It's not as though we didn't see this coming. We know that charter councils have until the 15th of this month to at, the very least, submit their revised codes to the dti (I've been told I have to be nice about them). And I quote
Sector Charter Councils have until the 15 November 2015 to submit aligned Sector Codes for approval to Minister of Trade and Industry, Dr Rob Davies. All existing Sector Codes that have not submitted application for approval to the Minister to be aligned with Broad-Based Black Economic Empowerment Codes of Good Practice will be repealed.
This does leave us in a somewhat difficult position. If they are summarily repealed what do you do? I spoke Chris van Wyk about this a while ago and he said that repealing is in effect an amendment and must go out for comment as per the act, which says 60 days. The about-to-be-repealed code must still be in force during that period and during the period that the dti is "considering" the comments. In theory there is no guarantee that the code will in fact be repealed. Only then can you come up with an alternative but that alternative can only operate from the date that the code is finally repealed. If you declare one sunny day that "all scorecards issued from now on can only be issued using the revised codes" you are violating the rule of law. Rule of law you ask, yes. This would be an application of retrospective legislating. What you are saying is that a code that was not applicable to you because your specific sector code was still valid is now suddenly applicable. Oh many would argue that you should have known about the revised codes. Yes you should have known but only in so far as the revised codes exist – they are not applicable to you and hence you legally and legitimately do not need to worry about them. What is also very important to remember is that it is only Rob the red that issue a code or decide when or what anything may apply.
Not so if you are Construction Sector Charter Council (perhaps just the CEO of the Charter Council). You decide to take over Rob's role and spew forth the following
03 November 2015
Communication to:
All Construction Sector Stakeholders
All Industry Voluntary Associations
All Verification Agencies
All Construction Sector BBBEE Practitioners
Subject:
Verification Measurement Position Beyond the 31 October 2015
Hmmm, this should be interesting. Our author blabs on about 31 October and repealing etc, you can read it here. That, dear reader, is not the most significant bit. This is
Applicable Measurement position after the 31st October2015
5. Following the letter of communication issued by the Minister of Trade and Industry on the 30 th October 2015, although no additional extension has been granted by the DTI, major construction industry associations/stakeholders under the Charter Council have however been provided an opportunity to finalise outstanding areas of the CSC alignment process and targets.
In the interim, all construction measured entities seeking to renew their BBBEE Verification Certificates will make use of the revised generic BBBEE code as gazetted on the 1 May 2015.
Here we are – a god complex. Like the uber trumping clause ever. And this is why this is a problem
- The CSCC cannot dictate, suggest, intimate or scream from the mountain tops that companies that operate within their sector must use a certain scorecard system other than the one they are responsible for
- Their code hasn't been repealed
- This is retrospective legislating. Let me explain what retrospective legislating is. Say the department of transport announces that from tomorrow all cars need to be left hand drive and will drive on the right hand side of the road (which is very similar to adopting the revised codes). They then scrutinise fines for infringements from before the 6th of November and prosecute those drivers who drove on the left hand side and had right hand drive cars because they have infringed the new law.
- It is only Rob who can make such a call
- Whoever drafted has no idea about the rule of law.
I was pretty sure I was right when I saw this but I consulted my colleague and friend Chris van Wyk about it. This is what he had to say
You are absolutely correct though. They are acting way outside the scope of their authority. The council may not impose a repeal of the sector code where it is still valid. It is only the Minister that may repeal it. Even if repealed, they may not impose the general "Amended Codes" on a construction company whose year end preceded the repeal date. At most they can on repeal impose it on businesses whose year ends completed after 30 April 2015. Those whose year ends finished prior to 30 April should be capable of measurement on the old 2007 general codes.
In a phone conversation Chris stressed that if the code is repealed you must allow certificates based on a measurement period before the date of repealing to be issued in terms of the code that was valid at that time.
What do you do if you come across this notice? Ignore it, the rule of thumb is that if it comes from Rob or his minions you can pay attention.
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