Appeals against the "non-decisions" taken in the boat-based whale watching (BBWW) and white shark cage diving (WSCD) sectors are due in August 2010 - (BBWW appeals due on 2 August and WSCD appeals due on 10 August).
Feike had represented a number of appellants in both sectors. The decision-making process reflected an obstacle course of factual and legal errors highlighted by inconsistent decision-making. Some of the most glaring errors are the following.
1. Despite denials by environmental affairs, applicants were compared against other applicants who applied for permits in other zonal areas. For example, applicants for a WSCD permit in Gansbaai were compared and scored against applicants from False Bay. The result was that scoring was skewed and simply incorrect in terms of the General Published Reasons which resulted in some applicants receiving "low" scores which resulted in them being denied a permit.
2. The delegated authority unilaterally decided to elevate certain evaluation criteria to the status of exclusionary criteria, which severely prejudiced applicants.
3. The delegated authority misapplied and misinterpreted a number of criteria as set out in the respective sector policies and regulations. For example, in the WSCD sector, the delegated authority was empowered to evaluate the performance of operators by determining whether on average over the period 2003-2008, the operator undertook less than 50 trips. The delegated authority instead misread this instruction and excluded operators that indicated that in one or more years they undertook less than 50 trips annually instead of determining whether their average trip activity over the period 2003-2008 was less than 50 trips. This criteria is irrational in itself as it fails to recognise that to force operators to undertake an arbitrary number of annual trips is dangerous and damaging to the eco-tourism sector.
4. A number of applicants were scored differently for the same criteria despite having provided identical answers. This indicates arbitrary and inconsistent decision-making processes.
5. The attempt to evaluate applicants on the various investment criteria also raised significant problems as a result of the poor quality of the policies, regulations and application forms. For example, applicants were not instructed to provide specific rand values for their investment claims. The result was that some applicants provided market values; others insured values, others replacement values for their fixed and movable assets. When it came to the rand value of investments in the area of marketing and educational materials, some applicants provided values indicating investments made in 2009 alone; others provided figures for the entire exemption period since 2003! Rational comparisons are therefore impossible.
6. The evaluation and scoresheets which were provided for each applicant reflects contradictory and entirely incorrect data, indicating a lack of application of mind. For example, some applicants were excluded because of a failure to provide certain documents, yet their evaluation sheets confirm that the documents were submitted.
The obligation now rests on the Minister to attempt to correct the array of potentially fatal errors. It is our view that the determination of the appeals process could take another 9-12 months.