Solidarity must be celebrating. They took up captain Renate Barnard's case and have at long last got a result. For those of you who don't know the story it goes something like this
Barnard was responsible for investigating priority and ordinary complaints against the SA Police service. In 2005 a superintendent level position was created by the police to improve service to the public in view of handling complaints. In that year Barnard and six other applicants applied for the position. An interview panel gave her 86.7% for the interview and recommended her unanimously. However the Saps divisional commissioner recommended that the position not be filled, saying that her appointment would not promote representation.
So they went to the Labour Court and on Friday the SAPS was told to promote her to the rank of superintendent with effect from July 27 2006. The SAPS was also ordered to pay Barnard's legal costs.
The court found that "the failure to promote Barnard ws unfair and therefore not in compliance with the provisions of the Employment Equity Act."
This is a monumental decision and apparently Solidarity have another 9 of these applications in the pipeline. The judgement went that extra step that the City of Tshwane vs the Engineering Council of SA case wouldn't do.
Well done Solidarity - this is work well done. I know the EE Act well and I know the constitution well enough. Let's look at these two acts
Section 9 of Constitution of the Republic of South Africa
9(2) To promote the achievement of equality, legislative and other measures …. may be taken. (3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds
Preamble to the Employment Equity Act
in order to--
promote the constitutional right of equality and the exercise of true democracy;
eliminate unfair discrimination in employment;
ensure the implementation of employment equity to redress the effects of discrimination;
Point three under the EE Act says that EE is there to redress discrimination. Where on earth did our government get the idea that you redress discrimination by discriminating.
And now I see Eyewitness News is telling us that Cosatu is urging the SAPS to appeal the decision.
Go ahead SAPS, take it all the way to the Constitutional Court. Let's get the highest court to decide what constitutes discrimination. If it doesn't go your way you could be putting jungle out of a job.
I am also hoping that this Denel story is fictitious too. What is it with our parastatals - why do they always get it so wrong and why the hell does the government allow them to continuously get away with it.
Maybe you knew Mary as a lecturer at Wits in the music department, you might have heard her on Classic FM, you may have gone to one of her many external lectures, perhaps you were being coached by her or maybe you are one of the many people who call her a very close friend.
I remember meeting Mary for the first time so many years ago. She was at party with her daughter and I happened to be at that party too. She had a presence that you couldn't ignore - a sort of hip and happening confidant. You could tell from the outset that she was special and showed an interest in everyone around her. I have never forgotten that meeting. As it turned out I ended up marrying her daughter a few years later.
Unfortunately Mary died early on Saturday morning (27 Feb, 2010) and it has shaken the hundreds (literally hundreds) of people who regard her as a mentor and close friend. It seems that everyone who meets her regarded her as a close friend.
There will be many tributes written about her over the next few weeks and as I pick up on them I'll tweet them or post them on the blog. But there are things about her that the other tributes won't pick up on - so I'll talk about those.
Mary was diagnosed with melanoma two years ago (just after Oliver was born). The melanoma was quite developed at that point so we knew that she would probably die as a result of it. The doctors couldn't give us a life-expectancy, all they could say was that she could live for three weeks or for three years. At this point Mary went headlong into the treatment going through every type of conceivable cancer related treatment. There was no ways that she was going to allow this thing to get in the way of her relationship with her family and friends. Everyone rallied around her. And it did seem that she was doing very well - in fact at the beginning of the year we were convinced that she might come with us to the States at the end of the year.
Mary the mother
In the last two years Kath would speak to Mary almost every single night for an hour. Mary was an adoring mother and Kath an unconditionally supportive daughter. All those odd little issues that children have with their parents were dealt with - and I think the two became good friends. We spent many long hours with Mary and any parent and child would be fortunate to have had a fraction of that relationship.
Mary the grandmother
My long lasting memories of Mary will be her relationship with Oliver. When we discovered that Kath was pregnant Mary called me with such excitement. She was ecstatic!!! She threw herself into the task of being a grandparent - from buying almost everything a newborn could ever need to ensuring that each of the three grandmothers (Oliver has three) had special names. But this was grade school in comparison to when Oliver actually arrived. She got involved!!! Oliver was spoiled with love, clothes, toys, books, more toys, more clothes (in fact Kath jokes that Mary has kitted Oliver out until mid 2014). Her chronic buying syndrome got so bad that she would keep the toys at her house so that Oliver would have something to play with when he went around there.
Oliver was a few months' old when Mary was diagnosed with cancer. And I think Oliver's presence played a huge role in her fight against this disease. She can now rest knowing full well that she had made a huge impact on the young Oliver - and that we will continue telling him about his extraordinary grandmother.
We are now planning a funeral for her - it looks like we'll need a full time project manager to keep the numerous people who want to help in check. We suspect that Ellis Park might not be big enough to contain the number of people who want to come to this event - trust me, it will be an event.
To me, Mary was a musician (her correct title was Professor Mary Rorich) who had an incredible amount of patience with me playing her my music so that she could teach the correct time signature. She never once dismissed my naive musical tastes and in fact even mentioned Peter Green in the speech she made at our wedding.
The doctor said she was a fighter and she fought hard until the end. Mary was my mother-in-law and I miss her.
Most companies think that moving up from a level 8 to a higher level (6 or above) is going to require them to re-engineer their business or at the very least cost a small fortune.
One of our clients (an engineering firm) needed to move from a level 8 to a level 6 in a very short space of time. After a short consultation Caird has
Found more than R300k's worth of enterprise development within the business (15 points)
Filtered through their procurement and found 18 points,
Analysed their skills development to generate 8 points out of the 15
As a result our client is now comfortably a level 6 and has a plan to maintain and improve this score over the next five years. The nature of their business has not changed and they are now benefitting from a variety of business efficiencies brought about by this change.
Find out how your company can improve its score in the shortest possible time
For an hour's free consultation (no obligation) with Jacques Swanepoel (BEE HR expert) and Paul Janisch (compliance expert) please email us.
This offer is only valid to those companies operating within the Gauteng region.
Slightly edited down - read the full post here. It is based on the American legal system but as with most things that Fred talks about it is applicable almost anywhere
First off, you don't have to incorporate to be in business. There are many people who run a business and don't incorporate. A good example of this are many of the sellers on Etsy. They make things, sell them, receive the income, and pay the taxes as part of their personal returns.
But there are three big reasons you'll want to consider incorporating; liability, taxes, and investment. And the kind of corporate entity you create depends on where you want to come out on all three of those factors.
I'd like to say at this point that I am not a lawyer or a tax advisor and that if you are planning on incorporating, I would recommend consulting both before making any decisions. I hope that we'll get both lawyers and tax advisors commenting on this post and adding to the discussion of these issues.
When you start a business, it is important to recognize that it will eventually be something entirely different than you. You won't own all of it. You won't want to be liable for everything that the company does. And you won't want to pay taxes on its profits.
Creating a company is implicitly recognizing those things. It is putting a buffer between you and the business in some important ways.
Let's talk first about liability. When you create a company, you can limit your liability for actions of the corporation. Those actions can be for things like bills (called accounts payable in accounting parlance), promises made (like services to be rendered), and lawsuits. This is an incredibly important concept and the reason that most lawyers advise their clients to incorporate as soon as possible. You don't want to put yourself and your family at personal risk for the activities you undertake in your business. It's not prudent or expected in our society.
Taxes are the next thing most people think about when incorporating (edited - this paragraph is relevant in the US).
And then there is investment/ownership. Even before we talk about investment, there is the issue of business partners. Let's say you want to split the ownership of your business 50/50 with someone else. You have to incorporate to create the entity that you can co-own. And when you want to take investment, you'll need to have a corporate entity that can issue shares or membership interests in return for the capital that others invest in your business.
So now that we've talked about the three major considerations, let's talk about the different kinds of entities you will come across. (all US-type corporations)
The important thing to remember is that if you are starting a business, you should create a corporate entity to manage the risk and protect you and your family from it. You should start with something simple and evolve it as the business needs grow and develop.
As an investor, you should make sure you know what kind of corporation you are investing in, you should know what kind of liability you are exposing yourself to, and what the tax obligations will be as a result.
And most of all, get a good lawyer and tax advisor. Though they are expensive, over time the best ones are worth their weight in gold.
In case you've never listened to Patto, the title of this post is one of the songs off their most powerful album – Hold your Fire.
I've done a bit of work with the Department of Defence and Military Veterans, as it is correctly known. One of the issues they face is dealing with the welfare of military veterans. There is more than enough evidence that many of these people have ended up in a terrible position after 1994. The conversation that I had with them was along the lines modifying their own tender requirements to include military veterans. I sensed that they were interested in this process but they still had a massive problem identifying who a military veteran was.
The Military Veterans Affairs Act defines a veteran as any person who—
(a) either voluntarily or under conscription or call-up served as a member of
(i) the Union Defence Forces or any military force of a country allied to the former Union Government during the Great War of 1914 to 1918. World War II being the war which commenced on 6 September 1939. or the hostilities in Korea from 1950 to 1953: or
(ii) the South African Defence Force or any defence force of a territory which prior to the commencement of the Constitution of the Republic of South Africa, 1993 (Act No. 200 of 1993). enjoyed the status of an independent State in terms of a law of the Republic of South Africa: or
(iii) the South African National Defence Force, and has not been dishonourably discharged, is retired, or no longer serves in the South African National Defence Force and is a citizen of the Republic, and irrespective of whether any such service envisaged in subparagraph (i), (ii) or (iii) has been rendered in a permanent or in a part-time component or part-time capacity; or
(b) is a "war veteran" as defined in section 1 of the Social Assistance Act,1992 (Act No. 59 of 1992); or
(c) served as a member of any non-statutory force as defined in section 1 of the Demobilisation Act, 1996 (Act No. 99 of 1996); or
(d) belongs to any other prescribed category of military veterans
Technically I am a military veteran. However a new report has decided to change this definition. I found this in the Independent today – I'm not even going to attempt to put a hyperlink in this post because the Independent is useless at posting their publication on the web. Titled "Report calls for new measures to benefit military veterans" it discusses the report that Lindiwe Sisulu commissioned to investigate the military veteran situation. It apparently wants the government to reserve tenders for the veterans, pay their medical aid and subsidise public transport for the MV.
One of the recommendations was that the Military Veterans Affairs Act be repealed as it "no longer addresses the policy objectives of the government that pertain to military veterans affairs." The recommended new definition of a MV would then be the cleaner
anyone who retired from active service rendered to any of the military organisations, statutory or non-statutory, which were involved in all sides of South Africa's liberation war from 1960, all those who served in the SADF before 1961 and those who joined the SANDF after 1994, who want to contribute to the establishment of a more peaceful, just and free South Africa based on the principles of the constitution and the bill of rights.
There goes me as a military veteran. Not that it particularly bothers me but I think there might be a number of people who went to the army during 1961 and 1994 who might not be happy. David Williams in his book – On the border tells us that 600,000 white males were conscripted between 1966 and 1990. That is a lot of people. Based on my own experience I can happily tell you that more than 90% of those people went because they had to, not because they thought it was the right thing to do. And you cannot underestimate how this experience shaped many of our lives, both negatively and positively. It is only now after 20 years that authors like JH Thompson and Granger Korff are publishing collected or personal experiences of their military stint. The latter author wrote one of the most disturbing and powerful books that I have ever read (and I have read a lot about trench warfare in WW1). I was disturbed because, whilst I was not a parabat, I was on the border at a similar time and was exposed to the bravado and violence that made up that conflict. Korff suffered from a protracted form of post traumatic stress disorder for years afterwards (what we used to call bosbefok – see Williams' book on page 135 for a definition). Many people who went to the army suffer from a similar condition and will for life. What about those people who went in as conscientious objectors or who went to prison like Charles Bester.
Therefore I think it is wrong to summarily remove those SADF soldiers from the definition. In fact I have my doubts whether the constitution would allow this.
And the solution?
Not an easy one. Section 217 of the constitution prohibits set asides – so allocating spend to a class of people will not work; ask the city of Tshwane. However we can go back to preference points and use those as a tool.
Under the current PPPFA regulations it is possible to allocate points that support RDP goals (which are very broad) so for an 80:20 tender you could do something like this
Military veteran
8 points
No franchise before 1994 (which would preclude Coloureds and Indians)
5 points
HDI (which would include them)
5 points
Local supplier
4 points
The operational question here is whether the new regulations will accommodate something like this. Judging by what Rob Davies is suggesting – I think it might be possible to include something like this
Military veteran
5 points
Black person
5 points
BEE scorecard performance
5 points
Local supplier
5 points
And for those who have never heard Patto's "You, you point your finger".Take a listen here
I have met with key stakeholders and bank CEOs to revitalise the Financial Sector Charter, which commits the sector to demanding access and empowerment targets
Budget Speech 2010 Minister of Finance Pravin Gordhan 17 February 2010
This is very good news. So good that even the SACP is happy about it
(The SACP is) happy about Gordhan's commitment to meet bank chief executives to find ways to address the recommendations of the banking inquiry panel of the Competition Commission. It was also pleased about his commitment to revitalise the financial sector charter.
Government will revise procurement legislation, regulations and practices to enable the designation of large, strategic and repeat or ‘fleet' procurements in a range of sectors. This will aim to sequentially increase competitive local procurement and supplier development opportunities, minimise ‘leakages' from the domestic economy, and support meaningful Broad Based Black Economic Empowerment (B-BBEE) in all 3 spheres of government and in SOE's.
So sayeth Rob Davies Minister of Trade and Industry on February 18 2010 - as quoted by Politicsweb. This speech was at the launch of the 2010/11 - 2012/13 Industrial Policy Action Plan (IPAP).
The actual plan is not something that I will comment on, but I am interested in the harmonisation of government procurement, BEE and the stimulation of local industry. I've always felt that the codes are a lone voice with very little backing. If Rob can pull this off then he will be a very successful minister of trade and industry indeed.
I speculated a while ago that RDP goals would be included in the final PPPFA regulations and now it seems that local content will be rewarded too. The question is whether it will make its way via the PPPFA or the actual supply chain rules will be changed to award points for local manufacture out of the 80 or 90 points. I would suggest that if Rob is serious then that is where the points should come in.
Rob also went through the types of fronting that he doesn't like (including blackwashing).
One of the big problems with black economic empowerment is that
companies tendering for state contracts profess to be empowerment
groups while they are not.
He says there are three types of malpractices.
One is where a company misrepresents itself as a black company in order to get contracts.
Another way is via the so-called tender entrepreneur. Davies
explained that this type of company pursues tenders but, because the
tender field is not its area of specialisation, white companies are
contracted to do the actual work.
The other method is where an empowerment company applies for a
tender and then imports the goods instead of manufacturing them
locally.
Get involved in this project and assist these guys to sell your products. The Department of Economic Development has already got involved. You could either sponsor these vendors or get hold of them and discuss some deal for selling your products.
If you don't want to do it yourself then there is only one person who can do it for you. Contact Chris Daffy via email. Tell him I sent you
Johannesburg's informal traders stand to score big during the 2010 Fifa World Cup if they adhere to the international soccer body's by-laws, the city's 2010 office said on Wednesday.
Most traders working at events were already listed on the department's database and would be permitted to sell their wares during the World Cup.
Traders can further cash-in on new opportunities by selling food to secure clients such as the city's 2010 volunteer workforce, the staff working at the event and VIP guests of the city
The prospect of prosperity for all is a struggle worth fighting with all the will and determination that we can muster. For with jobs comes dignity. With dignity comes participation. And from participation emerges prosperity for all! (Pravin Gordhan Budget Speech 17 Feb 2010)
There is a skill to sending out a press release. You need to write a decent one, have a good mailing list and choose the perfect moment. I did none of the three, well I wrote the basis of the press release, everything else was done by Lesley-Ann van Niftrik of Image Communications. This is how it worked
I sent her a press release about tax breaks for BEE
She shortened it and made it press-friendly
She sent it out
It was published in many publications
Just in time for Pravin's budget speech
And now onto the coverage - Iafrica.com, Business Report, Fin24, Times Live and I believe that Business Day made mention of it. I also was interviewed by Jacaranda in both English and Afrikaans nog al.
Thanks Lesley-Ann - the coverage was overwhelming.
Back to the press release
I am serious about this. We've got to change the way we go about this transformation thing. I mentioned to Mark that I want to try and get some big hitters behind me on this before I go on a social-media thing. I'll start lobbying my friends.
I spoke to Kevin about it and he says it's been contemplated before
If you go back to the "Brenthurst Initiative" on BEE prepared by Bain on mandate from the Oppenheimers, you'll see that this wont be the first time that tax incentives for BEE has been considered. At that time, the response from the then Governor of the Reserve Bank and Trevor was very clear. Tax rebates and other tax incentives can only be offered for programs that actually guarantee socio-economic benefits (i.e. Learnerships)_, but high levels of BEE compliance while desirable for political reasons, will not necessarily be accompanied by substantial socio-economic benefit. You cant rob the treasury of funds required for education, health and policing in favor of rewards for compliance with a regulatory model that does not necessarily add value to the economy. My view is that you have no hope. If however you are looking for tax breaks based on job creation or implementing business strategies that result in the establishment of new industries and industrial capacity, then I am in. Only the US still persists with open ended tax breaks, generally designed to seduce particular electoral demographics. Tax breaks are a disaster because once the lawyers and consultants are let loose on qualification criteria, it becomes a free-for-all where ordinary tax funded social programs inevitably suffer most
And it seems he's interested in helping. This is about quantifiable development. It'll cost more money to measure but it will achieve results.
Anyway - here is the original press release.
Joburg 15 February, 2010
The issues facing broad-based BEE is that the rewards for achieving these targets are not realistic. At present a company is only rewarded with a BEE score for complying - and there is no guarantee that public or private sector business will follow as a result.”
“This big stick approach tends to make companies focus more on compliance than transformation, which is needed in order to benefit those most marginalised,” says Caird’s BEE compliance partner, Paul Janisch. “The answer would be for Treasury, the DTI and the BEE Advisory Council to introduce a scheme that will incentivise companies to not only comply, but to better the targets contained in the numerous BEE scorecards. Clearly, the most effective method would be to introduce a reduction in corporate tax if certain measured goals are achieved.”
“This motivation goes to the very core of human nature. People seldom react just because it is deemed to be lawful,” he says, “They do it because there are either positive or negative consequences involved. Rewarding a company by reducing their tax liability because they have successfully employed and skilled a number of previously unemployable youth would have a lasting benefit all round.”
Janisch acknowledges that under these circumstances the cost of compliance will have to increase. It is very doubtful that SARS will simply take a company’s word for their BEE performance. But this will ensure that the verification industry becomes more professional, substantially reducing the risk of ‘fronting’.
It remains to be seen if the promises President Jacob Zuma made in his State of the Nation will materialise. Many of the socio-economic plans that he highlighted will only work if there is a reasonable commitment from both the public and private sectors. And whilst the whole country will benefit in the long term if these goals are met, it’s the short term wins that are going to continuously inspire both sectors to keep their eye on the long term goals.
“The B-BBEE Advisory Council is a new body that has been tasked to ensure that BEE is implemented across the economy. By taking a stronger approach we might actually see the fruits of Zuma’s socio-economic goals coming into effect,” he says.
For more information, contact Paul Janisch, CEO of Caird at 083 2271375. Email
Ends
Editor’s note Paul is a regular contributor to numerous publications on the subject of BEE. He has spoken about the subject at numerous conferences and on national radio and television. His book “Broad based BEE for small business” was published in December 2005.
Issued by: Lesley-Ann van Niftrik, Image Communications, Tel. 011 880 1340, Mobile: 083 378 2902, e-mail: On behalf of: Paul Janisch, CEO of Caird, Mobile: 083 2271375