Bring it on — Kubayi-Ngubane

Tourism Minister Mmamoloko Kubayi-Ngubane says she is ready for the second round in a legal battle with Solidarity and AfriForum over the criteria for funding for companies hit by the coronavirus in the sector.

This is after the department scored a major victory over the two lobby groups’ court application, arguing that broad-based black economic empowerment (BBBEE) policy should not be used in allocating funding to distressed companies.

The Pretoria High Court ruled this week that the response to the Covid-19 crisis must recognise the uneven playing field between white and black companies created by the country’s historical imbalances and that it was not unlawful to use race in helping distressed companies.

“The North Gauteng High Court’s decision to dismiss the review application by AfriForum and Solidarity is most welcome and is in fact a vindication as the court found there is nothing racial or shameful in our inclusion of BBBEE in the criteria as the applicants sought to suggest,” Kubayi-Ngubane told Sunday World.

“We will defend our policies because we believe they are fair and just and aimed at creating a more socially and economically just society. So, if it means going to the constitutional court to defend our stance, we won’t hesitate to do so.”

The two organisations had argued that the virus was going to hit all companies, whether black or white-owned. Solidarity’s Dirk Hermann said the country needed legal certainty from the Constitutional Court on “whether, in a state of disaster, the constitution allows for discrimination based on race in order to qualify for relief”.

Black Business Council (BBC) its weight behind Kubayi-Ngubane.

“We are disappointed by media reports that the AfriForum and Solidarity intend approaching the Constitutional Court to challenge the judgment. In the event they pursue this course of action, the BBC intends to join proceedings as a friend of the court,”

BBC CEO Kganki Matabane said in a statement on Friday. Meanwhile, the DA has also led an urgent application in the Pretoria High Court to stop President Cyril Ramaphosa and Small Business Development Minister Khumbudzo Ntshavhen from using BBBEE in helping small businesses.

The official opposition party wants the matter to be heard on May 12.

In a founding affidavit, DA’s spokesperson on small business Zakhele Mbhele said it was impermissible for Ntshavheni to use BBBEE for funding of small businesses as Covid-19 was colour blind.


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