UPDATE: Law failing wildlife held in captivity

Nicci Wright sees the kind of places “that will make your hair stand on end”.

Yet every year these same “horrific” facilities receive permits from environmental officials to keep wild animals.

“Government departments aren’t mandated to worry about welfare,” says Wright, the wildlife project manager of Humane Society International Africa.

“Permits and animal welfare should go together and they don’t. Provincial officials just look at the basic requirements and say, ‘okay this cage is four by five, and there’s the right kind of fencing’, as per the minimum requirement, and give the permits.

“They don’t come back to check on the welfare situation of the animals. When wildlife becomes a commodity, as it has in South Africa, often the welfare of the animals becomes secondary,” she explains.

Wright’s long-held concerns are echoed in a new joint report, Fair Game? Improving the Regulation of the Well-Being of South African Wildlife, which reviews the legal and practical regulation of the welfare of wild animals.

Compiled by the Centre for Environmental Rights (CER) and the Endangered Wildlife Trust (EWT), it details how South Africa has in recent years seen a proliferation of facilities that involve the captive management of wildlife for commercial purposes.

Yet legislation that governs the welfare of wild animals has not kept pace with the rapid changes in the wildlife industry, “compromising the welfare of numerous wildlife species”.

The report was prompted by shared concern among the authors about the absence of welfare considerations in biodiversity laws and the inadequacy of existing welfare laws as they apply to wild animals, specifically those in captivity.

The need for a solid, consistent and adequate welfare regime for wild animals is “apparent and urgent”.

Good welfare, says the report, promotes healthy development, humane treatment, the ability to express innate behaviour and the fostering of biodiversity as each species performs its role in the ecosystem optimally.

Welfare falls under the auspices of the Department of Agriculture, Forestry and Fisheries (DAFF) while biodiversity conservation falls under the mandate of the Department of Environmental Affairs (DEA).

“Captive wild animals under the physical control of humans, whether held temporarily or permanently, straddle the divide between inter-departmental and concurrent national and provincial jurisdiction because of a statutory regime unintended and unsuited to addressing the issue of wild animal welfare.”

But too often, wild animals fall through the cracks, and while regulations may exist for the captive management of some selected species, and laws may be in place to regulate their trade, “the welfare of captive wildlife, and the mandate of the authorities to monitor compliance, is insufficiently protected”.

As an example, the CER and EWT cite the well-publicised 2014 death of a giraffe while being transported in an open-air truck on a national highway after the driver drove under a bridge that was not high enough for the giraffe to safely pass under. No prosecutions were reported.

“More recent examples include dozens of neglected and starving captive lions on a Limpopo farm and a ‘lion abattoir’ in the Free State housing over 200 lions, awaiting slaughter for lion bone exports, in limbo as both the DEA and DAFF say that the welfare situation is not their responsibility.”

The increase in reported incidents of captive carnivore attacks on people - consider that the EWT says there are least 37 known incidents causing 12 deaths - are not being legally addressed either.

Dr Kelly Marnewick, senior trade officer at the EWT’s wildlife in trade programme, explains there are more than 6000 African lions in captivity in South Africa, six times more than there are in the wild.

Housed in about 180 facilities, the animals are kept for several reasons: tourism for petting, walking-with initiatives and viewing; the shooting of captive lions for “canned hunting” and supplying bones to Asian countries for the medicinal trade.

But fast-growing industries like these bring up all sorts of welfare issues, she says. “There’s a lot of blurring of mandates about captive welfare. It’s been an ongoing issue for ages and unfortunately while we carry on with all this confusion, the only ones that suffer are the animals.”

For Karen Trendler, wildlife trade and trafficking manager at the NSPCA, the growth of the captive lion industry serves as a “brilliant example” of where legislation and regulations have failed to safeguard welfare.

“There is a massive need to address welfare issues in the wildlife industry. We have one of the largest and most commercial wildlife industries in the world and one of the biggest challenges is that our environmental legislation doesn’t adequately cover captive wildlife.”

Government departments and their provincial counterparts are “passing the buck quite literally”, she says.

The report explains how the NSPCA, a statutory body, is tasked with responding to wild animal welfare complaints, conducting its own investigations and attempting to regulate good welfare practices without state funding and limited resources.

“It’s expected to adequately bridge the jurisdictional divide between what DEA and DAFF believe to be their respective mandates.”

The report calls for significantly increased capacity for an adequate number of trained officials, regular welfare inspections and consistent enforcement, including through funding from increased permit application fees and fines, in addition to government funding to the NSPCA in its performance of its crucial public function.

But it notes how budgets for biodiversity management at national and provincial departments are declining. “It’s easy to see how the welfare of wild animals ... is put on the backburner, or in most cases, completely ignored.”

Aadila Agjee, an attorney at the CER, explains how game ranching and the “wildlife economy” are becoming popular as Environmental Affairs Minister Edna Molewa encourages the use of biological resources for economic development.

Trendler agrees. “The green industry and the wildlife industry are being very aggressively promoted by the DEA and the government. It’s a very large and well organised industry yet there’s an absence of legislation and regulation. We can only enforce the Animal Protection Act, as the NSPCA, and while it’s a good Act, there are gaps when it comes to the welfare of wildlife,” she says.

The CER and EWT, through the report, are seeking engagement with the national and provincial departments to address a more appropriate legal framework to improve the welfare protection of wild animals.

The organisations also call for a standardised and transparent permitting system for activities involving and affecting wildlife.

Long-term reform of the permit system requires an integrated electronic national permit database, including permits compliance inspection reports and audit reports.

“This is critical as the lack of any cross-referencing across provinces has allowed for the dubious practice of obtaining permits in one province refused in another. “All provinces should have real-time access to the nationwide details of all applications, approvals and denials.”

Wildlife Ranching SA says the large investment in the economy by private owners and wildlife ranchers is important,” it says, in a response to the report.

“The owners look after the welfare of the animals because they do not want to lose their investment. They protect biodiversity.”

What the DEA's spokesperson, Albi Modise, says:

The objectives of the National Environmental Management: Biodiversity Act, 2004 (Act No. 10 of 2004)(NEMBA) are currently as follows:

(a)  within the framework of the National Environmental Management Act, to provide for -

(i)  the management and conservation of biological diversity within the Republic and of the

components of such biological diversity;

(iA) the need to protect the ecosystem as a whole, including species which are not targeted for exploitation;

(ii)  the use of indigenous biological resources in a sustainable manner; and

(iii)  the fair and equitable sharing among stakeholders of benefits arising from bioprospecting involving indigenous biological resources;

(b)  to give effect to ratified international agreements relating to biodiversity which are binding on the Republic;

(c)  to provide for cooperative governance in biodiversity management and conservation; and

(d)  to provide for a South African National Biodiversity Institute to assist in achieving the objectives of this Act.

The primary mandate of NEMBA therefore focuses on species conservation and habitat protection, sustainable use of biological resources, fair and equitable sharing in the benefits derived from biological resources, and giving effect to ratified international agreements relating to biodiversity.  

In respect of listed threatened or protected species (TOPS), NEMBA regulates the use of specimens of these species by requiring permits for activities that have a direct impact on such specimens; these activities are defined as “restricted activities” and include, among others, hunting, catching, keeping, breeding, transporting, etc. 

The permit process, requirements and considerations are set out in Regulation 10 of the TOPS Regulations, 2007. When an application for a permit is considered, the following factors must be taken into account by the issuing authority:

(a) all applicable legal requirements, in order to ensure that any decision with respect to a permit is consistent with regulation 17;

(b) whether the species to which the application relates is listed in terms of section 56, of the Biodiversity Act as a critically endangered species, an endangered species, a vulnerable species or a protected species;

(c) the IUCN Red List status of the species;

(d) whether the application involves a listed threatened or protected species that will be taken or removed from a wild population;

(e) whether the restricted activity applied for is prohibited in terms of regulations 23, 24, 26 or 25;

(f) whether the issuing authority has cancelled other permits issued to the applicant in terms of section 93 of the Biodiversity Act;

(g) all other relevant factors, including -

(i) all the information and documentation submitted by the applicant to the issuing authority in connection with the application;

(ii) any additional information required by the issuing authority in terms of section 88(2)(a) of the Biodiversity Act;

(iii) whether the restricted activity in respect of which the application is submitted is likely to have a negative impact on the survival of the relevant listed threatened or protected species;

(iv) the biodiversity management plan for the species concerned (if any);

(v) any recommendation by the Scientific Authority in terms of section 61(1)(c) of the Biodiversity Act regarding the application;

(vi) any risk assessment or expert evidence requested by the issuing authority;

(vii) any relevant information on the database that SANBI is required to keep in terms of section 11(1)(j) of the Biodiversity Act;

(viii) any objections to the application;

(ix) whether the restricted activity will be carried out by, or will take place in a registered captive breeding operation, commercial exhibition facility, nursery, scientific institution, sanctuary, rehabilitation facility, or by a wildlife trader registered in compliance with these regulations; and

(x) whether the restricted activity will be carried out on a registered game farm registered in terms of Chapter 3 of these regulations.

The TOPS Regulations further compel the registration of facilities such as captive breeding facilities, rehabilitation facilities, sanctuaries or commercial exhibition facilities (e.g. zoos). When an application for the registration of a facility is considered, the following factors must be taken into account by the issuing authority in terms of Regulation 29:

(a) all applicable legal requirements in order to ensure that any decision with respect to the registration is consistent with those requirements;

(b) whether the species to which the application relates is listed in terms of section 56 of the Biodiversity Act as a critically endangered species, an endangered species, a vulnerable species or a protected species;

(c) the purpose for which the captive breeding operation, commercial exhibition facility, game farm, nursery, scientific institution, sanctuary or rehabilitation facility is conducted;

(d) all other relevant factors, including all relevant documentation and information submitted to it by the applicant; and

(e) in the case of an application for the registration of a captive breeding operation, commercial exhibition facility, game farm, nursery, sanctuary, rehabilitation facility or as a wildlife trader, whether the applicant is prepared to micro-chip or mark, where appropriate, each specimen of a listed threatened or protected species bred or kept at the captive breeding operation, commercial exhibition facility, game farm, nursery, sanctuary or rehabilitation facility or traded with by the wildlife trader.

"It may not be entirely correct to state that well-being considerations in conservation laws and practices are absent, or that existing well-being laws do not adequately cater for wild animals. Although there is no clear mandate in NEMBA to regulate the well-being of wild animals, there are a number of provisions in the TOPS Regulations that can indirectly be linked to well-being, although these provisions were not included with well-being as the primary consideration. E.g. the TOPS Regulations prohibit:

the hunting of animals listed as TOPS in the following manners:

-by means of poison, traps or snares;

with an automatic weapon, a weapon discharging a rimfiring cartridge of .22 of an inch or smaller, a shotgun or an air gun;

-by luring it by means of bait, smell, sound or any other luring method;

-if the animal is under the influence of a tranquilizing, narcotic, immobilizing or similar agent;

-if the animal is trapped against a fence or in a small enclosure where the animal does not have a fair chance to evade the hunter

-from a motorised vehicle, except for the tracking of the animal if the hunt takes place over long ranges, or for allowing a physically disabled person to hunt;

-from an aircraft, except for the tracking of the animal if the hunt takes place over long ranges; 

-by means of dogs, except if the dogs are used to track a wounded animal, or for the purpose of pointing, flushing and retrieving an animal; or

-the hunting of black or white rhinoceros, crocodile, elephant, leopard, cheetah, African wild dog, or spotted or brown hyena by means of a bow and arrow; and  

inbreeding in captive breeding facilities.

"When provincial conservation authorities issue permits for the carrying out of restricted activities, or registrations in respect of facilities, they must take into account the requirements of their provincial acts/ ordinances, in accordance with Regulations 10 and 29. However, the provincial legislative requirements may differ from province to province. "Therefore permits are issued by provincial conservation authorities with varying degrees of addressing animal well-being, e.g. some provinces prescribe cage sizes for the keeping of wild animals in captivity, or issue specific permit conditions in respect of game translocation equipment/ vehicles," Modise says.

Non-compliance with the conditions of permits issued in terms of NEMBA is a punishable offence, and if convicted, a person is liable to:

-a fine not exceeding R10 million; or 

-imprisonment for a period not exceeding ten years; or 

-both such a fine and such imprisonment. 

"If a person is convicted of an offence involving a specimen of a listed TOPS, a person is liable either to the above fine, or to a fine equal to three times the commercial value of the specimen or activity in respect of which the offence was committed, whichever is the greater.

Similarly, non-compliance with the conditions of registrations issued in terms of the TOPS Regulations is a punishable offence, and if convicted a person is liable to:

imprisonment for a period not exceeding five years;

-a fine not exceeding R5 million, and in the case of a second or subsequent conviction, to a fine not exceeding R10 million or imprisonment for a period not exceeding 10 years; or both a fine and such imprisonment."

Modise says in 2016 the DEA proposed amendments to NEMBA, as part of the National Environmental Management Laws Amendment Bill, 2017 (NEMLA Bill). These proposed amendments include a mandate to regulate the well-being of faunal biological resources. The intention is to regulate the well-being of wild animals incidental to restricted activities involving listed threatened or protected species, alien or listed invasive species, or species involved in bioprospecting. The well-being is therefore not intended to become the primary objective of NEMBA, as the provisions of NEMBA in this respect would apply along-side the provisions of the Animals Protection Act, 1962 (Act No. 71 of 1962). The NEMLA Bill is currently subjected to the Parliamentary approval processes."