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Afriforum takes ruling on B-BBEE criteria for tourism relief fund to ConCourt

Tourism Minister Mmamoloko Kubayi-Ngubane. File photo: ANA/Thobile Mathonsi

Tourism Minister Mmamoloko Kubayi-Ngubane. File photo: ANA/Thobile Mathonsi

Published May 5, 2020


Johannesburg - AfriForum and Solidarity have filed urgent papers at the Constitutional Court on Tuesday to set aside the ruling of the North Gauteng High Court in Pretoria which allowed Tourism Minister Mmamoloko Kubayi-Ngubane to allocate Covid-19 relief aid in line with the B-BBEE Act.

The parties want the court to set aside Judge Jody Kollapen's ruling handed down on April 30 which found that Kubayi-Ngubane acted within her powers.

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In his ruling, Judge Kollapen said: “At the level of principle it can hardly be contended that the minister acted outside of her powers in terms of the Act and if she was constrained to exercise her powers to deal with the destructive and other effects of the disaster, then indeed the imperatives of empowerment are inextricably linked to the effects of the disaster.

“It is a matter of logic and common sense that if the disaster has the effect of, but for financial assistance, leading to the closure of black businesses it would undermine and set back transformation.

“I need say no more on the principle of the inclusion of empowerment and transformation criteria as part of the qualifying criteria for the Tourism Relief Fund.

“On this aspect, I conclude there is no merit in the submission that the Act read in context prohibits the minister from having regard to the Code of Good Practice as she did."

AfriForum and Solidarity, however, in their latest submission disagree with the ruling.

Dirk Hermann, Solidarity's chief executive officer, said the fact the awarding of the funds was based on race was bizarre.

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“It is scary that there could be constitutional grounds in a crisis like this which allows the allocation of emergency funds to take place based on race,” Hermann added.

AfriForum chief executive Kallie Kriel said they decided to approach the Constitutional Court directly, as the small tourism businesses owned by members of minority groups, just like all other small tourism businesses, were in urgent need of assistance.

“If the case drags on, countless small white-owned businesses will go under and the government will be complicit. Figuratively, it is economic murder of minorities,” Kriel said.

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Hermann highlighted it was important to obtain legal certainty on the matter, saying as “this is an urgent crisis, we believe that the matter is urgent as well and therefore we asked for access to the Constitutional Court for this matter".

Kriel also pointed out that it was important for members of minority groups to obtain clarity from the Constitutional Court on whether it is really the case that the “current constitutional dispensation in such a way undermines minorities rights, that even during times of crisis, whites may be discriminated against”.

The ConCourt is first expected to determine whether these parties have met the requirements for the highest court of the land to hear the matter - before it could allow the minister to file her responding papers. 

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