Tourism minister Mmamoloko Kubayi-Ngubane. Picture: NTSWE MOKOENA
Tourism minister Mmamoloko Kubayi-Ngubane. Picture: NTSWE MOKOENA

Union Solidarity and lobby group AfriForum, on Thursday, failed in their court bid to challenge tourism minister Mmamoloko Kubayi-Ngubane’s decision to provide support to distressed firms and establishments in the sector based on broad-based BEE (B-BBEE) codes,, among other considerations.

The North Gauteng high court ruled that the department of tourism’s decision to consider empowerment codes as criterion for assisting companies is not unlawful. The court was of the view that the criterion does not perpetuate an unfair advantage for some candidates over others based on race, but rather has the effect of providing those candidates with a head start.

Kubayi-Ngubane raised the ire of some in the sector and opposition parties who argued that the BEE considerations would disqualify many companies from accessing government funding to mitigate the effect of the coronavirus pandemic. The pandemic has hit the travel and tourism sector hard, with the latest figures from the World Travel & Tourism Council (WTTC), the global industry association, showing that the sector is losing a million jobs a day around the globe.

Solidarity said it will now approach the Constitutional Court to challenge the use of race as criterion to grant companies relief.

“It is imperative that SA gets legal certainty on whether, in a state of disaster, the constitution allows for discrimination based on race in order to qualify for relief. Solidarity is going to request access to the Constitutional Court. As the crisis is urgent, we believe the matter, too, is urgent,” Dirk Hermann, Solidarity CEO said.

Solidarity argued that the Covid-19 pandemic does not discriminate against its victims on the basis of race and that it is therefore immoral of the government to offer relief on these grounds.

“It is not only white business owners who are affected but also all employees in the industry, of which two out of every three are black. Hunger and distress know no colour,” Hermann said. 

The department of tourism had argued that it is legally obliged to apply BEE, regardless of the consequences.  

“It is sad that Solidarity now has to turn to the Constitutional Court because the government is set to continue with the discriminatory race criterion it imposed to qualify for emergency relief. This action by the government cannot be justified in any way, and therefore Solidarity will not leave it at that,” Hermann said.

Kubayi-Ngubane welcomed the court ruling saying “justice is on our side”.

Small-business development minister Khumbudzo Ntshavheni also said this week that her department will consider BEE in its relief programme, although she had earlier vehemently dismissed suggestions that such an approach would be adopted.

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