Lobby group AfriForum has hauled the department of tourism to court in an urgent bid to overturn race criteria that determine which businesses receive state-sponsored Covid-19 relief bailouts.

At the heart of the looming legal battle is the R200m Tourism Relief Fund, announced by minister Mmamoloko Kubayi-Ngubane as a buffer for businesses in the tourism sector, which has been severely affected by the national lockdown.

It provides for a one-off grant of up to R50,000 for financially distressed businesses.

According to papers before the court, the tourism department intends to apply “empowerment criteria” when considering pleas for a bailout, and it will be an exercise in aid of transformation.

But AfriForum CEO Kallie Kriel called the race criteria shameful and unlawful, insisting that the discrimination did nothing towards funding those who need it most.

“The tourism minister’s stated intention to help only some people and not others, because of the colour of their skin, their age or their gender, makes a mockery of SA’s constitutional democracy,” he said in an affidavit.

“Discrimination on the basis of race and other unalterable characteristics is immoral and inexcusable. It is unacceptable that President Cyril Ramaphosa could call for national unity ... only for the tourism minister to insist that race and other immutable characteristics would be used as the basis for determining which South Africans receive government support,” he wrote.

Kriel said that beyond the discriminatory posture, the one-off cash payments would do little to uplift those previously disadvantaged. “The fund is intended to assist businesses, not persons or categories of persons.” 

This is the foundation for his contention that the decision to apply “race-based and other criteria” violates the principles of law and he has asked that the decision be reviewed and set aside.

On the eve of the lockdown, AfriForum reacted when an unpublished department of trade and industry document indicated that to be granted state assistance, a business would need to be majority black-owned. The department dismissed the document as a fake while AfriForum threatened a court challenge.

On Wednesday, Kubayi-Ngubane  slammed AfriForum’s claims and insisted that its court challenge is a publicity stunt. “No such court papers were filed with the court by AfriForum. Therefore, any statement issued to the contrary is disingenuous,” she said.

The ministry has received court papers from AfriForum’s lawyers but considered them moot as they didn’t bear a court case number. “This means there is no court process initiated, and we are not able to respond to court,” said Kubayi-Ngubane.

She defended the transformation agenda of the relief fund, saying it was guided by the tourism broad-based BEE codes of good practice. “Our vision is to ensure sustainable and inclusive tourism development.” 

The matter will be heard in the Pretoria high court on April 21.

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