DA’s anti-BEE Covid-19 funding appeal application dismissed

The Democratic Alliance’s bid to have it deemed unlawful for government to use transformation criteria in determining who gets Covid-19 relief, was dealt another blow in the North Gauteng High Court this week, after the court on Wednesday refused the party leave to appeal its June ruling dismissing the case.

“The constitution enjoins fundamental social and economic redress after 300 years of colonial and apartheid rule,” Judge President Dunstan Mlambo said in delivering the decision.

Another court was not likely to ignore this, the Judge President went on.

“To do so is to live in a world totally divorced from the racism and sexism that continues to divide our country and where those most in need and most in vulnerable conditions happen to be black.”

The DA’s court action came in response to Small Business Development Minister Khumbudzo Ntshavheni’s establishment of two Covid-19 relief funds for small, medium and micro enterprises – the Debt Finance Scheme and the Business Growth Resilience Fund – and the decision to use transformation criteria to determine who could access these funds.

In the founding papers, Zakhele Mbhele – the party’s spokesperson for small business – argued Covid-19 knew “no colour, class, creed, gender, age, sexual orientation or even disability.”

“Covid-19 is truly colour blind and neither knows nor tolerates biological classes among the citizens it infects and affects,” Mbhele said. “The virus regards people as people.”

Government could not use the pandemic “opportunistically, to further the objects of economic empowerment,” he went on.

A full bench of the court heard the case in early June and handed down its judgment, dismissing the case, some three weeks later.

The DA then launched an application for leave to appeal the ruling.

That application came before the court last week, with judgment handed down this Wednesday.

Mlambo, in refusing the party another bite at the cherry, said leave to appeal was not “simply for the taking”.

“A balance between the rights of the party which was successful before the court a quo and the rights of the losing party seeking leave to appeal need to be established so that the absence of a realistic chance of succeeding on appeal dictates that the balance must be struck in favour of the party which was initially successful,” he explained.

While the court last month dismissed the DA’s case, it did set aside and declare unlawful the criteria on which the minister wanted to rely on the basis that it was too “vague” and the minister was ordered to remedy this – while still taking into account “race, gender, youth and disability”.

In its application for leave to appeal, the DA took issue with this on the basis that no-one had argued for an order of this nature.

“The determination that the minister was required to take account of the impugned criteria was based on the provisions of the Disaster [Management] Act,” Mlambo said on Wednesday.

He said the act provided for “measures that reduce the vulnerability of disaster prone areas, community and households”.

Further, he said, the act tasked government with “the development of means of assessing the vulnerability of communities and households [to] disasters that may occur in order that government may respond accordingly”.

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