Conservation groups BirdLife South Africa and the Southern African Foundation for the Conservation of Coastal Birds (SANCCOB), represented by the Biodiversity Law Centre, have escalated their legal efforts to protect African penguins.

On November 29, the organisations filed a further replying affidavit in response to the South African government’s delayed defence in a critical case regarding fishing closures around penguin breeding sites.

The litigation, initiated in March 2024, challenges the minister of forestry, fisheries and the environment’s August 2023 decision to implement interim fishing closures near key African penguin colonies.

These closures are meant to balance the interests of the fishing industry and conservation but have been criticised for failing to adhere to precautionary principles and the best available science.

State representatives, including the minister and two deputy director-generals, submitted their answering affidavit nearly a month late on September 19, 2024.

This delay forced the case, originally scheduled for October 2024, to be postponed to March 18 to 20, 2025, at the High Court in Pretoria.

Central to the dispute is the State’s reliance on a trade-off mechanism proposed by an International Review Panel to address disagreements between fisheries and seabird scientists over the optimal design of fishing closures.

The applicants argue that the minister’s decision was irrational and unlawful, as it neglected the precautionary principle and failed to act decisively on existing scientific evidence about the African penguin's dire plight.

The urgency of the matter was underscored on October 28, when the International Union for Conservation of Nature (IUCN) uplisted the African penguin to Critically Endangered.

The population continues to decline rapidly due to food shortages caused by commercial fishing of small pelagic fish, the penguin’s primary food source.

“Immediate action to safeguard the African penguin’s food supply is critical,” the applicants asserted.

They also pointed to delays caused by the State’s late filings as a significant impediment to timely conservation measures.

Despite the State’s defence of its interim closures as a temporary measure, the applicants contend that such delays are incompatible with the urgency required to prevent the extinction of one of South Africa’s most iconic species.

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Court battle over African penguin survival delayed by State’s late response