents and experts and do not necessarily represent the views of the Endangered Wildlife Trust.

LIST OF ACRONYMS ii

GLOSSARY OF TERMS iv

EXECUTIVE SUMMARY 1

INTRODUCTION 4

METHODOLOGY 5

THE EFFECTIVENESS OF COMPLIANCE MONITORING AND ENFORCEMENT 7

ANALYSIS OF THE PROMINENT CONSTRAINTS 10

RECOMMENDATIONS FOR IMPROVED COMPLIANCE MONITORING AND ENFORCEMENT 13

NOTES 16

REFERENCES 17Example of potential wildlife contraband

Status quo of compliance monitoring and enforcement of biodiversity and conservation legislation in South Africaii

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)

EKZ NW 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 Management 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

Status quo of compliance monitoring and enforcement of biodiversity and conservation legislation in South Africa iii

Marine Pollution International Convention for the Prevention of Pollution from Ships

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

SAPS South African Police Services

SARS South African Revenue Services

SANDF South African National Defence Force

SEMA Specific 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

GLOSSARY OF TERMSAdmission of guilt fines (J534) means fines paid for less serious environmental offences in terms ofSection 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 fines 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 modification of, any such traditional uses, for

commercial or industrial exploitation.

Compliance the word ‘compliance’ has been defined as ‘obedience to a request or command’2. In legaland 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 taken to ensure that harm to the environment is halted and/or rehabilitated5.

J175 summons means a summons issued by a prosecutor, who is able to set up to R5000.00 admissionof guilt fine.

Nolle prosequi is a term used to describe a situation where the state declines to prosecute in a specificmatter.

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 confirmed by the court. This is also referred to informally as a plea bargain.

iv

This report represents the summary findings 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

• Overall challenges

The most significant 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 en-forcement. 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 com-mitment, however remains a major challenge for the Inspectorate7.

• Intrinsic challenges related to the legal framework

In addition to the comprehensive legal review8, it was also found, through interviews with various stakehold-ers, that the following legislative provisions are hampering effective compliance monitoring and enforcement:• Lack of harmony between definitions 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 officials 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.• Conflicting and confusing regulations - Numerous issues regularly arise due to the fact that various provin-

cial laws contain regulatory provisions on similar issues to those governed by national legislation. This leads to conflict 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 definition of bio-prospecting is creating compli-ance challenges in the cosmetic, industrial, and beverage industry and bioprospecting related fee structures are proving problematic to interpret and implement.

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EXECUTIVE SUMMARY

Status quo of compliance monitoring and enforcement of biodiversity and conservation legislation in South Africa Status quo of compliance monitoring and enforcement of biodiversity and conservation legislation in South Africa

One of the methods used to smuggle wildlife contraband.

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• 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 Au-thority (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 their were quite a few successful prosecutions, and often significant sentences. The contributing factors include the gaps in, and constant changes to the legisla-tion, as well as a skills shortage among enforcement officials. 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. High levels of corruption within enforcement agencies, also contribute to the low level of detection of these specific offences.

Lastly, a gap in the accurate accumulation and recording of data on the enforcement of biodiversity and conservation legislation was identified. Failure to record case data correctly, hinders the identification of problem areas in enforcement and therefore no specific management measures 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 officials 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.

• 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 officials who have the power to sign off on notices, and the appointment of municipal officials 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 Af-fairs (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 sufficient resources are applied to the most pressing issues.

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• Improved system of capturing enforcement data

Accurate, up-to-date statistics on enforcement activities should be captured by a web-based information system to. The huge variation in organisational, procedural and IT systems and resources between the vari-ous 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.

• Amendment of legal regime

All comments made as part of the detailed legislative review should be considered and the legislation amended where necessary. The EWT will be approaching the relevant department/s to commence a pro-cess of motivating and advocating for such changes.


Searching passengers and luggage, a practical demonstration.

INTROdUCTION

Although 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) em-braced 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 organisa-tions 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 sys-tem 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 enforce-ment 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.

Due to the confidential nature of some of the information contained in the report, the report was subse-quently adapted to exclude any confidential information, carefully ensuring that no facts were altered or changed thereby making it accessible and suitable for a public audience. The confidential 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 confidentiality of some officials 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.

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METHOdOLOGY

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The investigation entailed analysing 1) relevant legislation; 2) national statistics on enforcementcontained 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, North-ern 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 Con-servation 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 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 identified 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 enforce-ment, 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 methodsThe 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 identified came to the fore during the review, while others were identified through previous regular personal interaction with enforcement officials and prosecutors.


Snares used to catch wildlife

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Institutions Number of individuals initially aimed to interview

Number of individuals interviewed through generic questionnaire

Targeted interviews with experts to obtain additional specific information

Provincial conserva-tion 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 respon-sible for 1) Threatened or Protected Species Regulations (TOPS), 2) CITES, 3) Bio-prospecting, 4) Investigations, and 5) Training

One official 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)

Two individuals Two individuals

Endangered Species Desk One individual One individual

Interpol One individual One individual One additional targeted interview

SANParks including one from Corporate Investiga-tion 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.

How 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 first section aims to get a very broad answer to the questions about the effectiveness of compliance moni-toring and enforcement of biodiversity and conservation legislation, and what the main short comings and constraints are.

is tHe current set of enVironmentAl legislAtion, relAting to BiodiVersity And conserVAtion, AdequAte And effectiVe in so fAr As it PertAins to your work?

THE EFFECTIVENESS OF COMpLIANCE MONITORING ANd

ENFORCEMENT

Page 7Status quo of compliance monitoring and enforcement of biodiversity and conservation legislation in South Africa Status quo of compliance monitoring and enforcement of biodiversity and conservation legislation in South Africa

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

• 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 specifically 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.

Pracitcal demonstration of search and seizure.

How effectiVe Are tHe enforcement Agency (ies) you work witH, in detecting non-comPliAnce?

Not in a position to answer

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How successful HAs your enforcement Agency / directorAte Been in tHe tAking of enforcement Action?

No answer

Unsuccessful

Successful

Very successful


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

Effe

ctiv

e

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

SAPS 4 0% 100% 0% 0%

NPA 4 25% 25% 25% 25%

Government 5 0% 100% 0% 0%

NGO11 2 0% 25% 25% 50%

Not

in a

pos

ition

to

answ

er

Very

Effe

ctiv

e

Inef

fect

ive

N

How effectiVe Are tHe enforcement Agency (ies) you work witH in tAking APProPriAte stePs wHere non-comPliAnce HAs Been detected?

SAPS 4 50% 50% 0% 0%

NPA 4 0% 100% 0% 0%

Government 5 0% 80% 20% 0%

NGO11 2 0% 25% 25% 100%

Not

in a

pos

ition

to

answ

er

Very

Effe

ctiv

e

Inef

fect

ive

N

All Respondents

All Respondents

All Respondents

Not

in a

pos

ition

to

answ

er

tHe Prominent constrAints effecting comPliAnce monitoring And enforcement of BiodiVersity And conserVAtion legislAtion

The following have been identified as the major constraints affecting efficient compliance monitoring and enforcement.

cAPAcity, trAining And corruPtion

Lack of capacity and corruption are proving to be major constraints, with capacity constraints emerging 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 environmen-tal 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 .

Corruption in the South African Police Service (SAPS) and the Department of Environmental Affairs (DEA) is proving to be a significant challenge. It should be noted that the perception that corruption is rife, is based on interviews with various officials and that while this view is concerning, it is not reflected in reported formal action against corrupt officials, but remains a perception. A number of respondents (targeted as part of the investigation) from across the board mentioned corruption specifically with regard to the issuing of both TOPS and CITES permits. Attempts to obtain more specific information on this were unsuccessful.

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 sufficient number of enforcement officials, as well capacity problems, and cited the fast turnover rate of officials as the reason for the lack of experience amongst such officials.

It was highlighted by a member of SAPS that longstanding cultural practices are sometimes in conflict 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 officials.

ANALYSIS OF THE pROMINENT CONSTRAINTS

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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 definitions in National Environmental Management Biodiversity Act, 2004 and the accompanying Threatened or Protected Species Regulations (TOPS) - The first problem relating to the legislation governing the issuing of permits is the widespread confusion regarding the types of permits required to conduct a restricted activity with a listed species. Secondly, it was found that the various defini-tions contained in the current legislation are conflicting and therefore problematic.

• Problematic provisions on the enforcement powers of officials in biodiversity, conservation and provincial legislation - For enforcement officials, the legislation governing enforcement powers appears to be ad-equate, but only when a combination of role-players is involved in the enforcement activity, such as mem-bers from the SAPS, the HAWKS and customs officials. For example, where one official is not authorized to act, usually another official is empowered to take such action under their governing legislation. This is however indicative of the fact that the empowering legislation is insufficient, especially at points of entry and exit, as involvement of all role-players is required in order to secure an arrest and conviction. Where joint action involving several agencies is being taken, the results are significantly better than where action is taken by one agency alone. This joint action is increasingly common among the relevant role players and where such collaboration was informal in the past, it is now being captured through formal agreements. One example of this is the establishment of various crime forums in provinces.

• 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 officials based at an airport, is Oliver Tambo International Airport in Johannesburg. It is well known that airports such as Lanseria, Cape Town and King Shaka Inter-national 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 rec-ommended 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 departments, should implement measures to increase the compliance and enforcement components at these ports of entry and exit.

• Conflicting and confusing regulations - There are numerous issues that have arisen due to the fact that various provincial laws contain regulatory provisions on similar issues to those governed by national legis-lation, which leads to conflict 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.

• Problematic provisions in bio-prospecting legislation - The definition of “bio-prospecting” is creating com-pliance challenges in the cosmetic, industrial, and beverage industry and bio-prospecting related fee struc-tures are proving problematic to interpret and implement14.

Page 10 Status quo of compliance monitoring and enforcement of biodiversity and conservation legislation in South Africa Status quo of compliance monitoring and enforcement of biodiversity and conservation legislation in South Africa

Page 12

The 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 their were quite a few successful prosecutions, and often significant sentences. The contributing fac-tors are gaps in, and constant changes to the legislation as well as a skills shortage in enforcement officials. High levels of corruption within enforcement agencies, also contribute to the low level of detection of these specific offences. 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 thor-ough investigations. Some enforcement officials 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 officials remaining in this field. The general perspective of such enforcement officials is that there is a good level of expertise in biodiversity related prosecutions on state advocate level, but not always on lower court level.

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 dAtA

There 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 identification 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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RECOMMENdATIONS FOR IMpROVEd COMpLIANCE

MONITORING ANd ENFORCEMENT

recommendAtions 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 legislAtion

It is submitted that all comments and recommendations contained in the chapter dealing with the legisla-tive 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 of-fences, specifically for the purposes of bail17.

The low penalties provided in some of the legislative provisions remains a constraint. Although the prov-inces 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. It is important to note that although penalties are often insufficient 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 confirm this.


unsuccessful Prosecution

trAining of All role-PlAyers And A regulArly uPdAted mAnuAl

Ongoing 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 confidence to enforcement officials. The various forums and working groups also play a critical part in empowering officials 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. Officials 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 officials, who are empowered to sign off notices, are required. Local authorities must play a more prominent role n 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 officials have been ap-pointed 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 investigation revealed that the bigger municipalities have the necessary resources to deal with biodiversity issues and municipal officers are often the first 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 officials often use planning and other by-laws as a tool to address biodiversity infringements. Mu-nicipal officials will often conduct the basic investigation in cases of non-compliance, after which these cases are handed to provincial authorities.

Page 14

Admission of guilt fines

Fines lists provide a list of the maximum monetary value of admission of guild fines, per court district. This amount is set in terms of the CPA and is binding on all peace officers, which include SAPS, EMIs and provincial enforcement officials.

Admission of guilt fines (J534) means fines 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 fines is R2500.

In some magistrates’ districts the fines lists are however outdated. Fines issued in terms of these outdated lists are insufficiently low and thus do not deter would-be or repeat offenders. It is therefore recom-mended that the fines list should be regularly updated and harmonised in areas where this is a problem. Another alternative is the setting of admission of guilt fines in terms of NEMA. Section 34G provides that the Minister may, by regulation, specify offences in terms of NEMA or a Specific Environmental Managa-ment Acts (SEMA), in respect of which alleged offenders may pay a prescribed AG fine instead of being tried by a court for the offence19. An EMI who has reason to believe that a person has committed an offence specified 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 fine stipulated in this notice may not exceed the amount prescribed for the offence21.

continuAtion of effectiVe co-oPerAtion Between different role-PlAyers And internAtionAl cooPerAtion

The creation and expansion of new inter-governmental working groups and crime forums will undoubt-edly contribute to better cooperation between relevant authorities. However, if significant 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 standardi-sation in relation to conservation approaches and policies. It is also recommended that national priorities be clearly delineated to ensure that sufficient 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 specific types of criminal activity22.

recording of enforcement dAtA on A centrAlised dAtABAse

A 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 authori-ties 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 officials 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 officials on a regular basis, with regular training provided.


Rhino horn found in hand luggage

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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.

4. 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.

5. 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). It must be noted that this is not an exhaustive list and other legislation also have a role to play in biodiversity management.

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.

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 field requiring an existing knowledge of the playing field, 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 confidential nature of the informa-tion 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 specific offences.

16. Due to the confidential 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 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 neces-sitate 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.

18. Frances Craigie, Phil Snijman, Melissa Fourie, Chapter 4: Environmental Compliance and Enforcement Institutions, in Environmental Compliance and Enforcement in South Africa: Legal Perspec-tives, Juta, First Edition, 2009. Alexander Paterson & Louis J. Kotze (eds).

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

Frances Craigie, Phil Snijman & Melissa Fourie, Chapter 4: Environmental Compliance and Enforce-ment Institutions, in Environmental Compliance and Enforcement in South Africa: Legal Perspectives, Juta, First Edition, 2009. 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

REFERENCES

Page 17

NOTES


The Endangered Wildlife Trust As a leading high-profile player amongst the large number and variety of conservation organisations in South Africa (governmental and civil society), the EWT fills the key niche of conservation action, through applied field-work, research and direct engagement with stakeholders. With specialist progammes and a large team of skilled field staff deployed throughout southern Africa, the EWT’s work supports the con-servation 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 spe-cies 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 methodolo-gies 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 benefit of all people.The EWT fulfils 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, educa-

tion and awareness programmes to the broadest constituency; and • Taking a strong leadership and advocacy role in promoting environmental and social justice.

Photo credits:• A. Pires • C. Spenser • H. Winshaw • R. Els • R. Coetzee• A. Rossouw

The Endangered Wildlife Trust was

established in 1973 and is registered

as a Non-profit organisation.

Rregistration 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 Office Park

Modderfontein, Johannesburg

South Africa

Postal Address:

Private Bag X11, Modderfonetin,

Johannesburg,

South Africa

1645

Te:l: +27 11 372 3600

Fax: + 27 11 608 4682

www.ewt.org.za

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