The unlawful allocation of boat based whale watching (BBWW) permits by the Department of Environmental Affairs (DEA) is now engulfed by confusion as the DEA is now insisting that in fact permits were not allocated and there are no "successful applicants" despite correspondence to the contrary issued on 14 May 2010. The 14 May 2010 correspondence clearly lists applicants as being either successful or not. The DEA has further stated that "unsuccessful" applicants could appeal the decision. This is all rather confusing! Is DEA stating that it made a decision or did it not make a decision to allocate certain applicants permits and others not? How can you appeal a non-decision? Importantly, you cannot appeal an unlawful and invalid decision. Even further, in terms of which law is the appeal to be conducted as DEA has no authority under the Marine Living Resources Act to administer an appeal in terms of section 80 of the MLRA, read with the applicable regulations!
There is also a significant amount of confusion and consternation surrounding the permit allocated to Raggy Charters operated by Lloyd Edwards in Port Elizabeth. Edwards is a self-confessed illegal operator and his website has long openly shown photographs of marine mammals taken in clear violation of every law regulating marine mammal conservation. It is also understood that Edwards is also currently the subject of MCM-led investigations into breaches of the Marine Living Resources Act. To complicate matters even further, Edwards' business partner and co-owner of Raggy Charters is Anban Padayachee, a senior employee in DEA and SANParks in charge of protecting amongst others, the Bird Island Group Marine Protected Area. Padayachee owns 49% of Raggy Charters and is an active member of the business. This is a clear conflict of interest and a breach of public service administration rules. Combined, these two facts should have led to Edwards' application being disqualified in terms of the MCM's/DEA's own criteria.
The obvious question being asked is how did Edwards still manage to secure a permit? Perhaps the Special Investigation Unit of the Hawks and the Public Protector need to be called in to investigate the matter and put to bed the swirling rumours.
However, beyond Port Elizabeth the unlawful allocation by DEA of these permits is akin to "permit holders" being in possession of a fake driver's licence. Should any paying customer on a "permit holder's" vessel suffer harm, their insurers will be able to legally entitled to refuse to pay-out any cover which will mean that the holder's of these invalid permits will be personally liable for any harm caused and suffered by a paying customer.