Paul Janisch

Fred Wilson on Obama

Obama is acting like chicken little running around the country claiming the sky is falling. he doesn't need to earn points with me or anyone anymore. he's done running for office. it is time to start leading instead of stirring up fear

via www.avc.com

At least there is an element of Zuma's inadequacy that can be regarded as normal. The difference with Zoomer is that he's going around the country saying nothing is wrong and we don't believe him - and we have reason not to

Xingwana is a racist

Ms Xingwana’s comments on Tuesday — "Young Afrikaner men are brought up in the Calvinist religion believing that they own a woman, they own a child, they own everything and therefore they can take that life because they own it" — angered opposition parties and Afrikaans groups.

via www.bdlive.co.za

The chances are that I hang out with more Afrikaners than Lulu does. I have never met an Afrikaner or Afrikaans speaking person or Boer or whatever who thinks like this. What makes her now the expert on this?

This is hate speech.

Joint Venture BEE certificates

A necessity indeed but one that appears to be a complicated thing. The best of my knowledge there is only a handful of verification agencies that will issue one of these. There is no standard methodology to follow here. But there do appear to be a few basic rules to make this process easier. If these rules don't exist, they do now.

1. All the parties should have a valid and current BEE certificate
2. There must be a JV contract which spells out the percentage involvement of each party in the JV
3. The JV certificate is only valid for that specific bid.
4. The most common reason for a JV certificate is for government bids in terms of the PPPFA, although I've seen a recent private sector bid that requires a JV BEE scorecard
5. If the JV is incorporated then it would require its own BEE certificate as an incorporated entity.

A simple JV BEE certificate

If you have a construction bid and both parties are of equal size then it is simply a matter of combining the scorecards, whilst factoring in the percentage involvement of each party. It is not for the issuing agency to go off a re-evaluate the parties' respective BEE certificates. I do agree though if one party is a value-adding supplier and the other isn't then you'll have to combine those two calculations to determine whether the JV is a value-adding supplier or not.

That's the simple one. Now onto the complexities.

Very complex bids may have a variety of companies involved in it with a myriad different BEE scorecards. You could have PPP that requires a financial brain (CA Charter), a legal brain (DTI generic), and engineer (Construction BEP) and a construction company (Construction Charter). Some might be QSEs, EMEs and generics. It's now a factoring game that needs to take place where you combine all the information and divide it by a number, add another, take away the number you first thought of and you come to a score.

And recently incorporated JVs (take a look at my earlier post on this)

The chances are they are a start-up. Yet the codes (29617) make it clear that if you are bidding for a contract that is more than R5m or R35m then you have to produce a BEE scorecard using "annualised data". It's not clear what this annualised data is but it seems that you will produce a projected income statement for the 12 months ahead with the income that you might have received from that contract which will set you targets for all the elements. Logically it would be impossible to calculate skills development spend or learnerships because no one has been hired yet. However if people are hired in the JV then you would ideally want to use that information to calculate the learnerships at least. Procurement is probably not as difficult because you'll know who your suppliers will be and you'll score it against a fictitious number. The calculation of ED and SED is probably easy too – you know what the target is going to be. But does this then mean that you need to spend all this money (including skills development) before you get to verification – which might be in the first month of incorporation. Or can you commit to this figure and your scorecard would be ratified by the verification agency after that year? Now here's another issue – say you are doing a major contract that will be worth hundreds of millions – your scorecard will be a generic scorecard. However the payment structures only pay say R20m in the first year which means that you'll still be a QSE. It surely isn't fair for a company to put together a scorecard based on a huge turnover for the first year when that huge amount will only come through in a few years.

Fairness has never been big in the BEE world.

I don't really have the final answer for incorporated JVs but I don't think anybody else does either. If you like my theories feel free to use them. But if you are looking for an incorporated JV BEE certificate. I can definitely help you.

An interesting statistic

Mr Nkwinti said on Friday he believed that when policy makers set the original target, they had assumed that beneficiaries of restitution would choose to return to the land. But of 76,000 beneficiaries, 71,000 had chosen financial compensation instead.

via www.bdlive.co.za

The issue here is that policy makers made an assumption which was wrong. In fact it was 7% right because 93% of the beneficiaries took the money. We are seeing a similar being played out by the DTI with their new codes. They have ASSUMED that things aren't working but haven't actually found out whether there is any fact to back up this assumption. Rob Davies was completely taken by surprise when there was a complete uproar about the proposed SED code. If he had just asked three charities as to how they receive their funds he would have conducted more research on that element than he did on all the other codes .

They haven't listened to what business has said (DTI content)

The DTI have posted a presentation that Lionel, Nomonde and others delivered to the portfolio committee on trade and industry on the 20th of Feb, 2013.   This presentation is a rehash of the codes that were proposed in October last year - the same codes that have been roundly rejected by large corporates and business bodies.  There is no indication that they have considered the comments at all.

If this is the DTI's attitude, and I stress IF because I can't be sure, then we as the private sector must realise that this government will do what they want and how they want it.  But we are ones who have to implement it and because the process is voluntary, I strongly recommend that if they don't want to consult with us that we reject it altogether.  We'll just chalk black economic empowerment up to yet another failed government initiative.  

We have the power you know.

Oscar Pistorius: Criminal Law 101 – Constitutionally Speaking

There is no dispute that the killing of Reeva Steenkamp was unlawful as it would be impossible to argue that Pistorius acted in self-defence (or private defence, as it is known in law). You can only rely on self-defence to exclude unlawfulness if an attack on your life (or the life of another), on your property or other similar interest has commenced or is imminent. This is an objective test, so where no attack actually occurred, one cannot rely on self-defence to justify the killing of another person, which you thought was necessary to defend yourself. No such attack occurred or was imminent in this case. (Whether the common law should be developed in line with the values in the Constitution to restrict the right to kill others in defence of your property, is an interesting question, which I cannot discuss here.)

The question then is whether the accused had the requisite intention to kill another person. Intention must not be confused with motive. The person’s motive is the reason why he acted in the manner he did and is usually thought of as irrelevant for determining guilt. Motive can explain why an accused formed the intention to kill another person, but is separate from that intention.

The state can prove the direct intention by proving that the accused actually meant to kill the deceased. Evidence that the accused and the victim were involved in a stormy argument before the killing or that the accused had previously threatened the life of the victim could be important.

via constitutionallyspeaking.co.za

It's this thing that "premeditated murder" exists in our law that gets me. There is murder and the premeditated part of the murder determines whether this is dolus directus, indirectus or eventualis. As the prof points out, this act at its very core is murder - it's now the defence of self-defence that will keep Oscar out of jail.

(Restricted and limited) Invitation to engage with the dti on the revised B-BEE code of conduct

This was sent to me this morning - but not by the DTI or Creative Space Media.  It seems as though the DTI is choosing to speak to people that agreed with them - otherwise they would have asked me to contribute. I've left the contact details in the invitation in case you wish to be rejected. It could be worse, you could actually attend and experience the DTI's hospitality and entertaining presentation skills.

From: Belinda Navias [mailto:[email protected]]
Sent: Tuesday, February 19, 2013 8:56 AM
To: 
Subject: Invitation to engage with the dti on the revised B-BEE code of conduct

The revised Codes of Good Practice were launched by the Minister of Trade and Industry on the 2nd October 2012, and subsequently released for a 60-day commentary process from 5th October 2012 to 6th December 2012. Various comments and inputs were received, and the Department of Trade and Industry (the dti) has conducted an analysis of the proposals received. These analyses were clustered per element, and key substantial issues had been noted for further deliberations with the key stakeholders in closed sessions, and to ensure government has visibility of some of the practical implications and unintended consequences.

In this regard and in order to finalise the process, you are hereby invited to participate and provide valuable inputs on the (SELECTED ELEMENT) work stream element of the revised codes, which is scheduled to take place as per the following details:

Workshop Details
Date: 26 February 2013
Time: 7:30am to 12.30pm
Venue: The Ballroom, The Wanderers Club, 21 North St, Illovo

Due to high demand, numbers are limited to the first 250 participants. (Select participants, I'll warrant)

Registration and a light breakfast commences at 7.30am. The morning session will begin at 8.30am and will take the form of a Q&A panel discussion with prominent members of the dti, including Ms Nomonde Mesatywa, Chief Director of the Black Economic Empowerment Unit. A sit-down lunch will be served for all delegates at 12.30pm to finish off the day.

This is a final opportunity to engage the dti on the impact of the new legislative requirements and proposed amendments. We encourage all participants to submit any questions or comments before the workshop to ensure that time is effectively managed and we get through as much as possible on the day.

Please submit questions to Creative Space Media:
Email: [email protected] or [email protected]
Tel: 011 467 3341

So sayeth Zoomer on Valentine's Day

On broader economic transformation, revised Broad-based Black Economic Empowerment Act and codes are being finalised. The development of black owned enterprises and black industrialists will be prioritised.

via news.iafrica.com

Now here is a conundrum. Do we take this statement like we take everything that Zoomer says - with a pinch of salt; or is this the only piece of his romantic fireside chat that has some truth in it?

New (r)Age is the race card

"In my view, City Press’s story is part of an ongoing and sustained narrative that says since black people (read the ANC) have taken over the running of our government, major corporations and parastatals, those involved are inherently corrupt,” Howa said in a report in The New Age.

via www.news24.com

Nazeem must be really rattled as he's resorting to the most pathetic argument available to those who are black enough to use it.

It's not working Nazeem, we're not buying it (just like we're not buying your newspaper).

A good news post on this blog

Good news is hard to come by these days and this blog doesn't exactly stand out as the great good news blog. At the moment the mining industry is not happy with our esteemed leaders' incompetence (that's plural) that manifests itself in (this list in not exclusive) mixed messages, inconsistent BEE policies and the application thereof and the perpetual threat of licence withdrawal by the ANC (read government because they are unable to differentiate between the two). At long last certain miners are starting to tell these myopic politicians that there polices aren't nice and that they won't invest in South Africa whilst they are in place.

In spite of all this there is some good news. Those with a keen BEE eye might view this story as even better than the article makes out. Business Day ran a story about Woolies' ED programme last week.

Johannesburg-based Classique Bags and Boxes is one of 40 small businesses that have benefited from Woolworths' enterprise development programme, producing and supplying recyclable paper shopping bags for Trenery and Country Road stores. Through the Woolworths enterprise development programme, Classique received a R100,000 loan to secure separate premises and additional equipment (to manufacture paper bags). "The programme boosted our business and helps us manage our monthly cash flow since beneficiaries of the programme are on shorter payment terms and invoices are settled within seven to 14 working days. We can also lean on them for business advice and guidance relating to anything from finance to improving eco-friendly practices."

For those who are new to the concept of ED then you'd do well to look at this paragraph critically. Pay special attention to the following

• A R100,000 loan
• Purchasing from the ED beneficiary (yes this is Rob's wish – but Rob has missed most of the point with his supplier development concept)
• Shorter payment terms
• On-going assistance and guidance

All of these make for an effective ED programme. The codes are desperate for companies to dish out money to beneficiaries for free in the form of grants. This is plainly counter-intuitive. Nowhere in the world does money come for free. It is a pity that the codes reward interest free loans without any security more than other loans. But in this case the story tells us that Woolies loaned money to gear this company up to deliver the products. Woolies now has a bunch of skin in the deal – they require the merchandise otherwise they'll have a bunch of unhappy customers so they go to extra lengths to ensure that this company's cash flow remains optimal.

I love this. However we cannot assume that it will work in everybody's case. It was Anglo American who aptly explained that mines are not well suited to supplier development because they mine stuff out of the ground. They know nothing about supplying Caterpillars or toilet paper or guards (which mines need in abundance now). But they do know how to get raw material out of the ground. They would therefore have a much more interest in beneficiating that raw material and developing those companies is more akin to the nature of their business. At the very least it involves their basic product so they will have a basic understanding of some of the beneficiary's business. We need this type of flexibility in our ED programmes.