Race to determine state help

By Johnell van Vollenhoven

Months before the first diagnosis of coronavirus in South Africa the Covid-19 pandemic had already brought economic activities of many countries all over the world to a standstill, and so it did not really come as a surprise when the same finally happened in South Africa.

In South Africa rules and regulations were announced in a rush, and a state of disaster was declared. People suddenly had to stay home, and businesses and schools had to close. Small businesses, and especially certain sectors such as tourism, felt the pain immediately as their income dried up overnight.

However, the state was not going to forsake its people; no, emergency funds were being made available and businesses were encouraged to apply for such funds. Somehow, it seemed as if there might just be relief.

Then the contents of a slide presentation, outlining the requirements to qualify for such relief funds, was leaked to the media. Black economic empowerment (BEE) was a categoric prerequisite.

That took the wind out of so many sails. So, there you have it – as a small business you are being banned from trading and generating an income and the tourism industry cannot do any business for months as a result of the travel ban and lockdown measures. The result is that you cannot pay your employees, you cannot meet your obligations and, ultimately, you cannot put food on your own table. And then the government tells you they are not going to help you because your skin is the wrong colour. Don’t they think about all the black employees in your employ? All of them are breadwinners and they are part of the distress you are in.

On 24 March Solidarity addressed an urgent letter to the government asking for clarity on the requirements set to qualify for emergency relief funding. After the presentation document was leaked the government dismissed it as fake news. However, at a press conference held in the days that followed it was made plain that the Department of Small Business Development would make emergency relief available on a demographically representative manner only and that 70% of the Department of Tourism’s funds would be allocated exclusively to businesses in black ownership.

Solidarity responded by lodging a complaint against the departments with the Human Rights Commission. A pandemic is hardly the time to look at the colour of someone’s skin. A whole country is in distress. People are going hungry and their businesses are closing. Skin colour plays no role in the pandemic, yet it seems that the government wants to exploit these circumstances to give an unfair advantage to previously disadvantaged people.

On 14 April the Department of Small Business Development responded in court affidavits to Solidarity’s letter. The department gave the undertaking that BEE would not be a prerequisite to qualify for relief funds and explained that this criterion on the online platform was only for the sake of the department’s internal accounting system.

The Department of Tourism, however, maintained that BEE was indeed a prerequisite for the allocation of relief funds, their defence being that it was required of them by law. Solidarity brought an urgent court application and a court date was set for 28 April in the North Gauteng High Court.

Solidarity considers these race-based funds as unfair given that a double discrimination is now being perpetuated: against the business owner and against his employees. Two out of every three employees in the tourism industry are black and are the breadwinners in their families, but now the state refuses to help them simply because they work for a white employer.

Despite Solidarity’s arguments Judge Kollapen ruled that the application of race criteria did not perpetuate an unfair advantage to black people on the basis of their race but rather has the effect of providing a head start to such applicants.

On the same day, the world of small businesses was shaken by more shocking news – Khumbudzo Ntshavehni, Minister of Small Business Development, acknowledged in a Portfolio Committee Meeting that race would play a role in the allocation of emergency funding to businesses.

In response, Solidarity laid a charge of perjury against the minister with the police. Solidarity was more than shocked that a minister would lie under oath in court documents about her department’s intentions and to make a mockery of justice in South Africa by so doing.

Complaints against both departments have also been lodged with the Constitutional Court to test whether it is constitutional to apply any form of discrimination on the grounds of race in times of distress. When the entire country, regardless of skin colour, is affected by a virus then surely the degree of distress, and nothing else, should determine the allocation of relief.

Solidarity will also take the matter further by lodging a complaint with the United Nations’ Committee on the Elimination of Racial Discrimination.

At a time when a pandemic is forcing the country’s economy to its knees and it makes no distinction between its victims it is to be expected that the state would not make a distinction when it comes to granting relief. Solidarity will continue to fight this discrimination taking place in a time of need.

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