Strengthening Regulation as a Tool for Conservation and Public Trust
By Obeid Katumba
There is a side of conservation that rarely makes headlines.
Not the iconic wildlife images or the stories from national parks.
But the system that holds it all together is the law.
Because at its core, conservation is not just about protecting animals.
It is about regulating human behaviour. And when that system doesn’t work, everything else begins to weaken.
The Invisible Backbone of Conservation
Regulation is what defines how people interact with wildlife.
It determines:
- What is allowed
- What is restricted
- And how compliance is enforced
In South Africa, this includes everything from species protection and habitat management to hunting, trade, and animal welfare standards.
When regulation works well, it creates clarity, accountability, and trust.
When it doesn’t, it creates loopholes.
And loopholes are where exploitation thrives.
A Strong Foundation, On Paper
South Africa’s environmental framework is, in many ways, progressive.
The Constitution of the Republic of South Africa, 1996, guarantees the right to an environment that is not harmful to health or well-being. It also places a duty on the state to protect biodiversity for present and future generations.
Supporting this are key laws such as:
- National Environmental Management Act 107 of 1998 (NEMA)
- National Environmental Management: Biodiversity Act 10 of 2004 (NEMBA)
Together, they provide tools like permits, environmental impact assessments, and national standards.
On paper, the system is solid.
In practice, it is far more fragmented.
A System Divided
The real challenge lies at the provincial level, where most wildlife laws are actually implemented.
Across South Africa, conservation legislation is uneven and, in many cases, outdated.
Some provinces still rely on laws that date back to:
- The 1960s
- The pre-1994 era
- Former homeland administrations such as Ciskei, Transkei, and Bophuthatswana
While these laws are still legally valid, their continued use raises serious concerns.
They often:
- Outdated or inappropriate language
- Contain internal contradictions
- Reflect a very different political and social context.
Even provinces that have updated their laws have not always moved far enough. In places like Limpopo and Mpumalanga, newer legislation still closely mirrors older frameworks, with limited substantive reform.
The result?
A patchwork system where rules differ across provinces, standards are applied unevenly, and enforcement becomes inconsistent.
The Overlooked Gap: Customary Law
There is another layer to this system, one often ignored: Customary law.
For many communities, especially in rural areas, wildlife is not governed only by formal legislation. It is also managed through traditional systems, shaped by culture, leadership, and long-standing practices.
Importantly, the Constitution of the Republic of South Africa, 1996, recognises customary law as a legitimate legal system.
But here is the problem:
Most conservation laws do not meaningfully incorporate it.
This creates a disconnect:
- Formal systems rely on permits, licences, and compliance enforcement.
- Customary systems rely on community rules, shared responsibility, and traditional authority.
These systems operate side by side, but rarely together.
And sometimes, they directly conflict.
When the Courts Step In
South African courts have begun to address this gap.
- In Gongqose v Minister of Agriculture, Forestry and Fisheries, customary rights to natural resources were recognised as legally enforceable, even where they conflicted with statutory law.
- In Khohliso v S and Another, the court emphasised the need to reassess older laws against constitutional values.
These cases send a clear message: Conservation law must reflect the full legal reality of South Africa, not just one part of it.
Why This Matters
Wildlife does not recognise provincial boundaries.
And it certainly does not operate within fragmented legal systems.
When laws are:
- Inconsistent
- Outdated
- Or disconnected from how people actually live
They become harder to enforce.
And easier to bypass.
This doesn’t just weaken conservation — it erodes trust.
Because people are far more likely to support laws that:
- Make sense
- Are fair
- And reflect their realities
Ignoring customary systems does the opposite.
It sidelines communities who are often closest to the resource and most critical to its protection.
Signs of Change
There is growing recognition that this system needs to be aligned.
Recent policy developments, including:
- White Paper on Conservation and Sustainable Use of South Africa’s Biodiversity
- Policy Position on the Conservation and Sustainable Use of Elephant, Lion, Leopard and Rhinoceros
have both highlighted the need for better alignment across national and provincial laws, more inclusive governance approaches, and greater recognition of customary systems.
The direction is clear.
The challenge is implementation.
Where the Real Problem Lies
South Africa does not have a shortage of laws.
It has a problem of alignment.
The Constitution already provides:
- A strong rights-based framework
- Recognition of customary law
- A system of shared governance
The issue is not the design.
It is how the system is applied.
Outdated provincial laws, inconsistent enforcement, and limited integration of customary systems have created gaps, and it is in those gaps that conservation fails.
A More Practical Way Forward
Improving conservation does not require more complexity.
It requires coherence. This means:
- Updating provincial legislation
- Applying national standards consistently
- Recognising and integrating customary governance systems
Not as an afterthought.
But as a core part of the system.
Because customary practices are not a barrier to conservation.
They are an asset, one that can strengthen both ecological outcomes and social legitimacy.
The Bottom Line
Effective conservation is not just about rules.
It is about systems that work together.
Right now, South Africa’s system is trying to stand on multiple pillars:
- National law
- Provincial law
- Customary law
But those pillars are not aligned.
Fixing that alignment is not a technical exercise.
It is a strategic one because the future of conservation depends on it.
South Africa has the legal foundation, the knowledge, and the people.
What remains is making the system work as one.