Afriforum NPC v Minister of Tourism and Others; Solidarity Trade Union v Minister of Small Business Development and Others

Following the declaration of a national state of disaster due to the Covid-19 pandemic, the Minister of Tourism, acting under delegated powers in terms of the Disaster Management Act 57 of 2002 and regulations issued thereunder, created a Tourism Relief Fund to provide once-off financial assistance to SMMEs in the tourism sector. The Minister issued a direction on 6 April 2020 setting eligibility and scoring criteria for access to the Fund, which included B-BBEE status levels as part of the assessment. Afriforum NPC and Solidarity Trade Union launched urgent applications in the Gauteng Division of the High Court to review and set aside the direction, contending that the inclusion of B-BBEE criteria amounted to unlawful race-based criteria. The High Court dismissed the applications. Leave to appeal was refused, but granted on petition to the Supreme Court of Appeal, where the appeals were heard together.

The appeals were upheld with costs. The order of the High Court was set aside and replaced with an order declaring that the Minister of Tourism was not legally obliged by section 10(1)(e) of the B-BBEE Act to subject eligibility for the Tourism Relief Fund to the Tourism Sector Code, and that the direction was consequently unlawful. The order expressly did not authorise or oblige the Minister to recover funds already disbursed.

The case clarifies the relationship between disaster management powers under the Disaster Management Act and transformation obligations under the B-BBEE Act. It affirms that ministerial directions issued under Covid-19 disaster regulations constitute administrative action reviewable under PAJA, and it limits the automatic application of B-BBEE Codes in contexts not contemplated by the empowering statute. The judgment is significant for delineating the scope of executive discretion and statutory interpretation during states of disaster.