Court showdown looms in fight to protect critically endangered African penguin

The African penguin colony at Boulders Beach, Simon’s Town. (Photo: Gallo Images)

12 Dec 2024

The African penguin litigation against South Africa’s environment minister over the limited execution of expert recommendations to safeguard the seabird’s food source is set to be heard in the new year.

BirdLife South Africa and the Southern African Foundation for the Conservation of Coastal Birds, represented by the Biodiversity Law Centre, are seeking to review and set aside the decision of Environment Minister Dion George’s predecessor Barbara Creecy, to implement biologically meaningless closures to fishing around key African penguin breeding colonies which they said do not safeguard their food source.

The species faces numerous survival challenges, with the primary threat being a drastic reduction in its food supply. Sardine and anchovy stocks, crucial to the penguin’s diet, are declining due to climate change and the pressures of commercial purse-seine fishing, leading to widespread starvation and food scarcity.

court african penguins The African penguin colony at Boulders Beach, Simon’s Town. (Photo: Gallo Images)

The African penguin, uplisted from endangered to critically endangered by the International Union for Conservation of Nature (IUCN) in October 2024, could be extinct in the wild in less than 4,000 days if nothing changes, having already lost 97% of its population.

Read more: On the frontline to save the African penguin from extinction

Litigation status

In interviews with Daily Maverick, the Biodiversity Law Centre described current settlement talks with George’s legal team as a “work in progress” with no agreement reached and the court case going full steam ahead – despite the State’s delays in filing court papers.

The Biodiversity Law Centre filed its replying affidavit to the State’s answer on 29 November 2024, after the State had – very belatedly – on 19 September 2024, filed its answering affidavit where it raised arguments about more information being needed before the International Review Panel’s recommendations could be put in place. This is something the applicants strongly contest.

The case was brought on an expedited basis, due to the urgency of the species’ impending extinction, but the State’s delayed submission of its responding affidavit prevented the case from proceeding on the originally scheduled dates of 22-24 October 2024.

The hearing has now been rescheduled for 18 to 20 March 2025 in the Gauteng Division of the High Court in Pretoria.

Seabird Conservation Manager at BirdLife South Africa, Dr Alistair McInnes said, “The African penguin’s survival depends on the right decision being taken now. African penguins at breeding colonies need access to food.”

Their challenge aims to compel the minister to make science-based decisions guided by the internationally recognised and constitutionally mandated precautionary principle – an approach the minister repeatedly failed to adopt since 2018, despite commissioning multiple reviews, according to McInnes.

Read more: African penguin lawsuit – Settlement talks ‘to prevent extinction’ under way

Executive director of the Biodiversity Law Centre Kate Handley told Daily Maverick that the minister proposed a working group to do further work on some of the international panel’s recommendations, but that this had not been finalised and they were still in discussion with the State.

The next hard deadline will be to file the applicants’ heads of argument at the end of January. Following that the State and industry will file on 10 February 2025.

Handley said the idea of the working group was never to suspend the litigation and that it could not settle until it was favourable for African penguins, “so we are continuing with the court case”.

“We’re proceeding as if it’s going ahead in March, so full steam ahead,” Handley said.

The arguments and settlement talks

To justify the former minister’s decision to extend interim fishing closures around African penguin breeding grounds, instead of fully taking on the International Review Panel’s recommendation to implement biologically meaningful fishing closures, the State parties contend that these temporary measures were introduced to allow additional time for gathering the necessary data for the minister and his department to implement the trade-off mechanism.

This mechanism, recommended by the International Review Panel, was designed to resolve a longstanding debate between fisheries experts and seabird scientists over the ideal configuration of island closures and their conservation benefits and to guide the minister in making an informed decision on the matter.

The applicants argued in their responding affidavit that the principle of precaution required the minister to make a rational and lawful decision based on the best available science at the time. Thus, the applicant said that the allegations made by the State failed to refute the irrationality and unlawfulness of the minister’s decision.

As for how the settlement talks were going, Handley said that “a work in progress” was the best way to describe it.

“It’s difficult. We’re talking about entrenched and opposing interests on the side of industry. We’re talking about even the conservation sector [having] very firm ideas about what the island closures should look like based on the scientific analyses that they have undertaken,” she said.

The State’s answering affidavit to the applicants’ applying affidavit appears with dichotomous views around whether the panel’s recommendation is implementable or whether further work is required.

State Attorney Dikeledi Molepo contends in the answering affidavit that further scientific studies and stakeholder engagements, as recommended by the International Review Panel, were ongoing, and the legal challenge disrupted this process.

Molepo also said that the minister acted within their legal mandate by considering the conservation of African penguins and the socioeconomic implications for the fishing industry.

The Biodiversity Law Centre’s Handley said, “Our argument is simply that there was sufficient information to make a decision, that we applied the trade-off mechanism and this is the delineation that it came out with. So it’s not necessary to do further work, the principles of precaution and best available science require the minister to have made a decision.”

With the recent uplisting of the species from “endangered” to “critically endangered” on the IUCN Red List, they said that it had become even more important to raise awareness.

Read more: Seabird surgery and mad dash to save AP509, a critically endangered African penguin

This case is a first for South Africa, with conservation bodies taking the government and industry to court to try to prevent the extinction of a singular species, so this could set a precedent for future species on similar paths.

“We should keep an eye out for other species that could land up in the same scenario that we’re seeing now… One only needs to look at the South African red list and the IUCN red list to see how many species are actually facing the imminent threat of extinction,” Handley said

One of these species is Botha’s lark, South Africa’s most threatened terrestrial bird species, which faces extinction as early as 2025 with an estimated 340 individuals left in the wild in South Africa and a 90% decline in species over the past decade.

For a lot of these species, the drivers of their decline are anthropogenic causes – land use change, over-exploitation, pollution, and climate change.

“There certainly are many species that require this kind of intervention,” Handley said. DM

https://www.youtube.com/watch?v=REeWvTRUpMk

Categories:

Tags:

DM is much better if you are signed in...

South Africa

Litigation status

The arguments and settlement talks