The Pretoria High Court ruled in favour of the department of tourism using race as a criterion when providing Covid-19 coronavirus relief to tourism enterprises under distress.
Judge Jody Kollapen delivered his ruling on Thursday by emails sent to the applicants, AfriForum and Solidarity, and the defendant, the tourism department.
Tourism Minister Mmamoloko Kubayi-Ngubane’s department stipulated that for businesses to qualify for funding, they should be BEE compliant and have a tax clearance certificate.
Kubayi-Ngubane said the R200 million relief fund was made available for the tourism industry since being hard hit by the pandemic.
On Tuesday the minister said that although the funds had been made available weeks ago, dispensing the relief package had been stalled by the court challenge by AfriForum and Solidarity, which objected to the use of broad-based black economic empowerment as a factor in providing relief to businesses in distress.
AfriForum announced on Thursday that it would appeal the high court ruling.
The civil society organisation said: “AfriForum has instructed its legal team to approach the Constitutional Court directly with an application to appeal the ruling by the Northern Gauteng High Court in Pretoria.”
Kallie Kriel, chief executive of AfriForum, said the organisation decided it would approach the Constitutional Court “because small tourism businesses owned by members of minority communities also find themselves in dire need of assistance, just as all other small tourism enterprises.”
“If this case is delayed, many small enterprises in white ownership will close their doors and the government will be, figuratively speaking, complicit in economic murder on minorities,” said Kriel.
He said: “It is important for minority communities to get clarity from the Constitutional Court on whether the current constitutional order is undermining the rights of minorities to such an extent that discrimination against white people is allowed even in times of crisis.”
Lawyers for the tourism department had argued that because of the limited funds available to the tourism relief fund, it had to prioritise the previously disadvantaged.
The department revealed during court proceedings that it had received more than 10 000 applications for assistance from the fund.
As a result, state lawyer advocate Azhar Bham argued that, with only R200 million available and with a cap of R50 000 per business, only 4 000 businesses could benefit. Kubayi-Ngubane said because of that she had “some difficult decisions” to make.
AfriForum argued that this was not the time for BEE but for relief for all as all businesses were forced to close their doors.
The distribution of funds had been halted pending judgment.
Following the ruling, Kriel said: “Minority communities will have to realise that they are solely dependent on their own communities and that steps will have to be taken to ensure members of minority communities support one another to ensure their survival.”