Tourism Minister vs Afriforum: No matter who wins, they still lose

A small but significant win for Afriforum and Solidarity in court on Monday may end up a stroke of genius or a big risk of backfiring.

The interest group, Afriforum, and complimentary union Solidarity have been on the attack against the Department of Tourism’s plans to use race as a determining factor in Covid-19 relief funding in the sector. They argue the pandemic does not discriminate against race and therefore neither should any associated relief funding.

Arguing the opposite, the Department of Tourism is standing firm on its decision.

Not one to let a good crisis go to waste, the department’s ironically Churchillian stand is to use this opportunity for “transformation” of the sector.

Whatever that means remains to be seen as the court case plays out, but in the interim the department has been interdicted from paying out relief funding and even suspending new applications. In other words, before anybody is seeing any of this sweet R1.2 billion, the rules regarding whether one can play the race card need to be determined.

It seems like a viable fight in legal theory, but that’s about as far as this fight excites me. We’ve been in lockdown for over a year and tourism has been one of the hardest hit industries. It wouldn’t surprise me if those who most needed this relief funding are already out of business and extra delays just keep the bad times rolling.

So if Afriforum eventually wins this case, there will be questions asked whether the delays were worth it. One would also have to factor in the extent of the delay and the intensity of the judgemnt. It’s probable that, in this scenario, the legal answer to playing the race card would be very useful for the future.

If, however, this case is lost, with the same factors considered, Afriforum could be in for a lot of hate. It’s not often that a public interest group stands in the way of relief funding and if Afriforum is the reason why funding is a year late… Ooph!

An especially big ooph in regard to businesses who could have gotten funding in that time but had since closed doors.

So why take the risk?

I guess Afriforum and Co see it as their function to engage in these kinds of matters. We legal minds kind of love these fights because they engage in some serious legal questions about the structure of our society, so I’m not ready to start complaining.

The obvious downside is these fights take time and there are serious practical difficulties.

What we must be careful of therefore is to see this week’s interdict as a “win”. Winning the interdict doesn’t tell us who is on the right side of the law. It simply tells us that we’ve got to wait before we find out who it is.

Not to draw any association but remember that time Chester Missing went toe to toe with Steve Hofmeyr on a freedom of expression matter? You know! When the puppet was being critical of ol’ Steve, Hofmeyr got an interim interdict against the puppet master, Conrad Koch.

Yes! The interim urgent order was actually granted and Steve hailed it as a win… until less than a month later when the matter was heard fully and the interim relief was set aside.

All that Steve did in that instance was to kick the can down the road, unlike this tourism relief matter, where the outcome was pretty obvious.

The point, however, remains that interim relief is not an indicator of a win. It’s merely the most convenient position to take before settling a bigger issue. Like in this case of the tourism relief funds, recalling the funds would be a slight problem later down the line if the court decides the department messed up, so this interdict was always going to be granted.

So great! The money has been frozen. We can now get on with determining the real question; can the money be used in a manner for transformation? We just dare not freeze on this question too long because if we do, the answer might not matter any longer.

Richard Anthony Chemaly. Entertainment attorney, radio broadcaster and lecturer in communication ethics.