Minister of Tourism and others v Afriforum NPC and another

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Zondo CJ, Maya DCJ, Baqwa AJ, Madlanga J, Majiedt J, Mathopo J, Mbatha AJ, Rogers J and Tshiqi J
• Judgment Date: 08 February 2023
• Docket Number: CCT 318/21
• Hearing Date: 08 September 2022
• Court: Constitutional Court

Zondo CJ (Maya DCJ, Baqwa AJ, Madlanga J, Majiedt J, Mathopo J, Mbatha AJ, Rogers J, and Tshiqi J concurring):

Introduction

[1]

This is an application brought by the Minister of Tourism (the Minister), the Department of Tourism and the Director-General of that department as, respectively, the first, second and third applicants, for leave to appeal against a judgment and order of the Supreme Court of Appeal in a matter involving them, on the one hand, and, Afriforum NPC and Solidarity Trade Union, on the other. The Supreme Court of Appeal's judgment and order related essentially to whether the Minister was obliged or entitled to include Broad-Based Black Economic Empowerment (B-BBEE) status level criteria among the criteria that the Department of Tourism used to select small, micro and medium sized businesses (SMMEs) that would be given grants out of the Tourism Relief Fund for SMMEs.

2023 JDR 0761 p3

Zondo CJ (Maya DCJ, Baqwa AJ, Madlanga J, Majiedt J, Mathopo J, Mbatha AJ, Rogers J, and Tshiqi J concurring)

[2]

The Supreme Court of Appeal's judgment was to the effect that the Minister was not obliged nor was she entitled to include race-based criteria in the selection criteria used to select SMMEs to be given the grants. It is in respect of that judgment that the Minister, the Director-General and the Department apply for leave to appeal. Afriforum and Solidarity oppose the application.

Background

[3]

The Disaster Management Act [1] (DM Act) makes provision for the declaration of a disaster in any part of the country or in the whole country by the Minister of Cooperative Governance and Traditional Affairs (Minister of COGTA) if a state of disaster has occurred in a certain area or province or in the whole country. The term "disaster" is defined as follows in section 1 of the DM Act:

"'disaster' means a progressive or sudden, widespread or localised, natural or human-caused occurrence which-

(a)

causes or threatens to cause-

(i)

death, injury or disease;

(ii)

damage to property, infrastructure or the environment; or

(iii)

significant disruption of the life of a community; and

(b)

is of a magnitude that exceeds the ability of those affected by the disaster to cope with its effects using only their own resources."

[4]

The purpose of the DM Act is:

"To provide for –

•

an integrated and co-ordinated disaster management policy that focuses on preventing or reducing the risk of disasters, mitigating the severity of disasters, emergency preparedness, rapid and effective response to disasters and post-disaster recovery and rehabilitation;

•

the establishment and functioning of national, provincial and municipal disaster management centres;

2023 JDR 0761 p4

Zondo CJ (Maya DCJ, Baqwa AJ, Madlanga J, Majiedt J, Mathopo J, Mbatha AJ, Rogers J, and Tshiqi J concurring)

•

disaster management volunteers; and

•

matters incidental thereto." [2]

[5]

Once the Minister of COGTA has declared a state of disaster he or she may make regulations in terms of section 27(2) of the DM Act to regulate various matters. Section 27(2) reads:

"If a national state of disaster has been declared in terms of subsection (1), the Minister [of COGTA] may, subject to subsection (3), and after consulting the responsible Cabinet member, make regulations or issue directions or authorise the issue of directions concerning –

(a)

the release of any available resources of the national government, including stores, equipment, vehicles and facilities;

(b)

the release of personnel of a national organ of state for the rendering of emergency services;

(c)

the implementation of all or any of the provisions of a national disaster management plan that are applicable in the circumstances;

(d)

the evacuation to temporary shelters of all or part of the population from the disaster-stricken or threatened area if such action is necessary for the preservation of life;

(e)

the regulation of traffic to, from or within the disaster-stricken or threatened area;

(f)

the regulation of movement of persons and goods to, from or within the disaster-stricken or threatened area;

(g)

the control and occupancy of premises in the disaster-stricken or threatened area;

(h)

the provision, control or use of temporary emergency accommodation;

(i)

the suspension or limiting of the sale, dispensing or transportation of alcoholic beverages in the disaster-stricken or threatened area;

(j)

the maintenance or installation of temporary lines of communication to, from or within the disaster area;

(k)

the dissemination of information required for dealing with the disaster;

2023 JDR 0761 p5

Zondo CJ (Maya DCJ, Baqwa AJ, Madlanga J, Majiedt J, Mathopo J, Mbatha AJ, Rogers J, and Tshiqi J concurring)

(l)

emergency procurement procedures;

(m)

the facilitation of response and post-disaster recovery and rehabilitation;

(n)

other steps that may be necessary to prevent an escalation of the disaster, or to alleviate, contain and minimise the effects of the disaster; or

(o)

steps to facilitate international assistance.

[6]

At the end of 2019 a virus was discovered in China which caused people to suffer from flu-like symptoms which could lead to death. It was named as "coronavirus". The illness it caused was called Covid-19. This virus soon spread to many parts of the world. Early in 2020 it reached our shores. In March 2020 the Minister of COGTA declared a state of disaster in the whole country. The Government made regulations in terms of which it instituted a national lockdown. The national lockdown had various levels, starting from level 5 up to level 1, 5 being the severest form of restrictions of movement and human activity. Level 5 was the first level of lockdown under which the country was put. This was in March 2020. Except for people who were employed in essential services or who provided essential services such as doctors and nurses and other people employed in the health sector, people were not allowed to go to work or go on social visits. People were obliged by law to stay at home and only leave their houses to go and buy food or to see a doctor. Businesses were also compelled to close unless they rendered essential services.

[7]

The national lockdown, especially level 5 and, later, level 4, had severe economic and financial consequences for businesses and people because, for some time, businesses were completely closed and could not trade. Businesses suffered huge losses. Workers were not paid their wages because their employers were not allowed to operate their businesses. Later many businesses closed down permanently and many workers lost their jobs.

[8]

In response to the national lockdown and in an attempt to alleviate or prevent or contain the adverse economic and financial impact of the national lockdown on SMMEs

2023 JDR 0761 p6

Zondo CJ (Maya DCJ, Baqwa AJ, Madlanga J, Majiedt J, Mathopo J, Mbatha AJ, Rogers J, and Tshiqi J concurring)

within the tourism sector, the Minister established a fund called the Covid-19 Tourism Relief Fund for SMMEs. The total amount set aside for the Fund was R200 million. The Minister decided that SMMEs selected for grants under the Fund would be paid R50 000...