18 December 2010

In lengthy papers filed in the Pietermaritzburg High Court on Friday 17th December 2010, the Animal Interest Alliance (“AIA”) claims that the appointment of the Board of Ezemvelo KZN Wildlife by MEC Lydia Johnson is invalid and must be set aside by the court.

The matter will come before the High Court on 20th January 2011 unless it is opposed.
It is alleged that the MEC did not follow the procedure stipulated in the KwaZulu-Natal Conservation Management Act 1997 (“the Act”) and that the statutory requirements that determine the composition of the Board have not been met.

In his affidavit, William Horsfield, chairman of the AIA, points out that the law requires the MEC to determine a process to ensure that her invitation to the public, to put forward names for consideration for appointment to the Board, reaches “the greatest number of residents of the province”. It is alleged that many stakeholders who have a keen interest in the conservation of the wildlife resources of the province were excluded from the nomination process.

Key stakeholders who must be represented on the Board include organised agriculture in the province, the House of Traditional Leaders and community based organisations from rural areas. It is alleged that the Board lacks this representation and moreover, that it does not have within its ranks, expertise stipulated by the Act in the field of environmental law, or generally to enhance its competence.

Mr Horsfield concludes that with the exception of Mrs Di Dold, former conservation director of the Wildlife and Environment Society of Southern Africa, none of the board members have a demonstrated interest in nature conservation as required by law.

The court application by the AIA brings to a head a dispute that began in mid 2006 when Ezemvelo KZN Wildlife attempted to introduce a broad policy to regulate the keeping of wild animals in captivity, the effect of which would have been to ban the keeping in captivity of all wild animals, indigenous and exotic, except under strict conditions determined solely by Ezemvelo KZN Wildlife. The legal power of Ezemvelo KZN Wildlife to determine such a policy was challenged and eventually abandoned in mid 2007. However it became clear that Ezemvelo KZN Wildlife had not abandoned its policy and began fixing impossible conditions to permit applications.

Mr Horsfield complains in his affidavit “The actions of the Second and Third Respondents (the Ezemvelo KZN Wildlife Board and the Nature Conservation Service) adversely affect the rights of the Applicant, its members and any member of the public wishing to keep a wild animal in captivity. By setting impossible requirements, the Second and Third Respondents are effectively denying applicants for permits of the right to a fair application procedure and the legitimate expectation that such a permit will be granted on fair and reasonable conditions, consistent with permits and/or licenses traditionally issued”.

He goes on to state: “I submit that the conduct of the Second and Third Respondents discloses acts of bad faith and exposes a hidden agenda intended to enforce the policy, the effect of which is engineered to prohibit the keeping of wild animals in captivity altogether”.

During the dispute the AIA discovered that the board of Ezemvelo KZN Wildlife had comprised only five members instead of the mandatory nine members for some years. This means that Ezemvelo KZN Wildlife has operated unlawfully from 2004 and that all of its actions during this period are invalid. The matter was compounded by the fact that the board was suspended by former MEC Mtholepi Mthimkulu from 18th September 2008 until its reinstatement on 19th June by the High Court. In this matter, Mr Justice Wallis commented that the board did not have its statutory nine member complement.

The implications for the province of Ezemvelo KZN Wildlife having operated without a validly appointed board since 2004, and continuing to do so under the present board, are massive. It renders all of the activities of Ezemvelo KZN Wildlife unlawful.

Of particular concern to the members of the AIA is the implementation and administration of the Threatened or Protected Species Regulations (2006) in the province. The MEC is the issuing authority for all permits under the regulations. However Ezemvelo KZN Wildlife is carrying out her duties under the regulations without a proper delegation of authority to do so. This means that all permits issued by Ezemvelo KZN Wildlife are invalid.

The AIA raised its concerns about all of these matters on many occasions with the present and former MECs, the Premiers and national Ministers of Environmental Affairs, to no avail. Mr Horsfield, commenting on the conduct of the MEC, the Ezemvelo KZN Wildlife Board and the Nature Conservation Service says: “All three are demonstrably grossly out of touch with their statutory mandates and in the case of the Second Respondent (the Board) have acted beyond their statutory powers. The conduct of the Second Respondent is apparently supported and endorsed by the First Respondent (the MEC)”.

The Premier and the Minister of Water and Environmental Affairs are also criticised “for their failure to exercise political oversight in the matter when this was clearly within their constitutional obligations and functions”.

It is ironic that on the same day as the launch of the court action by the AIA, the Premier, with the Chairman of the Ezemvelo KZN Wildlife Board invited comment on proposed new "Procedures and Standard Terms and Conditions for applications and authorisations for keeping animals in captivity in KwaZulu-Nata". This is the first acknowledgement by the powers that be that the complaint of the AIA that the process adopted by Ezemvelo KZN Wildlife hitherto has been invalid.

The immediate difficulty facing the Premier is that the very existence of the Board, to whom he has entrusted the public consultation process and ultimately the administration of applications for authorisations for the keeping of animals in captivity, is under threat.

Mr Horsfield explains that court action has always been a last resort for the AIA. He says that despite the substantial interest it has in the conservation of the province, the MEC has not taken it seriously. The final straw for the AIA and its members was that despite have participated actively in the defunct policy process, and having been instrumental in its abandonment, the MEC chose not to disclose to it or to its members her intention to appoint a new board.

Mr Horsfield says that the AIA “launches this application with a measure of reluctance but it is compelled to do so as it appears that the malaise that has plagued the management of the Second and Third Respondents for more than five years will not be addressed by the First Respondent until she is ordered to do so by the court.

11 September 2008

The provincial legislature’s finance portfolio committee has called for the suspension of the board members of Ezemvelo KZN Wildlife (EKZNW).

This resolution was taken at a closed meeting on Tuesday where members of the committee were briefed by the head of provincial Treasury on the forensic audit report into allegations of fraud and corruption at EKZNW.

• AIA raised its concerns in 2006 about the legal powers and financial authority of the Board to undertake a “policy process” (the Management of Ex Situ Wild Animals in KwaZulu-Natal) that went beyond its statutory mandate, did not have financial approval therefor, and misled the public in that it suggested that the proposed policy would have the effect of law;
• The policy process was abandoned and the huge cost (comparatively, in an organisation that has insufficient funds to manage its core mandate of biodiversity conservation) was lost;
• Undaunted, the  Board allowed the same process to continue, disguised as a “norms and standards” consultation procedure, but clearly with the same flawed objective in mind;
• The MEC Agriculture and Environmental Affairs refused to accept that there were fatal flaws both procedurally and substantively in the way in which Ezemvelo KZN Wildlife was conducting its business, or that this had serious implications for the organisation that he oversees;
• The MEC has not delegated authority (as he is empowered to do) to officials of EKZNW (or any other officials in his employ) to implement the Threatened and Protected Species Regulations (TOPS) which replaces the existing outdated provincial ordinances and provides policy and regulation for the management of wild animals;
• On the face of it, this is an act of defiance against the implementation of law and policy that has national effect and not reflects the parochial attitudes of Ezemvelo KZN Wildlife and the personal ambitions of some officials;
• The National Minister has asked his officials to ensure that the MEC makes the necessary delegation without delay because the administration of wildlife management in the province is being compromised;
• AIA has repeatedly called for (it has the correspondence to prove this) assurances that there has been proper financial authorisation (with the sanction of MEC Finance as this is a requirement of the law under which EKZNW and its Board operate) of the processes that have been undertaken.  Formal notices under the Promotion of Access to Information Act have not produced the information called for and have been obfuscated by last minute concessions that processes were to be abandoned in favour of more legitimate processes;
• The expensive processes that have followed and abandoned, have done no more than promote the personal agendas of the protagonists of the failed processes;
• In the result, the financial viability (and international credibility) of a once world-class conservation agency has been destroyed and the protection of our wildlife resources is seriously compromised;
• The members of AIA are affected and will act to protect their rights.  More importantly, members share a common concern with all that have a love of animals and are concerned about the protection our natural heritage;
• The protection of wildlife is not in good hands at the higher levels of administration in KwaZulu-Natal;
• AIA is concerned that the real talent and skills in EKZNW represented by many dedicated officials will be lost.

AIA supports the call of the Portfolio Committee to suspend the entire Board.

However this raises some important legal and constitutional implications.  The MEC cannot simply appoint a “caretaker” board.  If he chooses to remove a Board member, he must report this to the provincial Parliament. The selection of Board Members is a lengthy process and this cannot be circumvented. The MEC may suspend a Board member pending dismissal and on the limited evidence made public, he must do so.

At the Constitutional level, the national Minister must intervene.  The national government has not complied with its obligation to assist provincial government to assume responsibility for the functions assigned to it.  At the provincial level, these are “un-funded mandates” of the worst kind.  Worse still, it seems that the limited funds have been squandered.

South Africa has concluded international agreements on transfrontier parks in which EKZNW is an integral part.  These cannot be compromised.

It would appear that the benefits of an independent custodian of our wildlife resources, is now spent and it this function must be subsumed into the international agenda.

AIA believes that a collective response is called for.  This is not a time for vested interests to be promoted.  It starts with a proper interrogation of the issues, public disclosure of the facts, and a process to assimilate decisions that may determine our future.  Accountability, be it in public office, officials in the employ of the various authorities, NGOs and individuals is what is lacking.

We need to stand together - for environment’s sake!

01 June 2007

The Animal Interest Alliance welcomes the decision by Ezemvelo KZN Wildlife to withdraw the document published by it in August 2006 purporting to be a draft policy and norms and standards for the keeping of wild animals in captivity. From the inception, AIA contended that Ezemvelo KZN Wildlife did not have the legal power to declare provincial policy, and more especially, policy that would have the effect of law. AIA contested the content of the draft policy which it argued was too broad, did not serve the interests of biodiversity conservation and could have resulted in a serious erosion of the constitutional rights of its members and animal keepers generally.

The proposed process that is to be followed in making recommendations to the MEC Agriculture and Environmental Affairs on policy and the development of norms and standards accords with the demands made by AIA as early as September 2006. AIA had exhausted all efforts to resolve the matter before approaching the High Court for an order declaring the process followed by Ezemvelo KZN Wildlife to be flawed, and matters would have come to a head on the 5th June 2007 when a formal demand for information would have expired, and court action would have been instituted immediately thereafter.

AIA is satisfied that if the process proceeds as set out the new notice, the resultant policy that will be adopted by the MEC and the norms and standards that will guide the implementation of the law will be properly reflective of societal values and the interests of stakeholders.

It is premature to comment on the likely content of the new policy or the norms and standards but the indications are that some of the fundamental objections of AIA have been recognised. In particular, it would appear that the focus will be on biodiversity conservation and will therefore be confined to those species that are targeted in existing biodiversity conservation legislation. The previous definition that effectively brought all non-domestic animals (including birds, insects and reptiles) within the ambit of the policy seems to have been abandoned. There is recognition of the importance of sanctuaries and rehabilitation centres to conservation and that the interests of animal keepers are diverse and need to be accommodated.

AIA is in full agreement as to the need for controls over animal keeping, for appropriate standards to be applied consistently, and more importantly, for there to be some coherence in the application of the law, particularly with regard to the vexed issue of permitting. In this latter respect, the AIA sees potential conflicts looming with the commencement of the new (national) Threatened or Protected Species Regulations on 1 February 2008. In parallel with its participation in the KwaZulu-Natal process, AIA will campaign for consistency between national legislation and provincial law, practices and policies.

As for the linked process relating to primates generally and to vervet monkeys specifically, the AIA is similarly supportive of the new process disclosed.

AIA sees withdrawal of the policy as a victory for due process and hopes that it also reflects a change in attitude of Ezemvelo KZN Wildlife to the stakeholders it is mandated to serve. Almost a year will have been lost when the process resumes. If KwaZulu-Natal is to get its house in order before 1 February 2008, it will require a high level of cooperation between all stakeholders.