Legal battle to save African penguin intensifies with new court filings

Conservation groups have updated their litigation to challenge the Minister's fishing policies that impact endangered African Penguins. File picture: Pexels

Conservation groups have updated their litigation to challenge the Minister's fishing policies that impact endangered African Penguins. File picture: Pexels

Published Jul 3, 2024


On June 27, BirdLife South Africa and the Southern African Foundation for the Conservation of Coastal Birds (SANCCOB), represented by the Biodiversity Law Centre (BLC), submitted a supplementary founding affidavit in their landmark litigation against the former Minister of Forestry, Fisheries, and the Environment, Barbara Creecy.

This case, first initiated on March 20, 2024, aims to overturn Creecy’s decision in August 2023 regarding fishing closures around key African Penguin breeding colonies. The argument posits that the measures are insufficient to prevent the species’ extinction.

The African Penguin population has suffered a catastrophic decline, losing 97% of its numbers, and faces extinction in the wild by 2035 if current trends continue.

The litigation, filed in the Pretoria High Court, aims to review and set aside the Minister’s decision, which the applicants argue fails to implement biologically meaningful closures for commercial purse-seine fisheries targeting sardines and anchovies around six primary African Penguin breeding colonies. These colonies are crucial habitats, housing approximately 90% of South Africa’s African Penguins.

Kate Handley, executive director of the Biodiversity Law Centre, emphasised the critical nature of this litigation.

“This is the first litigation in South Africa invoking the Minister’s constitutional obligation to prevent extinction of an endangered species,” said Handley.

“It follows her failure – since at least 2018 – to implement biologically meaningful closures around African Penguin breeding areas, despite scientific evidence that such closures improve the species' access to their critical food sources,” Handley stated.

The Minister's August 2023 decision extended interim fishing closures that conservationists argue are ineffective.

Dr Alistair McInnes, seabird conservation manager at BirdLife South Africa, pointed out the urgency, stating: “The African Penguin’s survival depends on the right decision being taken now. Our challenge seeks to have the Minister take science-based decisions grounded on the internationally recognised and constitutionally enshrined precautionary principle, which she has consistently failed to do since 2018.”

The applicants argue that the Minister's selective adoption of the recommendations from an international panel of experts undermines conservation efforts.

Dr Katta Ludynia, Research Manager at SANCCOB, noted, “The Minister was selective about which recommendations she followed. She failed to follow the critical recommendation on closure delineations, extending meaningless interim closures instead.”

The supplementary affidavit filed by BirdLife South Africa and SANCCOB is based on the Minister’s decision record, which they argue highlights delays and indecision exacerbating the decline of the penguin population. The Pretoria High Court has scheduled hearings for October 22-24, 2024.

Sinegugu Zukulu from Sustaining the Wild Coast expressed hope for the Constitutional Court's intervention: “We hope the Constitutional Court will be able to hear our voices about how critical it is to protect marine ecosystems for both livelihoods and for the sake of marine living resources.”

“The time for fossil fuels is over as is continually articulated year after year by the IPCC reports.

We believe the Constitutional Court is the right court to uphold our rights to a safe and healthy environment protected for sustainable development,” stated Zukulu .

The applicants await responses from the State and the fishing industry, due on July 26, 2024, and August 5, 2024, respectively. This case represents a pivotal moment in South African conservation, potentially setting a precedent for the government's obligation to protect endangered species and uphold science-led decision-making for future generations.