Solidarity’s battle with tourism minister ‘not over’

Tourism Minister Mmamoloko Kubayi-Ngubane welcomed the Constitutional Court’s dismissal on Friday of the joint Solidarity and AfriForum application to appeal and set aside the use of broad-based black economic empowerment (B-BBEE) criteria as part of the department’s R200 million Covid-19 Tourism Relief Fund for small businesses.

“The Constitutional Court has considered the application for leave to appeal directly to this court on an urgent basis,” the country’s apex court said on Friday.

“It has concluded that the application should be dismissed as it is not in the interest of justice to hear it at this stage, as there are insufficient grounds raised for a direct appeal to this court on an urgent basis.”

The court attached no costs to the order.

The Constitutional Court’s decision represents the tourism minister’s second victory within a month in the case brought by trade union Solidarity in association with civil rights organisation AfriForum.

AfriForum, however, said over the weekend that the battle is not over, and it now plans to take the case to the Supreme Court of Appeal. Solidarity and AfriForum took their fight to the Constitutional Court last week after losing the initial case brought before the High Court in Pretoria late last month.

“The decision by the Constitutional Court is most welcome and consistent with a view we have always maintained that the case lacked legal merit and moral standing,” Kubayi-Ngubane said.

“We have also always maintained that the design of our programmes are guided by the principles of fairness, equity and justice.

“It is therefore inconceivable for this particular programme to be discriminatory on the basis on race,” she added.

Kubayi-Ngubane noted that more than 13 000 applications have been received thus far for support from the Tourism Relief Fund.

“The [tourism] department has already started processing payments to beneficiaries, and it is important to note that this includes both black and white business owners,” she stressed.

Solidarity, AfriForum and the Democratic Alliance have objected to the use of B-BBEE criteria being used in determining which businesses benefit from some of government’s Covid-19 relief funds, arguing that all business are facing a financial fallout from the impact of the pandemic.

In dismissing Solidarity’s initial case in the High Court in Pretoria late last month, Judge Jody Kollapen found “nothing racial or shameful” in the tourism department’s use of B-BBEE criteria in dispersing funding related to the Covid-19 relief fund.

He also noted that the scoring criteria are not rigid or inflexible, which means that white-owned tourism businesses would still be able to access funding.

The application should be dismissed as it is not in the interest of justice to hear it at this stage

A judgment by the Constitutional Court