The debate continues. This is a response to the first reader's comments from yesterday.
I seem to recall, but may be mistaken, that the PFMA is an instrument of the Constitution – it is one of those pieces of national legislation that was required to be enacted by mandate included in the constitution – this implies that an effort to trump it without amending it may present some interesting jurisprudential challenges. Nice thing about this current government, they seem committed to developing our constitutional jurisprudence, even if they are doing so passively without insight. Suggest you discuss this with your mate, the constitutional lawyer.
The guy to speak to is Pierre de Vos. It's hard to get him to respond to BEE issues – I don't think they loom large in his outlook.
As regards 'black listing', there is a provision of the Bill of Rights that guarantees fair administrative process. A piece of national legislation, similarly mandated by the Constitution, was enacted to give effect to this right, namely the Promotion of Administrative Justices Act (PAJA). Where national legislation or regulation in a particular area fails to provide a fair administrative process (right to due process, audi alteram, appeals etc), it has an override process, and even where such legislation/regulation does prescribe an administrative process, rights of reviews and appeal to the ordinary courts are prescribed under PAJA. This was the legislation used by Mittal and Kumba to take ICT and the DMR out recently. I wish my friends at the DTI much luck – with their cavalier attitude, they are going to need it. (It's a pity they'll never know who you are to count you as a friend – I suspect that other than Zungrabber, they have very few friends)
I suppose the better question to ask is why they are so hectic about blacklisting when companies and directors of companies with proven criminal violations prejudicial to the interests of the state continue to render services to that state.
The same reader from yesterday had more time to reflect on their post and sent me this
What if a director misrepresents in terms of the proposed section 20(1)(a) and the enterprise gets a lesser score. In other words, had the director not misrepresent, the score would have been higher. The proposed Bill is very unclear in this regard – it says only in (b) "in order to secure a particular B-BBEE status or any benefit associated with the compliance with this Act." What if the BEE status is less than reality? Does the director still go to jail? It reminds me of the Income Tax Act, and maybe the DTI can learn from the IT Act. Section 104 of the IT Act specifies that the offence is to evade tax. The BEE Bill should state that the offence is to increase i's BEE score above reality.
I think the words "in order to secure a particular B-BBEE status or any benefit associated with the compliance with this Act" have this covered. It seems ludicrous that a benefit could be given to a person for a BEE score lower than another bidder.
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