Landmark litigation to protect the African Penguin from extinction

The African Penguin has lost 97% of its population. If current trends persist, the species will be extinct in the wild by 2035. On 28 October 2024, the African Penguin was uplisted to “Critically Endangered” by the IUCN.

The biggest threat facing African Penguins is competition with the commercial small pelagic fishing industry for Anchovy and Sardine around the Penguins’ key breeding colonies, which host 90% of South Africa’s African Penguin population. The Biodiversity Law Centre is working with BirdLife South Africa and Southern African Foundation for the Conservation of Coastal Birds (SANCCOB) to address this threat by challenging the Minister of Forestry, Fisheries and the Environment’s decision of 4 August 2023 to impose biologically meaningless ‘interim closures’ around the six colonies.

The litigation is launched

On 19 March 2024, the Centre, representing BirdLife South Africa and SANCCOB, initiated landmark litigation in the Pretoria High Court in the interests of Africa’s only penguin species: the Critically Endangered African Penguin (Spheniscus demersus).  

The impugned decision

On 4 August 2023, the Minister of Forestry Fisheries and the Environment announced the continuation of inadequate “interim closures” around breeding colonies at Dassen Island, Robben Island, Stony Point, Dyer Island, St. Croix Island and Bird Island. These closures were first imposed in September 2022 while an international panel of experts extensively reviewed the science collected since 2008 as part of an Island Closure Experiment (ICE). They are not biologically meaningful, as they are not representative of preferred Penguin foraging areas.

The panel recommended that closures of sardine and anchovy fishing grounds to commercial small pelagic fisheries around six main breeding colonies was an appropriate and necessary conservation intervention with demonstrable benefits to African Penguin populations. It also provided a method for determining the appropriate island closure delineations which would seek to optimise benefits of closures to African Penguins, while minimising costs to the small-pelagic purse-seine industry. In doing so, it put an end to scientific debates on how to determine closure delineations and also confirmed the appropriate method for determining African Penguins’ preferred foraging range.

The panel’s recommendations were provided to the Minister in July 2023 with the express purpose of enabling the Minister to take definitive, science-based decisions regarding island closures after years of indecision and debate. During this time, in 2023, the species fell below the 10,000 breeding pairs mark for the first time in history. On 4 August 2023, the Minister announced her decision, which failed to follow the trade-off method recommended by the panel.

An irrational and unlawful decision

The applicants argue that this approach was patently irrational. First, it is unclear why certain recommendations should be followed but not others.  Second, and critically, the interim closures themselves are incapable of meeting the purpose of closures, namely to reduce competition between African Penguins and the purse-seine commercial fishing industry for sardines and anchovies. “Moreover, the notion that an alternative set of closures could be delineated by agreement between conservationists and industry defeats the purpose of the panel, which was initiated to end many rounds of disagreement between these stakeholder groups and the various conservation and fisheries focused branches of the DFFE,” says Dr Alistair McInnes, Seabird Conservation Manager at BirdLife South Africa.

According to Kate Handley, the Centre’s Executive Director, the Minister has also acted unlawfully. She says: “The Constitution and legislative scheme give rise to a duty to implement urgent measures to prevent the impending extinction of the African Penguin. These include the imposition of fishing closures which limit purse-seine anchovy and sardine fishing activities. Despite this clear obligation, the Minister has consistently failed to implement such closures.”

Dr Katta Ludynia, Research Manager at SANCCOB, says:

“The Minister was selective about which recommendations she followed. Inexplicably, she failed to follow the critical recommendation regarding how closures should be delineated. Instead, the Minister decided to extend the meaningless interim closures, unless agreement between the conservation sector and the fishing industry could be reached on an alternative.”

Steps taken to advance the litigation

In previous steps to advance the litigation, BirdLife South Africa and SANCCOB filed their supplementary founding affidavit on 27 June 2024, after having eventually received the record of decision from the State on 25 April 2024 and 14 June 2024. The supplementary affidavit confirmed that the documents in the record evidenced the Minister’s inability to take decisive action as the African Penguin marches towards extinction, and demonstrated lack of consideration of critical information before the Minister regarding the recommendations made by the International Panel of Experts who were appointed to assist the Minister in taking decisive action to halt this tragedy.

Replying affidavits are filed

On 29 November 2024, BirdLife South Africa and the Southern African Foundation for the Conservation of Coastal Birds (SANCCOB), represented by the Biodiversity Law Centre, filed a further replying affidavit in the landmark litigation against the Minister of Forestry, Fisheries and the Environment in important efforts to save the Critically Endangered African Penguin.

While the South African Pelagic Fishing Industry Association and the Eastern Cape Pelagic Association (the fourth and fifth respondents in the matter) filed their answering affidavit on 23 August 2024, pursuant to a directive from the Pretoria High Court, the State parties (including the Minister and two Deputy Director-Generals) failed to follow suit. The applicants had already submitted a reply to the Industry answering affidavit on 13 September 2024, but the State’s belated filing of its answering affidavit required a response.

Notwithstanding that the case has been bought on an expedited basis, the late filing of the State’s answering affidavit meant that the matter could not be heard on 22 to 24 October 2024, the date originally allocated by the Deputy Judge President. The matter has now been set down from 18 to 20 March 2025 in the Pretoria High Court.

Ground-breaking

This is the first litigation in South Africa invoking the Minister’s constitutional obligation to prevent extinction of an endangered species. It follows her failure – since at least 2018 – to implement biologically meaningful closures around African Penguin breeding areas, despite scientific evidence that such closures improve the species access to their critical sardine and anchovy food source, thereby contributing toward arresting the decline of the African Penguin.

For more than six years, the Minister has placed her preference for a consensus-driven solution above her obligation to ensure the survival of the Endangered African Penguin. All the while, the African Penguin population has suffered an alarming decline of 8% per year on her watch.

Dr Alistair McInnes says: “The African Penguin’s survival depends on the right decision being taken now. African Penguins at breeding colonies need access to food. Our challenge seeks to have the Minister take science-based decisions that are grounded on the internationally recognised and constitutionally enshrined precautionary principle. This is something that the Minister has consistently failed to do since 2018, notwithstanding having called multiple reviews.”

The case is set down for hearing from 18 to 20 March 2025.

ENDS

About the applicants

• BirdLife South Africa is a non-profit organisation whose vision is a country and region where nature and people live in greater harmony, more equitably and more sustainably, while its mission is to conserve birds, their habitats and biodiversity through, inter alia, scientifically-based programmes and supporting the sustainable and equitable use of natural resources. BirdLife South Africa actively works towards the conservation of African Penguins through its Seabird Conservation Programme.
• SANCCOB is registered as a non-profit company, non-profit organisation and public benefit organisation in terms of the laws of South Africa, operating from two facilities in the Western Cape and Eastern Cape. SANCCOB’s primary objective is to reverse the decline of seabird populations – flagship species being the endangered African penguin – through a multi-faceted conservation approach that includes rehabilitation and release of seabirds, implementation and consultancy of preparedness and response in the event of oil spills affecting marine wildlife, carrying out integral scientific research, provision of in-situ support to conservation managing authorities, skills development, and public awareness via environmental education.

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