Boundary-shifting court case over protection of penguins


The Biodiversity Law Centre, which represents BirdLife South Africa and the Southern African Foundation for the Conservation of Shorebirds (SANCCOB), this week brought a boundary-pushing lawsuit over the protection of the endangered spectacled penguin (Spheniscus demersus) started in the Pretoria High Court.

The application against Forestry, Fisheries and Environment Minister Barbara Creecy calls for the minister’s decision to ban fishing operations near key spectacled penguin colonies – rather than at “biologically sensible” areas – to be reviewed and set aside.

Kate Handley, director of the Biodiversity Law Centre, says this is the first case of its kind in South Africa that calls on a minister to fulfill her constitutional obligation – to prevent the extinction of an endangered species.

“This follows her failure for at least six years to implement biologically meaningful closures around breeding areas of the spectacled penguin. This is despite scientific evidence that these closures will improve the species’ access to their much-needed sardine and anchovy food source and thus contribute to halting the population decline of the spectacled penguin.”

Handley says that at the current rate of population decline, the spectacled penguins face total extinction.

“If more is not done to protect the species, the spectacled penguin could become extinct in the wild by 2035. The crisis is mainly caused by their lack of access to prey, for which they have to compete with commercial fisheries.

“The minister has a statutory and constitutional obligation to ensure that the necessary measures are taken to prevent the extinction of this species. The failure to meet these obligations to spectacled penguins, South Africans, the international community and future generations is the reason for our lawsuit,” says Handley.

She believes that for more than six years the minister has placed her preference “for a consensus-driven solution” over her obligation to ensure the survival of the endangered spectacled penguin. This has caused this species’ population to drop by approximately 8% annually.

Dr. Alistair McInnes, program manager of seabird conservation at BirdLife SA, says the spectacled penguin’s survival now depends on the court decision.

“Spectacled penguins need access to food at their breeding colonies. We are trying to force the minister through decisions that are based on science and internationally recognized and constitutional precautionary principles.”

The core of the applicants’ application is the minister’s failure to introduce biologically significant closures around spectacled penguins’ breeding colonies.

“Instead, in August last year she continued the inadequate ‘interim closures’ around breeding colonies at Dassen Island, Robben Island, Stony Point, Dyer Island, St. Croix Island and Bird Island announced.”

These closures were introduced for the first time in September 2022 and according to an international panel of experts, who have been collecting and studying the science of this as part of a so-called Island Closure Experiment (ICE) since 2008, are insufficient.

“The panel recommended that the closure of sardine and anchovy fishing grounds to commercial small-scale fisheries around the six breeding colonies is an ‘appropriate and necessary intervention effort to conserve the species’.”

The panel also provided a method to determine the appropriate island demarcations that seek to optimize the benefits for spectacled penguins, while also minimizing the costs to the small-scale fishing industry.

Dr. Katta Ludynia, research manager at SANCCOB, says the minister was selective about which recommendations she followed.

“Inexplicably, she failed to follow the critical recommendation on how closures should be delineated. Instead, she decided to extend the meaningless interim closures.”

According to McInnes, this approach is irrational because, firstly, it is unclear why certain recommendations were followed, but not others.

“Secondly, the interim closures do not meet the purpose of closures, namely to reduce competition between spectacled penguins and the commercial fishing industry for sardines and anchovies.”

The applicants argue that the minister also acted unlawfully.

“The Constitution imposes an obligation to introduce urgent measures to prevent the threatened extinction of the spectacled penguin. This includes banning anchovy and sardine fishing activities around breeding colonies. Despite this clear obligation, the minister has continuously failed to implement such closures.”

The applicants are asking the court to ensure that a set of meaningful closures identified with the panel’s recommendations are introduced around all six islands.