Talks on penguin litigation fail to break deadlock

African Penguins at Boulders Beach in Cape Town. Archive photo: Ihsaan Haffejee / GroundUp

• Environmental groups are litigating against the government and a fishing industry group because of concerns over the survival of the African Penguin.
• The legal dispute concerns the closure of fishing areas around critical African Penguin breeding sites.
• Talks held last Tuesday failed to produce a breakthrough.
• For now, the high court case is still on the roll, although delayed to March 2025.
• Minister Dion George said the dysfunctional State Attorney’s office is partly responsible for his department’s delayed response in filing its answering court papers.

An informal meeting called by environment minister Dion George last week to discuss a possible out-of-court settlement of litigation by conservationists to protect African Penguins failed to produce an agreement.

For now, the case that had been scheduled to start in the Pretoria High Court on Tuesday is still pending and postponed to March next year.

George blames the two conservation groups that have instigated the litigation for the failure of the informal settlement talks, citing their insistence on having their lawyers present.

But the groups – BirdLife SA and SA National Foundation for the Conservation of Coastal Birds (Sanccob), the two applicants in the case – say they are still open to “reasonable” settlement offers.

It was at a media briefing on 15 October to discuss his first 100 days in office, that George revealed off-the-record talks on a possible out-of-court settlement were to be held later that day.

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The Department of Forestry, Fisheries and the Environment (DFFE) spokesperson Peter Mbelengwa subsequently confirmed that the meeting had taken place and George had met the parties – the two conservation groups, and the South African Small Pelagic Fishing Association which is one of George’s co-respondents in the case.

Mbelengwa said George had informed the parties of his intention to establish a scientific working group to conclude without delay all outstanding issues identified by the International Panel of Experts. The Panel was appointed in 2022 by his predecessor, Barbara Creecy, to break the deadlock between bird conservation groups and the small pelagics fishing industry over access to sardine and anchovy stocks – the main food source for penguins but also targeted by fishermen.

In its August 2023 report, the Panel recommended the appointment of a local scientific working group to resolve all outstanding differences on the science involved in determining “trade-off” closed fishing zones that will most benefit penguins biologically, while minimising the cost of exclusion to the pelagic fishing industry.

But until now, DFFE has not taken any steps to set up the working group.

“Only through the commitment of both parties, will a settlement of the litigation be reached, and therefore the parties were requested to form part of the working group. The Terms of Reference are being drafted for that working group,” Mbelengwa said.

“We remain confident that a settlement is possible before the matter reaches the court. The working group needs to complete the work that was intended to be completed.”

Kate Handley, executive director of the Biodiversity Law Centre that is representing the two conservation groups, would only confirm that the parties had met on a “without prejudice” basis last week. “For this reason, we are not at liberty to comment further,” she said. “Our clients remain committed to ensuring that African Penguins have the best chance of survival as a species and remain open to reasonable settlement of the matter which achieves this end.”

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Late filing of papers

Responding to questions from GroundUp about the 15 October informal meeting, Mbelengwa said DFFE had always been of the view that allowing the litigation to proceed before court was not sensible and that the parties should work together to find a solution.

“It was for this reason that Minister Dion George reached out to BirdLife South Africa, Sanccob and the SA Small Pelagic Fishing Association and offered to meet and discuss a collaborative way forward.

“Only the SA Small Pelagic Fishing Association agreed to meet with the minister without their legal representatives, which they did.

“The minister subsequently made an attempt to set up a meeting with all parties and their legal representatives in order to discuss a solution. Only the SA Small Pelagic Fishing Association was available to meet on the suggested date.

“At that point in time, it became clear that the matter may well proceed to court. The department therefore proceeded to file an Answering Affidavit.

“The delay is entirely the result of unwillingness to meet without lawyers and then delays in meeting with the lawyers as proposed by the minister.”

Handley said a new hearing date had been required because of the late filing of the state parties’ answering affidavit.

Deputy Judge President of the Gauteng High Court Aubrey Ledwaba had now directed that the case be heard from 18 to 20 March 2025.

“Litigation remains ongoing, has not been suspended, and the applicants remain open to reasonable settlement offers,” Handley added.

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Dysfunction in State Attorney’s office

George and DFFE have applied for condonation of the late filing of their answering affidavits in the case, blaming the huge volume of court papers and dysfunction in the State Attorney’s office.

The initial application consists of close to 1,000 pages and the Rule 53 [Uniform Rules of Court] supplementary record of documents produced by DFFE in response to the application comprises 4,449 pages in 13 lever arch files.

In his request for condonation of late filing, George pointed out that DFFE, like all government departments, was required to appoint its legal team through the office of the State Attorney and was also subject to the State Attorney’s briefing policy relating to the appointment of counsel.

“I am informed ... that the State Attorney’s briefing policy is extremely cumbersome ... [and that] the papers in the matter are voluminous,” he states.

“The papers were sent to counsel electronically. The State Attorney has had difficulty with their email and online system which is regularly offline which means that they are not able to send emails and scan documents. This disruption ... impacts the service delivery of the State Attorney, and thus the state.

“It was not possible to meet this [original] deadline [for submission of answering papers] given the amount of work that was required to prepare the DFFE’s case and its answering papers. This was a mammoth task.”

This article was originally published on GroundUp.

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