A settlement could be on the horizon in the African Penguin lawsuit launched by local conservation bodies against the Environment, Forestry and Fisheries minister for the minister’s failure to implement biologically meaningful fishery closures around key African Penguin breeding areas.
In March 2024, BirdLife South Africa (BLSA) and the Southern African Foundation for the Conservation of Coastal Birds (Sanccob), represented by the Biodiversity Law Centre (BLC), sought to review and set aside previous minister Barbara Creecy’s decision to implement biologically meaningless closures to fishing around key African penguin breeding colonies.
According to the applicants these closures failed to reduce competition with commercial purse-seine fishing, enabling them to infringe on African Penguin prey, and did not correspond with the Penguins’ core foraging areas.
Now new Environment, Forestry and Fisheries Minister Dion George has instructed department lawyers to settle the matter and secure the penguin’s fish diet with an out-of-court settlement.
This was shared by the DA as a social media announcement on Tuesday and in a statement on the DA’s website with headlines, “Lifeline for African Penguins as DA Minister protects feeding grounds” and “DA praises Minister Dr. Dion George’s action to protect endangered African Penguins.”
While the action is laudable, this has led to some public confusion with people mistakenly believing that the litigation has been settled.
The applicants and their legal representatives are still awaiting a favourable settlement proposal from the minister’s legal team and the litigation is still active.
The African Penguin faces extinction by 2035 and their extinction is driven primarily by a lack of access to prey, for which they must compete with the commercial purse-seine fishery for sardine and anchovy in the waters surrounding the six largest African Penguin breeding colonies.
A settlement on the horizon (hopefully)
The minister told Daily Maverick that he didn’t see the point of lawyers fighting each other in court while the penguins head to extinction – “That makes no sense.”
“I’ve instructed the department’s legal team to engage with their counterparts. I’m awaiting feedback as we speak. The objective, obviously, is to save the penguins from extinction. Nobody wants that, as I said at my first press conference.
“I have been very clear about what I want and that is a settlement that prevents extinction,” he said.
Kate Handley, executive director of the Biodiversity Law Centre (BLC), said they were encouraged by the DA’s statement insofar as it demonstrates commitment to African Penguin conservation.
However, Handley told Daily Maverick that the announcements were giving people following the case the wrong impression of what has happened and that they have not seen any sort of concrete action from the minister’s legal team yet.
“The statement confirms that the minister really does want to settle out of court, but so far, this is just an expression of intention,” she said.
Handley said that it was quite a surprising move for the team that the DA came out so strongly saying that the matter would be settled out of court.
“The crisp issue in this litigation is the island closure delineation. The panel — the scientific panel established to consider fishing closures around penguin breeding colonies, benefits to penguins and trade-offs for the fishing industry – made a number of recommendations, and one of them was a trade-off mechanism in which you can apply the trade-off to determine what these island closures should look like.”
“We haven’t received a settlement proposal that speaks to that narrow issue… There’s no talk of putting pen to paper. I feel that that’s extremely premature to say,” Handley said.
This case concerns a very narrow issue. SANCCOB and BirdLife South Africa are calling for trade-off mechanisms that should have been applied, and if it were applied by the previous minister, it would have punched out the delineations that were put on the applicants’ notice of motion.
“The only thing that would be acceptable is a settlement proposal that speaks to that narrow issue, and to date, we have not seen such a proposal,” Handley said.
“There is still a process that needs to be followed and engagements that need to happen. In a legal sense, this statement doesn’t affect the litigation at all but the public perception has obviously now shifted.”
Handley said they had received several messages of congratulation for settling the litigation.
“What’s incongruent for me is that there was an interview with Dion George where he is so adamant about the importance of separating party and state. And what has happened in the statement is a conflation of the two,” she said.
Penguin politics in the public realm
The litigation is ongoing, and in the circumstances, Handley said they awaited a favourable settlement proposal from the minister’s legal team. The litigation was entered into as a last resort given the previous minister’s failure to implement adequate island closures.
The DA statement, issued by MP and the DA spokesperson on Forestry, Fisheries and the Environment Andrew de Blocq, welcomed the decision by George to pursue an out-of-court settlement regarding the closure of areas surrounding African Penguin colonies to fishing.
A set of closure areas was put forward by the scientific panel set up by the previous minister, to consider fishing closures around penguin breeding colonies as well as both benefits to penguins and trade-offs for the fishing industry.
“Former Minister Creecy chose not to follow this recommendation, which resulted in the legal case being brought against the Minister’s Office. This decision will now be corrected by Minister George,” De Bloq said.
George believes the DA’s press release is accurate and timely, “It does not give the wrong impression.”
“There’s no reason why the two sides shouldn’t find each other, but of course, the discussions must proceed between the legal teams and the final action will be implemented once all parties have signed,” De Bloq said.
De Bloq said the DA had not put out anything that indicated that a settlement had already been reached, merely that the two sides were pushing for the same positive outcome.
“Of course, we don’t expect the BLC to accept a settlement that is unreasonable or fails to conserve penguins – but I’m confident that won’t be the case,” De Bloq told Daily Maverick.
De Bloq said that the minister had indicated his willingness to come to a settlement agreement with the two entities bringing the case, BirdLife South Africa and SANCCOB, and that it was now up to those entities and their lawyers to respond.
“The minister has not expressly said that he will be implementing the closures as yet, but I think that that or something very close to it would be implied in the intention to settle and can be confidently assumed. I do not think the applicants would settle for much less, but that’s just my opinion and I can’t speak for them,” De Bloq said.
De Bloq has an added interest and also professional background relevant to this case, having worked for BirdLife South Africa on African Penguins from 2018-2020 and was still with the organisation until his election as a Member of Parliament this year.
“I am very obviously pleased with the outcome that he has put on the table. This is a huge win, in my opinion, for the environment,” he said. DM
