- The DA says it is illegal and unlawful for government to use BBBEE, race, gender or disability in determining who gets Covid-19 government relief.
- They want the court to interdict government from applying transformation criteria to any government assistance in response to the pandemic.
- Government says the DA’s arguments are absurd and the court should not grant the order they seek.
The DA will on Monday ask the Gauteng High Court in Pretoria to declare it impermissible and unlawful for government to use Broad-Based Black Economic Empowerment (BBBEE) status, race, gender, age or disability as criteria for determining who will receive aid from government amid the Covid-19 pandemic.
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The party will argue that government’s decision to use transformation criteria when determining who gets economic relief, is illegal.
The case is being heard virtually by a full Bench, led by Gauteng Division Judge President Dunstan Mlambo.
In an affidavit filed before court, the DA’s spokesperson for small business Zakhele Mbhele said government could not use race, sex, age and disability in determining who gets state relief amid the Covid-19 pandemic.
“This disease knows no caste. In the eyes of Covid-19, there is no less affected or immune race; the virus knows 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. The virus regards people as people,” Mbhele said in the affidavit.
He takes exception to Small Business Development Minister Khumbudzo Ntshavheni’s assertion that government cannot do away with its transformation goals under a state of disaster.
“Action taken under times of national distress, cannot simply be used (opportunistically) to further the objects of economic empowerment,” Mbhele told the court.
He added there would be perverse and irrational consequences that flow from government’s decision.
“Even if a business is owned in part or in whole by white people, it may well be the case that its employees are largely or entirely black.”
The party argued it was unclear how government would use BBBEE status, race, gender, age and disability criteria for determining who would receive economic relief.
Government response
In response to the DA’s application, Ntshavheni said the DA was seeking “a blanket prohibition on the use of BBBEE criteria under all scenarios”. She said the party had not made a case in this regard.
“No case is made out for such wide relief in the founding affidavit. Instead, the sharp point of the argument appears to be that all people are suffering equally as a result of the pandemic and therefore it is unlawful to distinguish amongst them on the basis of race, sex, age and disability in crafting relief initiatives,” Ntshavheni said.
“I demonstrate below that this contention is fallacious. Government cannot ignore the fact that the socioeconomic consequences of the pandemic are varied and complex,” the minister said.
She said there was no one-size-fits-all remedy amid a national disaster. “Relief efforts must be nuanced and must seek to meet the greatest need.”
She further argued: “Given the disadvantages faced due to our past, it is indisputable that businesses owned by black people, women, the youth and the disabled face disadvantages not usually faced by white-owned businesses. And the disparity is due to a lack of resources.
“The previously disadvantaged groups are far less likely to have access to financial reserves, suitable credit and other social support networks.”
In his affidavit, Mbhele noted that the DA appreciated the importance of economic redress. But he argued this cannot happen in a national disaster.
Government has argued that the case was not urgent and has asked the court not to grant the DA the relief they seek.
Blanket prohibition
Ntshavheni further said if the court granted the DA the interdict it sought, it could lead to “absurd outcomes”.
“If the DA were to succeed in the relief that it seeks, government would not be able to adopt relief initiatives in terms of which sanitary towels are provided at no cost to women. Neither would government be able to provide special relief to the aged notwithstanding the fact that they may be particularly vulnerable during the pandemic. There are a multitude of other absurd examples,” the minister noted.
She argued that the court should not grant the DA its request for a “blanket prohibition”.
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