African penguins (pictured above at Boulders Penguin Colony) are on the verge of extinction. Photo: John Yeld
The “extremely late” filing of an affidavit in response to a court challenge to the government's management of African penguins is “incalculable prejudice” against a seabird species that has just been classified as “endangered”. caused.
The delays are so severe that the court should show its displeasure by imposing costs on a punitive scale against the state defendants (the Minister of Forestry, Fisheries and Environment and two senior officials in that department).
This is alleged in BirdLife South Africa's reply affidavit, which it is jointly appealing with the South African Coastal Bird Conservation Foundation (SANCCOB) to the High Court in Pretoria.
The organizations have decided to only partially implement the recommendations of an international panel of experts appointed by Mr George's predecessor, Barbara Creasy, to break the impasse over competition between penguins and commercial fishers. challenges the rationality and legality of
Small pelagic fish (sardines and anchovies) are an important food source for rapidly declining penguin populations, but they are also targets of commercial purse seine fishing.
The debate centers on the commission's recommendations on where and how “no-take zones” should be established around penguin breeding grounds, mainly islands, to improve the penguins' chances of survival.
Mr George, his deputy director-general and two fishing organizations – the South African Pelagic Fisheries Association and the Eastern Cape Pelagic Fisheries Association – were due to go to trial in late October, but the case was postponed to March next year. He is the defendant in the lawsuit. year.
delay
The applicant's initial documents were served on March 20, 2024, but the legal process was delayed by the Department (DFFE), which failed to provide the applicant with complete records in a timely manner as required by the Uniform Rules of Court. It was delayed from the beginning.
Directives were then issued by Deputy Chief Judge (DJP) Aubrey Ledwaba on case management and procedural schedules, with a response affidavit by George and his staff to be submitted to the Registrar by July 26th. Participants were to submit their proposals by August 5th.
A reply affidavit by the applicant was due by August 23rd.
However, further delays led to a second case management conference on August 19, where the DJP agreed to a revised procedural schedule that would give the state more time.
A reply affidavit from Dr Alistair McInnes, BirdLife SA's Seabird Conservation Manager, then states that on 20 August, the applicants claimed that the Democratic Alliance (DA) posted on various social media platforms: He was surprised to see a post with the heading “A lifeline.” “Food Ground” (George has been appointed Attorney General).
On August 21, the State Attorney delivered a letter from George “without prejudice” to the applicants and fishing respondents, inviting them to a meeting to consider the possibility of an out-of-court settlement and proposing the creation of a working group. did. settle or discontinue litigation;
However, the parties were unable to find a mutually acceptable date and the talks did not take place.
McInnes said there was another surprise when the state filed its answering affidavit on Sept. 19. This was “well beyond” the three-week extension requested by DJP, and approximately six months after the filing began.
“Such conduct shows gross disregard for the rules of court and DJP's directives, and falls far below the standards expected of state litigants,” McInnes said in an affidavit.
The delay in filing necessitated a third case management conference on October 14, after which Judge Mngqibisa-Thusi issued a further amended directive regarding new procedural and trial dates.
Although the applicants did not oppose the state's request to excuse the delay in filing its response, McInnes said the state had not brought a valid case and the delay had “serious consequences.” .
“All parties to this matter are aware of the extremely dangerous situation facing African penguins.”Nevertheless, the state filed a responding affidavit months after being asked to do so. This is in the context that the very purpose behind this application is to urgently address the impending extinction of the African penguin.
“The State's actions in delaying the filing of its response and providing a hollow explanation for the delay are beyond reproach. “That flagrant disregard for the deadlines set by them merits an adverse costs order, if not a punitive one.”
This article was first published by ground up
