High court dismisses appeal against rhino horn exports, reigniting hot-button issue

The Northern Cape high court has dismissed the government’s application for leave to appeal against a ruling last year ordering the issuance of export permits for rhino horn, throwing the spotlight back on an issue that has polarised conservationists.

“This historic decision validates the rights of private conservationists and breeding facilities to fund their critical, high-cost protection efforts through the legal international trade of ethically trimmed horns,” said Rockwood Conservation, the privately owned nature reserve that brought the matter to court.

The decision, if left unchallenged, compels the government to authorise export permits for about 500 rhino horns to Canada, China, Hong Kong, Japan, Laos, Mongolia, the US and Vietnam.

Potential hurdles

This does not mean that the floodgates for legal international trade in rhino horn – prohibited since 1977 – are about to fly wide open.

“Depending on what government does, if we get the export permits, then we need to apply for import permits in whatever country we want to send it to,” Rockwood Conservation Owner Wicus Diedericks told Daily Maverick in an interview. “We made the applications to literally test the water.”

The latest decision will also probably face fresh legal challenges in litigious South Africa.

“The Minister is currently considering the judgment and will thereafter make a decision on whether to lodge a petition challenging the recent refusal for leave to appeal,” the Department of Forestry, Fisheries and the Environment (DFFE) said in an emailed response to Daily Maverick’s queries.

Sharp divisions

But the decision potentially opens a path – through the testing of the waters – to renewed legal international trade, a hot-button topic layered with complexities which sharply divides conservationists.

“The issue is a complex one, in terms of sociopolitics, and it seems that we (society) cannot escape the conflict over whether the most effective route to conservation success is to trade or not to trade in wildlife products. The white rhino and South Africa stand at the forefront of that conflict,” Dr Jason Gilchrist, an ecologist at Edinburgh Napier University, told Daily Maverick.

The divide broadly extends through the animal rights/welfare wing of the wider conservation movement and the pro-consumptive or sustainable use wing, and there are voices in the middle. All organisations and activists on this contested terrain seek what they regard as the best policies for conservation.

The prohibition debate

Pro-traders maintain the almost five-decade global ban under the UN’s Convention on International Trade in Endangered Species (CITES) has failed to stem the slaughter of rhinos for their horns as criminal syndicates have stepped in to profitably meet demand for the commodity.

Like debates around cannabis legalisation, they maintain that prohibition does not work when markets exist and that overwhelmingly Asian demand can be met with horn trimmed from live rhinos which are often de-horned anyway, as a deterrent to poaching.

Then there are the rising costs of securing and maintaining herds by private owners in South Africa, who have done a far better job of protecting the animals on their reserves than has been the case in state-run parks.

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The Private Rhino Owners Association (Proa) estimates that close to 70% of South Africa’s population of around 16,300 rhinos are now in private hands, a percentage that has surged over the past two decades.

This is testimony to the relative conservation success of the private sector on this veld at a time when the government, grappling with mammoth social needs in an economy scarred by glaring rates of poverty, unemployment and inequality, has limited capacity to devote to wildlife conservation.

“With that success comes the dilemma of funding it,” Diedericks said. “Funding is the main issue for 70% of our national herd, and that is very important. That’s why we need the proceeds from rhino horn to plough that back into conservation.”

Horns of a dilemma

Opponents of trade in rhino horn maintain that it will stoke further demand and that illicit supplies from poached animals can be laundered with the legal stuff, even within a regulated framework.

Such a stance is not without its merits: South Africa’s reputation for corruption, criminality and state failure is certainly a red flag blowing in these winds. There is a licit trade in gold and chrome, for example, but that hardly deters the illegal extraction and export of these commodities from South Africa.

There are also animal welfare concerns, such as the potential trauma to an animal subjected to regular darting and dehorning, which – until it grows back – robs the animal of a key evolutionary trait. But dehorning is also deployed as an anti-poaching measure.

Then there are wider issues around concepts of “wildness” versus breeding akin to that of livestock.

“If trade in rhino horn is legalised, this has the potential to open channels for mass consumption and demand of horn; it could act as a cover for illegal trade (making illegal horn more difficult to detect). And I fear that some privately owned rhino are being managed akin to domestic livestock, and I do not feel that is appropriate for a wild animal, begging a moral and philosophical question re. what and who conservation is for,” Gilchrist said.

“I appreciate the demands upon and wants of private rhino owners and breeders. However, should South Africa be managing a globally iconic wildlife species based upon commodification of product?”

That is the horns of the dilemma. The survival of the species may depend on commodification, which in turn raises valid ethical questions that should not be ignored. But conservation in the 21st century is not cut and dried, and markets have a potentially positive role to play that cannot be dismissed out of hand.

It’s also the case that many of the rhinos on private lands – even those that are regularly dehorned – roam on relatively large, if confined, territories and are properly wild. Commodification or “captive breeding” does not necessarily mean “dewilding” or domestication.

A recurring point of contention

Returning to the matter at hand, a legal, regulated trade is not about to be launched overnight, and the authorisation for import permits will be the next hurdle to clear – if legal challenges to the latest decision are not launched.

In the decision rendered last week, the court – as in the previous judgment on this case – pointedly did not find that export permits for rhino horn contravened CITES regulations and the exemptions provided for animal products from captive breeding operations, or CBOs, and trade for non-commercial purposes.

“The applicants contend that the court erred in finding that the respondent, by selling rhino horn, does not seek to make a commercial profit,” the judgment says.

“It is common cause that the registration certificate for the respondent’s Rockwood operations clearly states that it is a captive breeding operation for non-commercial purposes. The purpose of selling the rhino horn is to plough the proceeds back into its operations.”

One thing is certain: this issue will remain a point of contention in the coming years. Like a rhino’s horn, it keeps growing back even after it has been trimmed on one front. DM