African penguins at Boulders Beach in Simon's Town. File photo
A three-day hearing on the urgent application to prevent the extinction of African penguins is due to take place in the Gauteng High Court in Pretoria in late October.
This follows the intervention of the Deputy Chief Justice, who was asked by the applicant to place the case under case management, citing the urgency of the matter and the slow response of the government through the State Prosecutor.
Also in October, the African penguin's current conservation status of “Endangered” is expected to be raised to “Critically Endangered” at a meeting of the IUCN (World Conservation Union), following a recommendation to the IUCN by BirdLife South Africa.
The population of the continent's only penguin species is in steep decline, already down about 97% from historic levels, and without proper intervention, the seabirds could become extinct in the wild as soon as 2035.
In March, BirdLife SA and the South African Coastal Bird Conservation Foundation (SANCOB) launched legal action against Barbara Creasey, the then minister of forestry, fisheries and environment.
Other respondents were two deputy directors-general of the department (DFFE), the South African Distant Sea Fisheries Association and the Eastern Cape Distant Sea Fisheries Association.
Their main argument is the urgent need to reduce damage to the ability of African penguins to catch their main food source, small pelagic fish such as sardines and anchovies, by reducing competition from commercial purse seine fisheries that target these species, particularly around six major African penguin breeding colonies on coastal islands.
Sancob and BirdLife SA are challenging Creasey's decision in August 2023 to confirm a ban on commercial fishing of anchovies and sardines within previously designated “temporary closure” areas around these six breeding colonies for at least the next 10 years.
While conservation groups are strongly in favor of closing the fishery to help protect penguins, they strongly disagree with the way Creasy has decided to implement this particular measure.
An affidavit from BirdLife SA's seabird conservation manager, Dr Alistair McInnes, described the minister's decision as “arbitrary” and “biologically nonsensical”. He noted that the decision went against the recommendations of an international expert panel appointed by Mr Creasey two years ago to consider all the scientific research on the issue and make recommendations on how to break the impasse between bird conservationists and the fishing industry.
After filing their initial affidavits in March, the applicants fought to obtain a complete record of Creasy's decision-making process to which they were entitled under the Uniform Rules of Court.
The respondent provided “what appeared to be records” on April 25, but this was deemed “insufficient.”
Subsequently, following a case management conference on June 6th and instructions from the Associate Chief Judge on June 10th, a full record was prepared by DFFE on June 14th.
The applicant was then able to file a supplemental founding affidavit by McInnes last week.
In his affidavit, McInnes said the decision-making record confirmed that Creasy accepted the committee's conclusion that closure of the island was an appropriate conservation measure, but she then “completely ignored” the trade-off mechanisms recommended by the committee.
“In other words, the Minister accepted the premises but ignored the conclusions, which ignores the very purpose for which the Commission was appointed. The record therefore shows that the Minister had no qualms about how the trade-offs were engineered; she simply subordinated it to her own and DFFE's deeply rooted preferences for appeasing consensus and industry interests over protecting the survival and well-being of African penguins.”
Mr McInnes added that there was no record of any internal deliberations by the Minister or DFFE officials regarding the committee's report and recommendations.
“It is clear from documents on record that the Minister was fully aware of the impasse between the conservation department and industry over the closure.
“Accordingly, when the Minister signed the authorization on 23 July 2023, neither the Minister nor her Department had conducted a thorough and rigorous analysis sufficient to reach a rational and lawful decision…
“I therefore confirm the grounds for review I set out in my founding affidavit [irrationality, unlawfulness and unconstitutionality].”
DFFE respondents have until July 26 to submit their affidavits, while fishing industry respondents have until August 5.
Mr Creecy has since handed over the role of DFFE Minister to DNP candidate Dr Dion George under the new National Unity Government. Mr George had not responded to a request for comment at the time of publication.
This article was first published on GroundUp.
