The constitutionality of Broad-Based Black Economic Empowerment
(B-BBEE) can still be tested even though the Constitutional Court (ConCourt) upheld the Supreme Court of Appeal (SCA) ruling that provisions to aid only black tourism companies were unlawful.
The ConCourt on Wednesday, while dismissing tourism minister Lindiwe Sisulu's application for leave to appeal, did not go into the merits of the B-BBEE criteria that one had to be black to get relief funds.
Research and advocacy officer Mbekezeli Benjamin said: "The unique circumstances of this case meant that the ground had shifted too quickly before the ConCourt could definitively have the last say on the empowerment requirements in disaster management responses.
"The ConCourt’s decision could easily have been different if the Covid-19 disaster continued for a year or two more.
"This means that the Supreme Court of Appeal judgment is the final word on the matter, for now. The SCA had said including B-BBEE requirements in the disaster management response is not allowed, as these functions are catered for in two different pieces of legislation which cannot directly be read together.
"However, one can easily foresee such a decision coming back to the ConCourt, when you consider government’s now frequent reliance on the Disaster Management Act."
Government announced a R200m Tourism Relief Fund in April 2020 to provide payments of up to R50,000 to cushion businesses in the tourism industry affected by the pandemic.
AfriForum and Solidarity separately challenged the "race-based criteria" at the SCA and won, and Sisulu brought an application to the ConCourt.
Reacting to the judgement, Solidarity deputy chief executive for legal matters Anton van der Bijl said the fund's criteria were downright racist.
"The government may try to disguise it as transformation, but it has shown its true colours long ago. It was extremely reprehensible to exploit the damage caused to the tourism sector by the government’s unreasonable Covid-19 restrictions to discriminate against people on top of it.
"South African citizens are sick and tired of having to witness how the government’s race ideology is crippling the country’s economy," Van der Bijl said.
Sisulu and the department's legal team argued that the minister was obligated by law to include a selection criterion taken from the tourism B-BBEE code of conduct. The minister further argued the criteria were entitled to apply the selection criteria to advance the department's transformation goals.
In its judgment, read by Chief Justice Raymond Zondo, the Constitutional Court found the matter had become moot because the State of Disaster had ended, the money had been paid out and no-one sought to have the money paid back to the fund.
It ruled there was no need for the ConCourt to entertain the matter.
"The fact that the high court and the Supreme Court of Appeal gave conflicting decisions does not on its own carry much weight. It may have been different if we were dealing with conflicting decisions of different courts in different matters raising the same issue.
"In this regard, I wish to point out that at some stage in the past this court may have been more inclined to entertain matters even if they were not moot. In my view, the applicants' application falls to be dismissed with costs including the cost of two counsel. Leave to appeal is refused," Zondo ruled.
AfriForum’s campaign officer for strategy and content 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."
FF Plus MP Michal Groenewald welcomed the ruling, saying Sisulu's actions not only posed a risk to the country but had become an embarrassment.
"This ruling along with the debacle surrounding SA Tourism's (SAT's) soccer sponsorship of R1-billion, which was exposed last week, once again proves that the tourism ministry is not effectively fulfilling its mandate and oversight role. The FF Plus said in 2022 already that the tourism ministry is redundant and of no use to South Africa," Groenewald said.
Tourism Business Council of SA CEO Tshifhiwa Tshivhengwa said the courts had made their pronouncement, but added what's important was that the R200m for the Covid-19 relief funds were not enough to cover everyone in the industry.
"The fund only reached about 4,000 businesses and there were many black, white and coloured companies that didn't get this fund. We would’ve hoped more money would’ve been given against various segments of the sector. We needed more money. Everything stood still."
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