The North Gauteng High Court on Thursday dismissed an application by the Democratic Alliance for leave to appeal its earlier ruling that held the government was bound by the constitution to consider race, gender and disability in setting criteria for eligibility for Covid-19 relief to companies.
The DA had asked the court for leave to appeal to the Supreme Court of Appeal (SCA).
A full bench of the high court on Wednesday reiterated its warning, also made in the division’s rejection earlier this month of the Fair-Trade Independent Tobacco Association’s application for leave to appeal to the SCA in the tobacco ban court saga, that the bar for leave to appeal had been raised to require that the appeal would, as opposed to might, have a reasonable chance of success.
The DA was seeking to appeal a paragraph in the court’s ruling of June 19, which held that “in the reformulation of criteria to be employed in the distribution of funds and either the Debt Finance Scheme or the Business Growth Resilience Fund, the minister must take into account race, gender, youth and disability”.
But in the ruling on its appeal bid, the court said the party had advanced no cogent reason why the dictates of the constitution for social redress should not play a role when the minister of small business development, Khumbudzo Ntshavheni, interpreted the words “need” and “vulnerability” in the Disaster Management Act to allocate relief accordingly.
“To give a meaning to these words as they appear in the various sections of the Disaster Management Act to which we have referred, without taking account of the obvious fissures in our society and thus ignore or elide over them, is to approach South Africa in a colour blind fashion which effectively runs counter to the normative framework of the Constitution….”
“In crisp terms: the Constitution enjoins fundamental social and economic redress after 300 years of colonial and apartheid rule.”
There was, the court concluded, therefore no reasonable prospect that another court would accept that the Disaster Management Act should be read in isolation of the principles contained in the constitution.
“To do so is to live in a world totally divorced from the racism and sexism that continues to divide our country and where those most in need and most in vulnerable conditions happen to be black.”
The DA has argued that when the population is in equal need of relief because of a natural disaster, the Bill of Rights would dictate that the government should be allowed to extend help to all equally without regard to race, gender, age or disability.