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

Delays behind, legal battle ahead: Key arguments to be presented in African penguin litigation
Kristin Engel
By Kristin Engel
18 Feb 2025
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In the battle for sardines and anchovies, will the African penguin or the State and commercial fisheries win? Here are some of the key arguments set to be heard in the legal showdown that could decide the survival of the critically endangered seabird.

Between 18-20 March 2025, a legal battle will unfold in the Gauteng Division of the High Court  in Pretoria over the fate of the critically endangered African penguin, with conservation groups challenging the South African government’s decision to extend fishing closures meant to protect its food source, sardine and anchovy, from competition with the fishing industry. 

Birdlife South Africa and the Southern African Foundation for the Conservation of Coastal Birds (Sanccob), through the Biodiversity Law Centre, have taken the Minister of Forestry, Fisheries and the Environment and the pelagic fishing industry to court, arguing that stronger protections are urgently needed to halt the African penguin’s decline and impending extinction by 2035.

At the heart of the dispute is whether the court should override former minister Barbara Creecy’s decision extending temporary fishery closures as permanent and impose new fishing closure zones around key African penguin breeding colonies, a move the fishing industry and State strongly oppose. 

Read more: Lawsuit launched against environment minister in bid to halt African penguin extinction

The heads of argument have now been filed by both the applicants and the respondents: the minister the deputy director-general of Fisheries Management and the deputy director-general of Oceans and Coasts within the Department of Forestry, Fisheries and the Environment, as well as the South African Pelagic Fishing Industry Association and the Eastern Cape Pelagic Association.

New Environment, Forestry and Fisheries Minister Dion George previously instructed department lawyers to settle the matter with an out-of-court settlement. But this appears not to have panned out, with the court case going full steam ahead.

What’s at stake?


The applicants seek the review and setting aside of the minister’s decision on 4 August 2023 regarding the closures to fishing around key African penguin breeding colonies. This decision was to implement no-take fishing zones around key African penguin breeding colonies for a minimum of 10 years, with a review after six years — an extension of existing closures that were implemented as an interim measure.

This decision saw that the no-take fishing zones would use the “Interim Closure” delineations unless the conservation sector and industry agreed to alternative closure delineations, but no agreement was reached to alter the Interim Closures and the result was that these closures are now set for 10 years.

The interim closures were first implemented as a temporary measure in September 2022 while an international panel of experts extensively reviewed the science collected since 2008 as part of an Island Closure Experiment. 

However, the applicants argue that the delineations of these closures for 10 years are irrational as they are not biologically meaningful (i.e. not representative of preferred penguin foraging areas), and thus should not be used as permanent closures expected to reduce the African penguin competition with commercial purse-seine fishing for its primary food source — sardine and anchovy.

They argue that commercial fishing for sardine and anchovy deprives penguins of their primary food source, worsening an already dire predicament. Scientific studies have also shown that long-term closures of foraging areas to commercial fishing can help arrest the decline of the penguin population.

The minister and the industry, however, have defended the decision to maintain the current fishing closures. 

In their heads of argument, the applicants state that they then engaged with the minister’s office “pointing out the difficulties with the approach adopted and the need to act urgently” to ensure implementation of the expert panel’s recommendations regarding the matter — including implementing the island closures.

But, the applicants said the department showed no intention to implement the actual closure delineations according to the mechanism recommended by the expert panel. The result is that the Interim Closures became “permanent” and would remain in place for the next decade, within which the species could become extinct in the wild.

Now both applicants and the respondents have filed their heads of arguments for the upcoming case set to be heard in the Gauteng Division of the High Court in Pretoria from 18 to 20 March 2025. Below are some of the key arguments:

Ineffective fishing closures


The applicants argue that the minister’s decision to extend the interim fishing closures around key African penguin breeding colonies based on the expert panel’s recommendations, as a permanent measure to combat their lack of food source, is irrational and unreasonable to prevent the species’ extinction, and not the reason that it was first set out. 

The panel set out first to establish whether island closures are an appropriate conservation measure based on the best available scientific data to reduce competition between African penguins and industry, and then put in place scientifically informed fishing closures that could strike an “optimal trade-off” between maximising protection of African penguins’ foraging areas and minimising the impact on industry.

The State and industry argue that the former minister’s decision to implement no-take fishing zones was a valid extension of existing measures, and should be upheld. Industry in particular acknowledges the importance of penguin conservation, but argues that the minister followed expert guidance in her decisions.

According to industry, the panel found that while restructuring fishing around breeding colonies may offer some benefits, the impact would be small and should be weighed against significant economic consequences. 

But this is something the applicants strongly contest. In their heads of argument, the applicants state: “They gave absolutely no consideration to the fact that the Interim Closures were adopted purely as a temporary stopgap measure, with known scientifically supported deficiencies, and that they were recognised by the Department of Forestry, Fisheries and the Environment itself as not being fit for conservation purposes.

“No explanation was given for why, absent agreement between industry and the conservation sector, Interim Closures determined through an unscientific process should take precedence over closures determined through a scientific trade-off mechanism.”

The fishing industry argues that expanding the closures, as the applicants are seeking, could result in job losses of more than 700 workers and an annual revenue decline of R100-million.

In their heads of argument, the applicants state: “The record shows that the minister had no qualms about the trade-off mechanism. She simply subordinated it to her and the Department of Forestry, Fisheries and the Environment’s ingrained preference for prioritising consensus and for placating industry interests above protecting the African penguins’ survival and wellbeing.”

The industry agreed that one way to address the species’ population decline was to impose fishing closures around penguins’ breeding colonies, but said that competition for prey was only one of a number of factors that were endangering the penguin. 

This was echoed by the State, which said that the applicants refused to accept that multiple and changing factors were considered to have been responsible for the decline of the African penguin population.

Scientific debate and the precautionary principle


While the applicants seek to hold the State — and particularly the minister — accountable for the duty to act to mitigate known threats to the African penguin population, both the State and industry respondents maintain that calling for more science and better science is reasonable.

But the applicants argue that waiting for more research before imposing stricter restrictions is too risky. While this case has been unfolding the African penguin was uplisted from “Endangered” to “Critically Endangered” by the International Union for the Conservation of Nature — just one step away from being extinct in the wild.

To date the African penguin has lost 97% of its population, and if current trends persist the species will be extinct in the wild by 2035. The applicants maintain that their biggest threat is competition with the commercial small pelagic fishing industry for anchovy and sardine around the penguins’ key breeding colonies.

In their head of arguments, the applicants argue that the minister ignored the precautionary principle by waiting for more research, instead of acting immediately to halt the population’s decline.

However, the State says that the conservation purpose of the decision was achieved when the minister extended the interim island closures around the six penguin breeding colonies.

They state that the minister extended the island closures as a conservation measure to mitigate the decline of the African penguin — they said this was the purpose of her decision and was consistent with South Africa’s international law obligations.

“Notwithstanding the panel’s findings that island closures are only likely to offer a small benefit to the African penguin population, the applicants still adopt an all-or-nothing approach — they insist on more extensive fishing restrictions and larger island closures in disregard of the cost to the pelagic fishery and in complete disregard of the socioeconomic impacts of the closures.

“The applicants are aggrieved that the minister did not decide to adopt what they believe to be the correct and/or best conservation measure for the protection of the African penguin,” read the State’s head of argument.

Key findings


But as stated in the applicant’s head of argument, the panel’s key findings and recommendations included that the results of the Island Closure Experiment and other evidence-based information showed that island closures are likely to benefit African penguins.

They said that, despite a number of weaknesses and limitations, the Island Closure Experiment showed that excluding commercial purse-seine sardine and anchovy fishing from waters around African penguin breeding colonies was likely to contribute to reducing the rate of decline in the African penguin population.

Then, the decision to impose interim island closures as a measure directed at the conservation of the African penguin was a policy-laden question that required the balancing of conservation rights and interests with those rights and interests of the Small Pelagic fishery. 

However, the State said it was for the minister to decide how this balance was achieved based on various factors, including the science. 

“It is not the role of this court to decide which of the scientific methods is more reasonable to achieve the intended conservation purpose,” said the State. DM

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