Solidarity and AfriForum lose fight over Covid-19 tourism relief

Tourism minister Mmamoloko Kubayi-Ngubane’s decision to use BEE codes as a criterion to help struggling businesses during Covid-19 has been upheld by the North Gauteng High Court
Tourism minister Mmamoloko Kubayi-Ngubane’s decision to use BEE codes as a criterion to help struggling businesses during Covid-19 has been upheld by the North Gauteng High Court
Image: NTSWE MOKOENA

Trade union Solidarity and lobby group AfriForum have failed in their court bid to challenge tourism minister Mmamoloko Kubayi-Ngubane’s decision to provide support to distressed firms and establishments in the sector based on broad-based BEE codes, among other considerations.

The North Gauteng High Court ruled that the department of tourism’s decision to consider empowerment codes as the criterion for assisting companies was not unlawful.

The court was of the view that the criterion did not perpetuate an unfair advantage for some candidates over others based on race, but rather had the effect of providing those candidates with a head start.

Kubayi-Ngubane raised the ire of some in the sector and opposition parties who argued that the BEE considerations would disqualify many companies from accessing government funding to mitigate the effect of the coronavirus pandemic.

The pandemic has hit the travel and tourism sector hard, with the latest figures from the World Travel & Tourism Council (WTTC) showing that the sector is losing a million jobs a day around the globe.

Solidarity said it would now approach the Constitutional Court to challenge the use of race as a criterion to grant companies relief.

“It is imperative that SA gets legal certainty on whether, in a state of disaster, the constitution allows for discrimination based on race to qualify for relief. Solidarity is going to request access to the Constitutional Court.

“As the crisis is urgent, we believe the matter, too, is urgent,” Solidarity CEO Dirk Hermann said.

Solidarity argued that the Covid-19 pandemic did not discriminate against its victims on the basis of race and that it was, therefore, immoral of the government to offer relief on these grounds.

“It is not only white business owners who are affected but also all employees in the industry, of whom two out of every three are black. Hunger and distress know no colour,” Hermann said.

The department of tourism had argued that it was legally obliged to apply BEE, regardless of the consequences.  

“It is sad that Solidarity now has to turn to the Constitutional Court because the government is set to continue with the discriminatory race criterion it imposed to qualify for emergency relief,” Hermann said.

“This action by the government cannot be justified in any way, and therefore Solidarity will not leave it at that.” 

Kubayi-Ngubane welcomed the court ruling, saying “justice is on our side”.

Small-business development minister Khumbudzo Ntshavheni also said this week that her department would consider BEE in its relief programme, though she had earlier vehemently dismissed suggestions that such an approach would be adopted. — BusinessLIVE

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