Court row over cage-diving permitBy John Yeld, IOL.co.za 25. April 2012
AN ESTABLISHED Gordon’s Bay-based white shark cage diving operator has successfully challenged the government’s decision not to renew its permit to operate in False Bay in favour of a new entrant to the industry.
Air Jaws Africa cc, trading as Shark Adventures, successfully applied in the Western Cape High Court yesterday for an order reviewing and rescinding Environmental Affairs Minister Edna Molewa’s dismissal of its appeal against her department’s June 2010 decision not to renew its permit. Shark Adventures was allowed to continue operating, pending the finalisation of its appeal.
Its lawyers argued, among other things, that Molewa was not empowered to hear the appeal as authority to manage the industry had been transferred to the Department of Agriculture, Forestry and Fisheries (Daff) and that she had acted irrationally in refusing the appeal.
The court heard that the majority of the members of the new entrant, False Bay White Shark Adventures cc, were either former employees of the Department of Environmental Affairs, which grants the permits, or were “intimately involved” in collaborative work and research with department officials who were involved in evaluating cage diving permit applications.
Molewa, the first respondent in the action, agreed this was correct, but said in papers: “To the extent that (it is suggested) the new entrant was given favourable or preferential treatment as a result, I take exception to the unfounded allegation and refute it.”
There were 15 respondents in the action who are all involved in the industry, but it was opposed only by Molewa and the Durbanville-based new entrant, the third respondent (False Bay White Shark Adventures).
The second respondent, Daff Minister Tina Joemat-Pettersson, didn’t oppose the application or file papers.
According to papers before court, there are 16 white shark cage diving operators with permits, of which three are allowed to operate off Seal Island in False Bay. Two of them are based in Simon’s Town.
In his founding affidavit, Shark Adventures owner Theunis Esterhuizen said he had been involved in marine fisheries tourism and diving with sharks for the past 30 years, and had been an authorised white shark cage diving operator since the department had first authorised this activity in 2003.
Decisions for the judgment are to be given later.