Court raps minister over whale-watching decree
● Environmental affairs minister Nomvula Mokonyane has been called out for “irrational and procedurally unfair” behaviour by the Western Cape high court after revoking the whale-watching permit of a Plettenberg Bay tourism business.
Ocean Blue Adventures (OBA), co-owned by businessman and philanthropist Tony Lubner, took the minister to court after its temporary licence was revoked in March last year, and awarded to a company that, allegedly, failed to meet all of the policy’s requirement criteria.
Lubner told the Sunday Times that when the licence was revoked more than 4,000 people were directly affected.
In April, the court ruled against the minister, with costs, saying her decision was irrational and reversed the decision.
According to judge Lee Bozalek’s lengthy ruling, OBA has been in business in Plettenberg Bay since 1998, had invested at least R15m in assets and “just ordered a new 60seater vessel worth more than R5.8m”.
In November 2017, the department awarded the company a permit for standing boat-based whale and dolphin watching (BBWW), and advised the company that it satisfied BBWW policy requirements.
However, in March last year the minister revoked the permit, as the company no longer satisfied policy requirements.
The permit was awarded to Versatex Trading.
During ensuing court proceedings, it was revealed that though OBA earned a score of 80.2%, the other company — even though it had yet to fully comply with all of the BBWW criteria — scored 91.4%.
This, the minister admitted, was because the company was more likely to “transform” the industry.
“The minister … removed a provisionally granted permit from an established permit holder with a sizable investment in that venture and awarded it to a new entrant on the basis of her subjective view of which applicant better advanced transformation in the industry, transformation being a criterion which had already been empirically scored in the assessment and scoring process,” Bozalek ruled.
“In my view, the minister misunderstood the requirements of law and thus made a material mistake in understanding the requirements for evaluating new entrants as against existing permit holders. She was furthermore swayed by irrelevant information and her decision was arbitrary.”
Environmental affairs spokespeople had not responded to Sunday Times questions at the time of publication.