Penguin Conservation Litigation Stalls Amidst Governmental Delays and Legal Standoff

In the ongoing bid to protect African Penguins in South Africa, the latest round of talks aimed at reaching an out-of-court settlement has failed to resolve the deadlock. The informal meeting, orchestrated by Environment Minister Dion George, did not yield the anticipated agreement, leaving the litigation pendulum hanging until a new court date set for March 2025.

The intended settlement was between two prominent conservation groups, BirdLife SA and SANCCOB, and the South African Small Pelagic Fishing Association, joined by Minister George's department as co-respondents. At issue is the preservation of sardine and anchovy stocks, essential for the penguins' survival but heavily fished by the industry.

Despite the minister's revelation on October 15 of potential settlement talks, the subsequent meeting evidenced a chasm between the parties. George pointed to the conservation groups' insistence on lawyer presence as a key stumbling block for progress. In contrast, BirdLife SA and SANCCOB stressed their openness to fair offers that would secure the penguin species' future.

The Department of Forestry, Fisheries and the Environment (DFFE), speaking through Peter Mbelengwa, affirmed its non-preference for litigation and its commitment to initiate a scientific working group. This step follows recommendations from the 2022 International Panel of Experts, who underscored the need for a scientific approach to resolve the impasse. However, to date, DFFE has not actioned the setting up of this vital working group.

The department's delays in legal proceedings, including the late filing of an answering affidavit, drew scrutiny. Minister George acknowledged the dysfunction within the State Attorney's office as a significant cause, emphasizing technical issues and a cumbersome briefing policy that hampered timely submissions.

As the case moves toward the Pretoria High Court with a new hearing window from March 18 to 20, 2025, both the plaintiffs and George's department seek to shore up their legal strategies. The conservation groups, represented by the Biodiversity Law Centre, asserted ongoing openness to reasonable settlements while reminding that litigation is active and has not been suspended.

While the department has solicited leniency for delay, asserting the enormity of the paperwork involved, it underscores a sense of readiness and confidence in reaching an accommodation before the court day. On the one hand, the scientific working group George proposes could bridge the divide, but on the other, continuous postponements raise concern over the urgency required to halt the decline of the African Penguin population.