/ 5 July 2024

High court will hear urgent case to save critically endangered African penguins

African Penguins On Boulders Beach, Simons Town
African penguins on Boulders beach, Simon's Town. File photo

An urgent application aimed at preventing the extinction of the African Penguin has been set down for hearing in the Gauteng High Court in Pretoria over three days in late October.

This follows the intervention of the Deputy Judge President of the Court who was requested by the applicants to have the matter placed under case management because of the urgency of the issue and the slow response of the government through the State Attorney.

Also in October, the current “endangered” conservation status of the African Penguin is likely to be upgraded to “critically endangered” at a meeting of the IUCN (World Conservation Union). This follows a recommendation to the IUCN by BirdLife South Africa.

The population of the continent’s only penguin species is in free-fall and already at around 97% below historic levels. Without an appropriate intervention this seabird could be extinct in the wild as soon as 2035.

In March, BirdLife SA and the Southern African Foundation for the Conservation of Coastal Birds (Sanccob) launched legal action against the then national Minister of Forestry, Fisheries and Environmental Affairs, Barbara Creecy.

The other respondents were two deputy directors-general of the department (DFFE), the South African Pelagic Fishing Industry Association, and the Eastern Cape Pelagic Association.

At the heart of their case is the urgent need to reduce damage to the ability of African Penguins to access their major food source – small pelagic fish species like sardines and anchovy. This involves reducing competition with the small-pelagic commercial purse seine fishing industry that also targets these fish stocks, particularly around the six major African Penguin breeding colonies on islands around the coast.

Sanccob and BirdLife SA are challenging Creecy’s August 2023 decision to confirm the ban on commercial fishing for anchovy and sardine within previously designated “Interim Closure” areas around these six breeding colonies for at least the next ten years.

While the conservation groups are firmly in favour of closed fishing areas to promote penguin conservation, they strongly disagree with the way in which Creecy decided to implement this particular measure.

A founding affidavit by Dr Alistair McInnes, Seabird Conservation Manager at BirdLife SA, described the minister’s decision as “arbitrary” and “biologically meaningless”. He pointed out that it went against recommendations by an international Panel of Experts Creecy had appointed two years earlier to review all scientific research on the issue and make recommendations on how to break the impasse between the bird conservation groups and the fishing industry.

After their initial affidavits were filed in March, the applicants struggled to obtain a full record of Creecy’s decision-making process, as they are entitled to in terms of the Uniform Rules of Court.

The respondents produced a “purported record” on 25 April but this was deemed “deficient”.

Then, after a case management meeting on 6 June and a directive issued by the Deputy Judge President of the Court on 10 June, the full record was produced by DFFE on 14 June.

The applicants were then able to file a supplementary founding affidavit by McInnes last week.

In this affidavit, McInnes said the record of decision-making confirmed that Creecy had accepted the Panel’s finding that island closures were an appropriate conservation measure. However, she had then “completely ignored” its recommended trade-off mechanism.

“In other words, the Minister accepted the premise, but then ignored the conclusion. This disregards the very purpose for which the Panel was appointed. The record therefore shows that the Minister had no qualms about the trade-off mechanism. She simply subordinated it to her and the DFFE’s ingrained preferences for consensus and for placating industry interests above protecting the African Penguin survival and well-being.”

There was no record of any internal deliberations by either the Minister or by DFFE staff concerning the Panel’s report and recommendations, McInnes added.

“It is clear from the documentation provided in the record that the Minister was well aware of the impasse regarding closures between the conservation sector and Industry.

“Therefore, when the Minister signed the approval form on 23 July 2023, neither she nor her department had conducted a sufficiently thorough or accurate analysis to enable her to take a rational and lawful decision…

“Accordingly, I confirm the grounds of review submitted in my founding affidavit [irrationality, unlawfulness and unconstitutionality].”

The DFFE respondents are due to file their answering affidavits by 26 July, and the fishing industry respondents by 5 August.

Creecy has since been replaced as DFFE minister by Dr Dion George of the DA in the new Government of National Unity administration. George had not responded to an invitation to comment at the time of publication.

This article was first published by GroundUp.