Covid-19 Tourism Relief Fund on ice pending AfriForum court challenge of BEE ‘bias’

The recently announced Tourism Relief Fund has effectively been put on ice for the time being pending a legal challenge from AfriForum of some of its provisions.

The department of tourism this week undertook not to consider applications for access to the fund – nor to pay out any monies from it – pending the outcome of lobby group AfriForum’s high court challenge to “the use of race as a benchmark for the awarding of Covid-19 relief”.

The fund was established to mitigate the impact of the Covid-19 pandemic on the tourism industry and to provide emergency funding of up to R50,000 for small, micro and medium-sized tourism businesses.

AfriForum last week approached the High Court in Pretoria with an urgent application for an order reviewing and setting aside Tourism Minister Mmamoloko Kubayi-Ngubane’s decision “to apply race-based criteria in the allocation of funds to assist ailing tourism businesses” as well as interdicting Kubayi-Ngubane and her department from “allocating and disbursing funds on the basis of any criteria unrelated to the needs of the particular business”.

In court papers, AfriForum CEO Kallie Kriel said the group had received “hundreds of queries from members and concerned citizens who are small business owners”.

The department has maintained that the fund will be guided by the Tourism Broad Based Black Economic Empowerment (B-BBEE) Codes of Good Practice and administered in line with the objectives of economic transformation. And the minister said last week that the application of B-BBEE codes of good practice was mandatory.

The case was originally set down for hearing on Tuesday but it has now been postponed until next week, to be heard together with a similar application form trade union Solidarity.

In postponing the case, Judge Brenda Neukircher made the department’s undertaking an order of the court.

“[The department] undertakes not to decide on applications for emergency relief in relation to the Covid-19 pandemic relief fund, referred to as the Tourism Relief Fund, or to distribute such funds, until the honourable judge adjudicating the matter delivers his/her judgment,” the order read.

Kriel yesterday welcomed the department’s undertaking.

“The expressed aim of the department’s fund is to offer assistance to tourism enterprises that are being adversely affected by Covid-19. Seeing as everyone, regardless of their race, is being adversely affected by Covid-19, the department cannot use … the Constitution, which justifies correction of discrimination from the past, as justification for discriminating assistance against the consequences of Covid-19,” Kriel said.

He also said that AfriForum and Solidarity’s applications now being heard together was a “positive development”.

“It is important that the court sees that both employees and employers will be negatively affected by the racial benchmarks in Covid-19 relief. AfriForum and Solidarity’s applications will ensure that both of these perspectives are placed before the court,” Kriel said.

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