Top court throws out minister’s appeal on use of ‘racial’ criteria to fund tourism sector

The Constitutional Court on Wednesday dismissed the tourism minister’s application for leave to appeal against an order stating she could not use race-based criteria to grant relief to tourism businesses during the Covid-19 lockdown.

The court dismissed the matter with costs and said it had become moot.

During the lockdown, the minister awarded relief from the R200m Tourism Relief Fund to tourism enterprises affected by the pandemic.

Trade union Solidarity and civil rights group AfriForum went to court to review the decision of the department’s use of race as a benchmark for awarding relief to tourism businesses.

The High Court ruled the criteria used by the department did not perpetuate an unfair advantage for some candidates over others based on race, but had the effect of providing those candidates with a head start.

Solidarity and AfriForum appealed against the decision in the Supreme Court of Appeal.

The court ruled in 2021 that the minister was not legally obliged by the B-BBEE Act to make eligibility for assistance from the Tourism Relief Fund subject to the Tourism B-BBBE Sector Code.

The appeal court said the order it made did not authorise or oblige the minister to recover funds already disbursed from the relief fund.

Despite this ruling, the minister appealed to the Constitutional Court.

Reading a summary of the judgment, chief justice Raymond Zondo said there were no sound reasons for the court to entertain the matter, as it was moot. He said apart from this, the court’s workload had increased after the introduction of the 17th Constitution Amendment Act.

The amendment increased the scope of cases the court deals with.

Before the amendment, the court was the highest court in constitutional matters, but now it is empowered to also decide other matters.

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