BBC URGES GOVERNMENT TO CHALLENGE COURT RULINGS

Consecutively, courts have declared the Tourism Fund and the some sections of the Mining Charter as non-binding and illegal. In view of this, the Black Business Council believes government should respond timeously.

The country’s courts have made two rulings which may have strong implications on compliance with various pieces of legislation aimed at fostering transformation in future. Some fear this could set a precedent for organisations opposed to transformation who may seek legal recourse in a desperation to shirk compliance. And based on this, the Black Business Council (BBC) has urged the relevant government departments to lodge an appeal, believing there is an ample fighting chance and considerable grounds for a review.

In a landmark judgement, the High Court has stated that previous Black Economic Empowerment (BEE) credentials, under the Mining Charter, are sufficient for a mining company to have a mining rights licence renewed. This is in favour of the Minerals Council of South Africa, which challenged the Department of Mineral Resources, advocating for the retention of the principle of “once empowered, always empowered.

In another case, Supreme Court of Appeal (SCA) has pronounced that it is unlawful for the then Minister of Tourism, Mmamoloko Kubayi-Ngubane to stipulate that only businesses in the tourism sector that meet Broad-based Black Economic Empowerment (BBBEE) requirements will qualify for government’s Tourism Fund, Covid-19 assistance funding.

Error in judgement

In a review of the abovementioned rulings, Kganki Matabane, CEO of the Black Business Council (BBC), is of the view that in both cases the courts may have erred in their judgement.

With regard to the Tourism Fund, Matabane defended the Department of Tourism’s approach, arguing that the criteria of the funding is aimed a addressing historical economic imbalances and the fact that the black-owned companies were impacted the most due to COVID travel restrictions. “The covid-19 closure may have affected black-owned companies the most than white-owned businesses,” he said, calling on the Department of Tourism to appeal and seek a fair ruling. Similarly, Matabane called on the Department of Mineral Resources to challenge the “Once empowered, always empowered’ ruling.

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