Lack of capacity is hamstringing the environmental criminal justice system and, if not addressed, the cracks in the system could lead to complete collapse despite South Africa arguably having some of the best environmental laws in the world.
The problem, then, is not the law, but rather how it’s translated and appreciated and then applied to cases at hand.
Environmental affairs spokesperson Albi Modise noted in September there were 530 rhino poaching-related cases on the court roll involving 750 accused and close to 300 trial-ready cases.
“The sheer volume of arrests being made within South Africa of rhino poachers and rhino horn traffickers justifies the need for additional capacity to effectively and timeously prosecute and adjudicate these cases,” said Modise.
“The DEA would support the establishment of specialised and dedicated environmental courts as well as more dedicated prosecutors for environmental cases, particularly in hot spot areas,” Modise said. “There is also a need to increase the number of dedicated specialist investigators, given the significant number of cases.”
A recent spat between the Kruger National Park (KNP) and Skukuza Court magistrate Simon Fankomo saw Fankomo accused of giving bail to repeat offenders and minimal sentences.
Until the spat hit the headlines, Mpumalanga had enjoyed a 98% conviction rate.
KNP spokesperson Isaac Phaahla said there had been a “a fruitful meeting with the Judge President in Mpumalanga, and we are waiting for a formal update on the way forward”.
“We need specialised detectives, forensics experts, money laundering experts, prosecutors, magistrates, judges and above all people less tolerant of criminals,” Phaahla said.
In September, amaBhungane reported KwaZulu-Natal regional court president Eric Nzimande was “suspected of offering acting magistrate positions in the regional courts in exchange for cash, which he seemingly needed to feed a gambling habit”.
Savingthewild.com’s Jamie Joseph reported on November 3 that Nzimande had been suspended. Joseph has also alleged he had a history of letting rhino poachers go free with “a slap on the wrist”.
The NPA’s Monica Nyuswa admitted there were not enough specialist prosecutors.
“This is exacerbated by the fact that due to budgetary constraints the NPA has not been able to fill vacant positions,” Nyuswa told The Citizen.
Nyuswa said the NPA was reviewing some of the judgments at Skukuza court to decide whether to take them on appeal.
It’s another burden for the prosecuting authority which has to map a way through the output of SA’s violence and the need to address wildlife crime coming up hard against the 2018 Global Peace Index, which put the cost of violence in SA at R1.2 trillion per year.
As the rhino-poaching crisis demonstrated, there was a tipping point where demand outstripped supply and, when a resource is gone, it is gone.
“We can’t have anarchy against our natural heritage and continue with business as usual,” said Phaahla.
The issues were highlighted recently by what is possible.
Patrick Nkuna was arrested in 2015 in the KNP during an extended ground and air follow up anti-poaching operation. Shortly before his arrest, he shot at a SANParks helicopter.
Nkuna was charged with 12 counts, including four counts of attempted murder, trespassing in a national park and possession of an illegal firearm. He was handed 33 years behind bars this month.
Illegal wildlife trade monitor Traffic’s Dr Richard Thomas said more resources were needed globally.
“All too often, criminals perceive wildlife crime as a low risk, high reward activity and unless there are adequate resources put in to make it a high risk, low reward activity with significant penalties if caught, that perception will persist,” Thomas said.
The cost of poaching
Wildlife crime has been estimated globally in 2017 by Global Financial Integrity at nearly R300 billion a year – more than R8 million a day.
In South Africa, the number is a little harder to pin down, with pangolin scales, elephant tusk, rhino horn, and abalone being among the most commonly poached items.
Traffic found of an estimated 37 tonnes of rhino horn poached between 2010 and 2016, only five tons were recovered.
A white rhino front horn can weigh up to 4kg, while elephant tusks can weigh anywhere from a few kilograms to nearly 100kg, depending on the size of the elephant killed – and poachers are not picky.
More than 50 tons of pangolin scales were recovered in 2013, according to a study, Assessing African Pangolin Exploitation, by DJ Ingram and others.
At up to R100,000 per kilogram of horn, more than R10,000/kg for ivory, and nearly R8,500/kg for pangolin scales being paid by end users, wildlife crime pays for the people in control.
The Institute for Security Studies reported last year South Africa spent R200 million annually and employed “nearly 450 rangers just to protect the Kruger National Park, a magnet for tourists who marvel at one of Africa’s best-preserved wilderness areas”.
A report in September by Traffic found an average 2,000 tons of abalone were bagged annually by poachers – 20 times the legal take – in an illicit industry estimated to be worth nearly R850 million a year.
That’s a lot of abalone, and the statistics are the very tip of the iceberg.
The problem is, nobody knows the actual scope of the problem.
Poaching and seizure data make up the bulk of available statistics on organised wildlife crime but have a number of limitations, stated an Enact report, titled Guns, Poison and Horns.
“These data are also typically biased towards rhino and elephant, while the poaching of other species such as abalone, big cat and pangolin are not well accounted for in official statistics.”