Yesterday someone spoke to someone who spoke to Rob (Davies – the worst minister in Zoomer's cabinet). The Minister allegedly said to him that he was told by the ANC Politburo to publish these codes before the election. Rob apparently knows that they are rubbish but had to gazette them – as a result he's anticipating PAJA applications. Who are we to disappoint him.
I'm now thinking about the political implications of these codes. We as the private sector cannot allow them to go through because it's a violation of our rights. If we do nothing then we are going to be forced to implement them whilst those 100% black owned businesses are given a free reign to clean up under state procurement (I've shown that whilst this is the intention, it's not the case – but it looks good in writing). We cannot depend on the support of the DA because the DA are canvassing the same people who stand to benefit under these codes which is a very small Africa elite (as opposed to Indian and Coloured). All the DA can do (and did) was publish this statement (thanks Thinus)
To date, the Portfolio Committee on Trade and Industry has yet to see the Regulatory Impact Assessment for these regulations or the public submissions taken into consideration. This information has been kept from the committee. The fact that there was no oversight over the public participation process is further evidence that legislation which gives too much power to a Minister to issue regulations opens the system to abuse.
The DA will submit parliamentary questions to the Minister of Trade and Industry, Rob Davies, requesting that the Regulatory Impact Assessment as well at the public submission be made public. If this proves to be unsuccessful, we will submit a Promotion of Access to Information Act (PAIA) application.
The DA will explore all avenues to make sure that the B-BBEE Codes are amended in order to be truly broad-based so that we can redress apartheid's legacy in a sustainable way.
This is just sitting on the fence. A half-baked attempt at getting to the bottom of it.
There's always the Freedom Front Plus but their political agenda is so ridiculously narrow that no one is able to take them seriously. They want BEE scrapped altogether but don't have enough money to do it. It reminds me of that little joke that did the rounds during the seventies where PW Botha wanted to throw the blacks into the sea but the Minister of (the Interior I think) wouldn't let them on the beaches.
So what happens politically if a number of businesses who feel that their rights are infringed submit PAJA applications or request a judicial review? You must remember that it's any business that is less than 51% black owned that might want to do this – which is probably an overwhelming majority of the businesses in South Africa. Say the judicial review finds that these codes are problematic and orders them set-aside (as per section 8(1) (c) of the PAJA. Would the ANC then claim in their electioneering that business is racist and anti-transformation? Probably. But the opposition political parties could then argue that the ANC is not capable of looking after the people because it passes laws that don't pass constitutional muster and hence are not good for anyone.
I have met with a lawyer to discuss the best plan van aksie – we'll have a proper game plan drawn up in a week. In the meantime here is an email I sent out to my 250 closest friends. I've attached an updated proforma PAJA document. I am assuming that if you are a less than 51% black owned company turning over less than R50m, or a more than 51% black owned company turning over more than R50m you might be interested in submitting an application. Less than 51% owned EMEs (turnover less than R10m) should also consider submitting this application because your 51% plus black-owned competitors have an overwhelming advantage over you that you cannot ever hope to match.
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DTI's new BEE codes are quite possibly unconstitutional
The DTI have published a series of BEE codes of good practice (gazette number 36928) that the South African economy is expected to implement in 12 months' time. They have also started a process to align industry charters to these codes, which means that none of us are going to escape the onerous targets that the DTI has set. Before you go on any courses or information sessions and the like, please consider the following:
- The codes are incomplete. For example there is no code for multinationals or non-profit entities
- They are fraught with inconsistencies and typos which make the codes almost impossible to comprehend render them effectively unimplementable
- Some of the formulas to calculate compliance do not work
- There are numerous requirements which are patently unfair
- The ultimate cost of implementation and verification will make the who process prohibitively expensive.
I have listed a few of the practical problems but would like to highlight two real issues that I believe the DTI needs to clarify
- Why did the ministry largely ignore those comments from the private sector that disagreed with the requirements under the draft codes published in October 2012
- Why have they published an incomplete and incomprehensible document that we are now required to interpret and implement.
I believe that these issues need to be explained by the DTI. I have sent them a formal request under section 5 of the Promotion of Administrative Justice Act (PAJA). I am also planning to request a judicial review of the codes before the end of the 90 day period after their gazetting (11 October 2013). I have attached a proforma PAJA request form with the contact details of the people it needs to be sent to. I think if we are able to submit a multitude of applications under PAJA the DTI will come to the realisation that we are no longer interested in half-baked and poorly thought out legislation. It will also assist me in my judicial review application.
If you would like any assistance with this please email me or give me a call. You can read more about my application here.
We have about 70 days left in which to submit our PAJA applications.
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