Enviro affairs wastes millions on bungled permits

Former environmental affairs minister Nomvula Mokonyane and her predecessor, Edna Molewa, racked up at least six adverse court rulings relating to ecotourism licences within 18 months – costing SA taxpayers an estimated minimum R3m in legal fees.

Molewa was minister from 2010 until her death in August 2018, following which Mokonyane took over. President Cyril Ramaphosa this week announced that Barbara Creecy would be the new minister of environment, forestry and fisheries.

Mokonyane is not in Ramaphosa's new cabinet.

The series of court decisions against the department caused the Western Cape High Court to question the capabilities of those making decisions over the granting of certain ecotourism licences.

Since December 2017, at least six rulings have been made against the department by the court. In the most recent matter, despite the ministerial team having argued a number of similar cases, Judge Lee Bozalek said Mokonyane had fundamentally misunderstood the requirements involving new applicants for such licences.

The judge said Mokonyane had “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.”

The first judgment, in December 2017, found Molewa and the department’s chief director, Lisolomzi Fikozolo, had failed to act lawfully in both the boat-based whale watching  and white shark cage diving sectors when issuing licensing decisions and setting appeal dates without complying with government-mandated regulations.

Six businesses approached Judge Gcinikhaya Nuku, at the Western Cape High Court, who declared the department had been unfair to all of the applicants by refusing their licensing applications and giving them minimal time to appeal, and ordered the department to pay all costs.

The second order against the department saw the minister and chief director interdicted in March last year by Ivanhoe Sea Safaris – an established Gansbaai tourism service – for refusing to extend their licence, which meant they couldn’t operate. A later third judgment set aside the minister’s decision, with costs once again ordered against the department.

A fourth judgment against the minister involved Advantage Cruiser in St Lucia in May 2018, after the minister tried to stop the company from operating by refusing to allocate a 10-year permit. After she was interdicted for making an unlawful decision, she conceded defeat and agreed to allocate the company its permit.

Advocate Shaheen Moola, who acted in all the cases, said: “This ruling provided important context as to the egregious unlawfulness and illegality of the process followed that could have destroyed so many people’s lives and so many businesses.”

Moola previously served as a special legal adviser to SA’s fisheries ministry.

Last July, White Shark Africa in Mossel Bay successfully interdicted Molewa from refusing them their 10-year white shark cage diving permit, and the department was again ordered to pay costs.

Earlier this month, the Sunday Times reported how Mokonyane was called out on “irrational and procedurally unfair” behaviour by the Western Cape High Court after trying to revoke the whale-watching permit of a prominent Plettenberg Bay family tourism business.

Ocean Blue Adventures (OBA), co-owned by Tony Lubner – son of deceased philanthropist and businessman Bertie Lubner – took the minister to court after its licence was revoked in March last year and given to another company that allegedly did not meet the required criteria. OBA was eventually successful earlier this year, and once again given a costs order against the department.

A source close to the six lawsuits, who did not want to be named, said it was likely the costs orders could amount to between R3m and R5m for the department.

Department spokesperson Zolile Nqayi said findings against the department or minister did not necessarily mean the legal framework had not been understood, as suggested in some of the more recent rulings.

“[These processes of arguing the various cases were] a long and complicated determination. It is not unusual for these processes to result in litigation, especially when there are limited permits available and there are significant financial benefits that accrue to permit holders. In interpreting policy and law, there are often many possible approaches and interpretations and, consequently, also options to resolve a matter,” said Nqayi.

He said the department had paid R120,000 in legal costs so far, although this was “pending the taxation of all the remaining legal costs”.  

“Firstly it must be borne in mind that the nature and merits of these cases are all different and that although some aspects of the  process have been criticised, the courts have made no adverse ruling against the lawfulness or otherwise of the entire allocation process. Secondly, it should also be noted that the judgment of December 12 2017 related only to Promotion of Access to Information issues linked to the chief director’s decision, prior to the minister even considering the matter on appeal.

“Finally, it must be noted that the matters involving of Ivanhoe and Advantage Cruiser were not judgments against the department. These matters were settled by agreement,” said Nqayi.