BirdLife South Africa and SANCCOB today secured a historic victory for South Africa’s Critically Endangered African Penguin when the Pretoria High Court issued an order of court after a hard-won settlement agreement was reached by the two conservation NGOs with commercial sardine and anchovy purse-seine fishers (subsequently endorsed by the State). The order provides for the delineations of no-take zones for the commercial sardine and anchovy fishery around six key African Penguin breeding colonies that lie within coastal areas where this commercial fishery operates. The six closures work together to secure biologically meaningful foraging areas for African Penguins in each of the west coast, southern Cape and Algoa Bay regions to help bring the species back from the brink of extinction. This settlement follows several weeks of exceptionally hard work and negotiations between the conservation NGOs and the commercial sardine and anchovy fishing industry.
The order provides that the Department of Forestry, Fisheries and the Environment (DFFE) will have two weeks to ensure that these closures are implemented by amending the permit conditions applicable to commercial sardine and anchovy fishers (also covering redeye). These permit conditions are set to be renewed by the DFFE each January for the next 10 years. The 10-year period takes closures to the critical year, 2035, when the iconic African Penguin is predicted by scientists to be extinct in the wild – just a generation of penguins away.
After a difficult six years of battling disagreement from fisheries scientists as penguin numbers dwindled from 2018’s count of 15,187 breeding pairs to just an estimated 8,750 at the end of 2023, BirdLife South Africa and SANCCOB took the difficult decision to resort to the courts in March 2024. Represented by the Biodiversity Law Centre, the environmental NGOs sought to hold the Minister accountable to the constitutional and statutory obligations to mitigate the threat posed by sardine and anchovy fishing to the world’s African Penguin population – most of which remains in South Africa. While determined to litigate, the conservation organisations have consistently maintained that a settlement which benefits African Penguins by securing important foraging areas would be considered. Negotiations with the representatives of the sardine and anchovy commercial fisheries resulted in settlement, agreed to by the State, the night before the three-day hearing was about to start on 18 March 2025.
Today the agreement reached has been made an order of court. The court order makes it clear that the Minister’s decision, announced on 4 August 2023, is reviewed and set aside. In addition, the order clearly sets out the maps and coordinates for the closures which will be in place from the date of the court order for a period of 10 years (subject to a scientific review after six years). It also confirms that these closures will be in place year-round (i.e. including during the full fishing season). This is in line with the recommendations of the Expert Panel, which was convened by the Minister in October 2022 to advise on closures. The Expert Panel clearly indicated that any closures put in place should be capable of being monitored and evaluated and also that it was necessary for closure duration to take into account African Penguin life histories – including the period when they first breed at 4-6 years old and duration of a generation (10 years). The Expert Panel also recommended that closures are implemented so that penguin populations across each of the west coast, Southern Cape and Eastern Cape regions are represented. The court order endorses this risk-averse approach which caters for unexpected shocks such as oil spills, predation by seals and other predators, as well as extreme weather events – all of which compound the underlying threat of lack of prey and the low breeding numbers and risk of malnutrition which it causes.
Along the west coast, the large existing closure around Dassen Island (first implemented as a temporary measure in September 2022) will be retained without extension to an area to the north. The northern extension was sought in the court papers as it has been shown to be important to African Penguins through the tracking data which is how seabird scientists have identified where these birds prefer to forage. The closure agreed at Dassen Island accommodates the interests of commercial fisheries but has been counterbalanced, in this region, by an extended closure of a 20km radius around Robben Island. The 20km closure at Robben has been shown by cutting-edge scientific analysis to be capable of slowing population declines around this breeding colony: in fact, it shows that this closure in place until at least 2033 may in fact reverse the decline of this population.
