The SANAS/commissioner conspiracy

Conspiracy is a such a great word.  It is simply defined as "the act of conspiring together".  Conspiring is a little more nuanced.  Merriam Webster offers these three definitions

• to join in a secret agreement to do an unlawful or wrongful act or an act which becomes unlawful as a result of the secret agreement
• to SCHEME
• to act in harmony toward a common end

It's been noted before that the commissioner struggles to get anyone to take her or her commission seriously.   The thing that gets up her nose the most is that her opinions are just opinions.  She threatens that if they ever get to court then the court will find in her favour.  I suspect that bolshie bob hasn't given her a litigation budget, so she carries on threatening.  The quality of work that comes out of her hallowed offices is dubious at best - take a look at this note sent to a company from one of the bankrupt parastatals.

Black children satisfy the definition of black people as per the B-BBEE Act, however, this does not mean that true empowerment has been or will be achieved. Such participants are merely regarded as financial beneficiaries and not indirect shareholders through the trust, because they are not able to exercise voting rights in a manner that is consistent with real ownership, and only enjoy a financial benefit. B-BBEE ownership is focused on changing ownership patterns of the means to the economy, through knowledge creation and economic interest, and there is no way B-BBEE can be accelerated through recognition of black children, as they have no capacity to act legally, and therefore cannot delegate or appoint proxies, thus falls short of meeting exercisable voting rights as one of the key requirements for ownership.

Doesn't look too bad does it.  However what the writer of this opinion (from the commissioner's office I am informed) did know was that the "child" in question was in fact 15 years old.  What the writer did not check was the National Youth Commission Act, 1996, specifically section 1 (vi) - "youth" means persons between the ages of 14 and 35.  Nor did the writer think to check those same codes that s/he is supposed to be the guardian of.  One expect that said writer would have noted that designated groups should have at least 3% economic interest in any company.  Designated groups of course including youth.  Perhaps the writer doesn't understand that a parent of guardian can exercise those voting rights for the minor until that minor is old enough to do so themselves.  I suppose it's just a little too much for the commission to have the most basic understanding of contractual law.

How then does the awesome awdoz get around the fact that her opinions are mere opinions and that no one really respects her commission?  It's quite simple - she uses two tools

1. Parastatals - as with the example above.  She signs MOUs with them and they beg her for guidance on BEE scorecard related issues.  Twisted logic and flawed opinions become the rules that these parastatals will follow.  It's clever - but not if you are forced to comply with arbitrary requirements as a potential supplier to that parastatal.
2. SANAS.  This is the most dangerous of the lot.  For observers like myself the BEE codes tell you what you need to do.  In typical anc-government fashion, they are poorly drafted, devoid of logic and poorly cross referenced.  Be that as it may we are getting used to them.  However SANAS has different opinions that are not communicated publicly.  These "interpretations" are foisted on unsuspecting verification agencies in the form of non-conformances (NCs in verification parlance).  These non-conformances can be ridiculously arbitrary - for instance if the SED confirmation letter does not say "black South African as defined by the BEE Act"  then you will get a non-conformance.  

But there are more sinister SANAS interpretations that are now taking the fore.  They will enforce commissioner opinions and draft documents on the verification agencies - handing out non-conformances for not considering these drafts.  A case in point are contributions to enterprise and supplier development.  The current codes don't differentiate between a ED and SD supplier. However a draft from June 2018 states that a supplier development beneficiary is on the supplier data base and an ED beneficiary isn't.  The implication here is that the SD and ED beneficiary cannot be the same entity.  SANAS is now handing out non-conformances for this.  

Please don't approach them with logic and arguments about the rule of law - they are above the law.  They are enforcing transformation and they can be as arbitrary and irrational as long as they are driving this mandate.

I hope the reader sees the conspiracy.  We need to start questioning this logic and asking the commissioner whether she is operating within her legislated mandate.  And if not then she needs to be brought into check.