On 24 April 2012, we reported that the Western Cape High Court reviewed and set aside the decision of the Environmental Affairs' Minister to deny our client, Shark Adventures, its 5 year white shark cage diving permit.
The court recently issued its reasons for the decision. We take a closer look at the reasons and consequences for the shark cage diving sector (WSCD) and the boat based whale watching sector (BBWW).
Shark Adventures had approached the High Court seeking an order to set aside the Minister's decision on two fronts. Firstly, it was argued that the Minister of Environmental Affairs simply did not have the legal authority to decide appeals pertaining to the WSCD sector as the appropriate decision-maker and repository of legal authority in terms of a presidential proclamation dated 29 January 2010 is the Fisheries Minister. Feike had raised this argument from the very start and published a number of BLOG articles stating why Environmental Affairs lacked the legal authority to regulate the WSCD and BBWW sectors. Our argument from the start was based on two basic premises. The first was that the presidential proclamation was clear in that all provisions of the MLRA were transferred to the Fisheries Minister, except for section 43 of the MLRA, which regulates marine protected areas. The second was that regulations cannot exist independently of the original legislation under which it is promulgated.
The DEA argued that they did indeed have the requisite authority to regulate the WSCD and BBWW sectors as the presidential proclamation did not transfer to the Fisheries Minister the "non-consumptive uses" and conservation provisions of the MLRA and the WSCD and BBWW Regulations could in fact stand-alone and independently of the MLRA.
The second ground for review was that in evaluating the Shark Adventures application, the Minister made certain reviewable errors pertaining to the scoring of criteria and ultimately the score allocated to Shark Adventures, which the Minister had considered to be "too low" to warrant a permit.
The Court's Decision
On the ground of ultra vires and whether the Minister of Environmental Affairs was properly authorised to decide appeals in the WSCD sector, the court held that the Minister's arguments that the WSCD Regulations could exist independently of the MLRA and that the President did not transfer the "non-consumptive uses" to the Fisheries Minister, could not be sustained.
The court held that "...the administration of the WSCD regulations, is interwoven with the administration of the empowering act, the MLRA, to such an extent that it is impossible for the First Respondent (the Minister of Environmental Affairs) to administer the WSCD regulations without also administering the MLRA simultaneously."
With respect to the Minister's "consumptive and non-consumtive use" argument, the court rejected this pointing to a number of reasons why this reasoning was flawed. The court for example indicated that the Fisheries Minister continued to regulate the non-consumptive management of seahorses and pipefish. The Fisheries Minister also continued to set and determine the user fees to undertake WSCD and BBWW. Further, the court also considered the fact that appeals under the MLRA could only be decided in terms of section 80 of the MLRA, read with Regulation 5 of the 1998 Fisheries Regulations, which were administered by the Fisheries Minister.
On the ground that the Minister erred in the manner in which Shark Adventures' application was scored, the court held that the Minister made material factual mistakes and failed to take into account relevant considerations.
The Western Cape High Court accordingly decided to authorise White Shark Adventures to continue operating as a WSCD operator in terms of its exemption (thus permitting 4 operators in the False Bay area); that the impugned proclamation must be sent back to the Presidency for reconsideration and amendment to clearly indicate which minister is authorised to deal with the WSCD sector; and once this is resolved for the proper minister to decide the appeal submitted by Shark Adventures.
What does this mean for the WSCD (and BBWW) sectors?
In short, the High Court's decision does not affect the WSCD or BBWW sectors immediately. Operators shall be entitled to continue to operate but it may mean that in the near future permits may be re-issued once the Presidency attends to preparing a properly worded Proclamation stating clearly which Minister is in charge of the WSCD and BBWW sectors. In particular, it is clear that the Environmental Minister and DEA cannot lawfully issue permits under section 13 of the MLRA to WSCD (or BBWW) operators.
Further, this judgement does directly affect the exclusion of exemption holders from, for example the Gansbaai area, where the Minister again excluded an exemption holder and instead allocated a permit to a new entrant. Each affected exemption holder will have to bring a separate review application to set aside the decision of the Minister of Environmental Affairs.