The Gauteng High Court in Pretoria has dismissed the Democratic Alliance’s bid for the minister of small business development to stop using BBBEE status, race, gender, age or disability when considering who gets Covid-19 aid.
At the same time, the court ruled that the the department’s criteria by which people are chosen to receive aid, under the the Debt Finance Scheme and the Business Growth Resilience Fund, be set aside and declared unlawful because they are too vague.
A full bench of the High Court led by Judge President Dunstan Mlambo ruled on Friday that Minister Khumbudzo Ntshaveheni must redraft the regulations on who will be favoured in receiving financial assistance from the two schemes set up to assist with Covid-19 relief.
The court ruled that the minister must include race in the redrafted regulations, despite the DA's arguments to the contrary.
"In the reformulation of criteria to be employed in the distribution of funds under either the Debt Finance Scheme or the Business Growth Resilience Fund, the minister must take into account race, gender, youth and disability," Mlambo said.
The DA asked the court to declare it impermissible and unlawful for government to use Broad-Based Black Economic Empowerment (BBBEE) status, race, gender, age or disability as criteria for determining who will receive aid from government during the Covid-19 pandemic.
The court dismissed the DA's assertions that the government's decision to use transformation criteria when determining who gets economic relief was illegal.
The judgment went further: "If we need any persuasion about the importance of our past and the [deep] seated racial divide in contemporary South Africa and how the need for scarce resources fall overwhelmingly on those who are poor and therefore black, look no further than on whom the brunt of the effect Covid-19 falls."
In response, Ntshavheni told the court in an affidavit that race, gender, age and disability were recognised indicators of past and present disadvantage.
The court, however, took exception to the vagueness of the minister’s criteria as to who would receive the government aid.
"It is for the minister to make sure that the criteria to be employed for the disbursement of public funds are not left to a simple laundry list of hygiene and procedural characteristics buttressed by one vague statement that 'priority would be given' to women, the youth and the disabled," the judgment read.
The court said that the minister’s broad phrase, without any guidance as to what weight is given to the criteria mentioned by the minister, did not pass constitutional muster.