It's not as though we had much choice here. The codes, as we all know, are unintelligible - there's this post that almost wishfully hopes that the DTI understand their own codes. But alas when you read through the post you'll see that the DTI can only confirm things that everyone understands and contradict those aspects of the codes that are actually clear. Then there's anecdotal stories about the so-called DTI BEE experts patronising their audience or just plain refusing to answer real questions. Clearly this is an untenable situation. If the people who write the policies have no idea what is required then what are we as the people who have to implement these things going to do? It's not as though this is anything new, historically the DTI has never been able to provide any assistance of any value. They started off well with the Interpretive Guide and then removed it. Therefore BEE as we know it is as a result of practitioners setting standards independently of the DTI. Admittedly we had a better document to work from (2007 codes).
I've been talking about mounting a legal challenge against the codes. We are now ready to start collecting the necessary funds to do this. We do need to stress, and the marketing document is very clear, that we oppose the 2013 revised codes ONLY. This is not an action to wipe out BEE in total. We're following the OUTA route and have created a non-profit organisation under section 8 of the Company's Act (formerly a section 21 company), aptly called the Equitable Transformation Alliance (ETA). I have attached the "marketing" document that we have already started circulating. This post is an explanation of why I am so hell bent on this challenge.
I've written about the rule of law in a few posts. I eventually found a decent definition of the rule of law (discussed here). I'm only concerned about three of the four tenets.
- The government and its officials and agents are accountable under the law;
- The laws are clear, publicized, stable and fair, and protect fundamental human rights, including the security of persons and property;
- The process by which laws are enacted, administered, and enforced is accessible, fair and efficient;
The Revised Codes (36928) cannot be regarded as even being vaguely consistent with these principles. As a result we will request the court to withdraw them and then instruct the minister (and am I hoping that it's not the Rob the Red at the time of the action) that he cannot fix up the inconsistencies and then republish the codes with the same problematic issues. We want the Constitutional Court to decide on what is fair and unfair discrimination in terms of section 9(5) of the Constitution. This is section 9
(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.
(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.
(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.
The DTI conveniently hides behind section 9(2) and irrationally argue that the codes are well within the ambit of this section (as the Nats justified apartheid in terms of the Bible). If this is their standard argument then we need Constitutional Court guidance. In my opinion setting draconian empowerment requirements for only white-owned and multinational companies (this is a little bit of a simplification), promoting 100% black-owned companies to a level 1 and exempting them from any nation building activities cannot be fair discrimination. Then to add insult to injury they have written such hogwash that the rules that these black-owned companies are exempted from are not only unintelligible, the department that's supposed to understand them has no idea how to guide those who need to implement them.
This is arbitrary law making, something our Constitution is loathe to tolerate. The problem is that we as the private sector just carry on taking whatever they throw at us. I'm not going to take it anymore. The ETA is going to go to court to let the government know (as OUTA did) that we won't endure substandard legislation. We are more than willing to play by rules that the government deems necessary but these rules need to be fair and clear.
We need financial support to get this action off the ground. We've already raised a fair amount of money but will need quite a lot more. We are looking at a crowdfunding option but in the interim money can be deposited into the attorney's trust account. As we've said on the document, we will respect the privacy of each donor but will also entertain any marketing opportunities that any organisation wishes to exploit by publicly supporting our campaign. If you know of someone who would be willing to help please can you forward this onto them.
I was asked by one of the members of our group what would happen if the Constitutional Court finds against us. If that happens then we understand the rules a whole lot better and if we choose to object to regulations or legislation we'll have to find other ways to do so – we're already seeing this in Gauteng with eTolls.