African penguins, endemic to Southern Africa, are one of the most threatened seabird species globally and they face the risk of extinction in the wild by 2035. Populations have shrunk by 90% in the past 70 years, dwindling to about 8 500 breeding pairs today.
New regulations now manage offshore ship-to-ship transfers of liquid cargo such as chemicals, oil, petroleum products and liquid natural gas, as well as refuelling ships, which the environment department says will help protect the critically endangered African penguin and other marine species.
But BirdLife South Africa and the Southern African Foundation for the Conservation of Coastal Birds (Sanccob) have expressed doubts over whether this “lifeline” will protect the species.
The department of forestry, fisheries and the environment said the regulations are designed to prevent pollution, protect coastal ecosystems, minimise and mitigate the effects of a spill.
On 22 August, the forestry, fisheries and the environment minister, Dion George, used a gathering of scientists, conservationists, fishing industry representatives and government officials to sign into law the regulations for the environmental management of offshore ship-to-ship transfer, published under the National Environmental Management: Integrated Coastal Management Act.
The event, a special evening of appreciation in honour of the champions protecting the African penguin, took place aboard the government-owned research and resupply vessel, the SA Agulhas II.
“These regulations are a decisive step to safeguard our oceans and secure the future of our African penguin,” George said. “They set strict standards for offshore ship-to-ship transfers, ensuring that maritime activity can only proceed in a safe and responsible way.”
The regulations, which will come into force once published in the Government Gazette, provide South Africa with a clear, enforceable environmental framework to manage offshore ship-to-ship transfer operations, including bunkering (refuelling ships).
Bunkering alleviates the need for ships to dock to refuel, saving time and costs for the refuelling vessel. This activity is allowed only in Algoa Bay.
BirdLife South Africa and Sanccob said they have long held the opinion that bunkering should be disallowed in Algoa Bay.
This was considering the findings of Transnet’s ecological risk assessment in February last year, which emphasised the severity of risks to African penguins, particularly in Anchorage Area 2, closest to St Croix Island.
“While the benefits of bunkering accrue to fuel suppliers and shipping companies, the risk is borne by the marine ecosystems exposed to a higher risk of oil spills and increased underwater noise pollution,” the organisations said
St Croix Island was once home to the largest remaining African penguin colony, with almost 8 000 breeding pairs resident in 2015. “Since the advent of bunkering in the bay in 2016, this colony has now dwindled down to only 700 pairs,” said BirdLife South Africa and Sanccob.
Scientific research has demonstrated the correlation between increased vessel traffic noise associated with bunkering in the vicinity of St Croix Island and the decline in penguin numbers.
“In fact, when the activity was stopped in 2024, due to non-compliance with the Income Tax Act by several bunkering operators, the African penguin population on St Croix Island doubled.”
This number halved again once bunkering resumed this year. “In addition, since the advent of bunkering operations, there have been four oil spills in Algoa Bay attributed to bunkering activities resulting in the oiling of several hundred penguins and other seabirds,” the organisations said.
The environment department said the new regulations include prohibited zones, which mean that ship-to-ship transfer operations are banned within marine protected areas, aquaculture development zones, within five nautical miles of each of these zones and within three nautical miles of the high-water mark.
On wildlife protection, operators must monitor for penguins and marine mammals, deploy hydrophone systems and report sightings and incidents. Immediate response plans must be in place for any oiled or injured wildlife.
Regarding weather limits, in Algoa Bay, operations may only take place in safe conditions, with wind speeds below 22 knots and wave heights below two metres. The minister may set conditions elsewhere.
To prevent pollution, operators must use drip trays, leak detection systems, inflatable booms and have a spill-response vessel on standby within five nautical miles of shore. All crew must receive environmental awareness training.
Each operator must also submit an independent environmental management plan, approved by the minister, addressing site-specific risks, the department said.
The restrictions in Algoa Bay mean operations are confined to designated anchorages, with a limit on the number of operators and tankers, and seasonal restrictions in Anchorage Area 2 to protect sensitive habitats.
Non-compliance will be met with fines of up to R2 million, imprisonment for up to five years, or both, the department said.
BirdLife South Africa and Sanccob said the risk of spills increases when ship-to-ship transfers happen at night or in rough seas.
The new regulations were first gazetted for public comment in February and “were met with resistance from both the bunkering industry and conservation groups, albeit for different reasons”, the organisations said.
The revised regulations differ from the first iteration in that the restrictions are now more lenient to the bunkering industry.
Among the shortcomings of the regulations are that operations in Algoa Bay — the only area where bunkering is currently occurring — are exempt from several regulatory prohibitions specifically intended to protect sensitive sites.
“This is not only detrimental to the St Croix penguin colony but also sets a worrying precedent about the meaning of prohibitions and how discriminately, or indiscriminately, they may be applied,” the organisations said.
“Transfer at night, despite being extremely risky, makes the identification of spills and the location of marine mammals and African penguins difficult to detect in the dark,” while an additional concern is that oil spill response teams are unable to detect or start clean-up during night-time hours.
Notwithstanding the recommendation in Transnet’s ecological risk assessment that bunkering does not take place in wave heights of over one metre, the regulations permit bunkering in swells of up to two metres, the organisations said.
The seasonal restriction on bunkering to occur during the non-breeding period for African penguins in the regulations, “while well-intentioned”, is unlikely to have the desired effect given that the breeding season extends beyond the period stated in the regulations. African penguins use Algoa Bay for foraging throughout the year.
The organisations added that there is an absence of any meaningful measure in the regulations to reduce vessel-derived noise pollution, which adversely affects the African penguin.
This includes the lack of speed restrictions and the removal of the requirement to abide by the International Maritime Organisation guidelines for the reduction of underwater radiated noise from shipping.
In March, the high court ruled in favour of BirdLife South Africa and Sanccob, ordering 10-year no fishing zones around six key penguin breeding colonies, such as Dassen Island, Stony Point and St Croix Island.
While George has referred to the fishing closures around colonies, including St Croix, as lifelines, Alistair McInnes, the seabird conservation programme manager at BirdLife South Africa said, “the Algoa Bay closure will be meaningless unless the negative consequences of bunkering are avoided.”
Nicky Stander, the head of conservation at Sanccob, expressed concern about the cumulative effect of increased vessel traffic.
“It is not only the ships actively involved in bunkering, but also vessels stationed in the anchorage areas as they wait for fuel and move in and out of these zones, that will contribute to pressures on the African penguin colony on St Croix.”
The organisations said they have consistently advocated for the minister’s use of the emergency powers available to prohibit bunkering in terms of section 59 of the Integrated Coastal Management Act or in terms of the Biodiversity Act.
“To date, the government has failed to heed the call to avoid or mitigate actual and potential harm in relation to offshore bunkering operations.”