African penguins, including the Simon’s Town colony, face extinction by 2035 without swift action to save them, say conservation groups taking the state to court to protect the birds’ feeding grounds.

There has been a 97% decline in the African penguin population over the past 100 years, and there are estimated to be fewer than 10 000 breeding pairs left, say BirdLife South Africa and the Southern African Foundation for the Conservation of Coastal Birds (Sanccob).

According to Sanccob, the crisis is driven primarily by a lack of access to prey, as the penguins compete with the commercial purse-seine, boats which continue to catch sardine and anchovy in the waters surrounding the six largest African penguin breeding colonies that are home to an estimated 90% of South Africa’s African penguins.

However, the Simon’s Town colony is safe for now. Sanccob’s research manager, Dr Katta Ludynia, said False Bay had been fully closed to commercial industrial fisheries for small pelagics since the 1980s, so there was no direct competition with fisheries in the bay.

She said tracking by Birdlife South Africa and SANParks showed that the penguins breeding in Simon’s Town foraged exclusively inside False Bay - at least during the breeding season.

However, she said, there were other terrestrial and marine threats for birds in Simon’s Town.

She said the Simon’s Town colony was one of the few that had stayed relatively stable over the last few years, although there was a slow decline in numbers, adding that the stability could most likely be attributed to the good food availability inside False Bay, as well as to the extensive management of the colony by SANParks and City of Cape Town with assistance from Sanccob.

Dr Ludynia said the Simon’s Town colony played a crucial role in the survival of the species as fledglings from one colony might start breeding in a different colony to bolster other colonies. Simon’s Town and False Bay could be used as a control to study penguin foraging behaviour without the pressure of competition from commercial fisheries for small pelagics, and, thanks to the extensive management, the rescue of large numbers of eggs and chicks and the successful hand-rearing of those, the overall population could be bolstered by releasing hand-reared chicks that would otherwise not have survived in the wild.

To save the species, BirdLife South Africa and Sanccob initiated litigation against the office of Forestry, Fisheries, and the Environment (DFFE) Minister Barbara Creecy, and others.

Represented by the Biodiversity Law Centre in the Pretoria High Court, they want Ms Creecy to review and set aside what they claim are ineffective closures to fishing around six key African penguin breeding colonies - Dassen Island, Robben Island, Stony Point, Dyer Island, St Croix Island, and Bird Island - and instead implement “biologically meaningful” closures for areas that the penguins actually feed in with immediate effect.

In August last year, Ms Creecy announced the closures would be implemented for 10 years with a review after six years and data collection.

Birdlife South Africa and Sanccobb argue that the current closures are not extensive enough or in the right locations to protect the penguin population fully, and the penguins will be virtually extinct by 2033 when the closures are up for review.

According to an August 2023 statement by the DFFE, some areas around the major penguin colonies were initially closed to commercial fishing for anchovy and sardine fishing in September 2022 while an expert review panel, appointed by Ms Creecy, could assess the appropriateness and value of fishing limitations for the benefit of the penguins.

However, despite the recommendation made by the panel that the closure of sardine and anchovy fishing grounds to commercial small pelagic fisheries around the six main breeding colonies was an appropriate and necessary conservation intervention with demonstrable benefits to African penguin populations, Ms Creecy declared current interim fishing limitations would continue until the end of 2033.

The executive director of the Biodiversity Law Centre, Kate Handley, said the application was being brought against Ms Creecy, the deputy director-general of fisheries management in the DFFE, the deputy director-general of oceans and coasts in the DFFE, the South African Pelagic Fishing Industry Association and the Eastern Cape Pelagic Association. It was the first litigation in South Africa invoking the minister’s constitutional obligation to prevent the extinction of an endangered species, she said.

She said a trial date had been set for October.

DFFE spokesperson Peter Mbelengwa said he could not comment as the case was ongoing.

The South African Pelagic Fishing Industry Association chairman Mike Copeland confirmed that the association was the fourth respondent in this court action.