It's a short post. I still haven't written my letter to the dtic about these SANAS notes that I have seen, I am sure there are many others and if a reader has something else I would appreciate you sending them onto me. I have enough information to ask a few questions and I have submitted what I have to an investigative journalist who should be asking all the parties where they get the right to do this.
In discussing this with the journalist I started to look at the processes that are required for an amendment. I thought that it might lie in the generic codes. It doesn't - it sits in the BEE Act. This is more persuasive because it's a piece of legislation (bolshie thought that the BEE Act trumped the Constitution, at least he knew there was a Constitution, most of the ministers in zuma's cabinet didn't know it existed). Codes are supportive and do not carry the same weight as legislation. Section 9 appears to be the most relevant - for the record I am referring to the BROAD-BASED BLACK ECONOMIC EMPOWERMENT ACT 53 OF 2003 AS AMENDED BY ACT 46 OF 2013. The best version can be found here.
9. Codes of good practice
(1) In order to promote the purposes of the Act, the Minister may by notice in the Gazette issue codes of good practice on black economic empowerment that may include—
(a) the further interpretation and definition of broad-based black economic empowerment and the interpretation and definition of different categories of black empowerment entities;(5) The Minister must, before issuing, replacing or amending a code of good practice in terms of subsection (1)—
(a) publish the draft code of good practice or amendment in the Gazette for public comment; and
(b) grant interested persons a period of at least 60 days to comment on the draft code of good practice or amendment, as the case may be.
I was going to go into a long discussion of how Yuneal's interpretations were wrong in law (in so far as the codes are concerned). I don't need to because subsection 1 makes it clear that an interpretation must be made via a gazette. Gazetting then becomes a type of amendment and follows section 5.
SANAS opinion remains an opinion and carries no more weight than my opinion. They are null and void. I know that every verification agency is petrified of SANAS. I don't think it's because they're worried about processes. I think they are scared that some arbitrary SANAS employee or deployee may provide a non-conformance due to a difference of interpretation.
This can't wait anymore. I have the locus standi to lodge a query with the dtic and I will. It will be respectful and I will post it up here and will send emails every three days requesting a response - this is business critical.
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