News / South Africa

Bernadette Wicks
Senior court reporter
2 minute read
23 Aug 2021
7:36 pm

Solidarity turns to SCA to overturn ‘unlawful’ tourism equity fund

Bernadette Wicks

The High Court in Pretoria last year April dismissed the trade union’s case against the state administered funding scheme.

Image: iStock

The Tourism Relief Fund might already have run dry but Solidarity is still fighting to get the courts to declare as unconstitutional the use of broad based BEE criteria in deciding who gets a slice of the pie.

The High Court in Pretoria last year April dismissed the trade union’s case against the state administered funding scheme which was established in March last year in an effort to mitigate against Covid’s devastating impact on the tourism industry finding the use of B-BBEE criteria merely provided black candidates with a “head start”.

A subsequent bid from Solidar ity for direct access to the Constitutional Court to try and appeal the ruling was also dismissed.

The union has now turned to the Supreme Court of Appeal (SCA) to try and overturn it, with arguments set down for
tomorrow.

Now former tourism minister Mmamoloko Kubayi-Ngubane, in papers filed in the SCA as far back as last year, said the allocated funds had already run out and the issue had, as a result, become moot.

But Solidarity is tomorrow expected to argue the case is still deserving of the court’s attention.

“The fact remains that South Africa is currently still under a national state of disaster,” the union’s counsel, advocates Corne Goosen and Dirk Groenewald, said in their heads of arguments filed with the court.

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“Nothing prevents government from issuing further regulations which shall empower [it] to take further or similar measures in addressing the consequences of the national state of disaster nor, should we add, [is govern ment] prevented from issuing new measures, of similar consequence, during the current national state of disaster.”

The Tourism Relief Fund provided emergency funding for small micro and medium-sized
tourism businesses.

Solidarity insists, though, the application of B-BBEE codes of good practice under the current circumstances do not only pave the way for black-owned businesses to enjoy preferential treatment, “but in fact, exclusive preference”.

“The ultimate consequence of the [high] court’s finding, is that the government can implement measures that differentiate and provide preference on the basis of race, in a time of national disaster to advance its transformation
objectives, while the purpose of any measures adopted in terms of the Disaster Management Act, ought to protect and provide relief to the public; and not specific race groups, within the public at large,” Goosen and Groenewald
argued.

– bernadettew@citizen.co.za