South Africa

South Africa, Our Burning Planet

Inside the African penguin litigation — how fishing industry, conservation groups found common ground

Penguins enjoying the day during the Save The African Penguin From Extinction peaceful protest at Boulders Beach on March 18, 2025 in Simon's Town, South Africa. The International Union for Conservation of Nature (IUCN) uplisted the African Penguin from Endangered to Critically Endangered, underscoring the species? extremely high risk of extinction in the wild. (Photo: Gallo Images/Brenton Geach)

By Kristin Engel

19 Mar 2025

A landmark settlement agreement has been reached in the African penguin litigation after intense negotiations between conservation NGOs and the commercial fishing industry. Concessions were made by both parties, resulting in the specific closure of six key breeding colonies to commercial fishing.

On Tuesday, 18 March, the Pretoria High Court issued an order making the settlement official between BirdLife South Africa (BLSA), the Southern African Foundation for the Conservation of Coastal Birds (Sanccob) – represented by the Biodiversity Law Centre – the South African Pelagic Fishing Industry Association (Sapfia) and the Eastern and Southern Cape Pelagic Association – endorsed by the Department of Forestry, Fisheries and the Environment (DFFE) and Minister Dion George.

The lawsuit was launched a year ago by the conservation NGOs against the minister and the pelagic fishing industry, arguing that stronger protections were urgently needed to stop the decline of the African penguin and its imminent extinction by 2035.

It was feared that without the correct delineations of no-take zones for the commercial sardine and anchovy fishery around six key African penguin breeding colonies overlapping the commercial fishery, the species would have no chance of survival – especially against other threats it faces.

African penguin numbers declined from 15,187 breeding pairs in 2018 to an estimated 8,750 at the end of 2023. In 2024, the species was moved from endangered to critically endangered on the International Union for Conservation of Nature Red List and is on track to be extinct in the wild by 2035.

The parties from both sides spoke to Daily Maverick about the details of this hard-fought settlement, hailed as an important step forward for African penguin conservation.

Protesters at a Save the African Penguin from Extinction demonstration at Boulders Beach in Simon’s Town on 18 March 2025. (Photo: Gallo Images / Brenton Geach)

Tackling the delineations regionally

The narrow issue of the settlement was the delineations of the fishing closures around the six breeding colonies. The monitoring and evaluation will be handled separately by a penguin working group, at the request of the minister.

The process for settlement talks was initiated a while ago, but it was only in the few weeks between the end of 2024 and the beginning of 2025 that the parties started intense discussions about delineations.

Read more: African penguin litigation – draft settlement reached days before landmark case is heard in high court

Eventually, they decided to go about it regionally, by tackling delineations per colony.

On the West Coast, this included Dassen Island and Robben Island. Then they tackled the South Coast, at Stony Point and Dyer Island, and the Eastern Cape, which was St Croix and Bird Island in Algoa Bay.

“There was a lot of back and forth between conservation and the fishing industry. It was certainly not a straightforward process, because there was so much at stake for both parties. But after many, many iterations we were very thankful to reach an agreement,” said Nicky Stander, head of conservation at Sanccob after court proceedings on Tuesday.

For African penguins, Stander said this gives them a fighting chance against threats leading to their extinction, and they will now have enough food in the vicinity of where they hunt for fish.

Kate Handley, executive director of the Biodiversity Law Centre, said: “It really was a difficult and long negotiation, with both sides trying their best to get the best for all the industry, for their constituents and for the conservation sector, for penguins.”

Read more: Delays behind, legal battle ahead: Key arguments to be presented in African penguin litigation

Read more: Court showdown looms in fight to protect critically endangered African penguin

With this order issued by the court, the DFFE has two weeks to amend the permit conditions applicable to commercial sardine and anchovy fishers (also covering redeye) for the agreed-upon closures.

The permit condition will then be renewed every January for the next 10 years, up to 2035, when scientists predict the African penguin will be extinct in the wild.

A peaceful Save the African Penguin from Extinction protest was held at Boulders Beach on 18 March 2025. The International Union for Conservation of Nature moved the African penguin from endangered to critically endangered, underscoring the species’ extremely high risk of extinction in the wild. (Photo: Gallo Images / Brenton Geach)

Protesters at Boulders Beach on 18 March 2025. (Photo: Gallo Images / Brenton Geach)

Key conservation wins in the agreement

The most important win for the applicants was Stony Point where they managed to secure a closure three times the size of the previous closure. Stander said this was the most contentious in discussions, because it was an important fishing ground for the commercial fishing industry as well.

The applicants also managed to get the 20km fishing closure around Robben Island and equally around Bird Island in the Eastern Cape.

“Those were really important wins for conservation. The interim closures remain [in place] for Dyer Island and for Dassen Island. Then there was a slight change of the closure for St Croix,” Stander said.

Stander said they had to concede on certain areas, but that the regional approach they took in the discussions was important.

In winning 20km around Robben Island they conceded on Dassen Island. Similarly, with the win at Stony Point they conceded on Dyer Island.

“So, from a regional representation point of view, we’re very satisfied with how the settlement was reached,” Stander added.

Tension between the conservation sector and the fishing industry in this matter has been raging since 2008, with arguments about the science by many conservation and industry scientists put forward in different working groups.

Penguins at Boulders Beach on 18 March 2025. (Photo: Gallo Images / Brenton Geach)

Consuming negotiations

“Many of us have invested so much of our professional careers to saving African penguins, and it means so much to us. We wanted to bring this over the line, so we went into negotiations with an open mind,” Stander said.

“But certainly when difficult decisions had to be made it was incredibly difficult, because we were not only making these decisions for Sanccob, BLSA and for the African penguins, we were making this decision for conservationists and people who conduct this work all over and representing conservation as a whole.”

Had they gone to court, there were risks for the applicants, the fishing industry and for the government. Thus, the parties believed that what was reached was the best outcome for all.

Dr Alistair McInnes, the seabird conservation programme manager at BLSA, said scientific and conservation practitioners have been advocating for more suitable closures to purse seine fishing around the six last large major colonies since 2019.

“It's been a long road to get to this point. There have been many fora facilitated by DFFE between the conservation and fisheries stakeholders to try to find common ground around suitable closures for African penguins, but also minimising costs to the industry,” he said.

“We are quite happy that now there are improved closures… [Some of] the closures are now more than three times the extent of the ones that were in place, they're much more reflective of where the birds actually go to fish, so they're more likely to actually do the job they were initially intended to do.”

McInnes said there have been various settlement proposals, but from the conservation sector’s perspective they weren’t willing to compromise on anything that wasn’t defendable from a scientific perspective for African penguins.

One of the crucial things they were after was a good representation of penguin foraging areas in all three major regions – the West Coast, South Coast and the Eastern Cape.

“We weren’t able, up until this point, to get a reasonable offer from industry to get that representation that we needed in all three regions,” McInnes said.

He said it came as quite a surprise – they thought they would be going to court, but knew that they needed to hold their ground in terms of what was good for the penguins.

African penguins at Boulders Beach in Simon’s Town on 18 March 2025. (Photo: Gallo Images / Brenton Geach)

Fishing industry eager to move on

Sapfia and Eastern and Southern Cape Pelagic Association said a “middle-of-the-road compromise” position was agreed to, in which the extent of closures is about halfway between the interim closures that are currently in place and the area closures that the applicants were seeking in their court action.

In an interview with Daily Maverick after the court action on Tuesday, Sapfia chairperson Michael Copeland said the settlement was a relief in a way because this process had been going on since 2008, and even with the court action it didn’t seem like the end was in sight.

“We anticipated, irrespective of what transpired, if the court had to consider the papers that were put before them, we didn’t see that that was going to be the end of the matter. And under those circumstances, we, as the industry, were quite pleased that we could enter into, without prejudice, a settlement agreement… It was in the interests of all parties indefinitely, in the interests of the penguins,” Copeland said.

He said this should have happened some time ago.

“We are pleased that this is behind us. I think we’ve got some finality in this matter, and we are extremely pleased that the penguin working group can get going to do its work, because we believe that is where the big wins are going to be made in penguin conservation.”

He said the industry hoped that this settlement could be a turning point for more collaboration and working between the two sectors.

“Both parties had to make concessions. So the fishing industry had to live with increased areas, and the conservation sector had to live with less increased areas.”

The fishing industry has been participating in the island closure experiment since 2008, and Copeland said that during that process there have already been a number of reductions in vessels operating, and factories.

“I think, to a large extent, a lot of the pain in jobs probably has already occurred. What this does mean to smaller rights holders and to fishermen and to the workers in the factories is [that] it’s obviously going to affect them because what we’re talking about is a loss of catch, and so it’s a loss of hours worked in the factories, and for fishermen it’s a loss of direct income.”

‘We won the battle but not the war’

In terms of the trajectory of the penguin’s decline and the projected 2035 extinction date, Stander said this case and its outcomes were never going to be a silver bullet.

“This was just a very important conservation intervention that was required. But there’s still so much work to be done. Specifically, I’m really looking forward to seeing whether the South African government will enforce these fishing closures and put the monitoring and evaluation plan in place, which is obviously critical to seeing how beneficial these closures are,” Stander said.

Sanccob and BLSA said they would work with the DFFE to ensure these monitoring and evaluation plans are in place, and that they tackle all of the other pressures, as they have been doing over the years. These other threats include predation, the effects of climate change and oil pollution.

“All of those are still very significant threats, but we always maintain that food availability was the most pressing threat, and we really needed to have government to sort that out,” Stander said.

Handley added that it was important to note that competition with the small pelagic fishing industry was not the only threat to African penguins, but that it was one of the most significant threats.

“We have won the battle but not the war,” Handley said.

This was because the penguins were compromised in terms of their ability to catch prey and to nourish themselves. They then became much less resilient in the face of other threats such as oil spills, predation and ship-to-ship bunkering in Algoa Bay affecting their population decline.

Handley added that they would now rely on the DFFE and the minister to ensure full implementation of the court order and to follow through on taking all necessary steps to protect the African penguin.

On Tuesday, George said the DFFE was committed to overseeing the effective implementation of these closures and would collaborate with stakeholders to monitor their impact on penguin populations. DM

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