High Court victory for the critically endangered African Penguin

NATIONAL NEWS - Two conservation NGOs have been waging a legal battle to hold the Minister of Forestry, Fisheries and the Environment accountable to mitigate the threat posed to the African Penguin population by sardine and anchovy overfishing.

BirdLife South Africa and SANCCOB secured a historic victory today, 18 March, with a settlement agreement endorsed by the Pretoria High Court, that provides for the delineations of no-take zones for commercial sardine and anchovy fishery around six key African Penguin breeding colonies.

The agreement also ensures that the South African Department of Forestry, Fisheries and the Environment (DFFE) has to renew the closure permits each January for the next 10 years.

The 10-year period takes closures to the critical year, 2035, when the African Penguin is predicted by scientists to be extinct in the wild.

According to a statement by BirdLife South Africa and SANCCOB, the order provides that the DFFE will have two weeks to ensure the implementation of closures and amend permit conditions applicable to commercial sardine and anchovy fishers.

"After a difficult six years of battling disagreement from fisheries scientists as penguin numbers dwindled from 2018’s count of 15 187 breeding pairs to just an estimated 8 750 at the end of 2023, BirdLife South Africa and SANCCOB took the difficult decision to resort to the courts in March 2024. Represented by the Biodiversity Law Centre, the environmental NGOs sought to hold the Minister accountable to the constitutional and statutory obligations to mitigate the threat posed by sardine and anchovy fishing to the world’s African Penguin population – most of which remains in South Africa."

A settlement was reached on 17 March, on the eve of the three-day hearing, and the judge made it an order of the court this morning, 18 March.

"The court order makes it clear that the Minister’s decision, announced on 4 August 2023, is reviewed and set aside. In addition, the order clearly sets out the maps and coordinates for the closures which will be in place from the date of the court order for a period of 10 years (subject to a scientific review after six years). It also confirms that these closures will be in place year-round (i.e. including during the full fishing season)."

"The expert panel also recommended that closures are implemented so that penguin populations across each of the west coast, Southern Cape and Eastern Cape regions are represented.

"The court order endorses this risk-averse approach which caters for unexpected shocks such as oil spills, predation by seals and other predators, as well as extreme weather events - all of which compound the underlying threat of lack of prey and the low breeding numbers and risk of malnutrition which it causes.

"Along the west coast, the large existing closure around Dassen Island (first implemented as a temporary measure in September 2022) will be retained without extension to an area to the north.

"In the Southern Cape, a hard-won victory at Stony Point has seen the majority of the preferred foraging range of this colony protected. This closure is vital given that the “split zone” closure at Dyer Island remains in place – allowing vessels that are under 26m in length to continue fishing in the areas which overlap with African Penguins preferred foraging range around this sensitive island. It is also critical as the Southern Cape is the most heavily fished area with both sardine and anchovy fisheries competing with African Penguins and other predators,” the statement reads.

"Finally, in the Eastern Cape, a 20km closure will surround Bird Island (where very little fishing occurs), while St Croix Island’s closure provides protection for this very vulnerable population under threat not only from competition with commercial fisheries but also from development pressure in the very sensitive Algoa Bay, including noise and oil pollution risks from ship-to-ship fuel transfer."