The Department of Forestry, Fisheries and the Environment faces a governance test it did not anticipate when, in March 2025, it hailed a court-brokered agreement as a “pivotal moment” for the African penguin. The question now before the department is whether it will honour the logic of its own conservation commitment when circumstances become inconvenient.
That agreement followed litigation brought by BirdLife South Africa and the Southern African Foundation for the Conservation of Coastal Birds (Sanccob). It established strengthened no-take zones for commercial sardine and anchovy fishing around six of the country’s most important African penguin breeding colonies: Dassen Island, Robben Island, Stony Point, Dyer Island, St Croix Island and Bird Island. The environment minister at the time, Dion George, welcomed the settlement. Permit conditions in the small pelagic fishery were amended with immediate effect, and the DFFE said the measures would secure more fish for penguins and demonstrate the government’s commitment to preventing the extinction of a species then classified as critically endangered.
That was the promise. A fishing exclusion zone, however, is useful only if there are sufficient fish left for the animals it is meant to protect. On that measure, the picture in 2026 is considerably less reassuring.
The sardine mortality event that began on the West Coast in late July, and subsequently extended along the southern Cape into the Eastern Cape and as far as the northern Wild Coast, produced disturbing signals in penguin monitoring data. At Dyer Island, Dr Alistair McInnes, BirdLife South Africa’s Seabird Conservation Programme manager, reported a “considerable decline” in the average weight of penguins crossing an automated weighbridge, persisting for roughly 10 to 12 days before some recovery. Stony Point also recorded falling average weights, with some individual birds showing significant declines, while Robben Island showed a shorter dip. McInnes emphasised that the data were preliminary and that other variables could be involved. But when a critically endangered predator whose decline is already strongly associated with food scarcity begins losing body mass at several colonies while a principal prey species suffers an unprecedented mortality event, the precautionary response should be to stop removing that prey, not to continue until somebody can prove catastrophe.
The stakes are clear from the population record. BirdLife South Africa notes that the country’s African penguin breeding population has almost halved in the past decade, to about 8,750 breeding pairs, with the global population below 20,000 mature individuals. Recent research has reconstructed how tens of thousands of penguins disappeared around the West Coast colonies during earlier periods when sardine availability collapsed. By April this year, international reporting was describing the species as starving because of depleted prey availability and continuing pressure on sardine stocks. Sanccob’s 2026 admission records include birds described as “emaciated”, “thin” or severely underweight from Cape Recife, Gqeberha, Simon’s Town, Sea Point and Betty’s Bay, and a penguin rescued at Port Edward arrived weighing just 1.5kg before rehabilitation raised her to 2.7kg.
Against this backdrop, the department’s regulatory response since late July has drawn scrutiny. Sardines began dying along a geographic range of about 2,600km, including Namibia, though mortality was not continuous throughout. Pilchard herpesvirus has been confirmed in mortality-associated sardines from the Western Cape, the Gqeberha area and the northern Wild Coast. The DFFE concedes that nobody yet knows how many sardines died: fish visible on beaches represent only part of the mortality, an unknown number sank or died offshore, and the government cannot yet reliably quantify what proportion of the stock has been lost. Scientists consequently called for commercial sardine fishing to be stopped until the extent of the mortality could be established.
The DFFE refused. Instead, on 11 September, it allowed each commercial right holder to catch up to 25% of its outstanding directed sardine quota until 2 October. Fishing therefore remained legal while the mortality event was still being investigated and before the post-event biomass of the stock was known. The department confirmed that at least 26 tonnes of sardine had been taken since the beginning of September, with additional fishing apparently constrained partly by weather rather than conservation measures.
The department’s justification is that available evidence did not indicate mortality had reduced sardine numbers sufficiently to warrant complete closure. But that reasoning, critics argue, turns the precautionary principle on its head. The government acknowledges the magnitude of mortality is uncertain, acknowledges that an unknown quantity of dead fish may have sunk, and acknowledges that the October/November hydroacoustic survey will provide the first fisheries-independent estimate of sardine biomass and distribution following the event. Yet fishing was allowed to continue before that information existed. The DFFE does not yet know how many sardines remain, but decided that enough remain to continue harvesting them. For a healthy predator population, that might be an ordinary fisheries-management gamble; for a species potentially approaching functional extinction, it may be catastrophic.
There is also a transparency problem. The temporary restriction expired on 2 October. The department said its Small Pelagic Scientific Working Group would meet on 29 September and that the subsequent management decision would be communicated, yet its latest statement on 4 October discusses the mortality investigation and forthcoming biomass survey without clearly explaining whether the restriction has been extended, replaced or allowed to lapse. For a species this close to extinction, that is not a minor administrative omission. It matters whether commercial fishing is taking place, where, how much sardine is being removed, and what monitoring the DFFE is conducting around each protected colony.
The court agreement settled the question of whether closures around the colonies were worthwhile. What remains unresolved is whether the government will follow through when doing so is difficult. The African penguin does not need another declaration of commitment. It needs sardines, and the DFFE must decide, while there are still penguins left to save, whose claim to those sardines comes first.