ConCourt dismisses Tourism Dept’s appeal bid on Covid relief fund
The Constitutional Court has dismissed the Tourism Department’s bid to appeal the Supreme Court of Appeal’s ruling in favour of AfriForum and Solidarity on the criteria used for government’s R200 million Covid-19 relief grant.
In 2021, the SCA found the tourism minister’s use of B-BBEE requirements as a selection criterion for SMMEs applying for the Tourism Relief Fund was unlawful.
On Wednesday the apex court dismissed, with cost, that the minister’s application for leave to appeal against a judgment of the SCA for mootness.
In 2020, then Tourism Minister Mmamoloko Kubayi introduced the Equity Fund as an institution that would only allocate loans and grants to businesses with at least 51% black ownership.
AfriForum and Solidarity first took the minister to the High Court to argue against the use of race as a factor for being granted relief. They lost the High Court bid, but in September 2021 they petitioned the SCA where and won their appeal.
In his brief delivery of the judgment, Chief Justice Raymond Zondo said the court concluded that there were no sound reasons for it to entertain the appeal as all parties agreed the matter had become moot.
The matter had become moot because the state of disaster ended, the money in the relief fund had paid out and none of the parties sought to have the money paid back to the fund.
“The minister and the director-general agreed that although the matter was moot, the court should entertain it because there was a need for clarity on whether the minister had the power to use B-BBEE selection criteria. AfrifForum argued that the matter was moot and there was really no need for the court to entertain the matter. This court has concluded that yes, indeed the matter was moot and that there were no sound reasons for this court nevertheless to entertain the matter, ” Zondo said.
The Chief Justice added that while the court would sometimes rule on moot matters, it had to consider its own workload which had increased significantly since the seventeenth constitutional amendment.
"It holds that it would rather deal with the issues of the powers of the minister to include B-BBEE selection criteria in the next new matter where this issue may arise."
(1/3) Judgment: A case is moot when there is no longer a live dispute or controversy between the parties which would be practically affected in one way or another by the court’s decision or when a court’s decision would be of academic interest only.
— Constitutional Court (@ConCourtSA) February 8, 2023
The lobby group has described the win as a final blow to what believes to be the department’s discriminatory Relief Fund.
AfriForum and Solidarity added that the judgment is a victory against what it calls government’s ongoing obsession with race and representativity which, they say, is one of the main obstacles to a thriving economy.
“The time is ripe now for a wider discussion regarding racially discriminatory legislation overall. These types of judgments are very welcome because they start the conversation,” Afriforum’s Ernst Van Zyl said.
The Tourism Department was not immediately available for comment.