Chris van Wyk on sector charters

This is an email I received from Chris van Wyk of AQRate, which I requested as a response to my post on sector charters.  It seems that he is writing in his AQRate capacity and not that of an ABVA Board member. You'll notice that he's coming from a procedural perspective where he argues that because the minister did not gazette the words "the TRANSPORT SUB-SECTOR CODES are binding on all stakeholders operating in the TRANSPORT Sector within which the Sub-Sector Codes apply" in the 9(5) gazetting this paragraph cannot have any legal effect.  His argument does not concur with Levenstein on the invalidity of the certificate in question.   Chris's comments are italicised below - I thought it prudent to include his disclaimer.

Herewith my response to SANAS:

I take note of the e-mail from Keith Levenstein. I am not aware of the circumstances that lead to the issuing of the certificate. I do however attach for your attention an opinion I did quite a while back on the applicability of the sector Codes. AQRate is accredited to conduct verifications on all sector codes and the matter is neither here nor there for us as we do not stand to lose business for lack of accreditation. The opinion that follows is merely my considered opinion on the entire matter as a legal professional.

The Codes clearly state that a sector code and the generic codes have equal status. Although the notice to the sector codes contains a paragraph to the effect that all business in the particular sector need to apply this sector code – this provision is not contained in the sector code itself but in a paragraph just above the Minister's signature on the Notice to the Code. It was not gazetted with the 9(5) notices to these sector codes and can therefore not be applicable.

Given the status of the Codes and its provision that a sector code and the generic codes have equal status – any attempt to give the sector code more status is in our view ultra vires.

AQRate advises all clients in such a sector to have the sector Codes verification done as opposed to Generic Codes verification. But in theory issuing a generic codes certificate to an entity in such a sector is not unlawful as is suggested by Keith Levenstein.

Even if my opinion, as highlighted above, were disregarded one cannot argue that because a particular business falls within a sector governed by a sector code, that it is unlawful for that business to have itself verified in terms of any other general Code of Good Practice or any other sector Codes for that matter, as long as the certificate in question clearly states the Code in terms of which the verification was done. At best the recipient of that certificate, be it a client of the measured entity or a tender board, is at liberty, as they are in any event, to reject the particular certificate and request a certificate be furnished to them in terms of the applicable sector code.

The entire BEE programme is voluntary and the fact that a particular company for example falls within the transport sector does not mean that it is obliged to have itself measured in terms of the transport sector or any sector for that matter. When it elects to have itself measured in terms of a Code other than the transport sector code, neither it or its verification agency will be acting unlawfully in conducting such a verification, as long as they clearly declare on the face of the certificate the Code in terms of which the verification was conducted. If they don't, the furnishing of such a certificate could be regarded as a deliberate attempt to mislead and misrepresent the measured entity's BEE status.

Off course, it is incumbent upon the verification agency in question to disclose its scope of accreditation to its client and also to advise appropriately. I don't know the facts around the particular case well enough to say whether the particular verification agency was at fault with this or not.

Kind Regards

Chris van Wyk

CEO

AQRate (Pty) Ltd / Tel: 021 914 9451 / www.aQrate.co.za

This e-mail and attachments relating thereto, is intended for the abovementioned recipient/s. If you have received this e-mail in error, kindly notify the sender and delete it immediately as it contains information relating to the official business of AQRate, which is confidential, legally privileged and proprietary to AQRate. AQRate does not own and/or endorse any other content. The views and opinions expressed in this e-mail are those of the sender unless clearly stated as being those of AQRate.

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I doubt whether I am only person who knows that Keith Levenstein's opinions tend to veer on the side of the sensational without a proper consideration for sense, fact or logic. The email he sent to SANAS and the verification agency shows a complete lack of understanding of a subject that he has professed himself to be an expert in. In fact the numerous postings on his website and newsletters (which for some or other reason I am now receiving) are sometimes so ridiculous that you cannot but laugh. The problem is these newsletters are being circulated and people read them.  

The real question here is – can a person who sends such damning emails be taken seriously by the authorities? I have my grave doubts that they do.

Comments

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