Advocate Paul Hoffman wrote an article for BDLive in July where he correctly stated that "there should be certainty about what the law is and what it requires, both procedurally and substantively." This is not an unreasonable request to be made on legislators. The question is why have we tolerated substandard codes of good practice from the Department of Trade and Industry for so long? I can't limit the blame to Rob Davies but his tenure as minister has produced some of the most unintelligible documents we've ever seen. The new codes are an example of poor thought, poor logic and ideological hogwash. The worst of this is that we did not agree to these codes – certainly I DID NOT AGREE to those codes. How can it be that he can put out BEE codes of good practice in draft form and receive 500 plus comments and yet he ignored my comments, Anglo American's, SEIFSA's, Solidarity's etc. I'm only listing the comments that I read. Each one rejected the codes as unimplementable. Some did offer constructive comments about how to fix some of the issues. All of this was ignored almost completely. Now Davies might say that there was overwhelming support for the draft codes but I suggest that this support came from a variety of businesses and black lobby groups who have been exempted from them.
If you think about it logically what business would ever agree to being told that they HAD to have a certain level of black ownership (even the constitution protects people from this under section 18). Would a business agree to spending 6% of payroll purely on the training of black people (based on the EAP targets) and then be told that in order to get these points that have to implement a variety of programmes and submit PIVOTAL reports in order to do so. Once they'd done this and paid all the money they need to they could still be penalised by dropping a level. Which business owner would have agreed to this? Would they agree that if they have 50% black ownership that they would now have to implement the new codes (at great expense just to labour a point) and watch their 51% black-owned peers be instantly promoted to a level 2 on a scorecard that they would be lucky to achieve a level 7 under?
It defies logic. The simple answer is that as business in South Africa (which includes BUSA) we did not all agree to these codes. To add insult to injury the minister published unintelligible gibberish. Not only are they impossible to implement they are impossible to understand. There is a difference between nonsensical legislation and nonsensical secondary legislation. Legislation is interpreted by lawyers and the courts. Codes of good practice as secondary legislation are interpreted by us – the practitioners and business owners. It is not fair on us to publish rubbish and then foist it on us. To make matters even worse the DTI is no authority on the codes – you can't phone them and ask for an explanation. I come back to Hoffman's quote - "there should be certainty about what the law is and what it requires, both procedurally and substantively." These codes are not certain, they don't work and they are unreasonable.
There is some respite that is available to use under the PAJA. Section 5 allows us to request reason in writing within 90 days as to why this administrative process has impinged on our rights. And it has done so and it has done so in a most arbitrary fashion. We no longer have to tolerate this kind of bulldozing. This document will go under judicial review under section 6 of the PAJA. But before this happens please download the proforma document that I modified off the DOJ's website. I have included a number of contact people at the DTI that you should send it to. Please fill in your request and then sign it and send it to all those people. If we don't stand together and put an end to this most ridiculous method of legislating then we only have ourselves to blame for the situation that we find ourselves in. Once the 90 days are over it's too late – look what the courts said about eTolling.
Also remember that the codes are not going to be clarified and the DTI is unlikely to become a centre of reference for them. In addition you cannot simply hide behind industry charters thinking that they won't be changed. They have to be changed to talk to the new codes – yes they do have to go through the process of comments etc but there is a very good chance that they will be changed and they themselves will become as unimplementable as the new codes. The chances are also particularly good that they are going to be rushed through with scant regard for detail – which then becomes your problem.
I have also attached my request for clarification. If you would like to send me your requests I'll store them and make reference to the numbers in future blogs – I won't disclose any of the information. I am also talking to a variety of parties who feel the same way as I do and have the money to take this on judicial review. If Davies does not respond then I can head straight to a judicial review under section 6 of the act. Let's see what he does.
Comments