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ACTTo provide for the implementation of the Convention on International Trade in Endangered Species of Wild Fauna and Flora; and to provide for incidental matters.
1. Definitions and interpretation
(1)In this Act unless the context indicates otherwise any word to which a meaning has been assigned by the Convention bears that meaning, and -“Appendix” means the relevant appendix to the Convention;“controlled wildlife product” means any animal or plant (or any portion thereof), as well as any product or substance derived from any plant or animal as set out in Schedule 1;“Convention” means the Convention on International Trade in Endangered Species of Wild Fauna and Flora, signed at Washington on 3 March, 1973, as amended in Bonn on 22 June 1979 and acceded to by Namibia on 18 December 1990, the text of which is set out in Schedule 2;“deal in” means sell, buy, offer or expose for sale or purchase, barter or offer as valuable consideration;“Minister” means the Minister responsible for environment;“Ministry” means the Ministry of Environment and Tourism;“staff member” means a staff member as defined in section 1 of the Public Service Act, 1995 (Act No. 13 of 1995);“this Act” includes the Convention as well as regulations made under section 9;(2)Any reference to “Article”, and “Appendix” is construed to be a reference to that Article or Appendix of the Convention.(3)Any provision of this Act is construed with reference to the Convention and any provision of the Convention is deemed to be part of this Act and for that purpose -(a)the Management Authority for Namibia is the Minister;(b)the Scientific Authority for Namibia is the technical committee established by section 3;(c)a species is deemed to be included in an Appendix only if it appears in the relevant column of Schedule 3 and also subject to such further qualifications as set out in the relevant entry or such further notes as may appear in that Schedule.
2. Relation with other laws
The prohibition of any action, the prohibition of the possession of any thing or the requirement for a permit or certificate to do anything or to possess anything are in addition to any prohibition or requirement contained in any other law.
3. Technical committee
(1)A technical committee that must perform the duties and which has the powers assigned to the Scientific Authority by the Convention is hereby established.(2)The technical committee consists of -(a)two staff members from the Ministry;(b)one staff member whose duties relate to veterinary services;(c)one staff member whose duties relate to botanical research;(d)one staff member from the Ministry of Fisheries and Marine Resources;(e)one staff member whose duties relate to the National Museum.(3)The Minister must appoint the members of the technical committee on the recommendation of the Minister responsible for the ministry, office or agency where the relevant staff member is employed.(4)The members of the technical committee must be appointed for a period of three years and may be reappointed on the expiry of that period.(5)A member of the committee ceases to hold office if he or she ceases to be a staff member as contemplated in subsection (2).(6)The Minister may remove a member of the committee, if in his or her opinion -(a)the organisation of the public service has changed in such a manner or the person in question has been appointed in another post that has the effect that the appointment of the person on the committee concerned is no longer appropriate;(b)the person concerned is for any other reason unable to effectively fulfil his or her duties as a member of the committee.(7)If a position on the committee becomes vacant as contemplated in subsection (5) or (6), the Minister may appoint a member to fill the vacant position and the new member holds the position for the unexpired portion of the term of office of the member in whose position he or she has been appointed.(8)A quorum at a meeting of the committee is four members.(9)The Minister must appoint one of the members of the committee as the chairperson.(10)The chairperson must preside at a meeting of the committee.(11)If the chairperson is not present at a meeting of the committee, the members must elect one of them to preside at that meeting.(12)Any decision of the committee is taken by a majority of the members present at a meeting of the committee, and in the case of an equality of votes, the person who presides at such a meeting has a casting vote as well as his or her deliberative vote.(13)The committee must meet at least once a year.(14)The committee must meet at such times and places as the committee has determined or in the absence of such determination as the chairperson or the Minister has determined.(15)The Minister may at any time call a meeting of the committee.(16)No decision of the committee is invalid only because there was a vacancy on the committee or because a person participated in the deliberations of the committee or voted while such person was not entitle to participate or vote if there was a quorum at the meeting concerned and a majority of the members present voted in favour of the decision in question.(17)Subject to the provisions of this Act, the committee may determine its own procedure.
4. Possession of and dealing with controlled wildlife products
(1)Any person who -(a)possesses any controlled wildlife product the possession of which is unlawful in terms of Schedule 1;(b)deals in any controlled wildlife product if the dealing therein is unlawful in terms of Schedule 1;(c)manufactures anything from a controlled wildlife product if such manufacture is unlawful in terms of Schedule 1;(d)imports any controlled wildlife product if the import thereof is unlawful in terms of Schedule 1; or(e)exports any controlled wildlife product if the export thereof is unlawful in terms of Schedule 1,commits an offence unless he or she has been issued with a permit contemplated in subsection (3) authorising the act in question and unless he or she complies with the conditions specified in the permit.(2)A person who has contravened subsection (1) is -(a)if he or she has only possessed the product as contemplated in subsection (1)(a), on conviction liable to a fine not exceeding N$20 000 or imprisonment for a period not exceeding five years or to both such fine and such imprisonment;(b)if he or she has performed any action referred to in subsection (1)(b), (1)(c), (1)(d) or (1)(e), on conviction liable to a fine not exceeding N$200 000 or to imprisonment for a period not exceeding 20 years or to both such fine and such imprisonment.(3)The Minister may issue a permit in the form determined by him or her authorising any action in respect of a controlled wildlife product.(4)The Minister may specify any class of action or class of product for which the permit in question is issued.(5)The Minister may impose such conditions as he or she considers necessary in order to achieve the objects of this Act when issuing a permit in terms of subsection (3), which conditions may include -(a)requirements relating to the keeping of records;(b)requirements relating to the marking of specific specimens or any requirements that will facilitate the identification of specific specimens;(c)requirements relating to the registration of specific specimens.(6)The class of controlled wildlife products for which the permit is issued, the conditions subject to which the permit is issued, the period for which and the actions authorised by the permit, must be indicated on the permit in question.
5. Acts prohibited by Convention
(1)No person may -(a)import;(b)export;(c)re-export; or(d)introduce from the sea,whether to or from Namibia, in contravention of Article III, Article IV or Article V any specimen contemplated in those Articles, unless the certificates and permits contemplated in those Articles have been obtained or unless the actions concerned are exempt from the obtaining of such certificates or permits.(2)Any person who contravenes subsection (1) commits an offence and is on conviction liable to a fine not exceeding N$200 000 or to imprisonment for a period not exceeding 20 years or to both such fine and such imprisonment.(3)The court convicting a person of a contravention of subsection (1) may impose an additional fine or make a compensation order in favour of the State as authorised by laws relating to criminal procedure to compensate the State for -(a)all costs relating to the care or medical treatment of live specimens and the disposal thereof, whether incurred before the order or thereafter;(b)all costs relating to the return of any specimen (whether alive or dead) to its country of origin;(c)an amount equivalent to all costs incurred to restore a population of wildlife harmed through unlawful removal from the wild by the person convicted or commensurate with the impact of unlawful removal by the person convicted:Provided that any costs referred to in paragraph (a) and (b) may also be recovered by civil suit from any person convicted of an offence relating to the specimen concerned, or from whom such specimen has been seized.
(1)The Minister may appoint any staff member in the Ministry to be an inspector.(2)An inspector must be issued with a certificate of appointment signed by the Minister and he or she must on request produce such certificate when exercising any power under this Act.(3)A customs officer, police officer or nature conservator may exercise any power conferred upon an inspector by this Act, in addition to any other powers vesting in such offcer by any other law.(4)For the purposes of subsection (3) “customs officer” means an officer as defined in section 1 of the Customs and Excise Act, 1998 (Act No. 20 of 1998), “police officer” means a member of a police force established under any law, and “nature conservator” has the meaning assigned thereto by the Nature Conservation Ordinance, 1975 (Ordinance No. 4 of 1975).
7. Powers of inspectors
(1)An inspector may request any person who in his or her opinion possesses anything in respect of which a permit or certificate is required -(a)to make such thing available for inspection;(b)to produce the relevant permit or certificate.(2)An inspector may examine any consignment which he or she reasonably suspects of containing any specimen of a species referred to in Schedule 3 or any controlled wildlife product.(3)An inspector may search any premises that is not used as a private dwelling in order to determine whether any provision of this Act has been or is being contravened.(4)An inspector may request a police officer to accompany him or her while he or she is investigating any matter relating to this Act and the police officer may exercise any power vesting in that police officer in the presence of the inspector concerned: Provided that a police officer may not search a person of a different gender from the inspector concerned in the presence of that inspector.(5)An inspector may request a veterinarian to examine any live animal to determine any question relevant for the exercise of a discretion under this Act.(6)An inspector may -(a)seize any specimen if the person in possession thereof does not produce the permit or certificate required by this Act in respect of that specimen;(b)seize anything used for, or in relation with the commission of any offence under this Act which includes a vehicle, firearm, trap, container, cage or other equipment associated with the hunting, transport, capturing, collecting, keeping, processing or manufacturing of the specimen concerned;(c)seize anything that may afford evidence of the commission of an offence under this Act;(d)take such samples from any specimen or anything relating to such specimen that may be relevant for the determination of a question relevant for the exercise of a discretion under this Act, or that may afford evidence for the commission of an offence under this Act;(e)examine any book, record, or document, as well as any computer system in which he or she reasonably believes anything relevant to an offence or duty contemplated in this Act is stored;(f)instruct any person to afford such assistance as is reasonably required to interpret or extract relevant information from such book, record, document or computer system;(g)put any question to any person that in the opinion of the inspector is necessary in order to exercise any discretion conferred by this Act or to clarify any matter in any record or book or with relation to any specimen.(7)When an inspector seizes anything in terms of this Act, he or she must issue a receipt for such item.(8)Any person who -(a)hinders or obstructs an inspector from exercising any power under this Act;(b)refuses or fails to comply with any request made by an inspector under this Act without a reasonable excuse; or(c)without a reasonable excuse, fails or refuses to answer a question put by an inspector under this Act,commits an offence and is on conviction liable to a fine not exceeding N$4 000 or imprisonment for a period not exceeding one year or to both such fine and such imprisonment.
(1)Subject to subsection (2) the provisions of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), relating to the seizure and the forfeiting to the State of a thing relating to an offence, by a police officer or peace officer including provisions relating to the forfeiture, handling and storage of anything seized under that Act, as well as the provisions relating to rights of third parties when anything is declared forfeited, is applicable to anything seized under this Act and a reference in that Act to a peace officer or police officer is construed as a reference to an inspector.(2)If the thing seized is a living plant or animal, the inspector may return such animal to its country of origin or release that plant or animal in an appropriate place in Namibia or deal therewith in any manner conducive to the well-being thereof, regardless of any rights in that thing that has not been conclusively determined but this subsection does not affect a claim of compensation for an unlawful seizure or disposal.(3)Anything forfeited to the State as contemplated in this section must, if circumstances permit -(a)be returned to the country of export or origin of the specimen as appropriate and any cost incurred in relation thereto may be recovered from any person convicted of an offence under this Act if the offence relates to the specimen concerned;(b)be deposited in an appropriate institution, collection or museum or otherwise disposed of in a manner that benefits conservation.
(1)The Minister may make regulations -(a)prescribing the forms on which application must be made for permits or certificates required by this Act;(b)prescribing the procedures with which an applicant for a permit or certificate must comply;(c)prescribing any matter relating to the packaging of any specimen;(d)prescribing requirements with which persons who keep live specimens must comply in order to promote the well-being of the specimen concerned;(e)prescribing any procedure that must be followed when any animal, plant or any part thereof or specimen thereof is imported, exported or introduced from the sea;(f)prescribing that any person who possesses, deals in, manufactures, imports or exports any controlled wildlife product or specimen (whether that person requires a permit or not) must keep records in the prescribed form and manner;(g)prescribing the manner that a prescribed class of specimens may or must be marked, prohibiting the tampering with or the performance of any action with respect to such mark and prescribing any other matter relating to such mark;(h)prescribing fees for the issuing of permits, registration or other administrative actions connected with the implementation of this Act;(i)prescribing any matter that is necessary or expedient to prescribe in order to achieve the objects of this Act;(2)Regulations made under subsection (1) may create offences with a penalty that does not exceed a fine of N$8 000 or two years imprisonment or both such fine and such imprisonment.
10. Delegation of powers
(1)Any power -(a)vesting in the Minister (except the power to make regulations);(b)vesting in the committee,may be delegated to any staff member in the Ministry.(2)When a power is delegated under this section, the authority that delegates the power concerned, may delegate any class of the powers vesting in that authority under such conditions as may be expedient.(3)When powers are delegated under this section, the authority that delegates such powers, may issue directives circumscribing any issue with relation to the exercise of that power as may appear expedient.(4)A delegation in terms of this section may at any time be withdrawn or amended.(5)The committee may assign the research of any technical question to any person (whether a member or not) under such conditions as may be agreed with that person.(6)A person to whom the research of a technical matter has been assigned as contemplated in subsection (5), must prepare a report on the research conducted to be submitted to the committee.(7)If the committee adopts the report referred to in subsection (6), it is deemed that the committee has conducted the research in question.
11. Amendment of Schedules
(1)Whenever Appendices I, II or III is amended, the Minister must by notice in the Gazette amend Schedule 3 accordingly.(2)For the purpose of criminal liability or the seizure or forfeiture of any article, an amendment to Schedule 3 takes effect on the date when the notice is published as contemplated in subsection (1) or on a later date specified in that notice.(3)The Minister may amend Schedule 1 by notice in the Gazette.(4)When the Minister amends Schedule 1, the Minister may specify in respect of any animal, plant, part, product or substance that -(a)the possession thereof is unlawful;(b)dealing therein is unlawful;(c)the import thereof is unlawful;(d)the export thereof is unlawful,or that more than one of these actions are unlawful.(5)When controlled wildlife products are specified as contemplated in this section, the Minister may distinguish between -(a)different species, varieties or populations of plants or animals;(b)the country or region from which the animal or plant originates;(c)the product or substance for which the act in question is specified;(d)the process used when the animal or plant has been caught or collected or the process used in extracting or manufacturing the product or substance; or(e)any other criterion that is relevant for the achievement of the objects of this Act.(6)When the Minister amends Schedule 1, any act referred to in subsection (4), may be made conditional upon the compliance with any formalities relating to the registration, marking or any other action that will facilitate the identification of any specific specimen.
12. Jurisdiction of magistrate’s court
Despite any provision of any other law, a magistrate’s court has the power to impose any sentence or make any order in respect of an offence under this Act.
13. Repeal of laws and transitional provisions
(1)The Controlled Game Products Proclamation, 1980 (Proclamation AG. 42 of 1980), is repealed.(2)Any person who has possessed anything lawfully before this Act comes into operation or before Schedule 1 or 3 is amended in such a manner that the person concerned would require a permit after such amendment, must apply for a permit authorising such possession within six months from such commencement or amendment.(3)The provisions of subsection (2) apply to a person who is the holder of a permit issued in terms of the law repealed by subsection (1).(4)If a person contemplated in subsection (2) or (3) has failed to apply within the period provided for in subsection (2), the possession in question is deemed to be possession without a permit as contemplated in section 4(1).
14. Short title and commencement
This Act is called the Controlled Wildlife Products and Trade Act, 2008 and comes into operation on a date determined by the Minister by notice in the Gazette.