Bureaucratic Pitfalls for Rhino Farmers - (author: I Du Toit)

THE RHINO FARMER’S STATUTORY BURDEN

By Izak du Toit

South Africa is experiencing the highest incidence of rhino poaching in history and it is fair to

state that the survival of the species is at risk if this trend continues. The custodians of rhino

in this country are divided into two distinct groups, the National and Provincial governmental

nature conservation authorities and the private game farm owners. This short essay is

dedicated to the challenges faced by private game farm owners and potential private rhino

owners in their effort to keep, breed and protect rhino in South Africa. It also serves to

highlight the challenges faced by South Africa’s emergent black farmers and communities

who may wish to enter the rhino farming industry.

At the outset it must be noted that Black and White Rhino in South Africa are listed,

classified and governed by the Threatened or Protected Species Regulations (in short

referred to as TOPS regulations) which regulations are promulgated under the National

Environmental Management: Biodiversity Act 10 of 2004 (in short referred to as NEMBA).

If any private individual or community has access to a suitable piece of farm land (either as

owner, as tenant, as manager or as beneficiary) and wishes to purchase and keep rhino on

such land, such individual or community has to comply with the prescriptions of NEMBA,

TOPS and several other statutory requirements. The procedural and logistical burden that

these statutory requirements place on the private rhino owner, coupled with the security risk

posed by poaching, are so burdensome that more often than not, the incumbent rather

elects to pursue other game species and avoid rhino ownership all together. This spells

danger of extinction in capital letters to the rhino because if no one is interested in buying

and keeping rhino, then no one is protecting rhino.

The legal requirements applicable to any person who wants to keep and breed rhino on a

suitable piece of land can be summarised as follows:

1. This essay will not comprehensively deal with the entire process of buying the land,

fencing the land, obtaining a certificate of adequate enclosure, applying for and

registration of a game farm, game trader, captive breeding operation, conducting

habitat assessments for suitability and/or commissioning a biodiversity management

plan. The rather cavalier assumption is made in this essay that the potential rhino

owner is already adequately set up in all of these respects and is now ready to start

buying rhino.

2. NEMBA contains a long list of restricted activities in relation to TOPS animals. A

short excerpt taken from this list reads as follows: “hunting, catching, capturing,. All these things are restricted activities and the list of such activities ends off

searching, pursuing, driving, lying in wait, gathering, collecting, plucking, picking

parts of, cutting off, chopping, importing exporting (both internationally and/or

interprovincially), having in possession, exercising physical control over, growing

breeding, in any way propagating, causing it to multiply, conveying, moving,

otherwise translocating, selling, trading in, buying, receiving, giving, donating,

accepting as a gift, in any way acquiring or disposing of a specimen of a listed TOPS

animal”

by saying, in addition to all of the above: ”any other activity involving a TOPS animal”.

3. NEMBA then states that no person may conduct any one of the above mentioned

restricted activities without first obtaining a permit from the relevant issuing authority,

which in the case of rhino is the local provincial nature conservation authority.

4. Our potential rhino farmer who wishes to purchase, keep, manage and hopefully

successfully breed with rhino should therefore take cognisance of the

abovementioned list of restricted activities and, being a law abiding citizen, should

comply with all of it.

5. Now in order to get rhino onto his farm, our farmer must purchase rhino. This

involves the following restricted activities (underlined phrases) :

5.1 searching for the animal on the seller’s farm (this may involve the effort and

cost associated with a helicopter);

5.2 when the rhino is found, it must be pursued and darted (this involves the effort

and cost associated with a registered wildlife veterinarian);

5.3 when the rhino is darted it must be captured and loaded onto a suitable

vehicle (this involves the effort and cost associated with an approved wildlife

capturing team).

5.4 when the rhino is loaded it is then moved by road to the destination farm

where it is released (this involves the effort and cost associated with a

transport vehicle suitable for big 5 game movements) .

6. The statutory requirements for the process described above are burdensome. An

export permit is required for the originating farm, an import permit is required for the

destination farm. If the move is taking place within the same province then an internal

movement permit is required. The wildlife veterinarian must have a standing permit to

dart rhino (the same veterinarian will require a different standing permit for each one

of the nine provinces).

7. NEMBA and TOPS furthermore state that the local authorities may impose their own

additional conditions to the permits issued in respect of above mentioned restricted

activities and in recent times such conditions prescribe that an official of the issuing

authority must be personally present during certain of the activities. This means the

potential rhino farmer is dependent on the availability of overworked and underpaid

government officials. These officials are often unable to attend the farm because

game farms are by its nature usually situated in remote locations around the country,

and officials have limited resources (vehicles, fuel allowances, cellular phone

allowances etc). These officials are also only available during office hours. This

burden is illustrated by the following examples:

7.1 The rhino finds itself on route in a transport vehicle and arrives at the

destination farm at 21H00 in the evening (the process of searching, finding,

darting, capturing, loading and traveling often takes up an entire day). The

destination farm owner now finds that no nature conservation official is

available to unload the animal (notwithstanding the fact that the farmer made

every effort to arrange this in advance). The farmer must now either break the

law and unload the animal himself or he must risk the life of the rhino by

leaving it in the transport crate overnight and unload it after 8H00 the next

morning when the nature conservation official is available.

7.2 The rhino farmer plans to capture and move a rhino to his farm. He arranges

and pays for a veterinarian, a wildlife capture team, a helicopter, a suitable

transport vehicle and of course he arranges well in advance with the local

nature conservation official to attend. On the morning of the planned capture

the whole teams arrives on schedule, except for the nature conservation

official. Upon enquiry the rhino farmer learns that the said official has been

called at the last minute to another commitment. Now the farmer has two

choices, either break the law and proceed with the capture or send the

veterinarian home, send the capture team home, send the helicopter away,

send the transport truck away and re-schedule the entire operation to a new

date when the nature conservation official is able to attend.

8. If the game farmer manages, in spite of the above mentioned challenges, to get the

necessary permits and get some rhino onto his farm he then immediately faces a

grave security risk to himself, to his staff and most importantly to his live rhino who

are carrying sought after horn on their noses.

9. Once again, presuming that the rhino farmer already has a military like security force

in place on his farm (which involves a great deal of effort and cost), he may

nonetheless choose to de-horn his rhino in order to protect the rhino against the

threat of poachers. This exercise involves another long list of restricted activities.

Darting the rhino is a restricted activity, cutting off a rhino horn is a restricted activity,

possessing a rhino horn is a restricted activity, moving a rhino horn is a restricted

activity. Once again, the law requires that a registered wildlife veterinarian (who must

be in possession of a valid standing permit for the specific province where the rhino

is located) must be present during the de-horning process, in addition to the nature

conservation official who must yet again be personally present, otherwise the farmer

risks prosecution for non-compliance with permit conditions. Certain provincial

authorities insist that the veterinarian must personally conduct the dehorning. The

farmer is conducting no less than 4 restricted activities when de-horning a single

rhino.

10. In addition hereto the nature conservation authorities recently imposed a further

permit requirement that the farmer must also complete a DNA test kit when he dehorns

a rhino. This is a commendable scientific effort but the implementation thereof

is creating practical and logistical difficulties for the rhino farmer. The DNA kits are

only available from one University situated in Pretoria, Gauteng and the farms are

scattered over nine provinces of South Africa. The local provincial authorities more

often than not do not have any DNA kits available so the farmer (wanting to comply

with his permit requirements) must obtain the said kits at his own cost and on his own

effort from the Pretoria University. The DNA kit involves drawing blood from the rhino,

cutting an ear-notch from the rhino and taking a hair sample from the rhino, all 3 of

which are, very technically speaking, restricted activities in terms of TOPS.

11. Darting and immobilizing a rhino presents an inherent risk to the life of the animal

(very similar to the risk of placing a human being under general anesthetic) so the

cautious farmer would prefer to de-horn the rhino simultaneous with the capturing

and moving process because the rhino is darted and immobilized for this exercise

anyway). Now the logistics of complying with the permit requirements gets really

confusing.

11.1 Firstly the farmer can not apply for a possession permit for the horn before he

has actually cut the horn off the rhino (a horn still attached to a live rhino does

not constitute a separate specimen from the rhino itself).

11.2 Secondly the farmer can not apply for a possession permit for the horn unless

he is able to provide a micro-chip number, length and weight measurements

for the horn. All of these are only done after the horn is cut off and it may only

be done if and when a nature conservation official is available to personally

supervise the exercise.

11.3 Thirdly the farmer can not apply for a permit to move the horn to a place of

safety unless he already holds a possession permit. The farmer wants to

move the horn because the risk of keeping the horn on the farm is simply too

high. Wildlife capturers and veterinarians have been robbed at gunpoint by

poachers looking for rhino horn.

11.4 So once again the farmer must either risk the life of the rhino by leaving the

horn on the rhino or the farmer must risk his own life and break the law by

cutting off the horn but then keeping it in his possession illegally, or moving it

to a place of safety illegally until he can apply for the necessary permits and

comply with the legal requirements.

11.5 A place of safety is typically a safety deposit box in a Bank in the city or town

closest to the farm, much like people who keep other valuables such as

diamonds, firearms and expensive jewellery in Bank safes.

11.6 Applying for the horn possession permit requires a micro-chip, a DNA sample

kit sealed by a registered wildlife veterinarian, a visit by the local nature

conservation official to measure, weigh and register the horn (if and when

such official is available subject to his budget and time constraints). Microchips

and DNA sample kits are not necessarily always available from the

authorities and the farmer often has to wait several days or even weeks to

obtain these items.

12. All of the above restricted activities which require permits must be read and

considered in light of the fact that different provinces have different rules relating to

permit applications. One province takes 4 to 6 weeks to consider and issue a single

permit application, other provinces can ONLY consider and issue permit applications

on Tuesdays and fortunately another province will consider and issue permit

applications within 2 or 3 days.

13. If, against all the above mentioned odds, our rhino farmer manages to keep and

breed rhino successfully on his farm, we can proudly count him in as custodian and

conservationist of an endangered species. The farmer however has no viable means

to profitably keep and breed such rhino because the cost of the land, the cost of the

farming operation, the cost of security, the cost of feed in winter months, the

veterinary costs in caring for the rhino and many other hidden costs are stacking up

against the farmer and he can generate a very limited amount of income from the live

rhino alone.

14. The fact that South Africa is experiencing the highest incidence of rhino poaching in

history has sparked a legislative clamp down on the rhino industry. On the one hand

this is arguably a natural reaction by authorities against criminal activities but on the

other hand it also means by necessary implication that the law abiding rhino farmer is

pestered by legal red tape and every move he makes is scrutinized with hawk’s eyes.

Another example is the following:

14.1 A rhino farmer concludes an agreement in terms whereof he is purchasing 4

rhino and he makes his arrangements to capture and move the rhino to his

farm. This includes applying for the necessary permits. The permits are

issued and the team as described herein above arrives on the seller’s farm

and commences with the capture operation. The wildlife veterinarian however

finds that one of the rhino is not fit to be darted and moved (this can happen

for a number of reasons and the best interest of the rhino will always be

served first). The farmer therefore moves only 3 animals instead of 4. Six

months later the farmer is confronted by the nature conservation authorities

and/or the police (both of which are, as a result of the high poaching figures,

vigorously investigating and scrutinizing every single permit ever issued). The

rhino farmer suddenly finds himself a suspect in a criminal investigation

because his permit (with a total of 4 rhino) and the actual number of rhino (3)

on his farm do not add up. If this same rhino farmer happens to own more

than one farm in different provinces and has many rhino on such farms, then

this example may repeat itself several times in a specific capture season and

the investigations against the farmer intensifies because he now faces

several incidents of non-compliance or so-called irregularities regarding his

permits.

14.2 Just imagine for one moment any other commercial farmer, like a sheep

farmer or a cattle farmer, and place upon such farmers the abovementioned

burden of permits and legislation. Every single sheep or cow purchased, sold,

moved, captured or even killed requires various permits and personal visits by

local law enforcement officials. Or imagine what would happen to the sheep

farming industry if every sheep farmer were legally required to have a permit,

a micro-chip and a DNA sample for each and every piece of wool sheered

from his sheep. It is safe to assume that most farmers will get out of the

farming business altogether under such circumstances. This is unfortunately

exactly what is happening to rhino farmers in South Africa.

14.3 It deserves to be mentioned that the above mentioned risks of prosecution

exists in the letter of the law. Reputable game farmers usually have good

business and working relationships with their local conservation authorities

and in an ideal world apparent irregularities should be resolved amicably but

this does not detract from the fact that the legal mechanisms exist to

persecute the otherwise law abiding game farmer whose main purpose is the

proliferation of the rhino population on his farm and such mechanisms are

burdensome to the farmers.

15. In strict contrast to the above, the rhino farmer then discovers that his rhino in fact

have the ability to generate a very lucrative income from their horn without having to

carry the legal burdens described herein above. There is an enormous demand for

rhino horn and literally thousands of people are willing to pay top dollar for rhino horn.

If our rhino farmer wishes to utilize this lucrative market and still remain a law abiding

citizen, then he can easily do so by obtaining a single permit.

16. This permit is a hunting permit. It involves, by necessary statutorily enforced

implication, the death of the rhino. The farmer can legally hunt the rhino and sell the

rhino horn as a hunting trophy and he needs one hunting permit only.

17. It is an unfortunate statistical fact that many rhino farmers have chosen the easy way

out of conservation and have resorted to killing their own rhino. Some farmers go so

far as buying rhino for the sole purpose of hunting it immediately thereafter. That is

after all the only legal way they can generate any form of profitable income from this

magnificent and endangered African animal. Farmers need not bother with the

statutory burden of keeping and breeding rhino and in the process try to save the

species. Legally it is much easier and much more profitable to simply kill them all.

18. When we consider this tragic situation, it becomes clear that the private owner

custodians of Black and White Rhino in South Africa, who have been credited in the

past with making a dramatic saving contribution to the species, are being forced by

the statutory burden placed on them, to become the killers of that very same species.

The legal requirements involved in rhino farming simply make a rhino worth more

dead than alive.