On 8 February the government announced new draft regulations permitting the internal trade in rhino horn.

This follows a decision in November 2015 when the North Gauteng High Court, Pretoria overturned the previous moratorium on the trade in rhino horn.

Author, investigative journalist and environmental activist, Don Pinnock, suggests in articles published in the Daily Maverick and in Independent Online that the moratorium on the trade in rhino horn was overturned on legal a technicality. The “technicality” he refers to was the Department of Environmental Affairs failure to properly advertise the measure for public comment as required in terms of the applicable law and its failure to provide the public with sufficient information about the proposed measure so as to allow us a reasonable opportunity to acquaint ourselves with its complexities and to have an adequate say about them.

However the Constitutional Court does not see this failure as a mere technicality.  It has ruled repeatedly that the obligation to consult is fundamental to our system of participatory democracy. The Court has held that a proper consultation process is essential so that citizens not only to have a chance to speak on the laws that government makes but also to enjoy the assurance that we will be listened to. This is seen as vital to the process of transforming South Africa given the fact that so many South Africans were “historically silenced”.

This is probably explains why two courts have already refused to grant the Department of Environmental Affairs leave to appeal the judgement.

However, it does not explain why the department now seeks to legalise the trade in rhino horn. After all, the court found that the idea of a moratorium on the trade of rhino horn was rational and could be legally enforced provided this was done properly.  This change in approach is no doubt why conservationists are outraged that trade in rhino horn will now be legalised within South Africa.

It is surprising, given this controversy that the Department of Environmental Affairs has still not provided supplementary information that explains why these regulations are necessary, what they are intended to achieve, or what the anticipated cost and benefits will be. This failure means that these regulations can also be challenged on the basis that a proper consultation process was not followed.

This failure to get it right yet again invites a much more important question and opens a very big can of worms.

The question is how is it possible that the Department of Environmental Affairs has got it wrong again? I think the answer lies in the difficulty conservationists have in seeing the environmental right as a human right. I think this failing prevents them from understanding the importance of consultation.

Section 24 of the Constitution gives us the right to an environment that is not harmful to our health and wellbeing. Government is obliged to take reasonable legislative measures to protect our environment for the benefit of present and future generations. The environment when used in this sense is not nature but rather the impact nature has on our health and wellbeing.  South African law explicitly states that all environmental law-making and environmental management, including laws that promote conservation, must put human health and wellbeing uppermost. 

The legislated environmental principles which must inform environmental law making and environmental management are largely directed at achieving this. However South Africa’s environmental tradition is strongly, one might even say fundamentally, conservationist in its outlook.  This has not changed since 1994 with the result that conservationist thinking and values still dominate South Africa’s environmental space despite laws that require a broader perspective. These values misalign with the new constitutional order and its values.

The result is that we have seen the development of a body of conservationist-orientated environmental law and regulations over the last 20 years or so that often ignore the broader social and economic context in which these laws should be framed. This style of environmental law increasingly misaligns with the Constitution and the principles which ground the rule of law in this country. This, in turn, is making our environmental laws increasingly difficult to implement and increasingly vulnerable to legal challenge.

The fact that many of our environmental laws can be set aside on account of the Department of Environmental affairs failure to consult properly is the can of worms.

What makes this particularly troubling is that this has not been accidental.  The Department of Environmental Affairs has until very recently ignored warnings about the legality of its consultation process preferring, instead to adopt a “take us to court” approach. 

I think urgent steps need to be taken to remedy this problem least environmental law and environmental management collapses under the weight of its own inherent weaknesses.  So, while I think that the Department needs to be congratulated for considering  that a lawful trade in rhino horn may contribute both to the survival of rhino and our health and wellbeing, it must also be criticised for the manner in which it proposes executing this initiative.

Ian Cox is a practising attorney based in Durban who has dealt extensively with environmental authorities regarding the legality of environmental law making.