Paul Janisch

BEE Commission taken to court and loses. The Cargo Carriers saga

Yesterday's post is a request for money to take SANAS on.  The precedent has been set by SERR Synergy and it does show how legally weak both SANAS and the dti's position is.

However a court case between Cargo Carriers and the BEE Commissioner was heard in the North Gauteng High Court.  Judgement was delivered by the awful public protector's nemesis at the end of January this year.  It wasn't widely reported, I picked it up here (which is behind a paywall).  If you want to read the whole judgement it was reported here.

I'm not going to go through the details.  The only interesting aspect of this is the finding, which I will take from Carmel Rickard's story

The commission’s initial assessment was that Cargo Carriers had acted contrary to the B-BBEE Act and that investigations were needed to determine whether fronting was involved. It then delegated its investigative powers to Ubuntu Business Advisory & Consulting.

Those findings were damning of the company, and recommended punitive compensation. Cargo Carriers, the commission found, benefited from the ODI by way of an improved BEE status to the detriment of the drivers; the scheme to manage the owner-drivers’ businesses meant they lost their decision-making powers and access to funds; despite claims of training, there was no evidence it had ever happened; the six complainants were deprived of the economic benefits they expected; and the conduct of the company could amount to fronting or other violations, "which are criminal offences".

The good judge disagreed

But high court judge Sulet Potterill painted a very different picture, concluding that the commission’s finding that Cargo Carriers benefited from the contracts was "irrational" and "not connected" to the evidence before it.

The commission’s findings were ‘irrational’ and ‘not connected’ to the evidence before it

Trainers from Cargo Carriers gave evidence of the four-day intensive training of the ODI concept, as well as ongoing training.

And in the end

The court’s careful analysis of the woeful behaviour of the six would-be owner-drivers — and other proven facts — contrasts sharply with the commission’s extraordinary findings. The court said the commission’s findings on fronting, for example, were irrational and that "not a single jurisdictional fact for fronting was established by the commission".

Ultimately, the court found that "all the findings" of the commission should be reviewed and set aside, and the complaint against Cargo Carriers dismissed, with the commission ordered to pay the costs of the application.

I had a similar experience with the Commission.  There is an ignorance that is scary.  It's been shown up now.  I'm willing to bet that if all those companies that are being "investigated" by the Commission went to court they'd win.  Thank goodness for Cargo Carriers that had the balls to take this bollocks on and win. 

The Commissioner paid for the application and they removed it from their website.  Good. 

I stress, many dti related companies operate in another world.  The courts will remind them to come back to mother earth.  And they need to be reminded often.

 

 

 

 

It's time to go to court, but I need help. SANAS is too much

A critical element of the rule of law is that there should be certainty about what the law is and what it requires, both procedurally and substantively. This involves consistent conduct by those in positions of authority, a uniform interpretation of the provisions of laws and a respect for precedents that are set in decisions made in cases of similar nature

This quote is attributed to Paul Hoffman.  I have quoted it often but cannot find the original quote. It seems that every time I have quoted this it relates to SANAS.

SANAS didn't bother to defend themselves against SERR Synergy, neither did the dti (c).  The judgement is dated 22 March 2022, which is almost two months ago and there has been no notice on either the dti or SANAS website.  This amounts to policy uncertainty and conflicts with the concept known as the rule of law.

We accept, rigthly or wrongly that black economic empowerment is a feature of business in South Africa.  If that is the case then we are entitled to policy certainty.  As awful and ambiguous as the BEE codes are, they are the codes and are open to legitimate interpretation.  SANAS has neither the legislated mandate to provide this interpretation nor do they have ability to do so, interpretation is not their business.

It's important for the reader to understand how SANAS works.  We as the implementers of this policy have no direct access to SANAS.  It's only the verification agencies that have this access.  SANAS will make pronouncements that only go to verification agencies.  It's only then that we find out what they have said.  They have refused to put up a central database of what they have  handed out sanctions for.  The refusal is simple, they know they are not allowed to sanction based on interpretation.  They also know that the verification agencies (other than the detestable Honeycomb) will challenge them, or take them to court.

I am different.  But my pockets are not deep.  I have briefed an attorney who is willing to handle this case.  The case involves us requesting SANAS to furnish us with the necessary authority to show how they are able to censure VAs by going against their interpretations. The second part of the application is then for SANAS to recall every non-conformance that was issued by virtue of them or their representatives have issued due to a SANAS interpretation.  This will go back to the gazetting of the amended BEE codes (2013).

I will account for every cent.  I also expect to be paid for this application, which will be accounted for.  I need you, the user, the consumer, the business owner's financial support.  We all stand to benefit.  If I am sure that my interpretations will benefit your business then so will your own BEE consultant be confident that they can suitably advise you.

Years ago, in 2014 in fact,  I approached a number of people who wanted to remain nameless and suggested we take these codes to court.  It went nowhere.  Companies were too scarred by and scared of the anc.  That's all changed.  We are never going to re-build this country if we don't speak truth to power.  I am willing to front this - but I need money.  My contact details are at the top of this blog, please help me in this battle.

Who'd have thought that we could depend on SERR Synergy. SANAS handed a legal snotklap

SERR seems to have established itself as a disruptive force in the BEE market place.  I have a lot of respect for them.  I'm probably most impressed with their sales people.  SERR is a big business and a real player in the industry. 

One day someone at SERR decided that they didn't like Yuneal's directive about using a financial year for BEE measurement.  SANAS are such an evil force that companies have been forced to use a financial year because they fear that SANAS will take away their license or will force them to withdraw certificates.

SERR then said "Fok dit!." and went to the High Court in Pretoria asking for clarity, citing SANAS and Slaptjips as respondents.  What is most interesting about this is that neither SANAS or Slappie (Patel for the new readers) didn't oppose it.  You can imagine what happend (and so we launch into a new play).

Scene - an office complex in Pretoria

SANAS person (name escapes me) - Oh bugger, those SERRs have gone to the high court to question Yuneal.  I'd better call SlapTjips, sorry  Minister Patel. 

She (I know it's a she) dials the Office of the Minister of Trade and Industry and Competition

Minister's Office - Hello you are through to the minister of summer footwear and hotfood

SANAS person (name escapes me) -Huh!! What the fuck is that?

Minister's Office - Damn sorry.  Are you looking for Minister SlapTjips?

SANAS person (name escapes me) - Yes, he is being called to court to explain Yuneal's behaviour.

Minister's Office - You can't speak to him now, he's not in his office.  I think he's gone to lunch.  I don't see his slip slops under his desk.  He loves wearing them now that he is allowed to.

SANAS person (name escapes me) -Please ask him to call me.  I can't leave a name because I don't know my name

An hour later.  The phone rings.

SANAS person (name escapes me) -Hello it's me who has no name

SlapTjips - Here I am phoning you back, you ruined my lunch and I got hot chip oil on my slops and so now I'll have to get some more

SANAS person (name escapes me) - It's another court case, this one's about Yuneal.

SlapTjips - I've been reading that cheeky white blogger's posts about Yuneal.  When my predecessor left he left me with some vital reading. That blog was one of them, he's a pain in the backside.  Next time I'll ban the sale of guitars.

SANAS person (name escapes me) -I think we can fight this.

SlapTjips - No, don't bother.  The blogger's right.  We won't oppose it. SERR can pick up the costs.  We've got Afriforum and Afrisake to worry about.  I don't want to lose those cases, can you make sure that the state attorney does not brief Dali Mpofu.

They didn't oppose it.  It's a court order Download Signed Court Order 22 March 2022 and it says the following

The directive issued by the South African National Accreditation System, First Respondent ("SANAS") on 6 April 2021 entitled "Clarity on Measuring Period", in the subject line ("the Directive") is declared unlawful and is reviewed and set aside.

It is declared that SANAS has no power in terms of the Broad-Based Black Economic Empowerment Act No. 53 of 2003 ("the BEE Act") or any other legislative instrument to prescribe the measurement period that must be taken into account when verifying an enterprise's compliance with the BEE Act or the Codes of Good Practice issued under the BEE Act.

It follows that SANAS has NO authority to prescribe or interpret anything. 

I'll have to write to the dtic about this, because SANAS and the dtic have been very quiet.