Solidarity goes to Concourt over race criteria for Covid-19 funding

Trade union Solidarity is approaching the Constitutional Court to appeal a lower court’s ruling allowing  the tourism department to use empowerment as a consideration when dishing out R300m in state relief funding to cushion the sector from the effects of the Covid-19 pandemic.

The union has also laid a charge of perjury against small business development minister Khumbudzo Ntshavheni for allegedly contradicting herself over her department’s decision to use race as a criterion to help distressed companies affected by the coronavirus.

Solidarity CEO Dirk Hermann said on Monday the union will also file a complaint with the UN Committee on the Elimination of Racial Discrimination regarding the matter.

This comes after the joint application by Solidarity and Afrikaner rights group AfriForum to review and set aside 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 was dismissed by the high court in Pretoria on Saturday.

The court ruled that the department’s decision to consider empowerment codes as grounds for assisting companies was not unlawful. The court ruled that this does not give some candidates an unfair advantage over others based on race but rather gives those candidates a head start.

Ntshavheni attracted the perjury charge after she allegedly told Solidarity “under oath and in court documents” that race would not be a criterion for assisting distressed small businesses affected by the pandemic.

She had said at an interministerial briefing in Pretoria on March 24 that the purported racial requirement was fake news and stressed: “We are supporting all small and medium enterprises across SA and there are no race requirements for funding.”

However, she said at the joint meeting of the portfolio and select committees for small business development in parliament last Tuesday that BEE would be used as a consideration for providing support to small, medium and micro enterprises (SMMEs).

“It is a fundamental requirement for transforming the economy of this country; we cannot choose as and when we use it,” she said when asked by National Council of Provinces DA member Tim Brauteseth to provide clarity on criteria to determine relief measures for SMMEs.

“B-BBEE is a critical requirement. We need South Africans … to own and have a share in the economy of this country.

“So when applications come through, we evaluate them on their need. But we consider demographic representation, which does not only include race — it includes gender, it includes geographic location, it includes age, which is youth, it also includes people with disabilities. So those are fundamental to the transformation of this economy,” she said at the time.

Hermann said: “We cannot just leave it at that when a minister lies in court documents. It would make a mockery of the legal process. Solidarity withdrew a court case against the minister and her department based on what she undertook under oath.”

Solidarity was of the opinion that it had no choice but to proceed with a criminal charge against Ntshavheni, stressing that granting relief aid on the basis of race “is still bizarre”.

“We have laid a criminal charge against the minister [at the Lyttelton police station in Pretoria],” said Hermann.

“We will also lodge an urgent appeal to the Constitutional Court and file a complaint with the UN Committee on the Elimination of Racial Discrimination.”

However, Ntshavheni’s spokesperson Priscilla Monama hit back, telling Business Day on Monday that to suggest that the minister lied under oath “is to call her character into question”.

“This is not only unbecoming of Solidarity but highly unfortunate in the time where the preoccupation should be our collective efforts in fighting the Covid-19 pandemic,” said Monama.

She dismissed Solidarity’s allegations against the minister as “malicious”, saying they seek to “derail the progress” made by the Pretoria high court in dismissing its joint application last week.

“[The] minister will accordingly defend such claims through relevant legal platforms and within the ambit of legal prescripts and does not seek to detail her response to the allegations while the matter is sub judice,” said Monama.

“To subject the court and its essential-service workers to baseless accusations by Solidarity is a mockery to the legal system. The department respects the principle of justice and fairness and will rely on the courts to exercise their fiduciary duty.”

Hermann said he was concerned that the government was preoccupied with skin colour while businesses were taking a knock from the Covid-19 pandemic, which as of May 3 had infected 6,783 and killed 131 people in SA.

“We will not cease fighting this,” Hermann vowed.

On April 21, President Cyril Ramaphosa announced a R500bn social and economic package for SA that was welcomed by business for emphasising the need to rescue small businesses.

About 70% of SMMEs employing about 6-million people have been hit hard by the Covid-19 pandemic and could be forced to close when the lockdown is lifted. The value of assistance to SMMEs is more than R100m, and an additional R2bn would be made available to support them, Ramaphosa has said.

mkentanel@businesslive.co.za