By Lehlohonolo Lehana.
The Constitutional Court will not hear an appeal against a ruling that found it was wrong to include B-BBEE as a criterion for the state’s Covid-19 tourism relief grants.
The initial hard Covid-19 lockdown imposed by the government on March 26, 2020 had a severe impact on the economy, particularly the tourism sector.
The minister of Tourism then Mamoloko Kubayi established the Tourism Relief Fund as one of the measures put in place by government to assist businesses adversely affected by the lockdown, and R200 million was allocated to the initiative to provide once-off payments of up to R50 000 to businesses in the tourism industry that were affected.
Kubayi included the B-BBEE status level of applicants as one of the criteria for funding.
Trade union Solidarity and lobby group AfriForum then took the Department of Tourism to the North Gauteng High Court in Pretoria, arguing there was no need to use “race as a benchmark” for relief.
While they lost their initial case, AfriForum and Solidarity won on appeal in the Supreme Court of Appeal (SCA) in September 2021.
The minister argued she was bound to include the B-BBEE level of applicants as one of the criteria for relief under the B-BBEE Tourism Sector Code.
The SCA found that the minister was not legally obliged to include the Tourism Sector B-BBEE Code in the qualification criteria, and her decision was consequently unlawful.
The SCA said, her inclusion of the B-BBEE status level of applicants for assistance as a criterion for eligibility for grants from the fund was therefore invalid.
The court also held that funds already disbursed from the Tourism Relief Fund cannot be recovered.
The department then applied for leave to appeal the SCA ruling before the Constitutional Court.
On Wednesday, the apex court denied leave to the appeal. This means that the SCA’s September 2021 ruling stands.
Various regulations were issued under the Disaster Management Act, 2002 (DMA), granting authority to different ministers to “make directions” within their functional areas of operation, including taking steps necessary to alleviate, contain and minimise the effects of the national state of disaster.
In its ruling, the Constitutional Court noted that the issue was “moot” as SA’s state of disaster had long been lifted and the funds already distributed.