Two controversial regulations are in their public comment period – here is my comment.
There is a simple rule that needs to be followed when it comes to government policies that require public participation, specifically South African policies – the government cannot be trusted. It’s that simple. It cannot be trusted to govern and certainly cannot be trusted to consider constructive comments on its policies.
There are two controversial regulations that have been requested for public comment and are currently in their comment period.
The first is the Draft Employment Equity Regulations, which gives the minister the power to set regional and national targets for racial representivity at the various management levels in the private sector.
The second, and most pertinent to the agricultural sector, are the proposed water licence application regulations.
‘Transparent opportunism’
Agri SA CEO Christo van der Rheede recently told Business Times (10 June 2023) that the regulations were transparent political opportunism.
In fact he went so far, correctly I would say, to describe them as “short term populist thinking that is geared towards the 2024 elections”.
A reading of the regulations does suggest that these requirements are for new water licences and amendments to existing water use licences, not to existing water licences.
The issue that we as citizens and business people face in this country is that we may know what the intention of the legislation is – it’s the administrators who issue those licences that either don’t know or choose not to know.
This is where the real danger lies.
The period for consultation and comments ends in mid-July.
‘Thorough consultation’ on BEE aspect
Minister in the Presidency [Khumbudzo Ntshavheni] told Business Times on 10 June 2023 that Minister of Water and Sanitation Senzo Mchunu would “undertake a thorough consultation process on the black ownership requirements before any proposal was implemented”.
I find this extremely hard to believe.
In the 20-odd years that I have been operating in the black economic empowerment (BEE) sector I have seen how the current government pays little or no attention to any constructive comments that disagree with their policies.
When the revised BEE codes were gazetted in 2012, the minister of the Department of Trade, Industry and Competition (dtic) claimed they had received 550 constructive comments – yet went ahead and gazetted the original BEE codes almost as they were drafted.
Roy Cokayne reaffirmed my experience when he noted in a recent Moneyweb article about the draft employment equity regulations that the Construction Alliance South Africa (Casa) tirelessly tried to convince the department to work together with the alliance.
The alliance is not arguing against the motive behind the setting of targets for the industry, but rather what targets can realistically, reasonably, and rationally be enforced on companies.
“We outlined to them [the dtic] some of the constitutional flaws that exist in that legislation as it stands, and the need for a more detailed exercise and research to look at what the numbers look like if the targets they are considering are implemented,” said Chris Campbell, a Casa board member and CEO of Consulting Engineers South Africa (Cesa).
“They went through the motions of the consultation with very little appetite to absorb, or take in [suggestions], or even collaborate.”
History will show that the minister’s assurances will amount to nothing.
Cherry-picking
If anything, it’s likely that the ministry will only look at comments that support the regulations, as the African Farmers’ Association of South Africa has indicated it will do.
Where does this leave the agricultural sector? It cannot not comment.
In fact I would recommend that each player in the sector – from the farmers through to the co-operatives and other related bodies – submit comments, even if they are the same comments.
In the likelihood that these comments are ignored and the regulations are gazetted as is, or barely amended, then there is a record of comments.
If this is the case then we can expect litigation, which is possibly what the government wants – it wants to use such a record as a tool against certain population groups that are resistant to transformation.
Ensuring accountability
In my own experience I strongly believed that the amended BEE codes were distantly related to anything constitutional. I was informed by Lionel October, then a director-general in the dtic, that the codes were “constitutional”.
What October was actually telling me [was], if you don’t think it’s constitutional then prove it. He was not willing to explain why they were constitutional.
In other words, the dtic never bothered to test the codes against the constitution.
I went on a drive to raise money to challenge the codes and raised nothing and hence we’re stuck with this convoluted gobbledegook that purports to further the transformation of South Africa.
I should have considered the step in between, and that was making an application to the department in terms of the Promotion of Access to Information Act and requesting a copy of the many comments to check whether the government did in fact apply its mind in the process.
It’s likely that this stage of the process will show that the government did not in fact apply its mind.
I am sure that this situation will be the same for the proposals in question.
