And new environment minister George is under fire from both sides
- Former environment minister Barbara Creecy has been accused of not being "even-handed' in a dispute about African penguins.
- Bird conservation groups accuse Creecy of siding with the fishing industry in a wrangle over no-fishing zones near penguin breeding sites.
- Current environment minister Dr Dion George has defended Creecy, saying her decision was "in all respects, reasonable and rational".
- But George's proposal for out-of-court settlement talks without lawyers has been rejected by other parties and he has been accused of acting in a "highly irregular" manner.
Former environment minister Barbara Creecy has been accused by two bird conservation groups of bowing to the pelagic fishing industry and taking its side in a dispute over the closure of fishing areas around critical African Penguin breeding sites.
But Dion George, who succeeded Creecy in the new Government of National Unity in July, is continuing her opposition to the conservationists' litigation, and in court papers filed earlier this month has strongly defended Creecy's decisions.
However, George is looking to find a possible out-of-court settlement to the dispute. But his initial proposal for an informal meeting of all the parties without their lawyers being present has been rejected by both the conservationist applicants and by the pelagic fishing industry that is his fellow respondent in the case.
Also, the fishing industry's lawyers have castigated George for "highly irregular" consultation with the conservationists without the fishing industry.
BirdLife SA and SANCCOB (Southern African Foundation for the Conservation of Coastal Birds) are applicants in the litigation against Creecy - now George - as well as two senior officials in the Department of Forestry, Fisheries and the Environment (DFFE) and two organisations representing the small pelagics (sardines and anchovies) fishing industry: the SA Pelagic Fishing Industry Association (SAPFIA) and the Eastern Cape Pelagic Association.
The applicants are arguing that Creecy acted irrationally and unlawfully when she accepted the report of a panel of international experts, which she had appointed to break an impasse between conservationists and the fishing industry, but then failed to accept some of its crucial recommendations.
In his replying affidavit in the litigation which is due to be argued in the Pretoria High Court in October, Seabird Conservation Programme Manager at Birdlife SA, Dr Alistair McInnes states that Creecy provided no reasons for following certain of the panel recommendations but not others - "and certainly none explaining why the trade-off mechanism she had sought should not be applied".
This is the "crux" of the applicants' case: that Creecy "failed to make a decision which could survive scrutiny against the standards of rationality and lawfulness", he states.
The applicants' claim that Creecy sided with the fishing industry respondents is based on a letter she sent to the chairperson of the SA Pelagic Fishing Industry Association, Mike Copeland, on 24 January, in which she thanked him for accepting her proposal on continuing with the interim closed fishing areas while additional science was being undertaken.
The applicants argue that these existing interim closures are not biologically meaningful, and that simply maintaining them for the next decade will not stop the penguins' current population trajectory of extinction in the wild by 2035.
McInnes states in his affidavit that the contents of Creecy's letter are "particularly telling in respect of the minister's bowing to Industry".
"There are clearly conversations between Industry and the DFFE to which the applicants are not party, as no such proposal was made to the [penguin] conservation sector ... [The letter] clearly highlights the irrationality and unlawfulness of the minister's decision. It does not reveal that the minister understood the work of the panel or its recommendations at all. To the contrary, it reveals a number of significant errors in understanding the recommendations pertaining to closures."
George does not deal directly with this allegation in his answering affidavit that was filed late on 19 September, and for which he is seeking condonation.
However, he defends Creecy's decision-making vigorously, saying inter alia that she acted correctly in terms of her constitutional, statutory and international obligations.
"The Minister ... is politically and legislatively responsible for the administration, monitoring and oversight of both sectors often where competing rights and divergent interests play a role in decisions which must be made. There is no merit to the application ... The decision was properly authorised in terms of the relevant legislation.
"Minister Creecy's decision was reasonable given that it continued to provide for a reasonable beneficial conservation measure to slow the decline of the African Penguin, and at the same time balanced the rights of Industry ... The decision was procedurally fair, and substantively and procedurally rational."
"Highly irregular"
On 21 August, the State Attorney sent a letter on behalf of George to the other parties involved in the litigation, requesting a meeting "without legal representatives, to discuss the litigation and to try and find common ground with a view to settling the matter".
"The minister is strongly of the view that the litigation is capable of settlement and that it should settle, given the different interests and rights of the parties and stakeholders involved. Protracted litigation will not serve the interests of any of the parties given that it is not unlikely that the litigation could continue for a number of years at great cost," it states.
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Lawyers for BirdLife SA and SANCCOB replied that their clients were amenable to talks but that no concrete proposal had been mooted for discussion.
"Accordingly, it would be helpful to receive clarity, in advance of the proposed meeting, regarding what the minister proposes to discuss. Furthermore, our clients' instructions are that they would be more comfortable meeting in the presence of their legal team."
In their response, lawyers for the fishing industry also pointed out that no settlement proposal had been put forward for consideration by their clients, and that the meeting would be "problematic" without lawyers being present, "as proper consideration of any proposals will require legal advice".
Their letter noted that George had met BirdLife SA and SANCCOB representatives and had also exchanged WhatsApp messages with them.
"As we have pointed out before, this interaction with the minister and his office is highly irregular without the involvement and participation of the industry respondents."
Responding to questions by GroundUp, DFFE spokesperson Peter Mbelengwa confirmed that no settlement agreement had been reached between the parties, but George remained committed to finding an out-of-court solution.
"[The Minister] therefore has requested to meet with all parties and their legal representatives to discuss a collaborative way forward without the matter proceeding before court."
