18 November 2013 by Cliffe Dekker Hofmeyr

Poisoning Rhino horn – Ethically defendable, but legally questionable?

The decimation of South Africa's rhino population is undoubtedly one of the most emotive issues of current times.  This is according to Helen Dagut, Consultant in the Environmental Practice at Cliffe Dekker Hofmeyr business law firm. She says that few people are unmoved by images of stricken animals with gaping, bleeding holes in their heads, as the 'death toll' rises steadily to feed the increasing demand for rhino horn predominantly by markets in the East. 

“It is unsurprising, then, that extreme measures are being suggested and implemented in an attempt to bring the rampant poaching to an end,” she explains

Dagut says one of these measures is the poisoning of the horns of live rhinos.  In a pilot study initiated by Ezemvelo KwaZulu-Natal Wildlife in September 2013, a chemical cocktail is being injected into the horns of several rhino which live in the high-risk Tembe Elephant Park and Ndumo Game Reserve on the border with Mozambique, with the purpose of contaminating the horn.

The poison is described as "extremely toxic" to humans and known to cause symptoms including vomiting, diarrhoea and neurological disorders, but is not apparently intended to kill people who ingest it.  A bright red dye injected with the poison can be picked up on airport scanners and marks the horn as illegally obtained and toxic.  It is hoped that potential consumers will be deterred by the threat of serious illness.  The effectiveness of the measure as a deterrent is still to be assessed, but conservationists have hope that the poisoning, coupled with awareness campaigns aimed at poachers and consumers, will go some way to reducing demand.  Although extreme, poisoning of horns is viewed by many as ethically justifiable in the context of the rhino "massacre".  Questions have been raised, however, around its legality.

“A person who is aware that the substance added to rhino horn is poisonous and who foresees the possibility that someone might consume it and suffer harm could face charges of assault or even murder if someone is eventually poisoned.  Significantly, the poison need not necessarily have been administered with the intent to kill or harm anyone and need not have resulted in death or harm, for the crime to have been committed.   In infusing rhino horns with poison knowing that the poison could cause harm or even death to consumers of the horn, even if no consumers are actually harmed, there is at the very least the possibility of charges for attempted assault or even attempted murder,” she explains. 

Dagut notes that where harm to, or death of, a poacher or consumer occurred in South Africa as a result of a poisoned horn, the party which administered the poison could be prosecuted in the South African courts. However injury or death attributable to a poisoning that occurred outside of South Africa, would probably be subject to the extradition arrangements between South Africa and the state in which the poisoning occurred.

When asked about the questionable legality of horn poisoning, the KwaZulu-Natal MEC for Environmental Affairs has been quoted as saying that the "real criminals" are not the poisoners, and "let us arrest and deal with the poachers instead". 

“Given Government and society's recognition of the value of rhinos and efforts to curb what is viewed as a poaching epidemic, it seems unlikely that prosecutions for the crime of poisoning of rhino horn will be a priority of the State,” Dagut adds.

This year, Cliffe Dekker Hofmeyr made a sizeable contribution to the Rhino Action Group Effort (RAGE)  to help them in the fight against illegal rhino poaching.

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