Solidarity and AfriForum will approach the Constitutional Court directly with an appeal against the judgment of Judge Jody Kollapen of the Northern Gauteng High Court in Pretoria. This comes after Kollapen ruled on Thursday that the Department of Tourism could use race as a criterion for the granting of financial aid to small, medium and micro enterprises (SMMEs).
Judge Kollapen ruled that the criteria did not give some candidates an unfair advantage on the basis of race, but merely gave them an advantage. Kollapen also ruled that the race criteria constitute such a small percentage of the decision on the granting of financial aid that other businesses are therefore still given a chance to be considered for this.
The organizations approached the court when it became known that the Department of Tourism was going to use the terms of black economic empowerment to determine which businesses received financial assistance because of the losses they suffered during total seclusion.
Solidarity has argued that the pandemic does not discriminate against its victims on the basis of race and that it is therefore immoral of the government to offer assistance on these grounds. “It is not only white business owners who are affected, but also all employees in the industry, two out of every three are black. Hunger and distress know no color, ”the union argues. According to Dirk Hermann, chief executive of Solidarity, AfriForum and Solidarity demand constitutional certainty over this ruling and therefore decided to approach the Constitutional Court on an urgent basis.
“It is frightening that during a crisis period there may be legal space for the granting of aid on the basis of race. If it were found that there is constitutional scope for this type of race approach within a disaster situation, then South Africa does not have a state of law, but a state based on race, ”Hermann says.
Hermann said if the Constitutional Court upheld the Supreme Court’s ruling, Solidarity would no doubt approach the United Nations (UN) Committee for the Elimination of All Forms of Racial Discrimination on the Matter.
“We see this case as a gross form of racial discrimination. This government’s actions cannot in any way be justified and therefore Solidarity will not leave it there, ”Hermann says.
Kallie Kriel, CEO of AfriForum, says small tourism businesses, which are owned by members of minority communities, currently, like all other small tourism businesses, are in urgent need of financial assistance.
“If the case is delayed, many small businesses will go under and the government will be complicit in it,” Kriel says.
Kriel says they will have to get clarity from the Constitutional Court whether it is in fact the case that the current constitutional dispensation undermines the rights of minorities to such an extent that even during times of crisis, white people may be discriminated against.
“If so, minority communities will have to realize that they are solely dependent on their own communities and that steps will need to be taken so that members of minority communities can support each other to ensure survival,” Kriel says.
On April 28, Solidarity and AfriForum were in the Northern Gauteng High Court to request that the racial criterion of the Department of Tourism be revised. This comes after Solidarity filed a complaint with the Human Rights Commission (HRC) on March 25 after the government announced that race, rather than emergency, will be the determining factor for the allocation of emergency funds. An urgent application was served on the department on March 30.
Solidarity argues that the pandemic does not discriminate against its victims on the basis of race and that it is therefore immoral of the government to offer assistance on these grounds.