Paul Janisch

Tourism Code is out

They slipped it through, I must have gone onto the DTI's hompage and info.gov.za at least four times a day for the last week.  The DTI must have thought it unnecessary to put it up on the homepage so they posted it here.  Officially entitled gazette No. 32259, the code is remarkably devoid of supporting information and as such will pose challenges in places where things aren't clear.
Kortbroek loves it - or so he tells us even if it was issued in terms of section 91) of the B-BBEE Act (sic).  I wonder if that can be queried - there are only about 15 sections in the act.

I can't be sure that they listened to much, if anything, of Kevin's submission to the DTI last year.  And the same typos and arithmetic mistakes that were in the 9(5) gazetting are still there.  However there is a significant changes to the EME and QSE thresholds, with EMEs falling below R2.5million and QSEs between R2.5 and R35million.

Still it's not that bad.  I've summarised it here.

ABVAriety of truths

  I have heard that the feathers are flying within the DTI's cold campus.  NABC and ABVA are at each other's throats.  I can't pretend that I side with ABVA so I won't - but if they are going to put up stuff on self verifications then they really should have their ducks in a row.  I think that's asking for too much - they've never got their shit together well enough to convince me that they can provide a vaguely sound argument on most things.

A recent post on their website proudly announces "NON-ACCEPTANCE OF SELF-ASSESSMENTS".  They do concede that the DTI notice 354 is silent on self-verifications, and that the codes themselves don't expalin what "suitable evidence" means.  So they resort to that poorly drafted verification manual for legitimacy.  The specific clause is 5.4.8 which states (and I am typing this from the manual not ABVA's website)

When verifying the B-BBEE Recognition Spend calculated by the measured entity, the Verification Agency must ensure that the entity only uses verified B-BBEE status for its calculations.

The first problem here is that nowhere is the word verify defined in the codes.  If it is not defined then we must assume that it refers to code 000, paragraph 2.6

"Any representation made by an Entity about its B-BBEE compliance must be supported by suitable evidence or documentation. " 

Please tell me where does 5.4.8 of the verification manual give the verification agency the right to state that they will only accept accredited verification certificates?  It doesn't.

That was point 1

Point 2
I referred to Kevin's opinion in an earlier post.  Kevin and Safiyya are of the opinion that the verfication manual and the interpretive guide have no legal status whatsoever - they conclude on page 7 that

As with the Interpretive Guide, the standards may not be construed as legislation, nor subordinate legislation, on the basis that neither the DTI nor SANAS are empowered in terms of the BEE Act to pass any form of legislation regarding the application of the BEE Act.  Therefore, the standards may not be utilised to read into the BEE Act and Codes any matters not specifically dealt with there.

This is their opinion but it does open up the potential for a proper legal challenge on these two documents.  One which I believe the DTI is happy to defend, but I think we should regard the fact that the interpretive guide has been removed from the DTI's website as some evidence that they have been acting ultra vires (thanks for pointing this out Dionne).

Point 3
And this is the most significant point, it makes no difference whether the verification manual is valid or not, it is now common cause that it is the procurement officer is the one who will decide whether to accept a certificate or not. 

And the evidence

1. Vuyo Jack's book - page 80 -  The Codes place the onus on the procurement officer of each entity.  They encourage procurement officers to purchase from entities that can provide a BEE status level supported by a verification certificate.
2.  And most significantly is a letter from Takalani Tambani to Ivan van der Merwe, dated 1 April, 2009 (whoops) in which our sesame friend states It is (thus) at the discretion of the procuring entity whether they accept verified ratings and/or self-assessments in their supplier selection process as long as they are supported by a suitable supporting document or evidence.  I am quite sure that ABVindaloo is going to claim that they now how to make sure that each self-verification has supporting evidence like Theo did.  They would be wrong but let them do it - it creates more work for them that they won't be paid for.

Please circulate this amongst procurement officers and other related people - because they are being hoodwinked by unsupported bullshit.

More codes

Not like me to post twice in one day.  Apropo to my earlier post, the DTI has published a notice on info.gov

Three Sector Charters have been gazetted as Sector Codes, in terms of Section 9(1) of the Broad-Based Black Empowerment (B-BBEE) Act.

The gazetting of the Tourism, Construction, and Forestry Sector Charters into Sector Codes follows months of consultation and alignment of the Charters with the objectives of the B-BBEE Act and Codes of Good Practice. These Sector Codes are amended versions of the Draft Sector Charters, gazetted in terms of Section 9(5) of the B-BBEE Act.

There you have it.  Our Kev does know a thing or two.

Something is afoot, or the DTI is constructing something

Last week I got an SMS from Kevin telling me that the construction sector charter had been gazetted.  I could find no evidence that it had been done.  The best source for this information is the South Africa Government Online website.  I did a search on the DTI and came up with this and this but nothing on the construction sector charter.  (Oh yes the first this is a notice that says PetroSA is now a BEE facilitator which means they get the full 20 points for ownership - why not just use the specialised entities' scorecard, is it that no one understands it?)

And there is nothing on the construction sector charter on the info.gov site. As luck would have it I met a company of engineers who were asking me about the construction charter and could they up their score by using that one.  I hadn't looked at the re-gazetted construction charter yet, but upon the looking I noticed that its 60 days were up and it had yet to be gazetted. So I called the DTI and they actually answered and were very helpful (I spoke to Xolisile and Jacob, give them a raise).  Apparently the DTI is going to announce something about these section 9 charters in the next few days -  they wouldn't tell me what it was.

And then I get an email from Kevin's company announcing a course on the GAZETTED construction charter.

Interesting.

I took a look through the new charter and it's not bad - they've plugged up a lot of the holes that pepper the codes (I'm going to have to stop saying that if it is gazetted - because it becomes a code). 

Rob's our man - got his work cut out for him

With the Zumocracy (hopefully not a zoomocracy) comes a new cabinet and new minister of trade and industry.  A notice from the Presidency's website contains the list of new ministers and their deputies.  The one we BEE-types are most concerned about is the new minister and his deputies.  And here they are

Minister of Trade and Industry Rob Davies
Deputy Minister of Trade and Industry (1) Thandi Tobias
Deputy Minister of Trade and Industry (2) Maria Ntuli

Rob my man - you have a hell of a job on your hands.  I am only aware of the mess that is BEE, but I am almost willing to bet that the rest of the department is in a similar state.   I was sent an SMS on Thursday informing me that the outgoing (and apparently pissed-off) minister had gazetted the construction sector charter under section 9.  The sender remarked that said (now ex) minister was trying to push a series of things through to make his successor's life a misery.

We do know that he is going to receive a series of challenges to Mphalwa's proclamations.  Ivan van der Merwe of the NABC has taken ABVA and the DTI to the competition commission over Notice 354 of 2009.  And he is completely correct.  If there ever was any discussion as to whom this notice applies, the dti's website makes it very clear that it applies to everyone.  And I quote

as from 1 August 2009 certificates issued by VAs that are accredited and those that are not yet accredited but have received a valid pre-assessment letter from SANAS will be acceptable in the market

This must be stopped - it has no legal standing or substance and smacks of arbitrariness.

And if Rob thought that was all he was facing - he'd do well to read the opinion on the verification manual and interpretive guide prepared by Kevin Lester and Safiyya Patel of Edward Nathan Sonnenbergs. I have posted it without their permission, although Kevin did tell me that the DTI were aware of it.