Settlement secures biologically meaningful foraging areas for African Penguins for next decade to help bring the species back from the brink of extinction.
18 March 2025 – BirdLife South Africa and SANCCOB today secured a historic victory for South Africa’s Critically Endangered African Penguin when the Pretoria High Court 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 fishers (subsequently endorsed by the State). The order provides for the delineations of no-take zones for the commercial sardine and anchovy fishery around six key African Penguin breeding colonies that lie within coastal areas where this commercial fishery operates. The six closures work together to secure biologically meaningful foraging areas for African Penguins to help bring the species back from the brink of extinction.
10 year period
The order provides that the Department of Forestry, Fisheries and the Environment (DFFE) 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). These permit conditions are set to be renewed by the DFFE each January for the next 10 years. The 10-year period takes closures to the critical year, 2035, when the iconic African Penguin is predicted by scientists to be extinct in the wild – just a generation of penguins away.
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 just an estimated 8,750 at the end of 2023, BirdLife South Africa and SANCCOB took the decision to resort to the courts in March 2024. Represented by the Biodiversity Law Centre, the environmental NGOs sought to hold the Minister accountable to the constitutional and statutory obligations to mitigate the threat posed by sardine and anchovy fishing to the world’s African Penguin population – most of which remains in South Africa. While determined to litigate, the conservation organisations have consistently maintained that a settlement which benefits African Penguins by securing important foraging areas would be considered. Negotiations with the representatives of the sardine and anchovy commercial fisheries resulted in settlement, agreed to by the State, the night before the three-day hearing was about to start on 18 March 2025.
Today the agreement reached has been made an order of court. The order makes it clear that the Minister’s decision, announced on 4 August 2023, is reviewed and set aside. In addition, the order clearly 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 (i.e. including during the full fishing season). This is in line with the recommendations of the Expert Panel, which was convened by the Minister in October 2022 to advise on closures. The court order endorses a 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.
Island and coastal closures
Along the west coast, the large existing closure around Dassen Island (first implemented as a temporary measure in September 2022) will be retained without extension to an area to the north. The northern extension was sought in the court papers as it has been shown to be important to African Penguins through the tracking data which is how seabird scientists have identified where these birds prefer to forage. The closure agreed at Dassen Island accommodates the interests of commercial fisheries but has been counterbalanced, in this region, by an extended closure of a 20km radius around Robben Island. The 20km closure at Robben has been shown by cutting-edge scientific analysis to be capable of slowing population declines around this breeding colony: in fact, it shows that this closure in place until at least 2033 may in fact reverse the decline of this population.
In the Southern Cape, a hard-won victory at Stony Point has seen the majority of the preferred foraging range of this colony protected. This closure is vital given that the “split zone” closure at Dyer Island remains in place – allowing vessels that are under 26m in length to continue fishing in the areas which overlap with African Penguins preferred foraging range around this sensitive island. It is also critical as the Southern Cape is the most heavily fished area with both sardine and anchovy fisheries competing with African Penguins and other predators.
Finally, in the Eastern Cape, a 20km closure will surround Bird Island (where very little fishing occurs), while St Croix Island’s closure provides protection for this very vulnerable population under threat not only from competition with commercial fisheries but also from development pressure in the very sensitive Algoa Bay, including noise and oil pollution risks from ship-to-ship fuel transfer.
Kate Handley, Executive Director of the Biodiversity Law Centre, says: “We look to the DFFE and the Minister to ensure full implementation of this order and to follow-through on taking all necessary steps to protect the African Penguin. Doing so is not only important for the wellbeing and survival of this iconic species but is critical to ensure that our ocean ecosystem is protected for the benefit of future generations.” She added: “The imposition of scientifically-informed fishing closures, to limit commercial purse-seine anchovy and sardine fishing activities around key African Penguin breeding colonies is a long-overdue step towards securing their survival in the wild and bringing this species back from the brink of extinction.”
Dr Alistair McInnes, BirdLife South Africa’s Seabird Conservation Programme Manager, hailed the court order as an important milestone in the fight to protect African Penguins: “This case has been first and foremost about improving the chances of conserving Africa’s only penguin species, but the outcome of these 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.”
Nicky Stander, Head of Conservation at SANCCOB, says: “While we celebrate today’s success, we remain acutely aware that our journey is far from over. 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. We must continue to advocate on the basis of our scientific research, and implement effective conservation strategies to ensure that African Penguins will thrive in the future. Our work continues, and we count the continued support and engagement of the community to face the challenges ahead.”
Feature image by Paul Mannix
