Tourism Minister Mmamoloko Kubayi-Ngubane has won her battle to allocate her departmental Covid-19 Tourism Relief Fund to qualifying sector business according to the broad-based black economic empowerment (B-BBEE) Act.
The ruling was made in the North Gauteng High Court in Pretoria today following a court challenge by Solidarity and AfriForum.
The parties argued that the promulgation of the National Disaster Management Act by President Cyril Ramaphosa on March 23 due to the outbreak of Covid-19 did not allow Kubayi-Ngubane to distribute the R200 million Tourism Relief Fund administered by her office along racial lines.
Advocate Greta Engelbrecht SC, acting for AfriForum, and Corne Goosen, for Solidarity, were adamant the National Disaster Management Act was aimed at providing relief to everyone affected by Covid-19.
They argued that Ramaphosa, in announcing the various forms of aid due to Covid-19, made no selective assistance to those who were historically disadvantaged in the past.
The parties were reacting to Kubayi-Ngubane’s justification of the B-BBEE as the sole criterion to help those adversely affected by the outbreak.
She said it was part of the requirement of the B-BBEE Act, saying it has the dual purpose of furthering her department’s purpose of sustaining and transforming the tourism sector, as well as acting as a proxy for businesses that “are particularly vulnerable to the economic effects of Covid-19 as a result of discrimination”.
Delivering his judgment, Judge Jody Kollapen agreed with Kubayi-Ngubane’s submission.
“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,” Judge Kollapen said.
“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,” Judge Kollapen said.