CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 318/21
In the matter between:
MINISTER OF TOURISM First Applicant
DEPARTMENT OF TOURISM Second Applicant
DIRECTOR-GENERAL OF THE DEPARTMENT OF
TOURISM Third Applicant
and
AFRIFORUM NPC First Respondent
SOLIDARITY TRADE UNION Second Respondent
Neutral citation: Minister of Tourism and Others v Afriforum NPC and Another
[2023] ZACC 7
Coram: Zondo CJ, Maya DCJ, Baqwa AJ, Madlanga J, Majiedt J,
Mathopo J, Mbatha AJ, Rogers J, and Tshiqi J
Judgment: Zondo CJ (unanimous)
Heard on: 08 September 2022
Decided on: 08 February 2023
Summary: Disaster Management Act 57 of 2002 — Tourism Relief Fund —
Broad-Based Black Economic Empowerment— B-BBEE
2
Covid-19 — state of disaster — mootness — B-BBEE selection
criteria for beneficiaries of the Tourism Relief Fund
ORDER
On appeal from the Supreme Court of Appeal hearing an appeal from the High Court
of South Africa, Gauteng Division, Pretoria:
1. Leave to appeal is refused with costs including the costs of two counsel.
JUDGMENT
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.
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[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 Act1 (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, em ergency 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;
1 57 of 2002.
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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;
2 Id at preamble.
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(l) emergency procurement procedures;
(m) the facilitation of response and post -disaster rec overy 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 the ir houses to go
and buy food or to see a d octor. 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
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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 th e Fund would be paid
R50 000 each to assist them. The Minister had the power to establish s uch a fund in
terms of regulation 10(8) of the regulations promulgated by the Minister of COGTA.
Regulation 10(8) reads as follows:
“Any Minister may issue and vary directions, as required, within his or her mandate,
to address, prevent and combat the spread of COVID-19, from time to time, as may be
required, including—
(a) disseminating information required for dealing with the national state of
disaster;
(b) implementing emergency procurement procedures;
(c) taking any other steps that may be necessary to prevent an escalation of the
national state of disaster, or to alleviate, contain and minimise the effects
of the national state of disaster; or
(d) taking steps to facilitate international assistance.”3
[9] To deal with how the businesses which would be given grants out of the Fund
were to be selected, the Minister decided that the Department would be guided by the
Tourism B-BBEE Code of Good Practice which were approved by the Minister of Trade
and Industries in 2015. These were made in terms of the Broad-Based Black Economic
Empowerment Act4 (B-BBEE Act). The qualifying criteria identified or established by
the Minister were the following:
“1. QUALIFIYING CRITERIA
1.1 Proof of valid registration with Companies and Intellect ual Property
Commission (CIPC).
1.2 Must be an Exempted Micro Enterprise (EME) defined in terms of the
Amended Tourism B-BBEE Sector Code, 2015.
1.3 Must have a valid tax clearance certificate or PIN.
3 Regulation 10(8) Government Gazette No 43107 GG 318 of 18 March 2020.
4 53 of 2003.
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1.4 Proof of compliance with the minimum wage requirements.
1.5 Must provide proof of UIF registration for employees employed by the
business.
1.6 Be an existing tourism-specific establishment as outlined in the scope
of application (suppliers and intermediaries are not eligible).
1.7 Must be in existence for at least one business financial year.
1.8 Proof that the relief is required as a result of the impact of COVID-19.
1.9 Must submit the latest statements of financial position, financial
performance and cash flows.
1.10 Must submit six months’ bank statements.
1.11 Grading certificate or proof of application to be graded for
accommodation establishments.”
[10] The selection of SMMEs which would benefit from the Fund was based on
scores that would be given to the SMMEs which applied for grants out of the Fund. In
the view I take of this matter it is not necessary to elaborate on the selection criteria.
High Court
[11] In separate applications in the High Court, Afriforum and Solidarity sought to
have the Minister’s decision to include the race-based criteria (i.e. B-BBEE status level)
as some of the criteria to be used to select SMMEs to receive grants from the Fund
reviewed and set aside. This was on various bases including that the Minister had no
power to include such criteria in a fund related to providing relief to businesses that had
suffered as a result of the Covid-19 pandemic. The Minister, the Director-General and
the Department opposed the applications on, among others, the basis that she was
obliged by law to include the selection criteria taken from the Tourism B -BBEE Code
of Good Practice (i.e . the criteria that Afriforum and Solidarity called raced -based
criteria). The Minister also stated that she was entitled to include such criteria because
one of the goals of the Department was the transformation of the tourism industry. She
said that there was no reason why , in seeking to alleviate, prevent or contain the
economic effects of the Covid-19 pandemic on SMMEs, the Department could not have
due regard to the transformation agenda of the Department for the tourism industry.
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[12] The matter came before Kollapen J. He concluded that:
(a) given the other criteria that represent 80 points , it could hardly be
suggested that the consideration of race created an insurmountable
advantage for black businesses over white businesses ; o n the
contrary, Kollapen J said that the point of difference between two
and eight points was capable of being bridged by the scoring in
other categories and it was possible that a white applicant could
score more points than a black applicant.
(b) the criteria were flexible and d id not perpetuate an unfair
advantage for some candidates over others based on race ; in
summary, Kollapen J pointed out that the criteria did not have the
effect of excluding white applicants no r did it “seal in an
advantage” for black candidates but rather it had the effect of
providing those candidates with a head start which other
candidates could overcome within the general scoring system
which was both diverse and flexible.
(c) the Minister’s decision was not irrational.
[13] The High Court dismissed Afriforum’s and Solidarity’s applications but, in
accordance with Biowatch,5 did not make any costs order against them. Subsequently,
it also dismissed Afriforum’s and Solidarity’s applications for leave to appeal.
Supreme Court of Appeal
[14] After the High Court refused leave to appeal, Afriforum and Solidarity petitioned
the Supreme Court of Appeal for leave to appeal against the decision of the High Court.
The Supreme Court of Appeal set the petition down for the hearing of oral argument on
the basis that the merits would also be argued at the same time.
5 Biowatch Trust v Registrar, Genetic Resources [2009] ZACC 14; 2009 (6) SA 232 (CC); 2009 (10) BCLR 1014
(CC).
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The Supreme Court of Appeal granted Afriforum and Solidarity leave to appeal. It then
concluded that:
(a) in making the direction that included the B -BBEE criteria for
eligibility, the Minister was acting administratively;
(b) given (a) above, her conduct was subject to the Promotion of
Administrative Justice Act, 6 (PAJA) and could, therefore, be
challenged on review under PAJA; and
(c) the Minister had erred in believing that she was obliged by
section 10(1)(e) of the B -BBEE Act to apply the B -BBEE status
levels as part of the criteria for eligibility for grants from the
Tourism Relief Fund which, therefore, means that in her decisio n
she was materially influenced by an error of law as contemplated
by PAJA.
[15] The Supreme Court of Appeal upheld the appeal with costs including the costs
of two counsel. It set aside the decision of the High Court and replaced it with an order
declaring t hat, when the Minister made the direction of 6 April 2020 in terms of
regulation 10(8) of the regulations under the DM Act, she was not legally obliged by
section 10(1)(e) of the B -BBEE Act to make eligibility for assistance from the Fund
subject to the To urism Sector Code made in terms of the B -BBEE Act. The
Supreme Court of Appeal declared the Minister’s decision unlawful. It also made an
order to the effect that the declaratory order did not authori se the Minister to recover
funds already disbursed from the Fund.
In this Court
[16] The Minister, the Director -General and the Department apply to this Court for
leave to appeal against the judgment and order of the Supreme Court of Appeal.
Afriforum and Solidarity oppose this application on the basis, among others, that the
matter is moot and, in any event, there are no reasonable prospects of success.
6 3 of 2000.
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Jurisdiction
[17] This matter relates to a review application which is a constitutional matter.
Furthermore, the Minister submits that this Court has jurisdiction because part of the
dispute is whether or not she was obliged to include the B-BBEE level status among the
criteria to be used to select SMMEs to benefit from the Fund. Since the decision that is
challenged is a decision which the Minister says she took to advance transformation in
the tourism industry, it is a decision that raises constitutional issues. Such issues relate
to section 9 of the Constitution. Section 9 reads:
“(1) Everyone is equal before the law and has the right to equal protection and benefit
of the law.
(2) Equality includes the full and equal enjoyment of all rights and freedoms. To
promote the achievement of equality, legislative and other measures designed to protect
or advance persons, or categories of persons, disadvantaged by un fair discrimination
may be taken.
(3) The state may not unfairly discriminate directly or indirectly against anyone on one
or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social
origin, colour, sexual orientation, age, di sability, religion, conscience, belief, culture,
language and birth.
(4) No person may unfairly discriminate directly or indirectly against anyone on one or
more grounds in terms of subsection (3). National legislation must be enacted to
prevent or prohibit unfair discrimination.
(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless
it is established that the discrimination is fair.”
I agree that this raises a constitutional matter. For that reason , this Court has
jurisdiction.
Leave to appeal
[18] As already indicated earlier, the Minister, Director -General and the Department
apply for leave to appeal. This Court grants leave to appeal if it is in the interest s of
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justice to do so. Three of the factor s that may influence the conclusion whether or not
it is in the interests of justice to grant leave are:
(a) if the issue that the court is required to decide affects many people
or certain sectors of society and, therefore, more people may stand
to benefit from the decision of this Court.
(b) the issue is an important one.
(c) there are reasonable prospects of success.
[19] In its answering affidavit filed in this Court, Solidarity contended, among others,
that the application for leave to appeal should be dismissed because the matter has
become moot. A conclusion that the matter is moot may lead to this Court refusing
leave to appeal. However, the fact that a matter is moot is not decisive of an application
for leave to appeal. In certain circumstances the Court may grant leave and deal with a
matter even though it is moot. Each case depends on its own circumstances.
[20] In this matter, if we grant leave to appeal and hear the appeal, the Minister urges
us to uphold the appeal and set aside the order of the Supreme Court of Appeal.
[21] One of the points which Solidarity took in its answering affidavit , in support of
its opposition, is that the matter has become moot and that, on that ground alone, the
application should be dismissed. The Minister was not entitled to file a replying
affidavit in this Court where she could have responded to the mootness point.
Nevertheless, in her written submissions the Minister referred to the fact that the
High Court and the Supreme Court of Appeal had given conflicting ju dgments. She
submitted that, for this reason, it was in the interests of justice that this Court should
decide the matter even if it was moot. In its written submissions Afriforum also took
the point that the matter was now moot and that, for that reason alone, it was not in the
interests of justice to grant leave.
[22] In support of its mootness point, Afriforum relied upon the following:
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(a) the dispute between the parties related to a fund which the
Minister had established in terms of the DM Act read with
regulations promulgated under that Act during the state of
disaster;
(b) the state of disaster had been terminated;
(c) the order made by the Supreme Court of Appeal in respect of
which the Minister sought leave to appeal was specific to powers
which the Minister had purported to exercise under the DM Act
and regulations promulgated under that Act;
(d) the order of the Supreme Court of Appeal made it clear that its
order did not authorise the recovery of funds that had been given
to the small businesses already; and
(e) the Fund had been exhausted.
[23] 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. In National Coalition for Gay and Lesbian
Equality7 it was said:
“A case is moot and therefore not justiciable, if it no longer presents an existing or live
controversy which shoul d exist if the Court is to avoid giving advisory opinions on
abstract propositions of law. Such was the case in JT Publishing (Pty) Ltd and Another
v Minister of Safety and Security and Others 1996 (12) BCLR1599 (CC); 1997 (3) SA
514 (CC), where Didcott J said the following at para 17:
‘[T]here can hardly be a clearer instance of issues that are wholly
academic, of issues exciting no interest but a historical one, than those
on which our ruling is wanted have now become.’”8
7 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs [1999] ZACC 17; 2000 (2) SA 1;
2000 BCLR 39 (CC).
8 Id at footnote 18.
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[24] In President of R epublic of South Africa v Democratic Alliance 9 Mogoeng CJ,
writing for the majority, said:
“The President h imself says ‘the order of Vally J no longer has any practical effect
between the parties and has become academic’. This Court is thus being asked to
advise or guide the President. That is the only real purpose to be served by entertaining
this appeal. And courts should be loath to fulfil an advisory role, particularly for the
benefit of those who have dependable advice abundantly available to them and in
circumstances where no actual purpose would be served by that decision, now.
Entertaining this application requires that we expend judicial resources that are already
in short supply especially at this level. Frugality is therefore called for here.”10
[25] Later on in the same judgment, the Chief Justice said:
“There is no discrete issue raised h ere. Detailed factual considerations would have to be
traversed to do justice to this matter. And the President stands to suffer no harm should the
determination of the issue be left to a future challenge to the appointment or dismissal of
Cabinet members. A refusal to exercise our discretion to address a moot interlocutory question
would thus not be a lost opportunity, necessary to address foreseeably imminent challenge s.
This is not one of those challenges to presidential power that are likely to arise as frequently as
is apparently feared. It didn’t for the past 25 years of our constitutional democracy and is most
unlikely to arise any time soon.”11
[26] Counsel for the Minister conceded that the matter was moot but submitted that ,
nevertheless, it was in the interests of justice for this Court to grant leave to appeal. In
support of this, counsel pointed out that a judgment of this Court could give guidance
on whether a Minister is entitled to use the B -BBEE level status in respect of relief
under the DM Act. There is no merit in this point. The Minister’s defence to the attack
by Afriforum and Solidarity was very specific . It related to the state of disaster , the
9 [2019] ZACC 35; 2020 (1) SA 428 (CC); 2019 (11) BCLR 1403 (CC).
10 Id at para 35.
11 Id at para 38.
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DM Act and the regulations that were promulgated to regulate certain matters during
the state of disaster. The state of disaster has been terminated. It may take a long time
before South Africa is faced with another state of disaster.
[27] In my view , there are no sound reasons for this Court to entertain this matter
despite it being moot. The fact that the High Court and the Supreme Court of Appeal
in this matter gave conflicting decisions does 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. In this regard I wish to point out that at some
stage in the past this Court may have been more inclined to entertain matters even if
they were moot. This Court’s workload has increased substantially since its jurisdiction
was expanded by the 17 th 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, it means that in the future this Court
is 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. It is not in the interests
of justice for this Court to grant leave to appeal and determine the appeal.
[28] In my view, the applicants’ application falls to be dismissed with costs including
the costs of two counsel.
[29] In the result, the following order is made:
1. Leave to appeal is refused with costs including the costs of two counsel.
For the Applicants:
For the First Respondents:
For the Second Respondent:
Adv Moses Mphaga SC (with Adv Faith
Zulu)
Instructed by State Attorney (Pretoria)
Adv Margaretha J Engelbrecht SC (with
Adv Johan GC Hamman)
Instructed by Hurter Spies Incorporated
Adv Corné Goosen (with Adv Dirk J
Groenewald)
Instructed by Serfontein Viljoen and
Swart