They’re repealed I tell you they are REPEALED. Giving notice means it happened yesterdie

But we don't really want to follow the process. Perhaps we don't know what the process is.

The DTI writes (but not to me)

From: Lindiwe Madonsela [mailto:[email protected]]
Sent: Friday, February 26, 2016 4:11 PM
Cc: Jacob Maphutha <[email protected]>; Joseph Melodi <[email protected]>; Liso Steto <[email protected]>; Salamina Madisha <[email protected]>; [email protected]; [email protected]
Subject: RE: FW: Statement of Clarification - Repeal of Sector Codes

 

Your email has reference.

Please note that the interpretation of the processes in your initial email is not consistent with the B-BBEE Act and Codes of Good Practice.

Firstly, the notice issued on 17 February 2016 to repeal both the Construction and CA sector codes does not refer to a process to repeal, but rather informing the public of the actual repeal. The words "give notice to" does not refer to a future date. Following the process as of 1 May 2015, one would note that sufficient notice on the repeal of sector codes not aligned was provided. Firstly, the general notice issued on 15 May 2015 referred to a consideration to repeal sector codes not aligned by 30 October 2015. Secondly on the 3 November 2015, the public was informed that sector codes not submitted for approval by 15 November 2015 will be repealed. The final step taken by the department on 17 February 2016, was to notify the public of the sector codes that were repealed.

Further, section 9 (5) refers to issuing, amendment or replacement. This applies to issuing of new codes of good practice (the Codes),including sector codes as well as amending existing codes (including sector codes). The word "amend" refers to changes effected in the actual codes, whereas "repeal" refers to abolish/cancel/nullify. The two terms are different and should not be confused. When the 2007 Codes were being amended and subsequently gazetted in October 2013, measured entities continued to be measured on the 2007 Codes because they were not repealed but being amended. The construction and CA sector codes were repealed and thus cease to exist. The 60 days commentary process is not applicable to the repealing but issuing, amending or replacing. Nonetheless, sufficient notice was given dating from 15 May 2015 even though it was not specific to which sector codes.

Furthermore, reference to "remain valid until amended" means that measured entities within those sectors continues to be measured in terms of those sector codes until the actual sector codes are amended. For example a measured entity in the FSC will apply the 2012 FSC codes until the amendment process is finalised and a section 9(1) FSC which is aligned to the amended generic codes is gazetted. The 17 February 2016 notice did not mention measurement periods or financial period. The clarification statement issued on 22 February 2016 remains the Departments only clarification.

In addition, please note the attached Notice gazetted on 15 May 2015 on the implementation of sector codes aligned to the amended generic codes.

Trust that this is in order.

Regards,

Lindiwe

AND THEN I WROTE

Dear Ms Madonsela

Your email below (now above) refers.  I would respectfully request that you consider the following:

1. Up until the point that you "repealed" the two codes they enjoyed the exact same legal standing as the revised BEE codes or any code issued under section 9(1) of the Act.  Summarily repealing a code and then expecting those entities to follow another code that they may or may not be aware of is an application of retrospective legislating, something that our constitution and the rule of law frowns upon.  It is not legally reasonable for those entities to have considered using your revised codes when they were not applicable to them.
2. A repeal has to be regarded as an amendment because the public have a right to have a say in how you go about your administrative duties.  Your administrative action is similar to the following example.  Creating a punishable activity from a certain date that was legal up to that date and then prosecuting transgressors for transgressions before that date
3. I put it to you that legally, these codes are still in effect and have not been repealed

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And they have not yet responded – not that I expect them to. The logic and argument is pathetic. I love Lindiwewillrepealandyouwillsuckitupandcomply's "The words "give notice to" does not refer to a future date" argument. One definition of the term "give notice" comes up as To announce one's intent to leave a job; to inform an employer that one is leaving. This needs to be tested – common understanding of that term is that you are alerting the public about what you plan to do. You cannot allow an administrative action to be this vague. It's a simple thing – the codes are repealed and the process to repeal has been followed. This process has to be fair and reasonable. Take a look at this argument presented by Sean Lakey who appears to be an advisor to the Construction sector council

1. The rule of reasonableness and fairness applies – Was the envisaged action expressed in the 1st attachment as of 30 October 2015, whereby the implication would become effective as of 16 November 2015, delayed by circumstance and finalised on the 8th December 2015 in part, the completion for all concerned came into effect 17 February 2016?
2. (1a) To whom/which part of the concerned sectors constituents was this communicated in due time?
3. (1b.) The argument is – Do you as Government have the right to decide unanimously and irrevocably a decision beyond granting any business entity the opportunity to show objection/adherence to what you propose.(60 days)
4. Was an entity granted sufficient time to alter its operations from the Construction Sector to DTI requirements in the current financial year to meet such as per your gazetted notice of 17 February 2016?
5. Minister Rob Davies must provide the facts as to why the Gazetted document was not processed by 16 November 2015.
6. What legal basis did the first attachment above have, verification agencies would only accept a gazetted notice to this effect.

We have a right to fair administrative action. This has to go on some sort of review.

And why have I heard nothing from the CA Charter Council – they have the most to lose. 

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