Most of us know that if you want to get anything done by the government you either have to bribe or litigate. Now the former is largely undesirable so the latter is unfortunately the method of choice with us law-abiding citizens.
I would have thought that litigation would have very serious negative connotations, but an interaction with a prominent Joburg lawyer explained this in a different context. The lawyer was referring to the DMR, a department that is very familiar with the courtrooms of our nation. He told me that many officials are very happy to accept court orders compelling them to do something or other because this is now an official sanction for a decision that they are too scared, or otherwise, to make. In other words - a court makes their decisions for them and there's no egg on their face for not making the correct decision.
We now find ourselves in a similar position with the DTI. The latest notice about the migration to the new targets. I've been told that not only is this document grammatically and technically a shambles, it's also procedurally incorrect. Take a look at section 9 of the current BEE Act (which is largely unchanged in Rob's bill)
9. Codes of good practice
1) In order to promote the purposes of the Act, the Minister may by notice in the Gazette issue Codes of Good Practice on black economic empowerment
5) The Minister must, before issuing, replacing or amending a code of good practice in terms of subsection (1)-
a) publish the draft code of good practice or amendment in the Gazette for public comment; and
b) grant interested persons a period of at least 60 days to comment on the draft code of good practice or amendment, as the case may be.
The notice about the new periods is issued under section 9(1) -
In terms of section 9 (1) of the B-BBEE Act, the Minister of Trade and Industry is empowered by notice in Gazette to issue the Code of Good Practice for further interpretation and understanding of B-BBEE.
This notice was not published for comment and hence is unprocedural. But will the DTI provide any clarity on this? They won't provide any clarity on anything. The ridiculousness of this notice shows up when you consider that very few, if any, entities that measure their financial performance over a year do so from the period 10 Feb 2011 to 9 Feb 2012. No - they tend to use proper calendar months. I, like many of you, have clients whose financial year ends at the end of February and are going to have to measure themselves on the new targets because of the 20 day overlap. What we have here is retrospective legislation.
And this is but one issue that we face. And we know that the DTI is not going to help us, neither is bribery. Our only option is litigation to force a decision. I know this is a risky route to take, it could throw the whole of BEE into oblivion but I fear that we need to do this. After all - WE NEED CLARITY.
I represent a growing group of concerned people across the board who want this issue sorted out and would be willing to litigate - they do however need the money to do this. If there is any organisation out there with a desire to help us clear up these issues through our courts, we'd like to hear from you.