African penguins, endemic to Southern Africa, are one of the most threatened seabird species globally and they face the risk of extinction in the wild by 2035. Populations have shrunk by 90% in the past 70 years, dwindling to about 8 500 breeding pairs today.
All eyes are on Forestry, Fisheries and Environment Minister Dion George and his department over how they will administer the implementation of no-fishing zones around six key African penguin breeding colonies.
On Tuesday, BirdLife South Africa and the Southern African Foundation for the Conservation of Coastal Birds (Sanccob) secured a victory for the critically endangered seabirds when the high court in Pretoria 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 (net) fishers. It was subsequently endorsed by the state.
The order provides for the delineations of no-take zones around the African penguin breeding colonies that are in coastal areas where this commercial fishery operates. The six main colonies are Dassen Island, Robben Island, Stony Point, Dyer Island, St Croix Island and Bird Island.
“The six closures work together to secure biologically meaningful foraging areas for the charismatic seabirds in each of the West Coast, Southern Cape and Algoa Bay regions to help bring the species back from the brink of extinction,” the conservation groups said.
The order provides that the department 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 fish.
These permit conditions are to be renewed by the department every January for the next decade. “The 10-year period takes closures to the critical year, 2035, when the iconic seabird is predicted by scientists to be extinct in the wild — just a generation of penguins away,” the NGOs said.
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 an estimated 8 750 at the end of 2023, BirdLife South Africa and Sanccob said they took the difficult decision to resort to the courts in March last year.
The environmental NGOs, represented by the nonprofit Biodiversity Law Centre, had approached the court in March last year to review and set aside a decision taken by former environment minister Barbara Creecy in August 2023 to put in place interim closures around the seabirds’ six largest breeding colonies.
Their case rested on the irrationality and unlawfulness of the minister’s decision to put in place island closures that were not biologically meaningful.
The court order makes it clear that Creecy’s decision, announced on 4 August 2023, is reviewed and set aside. In addition, the order 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, including during the full fishing season. This is in line with the recommendations of the expert panel, which was convened by Creecy in October 2022 to advise on the 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 the age of four to six and duration of a generation, which is 10 years.
It also recommended that the closures be 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,” the groups said.
The threats facing the African penguin are complex and ongoing, and the order itself requires monitoring, enforcement and continued cooperation from industry and the government processes, which monitor and allocate sardine and anchovy populations for commercial purposes, said Nicky Stander, the head of conservation at Sanccob.
“For us, as conservationists, we want to know the details; how does his [George’s] department plan to implement the closures? Number one will be amending the permit conditions so that has to be done within the next two weeks, but who will monitor them and more importantly what is the monitoring and the evaluation plan to make sure that the penguins are benefiting from these closures?
“It’s all fine and well to put these closures in place but after a six-year … data collection and review, we should be able to have enough data to establish whether the closures are effective and whether they are reducing the competition between the commercial purse seine fishing industry with penguins. For us, that is extremely important because if they’re still not good enough, then that’s a motivation to extend them.”
The no-take fishing zones are not a silver bullet. “It’s not like the penguins will now have fish and they will be saved … In all fairness to the fishing industry, we have always said that there are many pressures facing African penguins but we’ve also said that food availability is the most pressing issue and we did not feel like the government was doing enough to mitigate that.”
This is what led them to litigate. “For NGOs to litigate, it’s really a last resort and a desperate plea to say that we are now at this juncture where we have to take drastic action,” Stander said.
In a joint statement, the South African Pelagic Fishing Industry Association and the Eastern and Southern Cape Pelagic Association, welcomed the settlement order.
“It is hoped this will end the intense dialogue that has raged since 2008 about the closures in relation to the extremely concerning decline in the African penguin population.”
This pragmatic decision by the fishing industry was based on considerations that balance increases in closed areas against adverse socio-economic effects, they said. “A middle of the road compromise position was agreed to in which the extent of closures are about halfway between the interim closures that are currently in place and the area closures that the applicants were seeking in their court action.”
The perception that the fishing industry, or that fishing near to breeding sites, is the primary cause of the decline in the penguin population is a false one, the organisations said. The international review panel concluded that “excluding fishing around island breeding colonies is likely to reduce the rate of decline in the population to a small extent” but that “such closures alone would be unlikely to reverse the current decline in penguin population numbers”.
In addition, the fishing levels of small pelagic fish in the country are well managed and are “light by international standards”.
“We are especially pleased that this settlement will now allow scarce resources to be used constructively to scientifically determine the principal factors causing the decline in the penguin population and to ameliorate those where possible.”
Alistair McInnes, the seabird conservation programme manager at BirdLife South Africa, said the closures will also benefit other marine predator species, such as Cape gannets, Cape cormorants and other socio-economically important fish that also eat sardine and anchovy, as well as the livelihoods of many who derive benefits from marine ecosystems that are equitable and judiciously managed.
Craig Smith, a senior marine specialist with WWF South Africa, which was not involved in the litigation, said it was relieved that opposing parties could find each other in agreeing to more effective closures of pelagic fishing around breeding colonies to protect the foraging grounds of the African penguin.
George praised the court order as a “triumph for conservation and sustainable development”, while his department said it is committed to overseeing the effective implementation of these closures and will collaborate with stakeholders to monitor their impact on penguin populations.
