Cape Town - The Constitutional Court has dismissed as moot an application from the Minister of Tourism for leave to appeal against a judgment of the Supreme Court of Appeal (SCA) on the use of B-BBEE status level criteria to select SMMEs to benefit from the Tourism Relief Fund during Covid-19.
The appeal was brought by former Tourism Minister Mmamoloko Kubayi-Ngubane against AfriForum and Solidarity Trade Union.
A case is moot when there is no longer a live dispute or controversy between the parties which would be practically affected in one way or another by the court’s decision or when a court’s decision would be of academic interest only.
Soon after the declaration of the state of disaster following the outbreak of Covid-19, which severely affected businesses, the minister established the Tourism Relief Fund to assist SMMEs to cope with the effects of the pandemic.
AfriForum and Solidarity separately brought applications in the high court to challenge the legality and the constitutionality of the use of the B-BBEE criteria in selecting SMMEs to benefit from the fund.
They sought to have the minister’s decision reviewed and set aside and argued that these selection criteria were based on race and had no place in which businesses were granted relief to the effects of Covid-19.
The high court found that the consideration of race could hardly have created an “insurmountable advantage” for black businesses over white businesses and dismissed the applications, and refused leave to appeal.
AfriForum and Solidarity then petitioned the SCA, which set aside the decision while ruling that the minister’s decision was materially influenced by an error of law that the high court had erred.
Solidarity’s legal matters deputy chief executive Anton van der Bijl said: “The fund’s criteria were downright racist. The government may try to disguise it as transformation, but it showed its true colours long ago.
He said the judgment had laid a “strong foundation for further battles and litigation”.
AfriForum’s Strategy Campaign Officer Ernst van Zyl said: “This judgment is a hard blow for the South African government in its battle to protect its ‘right’ to discriminate on the basis of race.”