To deal with how the businesses would be selected to receive grants out of the fund, the minister decided the department would be guided by the tourism BBBEE code of good practice.
In separate applications in the Pretoria high court in 2020, AfriForum and Solidarity sought to have the minister’s decision to include the race-based criteria (B-BBEE status level) as some of the criteria for selecting SMMEs to receive grants from the fund, reviewed and set aside.
The high court dismissed their application. Judge Jody Kollapen concluded that given the other criteria that represented the other 80%, it could hardly be suggested that the consideration of race created an insurmountable advantage for black businesses over white ones.
Aggrieved with this decision, Solidarity and AfriForum petitioned the SCA after being denied leave to appeal.
The SCA upheld the appeal and ruled the minister was not legally obliged to make eligibility for assistance from the Tourism Relief Fund subject to the Tourism BBBE Sector Code.
However, the court said the order it made did not authorise or oblige the minister to recover funds already disbursed from the relief fund.
The minister applied to the Constitutional Court for leave to appeal against the judgment and order of the SCA, while AfriForum and Solidarity opposed this application on the basis, among others, that the matter was moot.
“A case is moot when there is no longer a live dispute or controversy between the parties which would be practically affected in one way or another by a court’s decision or which would be resolved by a court’s decision. A case is also moot when a court’s decision would be of academic interest only,” chief justice Raymond Zondo said in a unanimous judgment.
He said the fact that the high court and the SCA in this matter gave conflicting decisions did not on its own carry much weight.
“It may have been different if we were dealing with conflicting decisions of different courts in different matters raising the same issue.”
Zondo said at some stage in the past, the Constitutional Court might have been more inclined to entertain matters even if they were moot. However, the court’s workload had increased substantially since its jurisdiction was expanded by the 17th constitution Amendment in 2013.
“This does not mean that this court will never entertain a matter that is moot if there are proper grounds justifying that it should entertain a moot matter.”
However, Zondo said it meant that in future the court was likely to be less inclined than it would have been before to entertain such matters.
“This court will, generally speaking, rather wait for another matter that will not be moot before it may pronounce on an issue. This is something practitioners should bear in mind when advising litigants in matters that have become moot,” Zondo said.
Despite these pronouncements by the court, AfriForum and Solidarity said the judgment was an important victory as the government’s ongoing obsession with race and representativeness still was, in their opinion, one of the main obstacles to a thriving economy.
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Case on tourism relief fund payments dismissed as there is no longer dispute between parties
The court says in future it is likely to be less inclined than before to entertain matters that are of academic interest only
Image: Beeld / Felix Dlangamandla
It was not in the interests of justice for the Constitutional Court to grant leave to appeal to the minister of tourism in her case regarding funding for small hospitality establishments during lockdown.
This was because there was no longer a live dispute or controversy between the parties that would be practically affected one way or another, or be resolved, by a court’s decision.
The Constitutional Court made this finding as it refused the minister’s leave to appeal with costs, including the costs of two counsel, the 2021 order made by the Supreme Court of Appeal.
The SCA order related to whether the minister was obliged to include broad-based black economic empowerment (BBBEE) status among the criteria the department of tourism used to select SMMEs that would be given grants out of the R200m Tourism Relief Fund in 2020.
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To deal with how the businesses would be selected to receive grants out of the fund, the minister decided the department would be guided by the tourism BBBEE code of good practice.
In separate applications in the Pretoria high court in 2020, AfriForum and Solidarity sought to have the minister’s decision to include the race-based criteria (B-BBEE status level) as some of the criteria for selecting SMMEs to receive grants from the fund, reviewed and set aside.
The high court dismissed their application. Judge Jody Kollapen concluded that given the other criteria that represented the other 80%, it could hardly be suggested that the consideration of race created an insurmountable advantage for black businesses over white ones.
Aggrieved with this decision, Solidarity and AfriForum petitioned the SCA after being denied leave to appeal.
The SCA upheld the appeal and ruled the minister was not legally obliged to make eligibility for assistance from the Tourism Relief Fund subject to the Tourism BBBE Sector Code.
However, the court said the order it made did not authorise or oblige the minister to recover funds already disbursed from the relief fund.
The minister applied to the Constitutional Court for leave to appeal against the judgment and order of the SCA, while AfriForum and Solidarity opposed this application on the basis, among others, that the matter was moot.
“A case is moot when there is no longer a live dispute or controversy between the parties which would be practically affected in one way or another by a court’s decision or which would be resolved by a court’s decision. A case is also moot when a court’s decision would be of academic interest only,” chief justice Raymond Zondo said in a unanimous judgment.
He said the fact that the high court and the SCA in this matter gave conflicting decisions did not on its own carry much weight.
“It may have been different if we were dealing with conflicting decisions of different courts in different matters raising the same issue.”
Zondo said at some stage in the past, the Constitutional Court might have been more inclined to entertain matters even if they were moot. However, the court’s workload had increased substantially since its jurisdiction was expanded by the 17th constitution Amendment in 2013.
“This does not mean that this court will never entertain a matter that is moot if there are proper grounds justifying that it should entertain a moot matter.”
However, Zondo said it meant that in future the court was likely to be less inclined than it would have been before to entertain such matters.
“This court will, generally speaking, rather wait for another matter that will not be moot before it may pronounce on an issue. This is something practitioners should bear in mind when advising litigants in matters that have become moot,” Zondo said.
Despite these pronouncements by the court, AfriForum and Solidarity said the judgment was an important victory as the government’s ongoing obsession with race and representativeness still was, in their opinion, one of the main obstacles to a thriving economy.
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