Paul Janisch

Discheskombobulated

This does need to be discussed. Wait it's not a discussion, it's a monologue.

There are two empowerment stories that have made the headlines. The first is Dischem. I don't' want to go too deeply into this story. When I first saw the Whatsapp I thought it was fake news. In fact my mind suggested to me that this was some brand of anti-Semitism. I have met Ivan Saltzman a few times. He's an interesting guy, definitely sharper than most people. You wouldn't think it when you met him, but I think that's his style. So it turns out that this story was true. Dischem has too many white managers (90%of the manager are purportedly white males). Ivan says tohis staff, we could be hit with a fine of 10% of our turnover so no more wittes, OK?

This didn't make sense for two reasons. Firstly that employment equity requirement is in draft form and is unlikely to make it beyond promulgation because it will be fought all the way. And that's right, this government is incompetent and useless and they deserve to have their race-based quotas destroyed by the courts. Secondly, Dischem would probably destroy the department of labour in court. We are talking about sheerincompetence here, doesn't take a great lawyer to win this one – especially if the department hires the advocate for the stars.

I thought there must be some other reason. Was it because they needed to renew a licence? Are they gunning fo a large tender? The last official word is that Ivan was scared of the fine and he withdrew the notice, he was facing a bit of a commercial boycott and general press disgust – although he did find an unlikely ally in the black business council.

Then this weekend there was a sensational heading in the Sunday Times (as usual it's behind a paywall so you can't read it) To save Eskom, empowerment must go

That's not really the sentiment of the Eskom chair – Mteto Nyati. What he said was

1. Change the procurement rules to get rid of middlemen that mark things up by multiples of millions. He specifically spoke about foreign purchases. You see the so-called localisation rules create BEE "entrepreneurs" (read rent-seeking enablers) who act as agents and get paid a fortune. Eskom can't afford this. Id est "Procurement rules are not agile as they should be, including rules which say you cannot use suppliers that are not local. When the supplier of equipment is international you have to use a middleman to satisfy the localisation rule. There's no place for those kinds of practices now. We need to remove costs from the equation." He then continues "Internal corruption is largely at the back of empowerment processes that promote local small business (what he doesn't say is – businesses who cannot actually deliver on what they are selling, we are not talking about semi-skilled stuff, this is high end stuff)
2. "The other area where we can help is around skills, and rigid rules around who to employ in terms of equity targets. Right now we need to be focussing on the best person for the job… regardless of how they look."

That's it. Naturally the bbc, who are Dischem's best friends have now become Eskom's new enemy.

The Black Business Council (BBC) has slammed Eskom board member and former MTN CEO Mteto Nyati for his statement that South Africa's empowerment rules hamper the power utility's performance. The BBC believes Nyati's words are a deliberate diversion from improving its Energy Availability Factor to 75% and providing South Africans with a reliable electricity supply. "The Black Business Council strongly condemns the irresponsible and reckless utterances purported to be those of Mr Mteto Nyati regarding transformation and localisation," it said in a statement. "The purported views deliberately omit to mention corruption that was committed by white-owned companies at Eskom, as highlighted by the Zondo Commission." It added that Nyati's views project that blacks are being done a favour in their own country, where they are a majority.

There you have it, multinational companies that do not have a complexion are now white as well as the guptas and salim essa.

I don't know what else to say. I have no time for the black business council, and they probably have less time for me.

In short, Eskom is not reneging on its broader empowerment commitments. If you provide goods or services that are not critical to their operations you're still going to need ownership. If you are a manager that is a generalist then EE rules will apply. This is bad headlining and sensational bbc-ing.

When courting a potential business partner, doos and donts

Let's say you are a wide boy from Durban who has an auditing qualification and talks up a good story.  You call up a certain BEE consultant with a view to gain all his business.  A conversation ensues.

The BEE consultant being the disagreeable and arrogant fuck that he is tells you what he is looking for.  You tell the arrogant fuck how you handle SANAS and you only had a few non-conformances in your last assessment.  You are impressive. 

The arrogant fuck (who shall be referred to as AF from now on) asks you about financial years and do you know about the most recent SANAS case.  Yes you tell the AF, however certain codes like the construction code prescribe a financial year (it doesn't, wide boy was a little too wide to actually know  what he is talking about).

One lime and soda and half a coffee later (which wide boy gets to pick up), wide boy asks AF how he can get all AF's business.  AF says (in his best Kid Colt voice) "waal, we are now going into the ownership field providing solutions using share options. I can give you a QSE ownership certificate imminently."

AF mistakenly thought this was a generous offer.  Oh no, wide boy is too wide  for that. Not worth his time.  He's a SERIOUS player, he wants one of AF's big clients.

AF -  I can't risk it.

WB - Ownership only  is not worth my while.

Meeting ends

What a useless fucking wanker wide boy turned out to be.  There's no ways I am going to give you one of my serious clients when I don't know how you work.  The people I deal with would probably do the ownership verification for free because they want my business.

Wide boy can fuck off.

 

A skilled approach to skills development

Some of my good readers (hopefully very few) know Chavvy Moray Eel and his insignificant skills development company. Chavvy is like many of the other charlatan service providers in this country. They'll charge you a fortune for BEE compliance because they put the fear of god into them and they know their clients know a hell of a lot less than they do. They, like all of us, have a relationship with a verification agency where Larney will ensure that you get all the points that you paid more than you should have for. So good is Larney that she will threaten her clients with fronting the awful awdoz if they dare venture away from Chavvy's business.

Not all are Chavs like Chavvy, but many are. I've seen them all. One company ripped off one of my clients and then couldn't even get him onto the scorecard.

Let's stick to the rules here. Don't spend money if it's not going to get you onto the scorecard. This is the first thing I do. I look at the feasibility of the client getting onto the BEE scorecard and then I modify the programmes to achieve those points. If it's not going to work out then I'll suggest the client gets a non-compliant BEE scorecard for R5500 (which in itself is expensive) but remember that for a company that has no ownership 54.9 points and 9 points produce the same result – non compliant. Don't' spend a fortune to get onto the scorecard. Don't bother if you can't. Of course the ownership element can easily be sorted out with Ownershield, so that problem can now go away.

The next stop is skills development. It is chronically expensive, ludicrously so. I still struggle to think how that business sector in this country could have agreed to that. When you start looking at a skills development programme look at the cheapest points. I'm now talking about the generic scorecard. I start off at the learnership programme, more often than not you don't need that many learnerships/internships in place to get those points. I would aim for about 5.5 out of the six. Unfortunately Indian skills development doesn't do much for points so I tend to leave them out. Then look at disabled skills. It's a lot cheaper than any other programme and is not subject to the EAP. At this point you should be looking at something close to 9 points. If you have done the learnership programme properly then you will have put your highest paid black people on a learnership programme because you can count their salaries as skills spend. By the way, herein lies the dichotomy of the skills development element. If you are going to get more points for the higher paid people, then why would you bother with the lower paid people who need it the most.

Forget about bursaries. They were bolshie bob's final confirmation that he was a useless commie who was blinded by ideology and was completely unsuited to anything other than an academic post in a small eastern European country.

Then we need to see if you can get most of the available grant money to cover the expense of the skills programme. I didn't know that you could do this until I asked Amanda Earle of HR Ignite to meet with some of my clients. This is Amanda's forte and she's really good at it. She has set herself the task of getting the grants to pay for the training of all the staff, in other words the 1% SDL covers the 6% BEE spend AND white and foreign skills development.

It was Amanda who stressed that you need to have a sussed skills development partner. A company that is not going to rip you off and will push for the results that you want at the least cost. And this is how I happened upon Johan Barkhuizen (who insists on being called Barkies) and Corne Basson of Ultivate. I had the pleasure of joining Barkies in a meeting in Bloemfontein. We left at six in the morning and had an hour meeting at 11:30 and went back. But it was a very significant meeting because Barkies told the client that he didn't need 1000 outsourced learners to achieve their BEE targets. 180 learners would do, 120 of which were internal people who earned about 200k a year. This would translate into about R24million skills spend. And the 12H deduction is still applicable.

This appears to be Ultivate's mission. Get your internal people trained and then look at external learnerships to cover the disabled spend. Ultivate is not so much a skills development provider. They are more of a broker, they will go and find the best service providers to deliver the courses. On top of this they will negotiate the best prices for their clients. They understand that there are a large number of service providers in the market place. It's a competitive business, why should the client pay more. We could call it discount skills I suppose.

One of the things that really excites me about Ultivate's position on skills is the emphasis on internships. When I say internships I refer to those internships that the codes talk about. If you read the definition in that god awful matrix you'll notice the ABET students can be regarded as interns. Barkies and Corne ask the simple question as to why this concept cannot be extended to other types of skills. Sure you won't get the tax breaks, but you will get the salary spend. Also why should an internship be a 12 month programme. Why not make it 6 months with an assessment at the end.

Why not?

Why is this even news. The BEE Commissioner has no cred, even her useless government ignores her

This was sent to me by a few people.  It's noise, it's nonsense, and isn't even good journalism.  The awdoz is not good at her job.  That job should not exist in the first place.  There's not much going on there. They've lost two cases that I know about - both highlighting their incompetence.  The latter case is a better one for me because it's SASOL OIL.  Not a small company.  Shows that they've got balls.  It also shows that large business has had enough of government.

These were the findings

[69] Having heard counsel for the parties, the following order is made:

69.1.1 The Commission’s Sasol Oil dated 7 October 2019, including its ‘finding’ in paragraph 6 and 7, its ultimatum in paragraph 8 and 17, and its threats in paragraph 9, is reviewed, declared invalid and set aside.

69.2 The Commission is interdicted from

i.Making unlawful demands of Sasol Oil, and

ii.Threatening to invoke its powers against Sasol Oil if it does not comply with the Commission’s unlawful demands

69.3 The Commission is ordered to pay Sasol Oil’s costs including the costs of three counsel

Not to be outdone - the awesome releases a report that drew its information from a very small sample of  companies and so she concludes that government needs to clamp down and make BEE compliance compulsory.  It's not going to happen.  They'll take your business by force if they want it.  But they don't have the credibility nor legitimacy to start listening to the awful awdoz and her crew of clowns.

The Broad-Based Black Economic Empowerment Commission (B-BBEE Commission) has published its annual broad-based black economic empowerment (B-BBEE) trends report for2021, showing a decline in compliance and a drop in black ownership of businesses in South Africa.

The report is based on data derived from annual compliance reports submitted to the B-BBEE Commission by JSE-listed entities, organs of state, public entities, and Sectoral Education and Training Authorities (SETAs).

According to legal firm Webber Wentzel, the commission saw fewer compliance reports submitted in 2021, with the current data uploads decreasing by 76% from 5,818 in 2019 to 1,373 in 2021.

The B-BBEE Commission said that this downturn in the submission of compliance reports was due to the fact that the Broad-Based Black Economic Empowerment Act does not adequately cater to the consequences of non-compliance with the Act’s requirements.

The B-BBEE Commission has therefore recommended that the B-BBEE Act be amended to include consequences of non-compliance in the form of administrative penalties and criminal sanctions. It also wants to provide quicker resolution of B-BBEE violations by establishing a specialised tribunal.

“The B-BBEE Act, according to the B-BBEE Commission, should also provide for mandatory uploading of B-BBEE certificates by B-BBEE verification agencies on the B-BBEE Commission’s certificate portal,” Webber Wentzel said.

Presenting other ownership options

Always a pun. I am not the first to think about the concept of options or warrants. I won't tell you who did it first because theirs is too simplistic; focusing on white owned businesses and only QSEs or EMEs. I was talking to my old friend Rudolf Rautenbach who told me about Ownershield. Rudolf is a little cleverer than most in this industry. We lost Gerhardus Burger to Australia, Chris van Wyk to Mauritius and Kevin Lester to Anglo. These were three of the brightest minds in the BEE business. Rudolf has stepped up and filled the weighty shoes that Mr Burger filled by becoming THE BEE tax expert in South Africa. Part of Rudolf's experience lies in capital gains tax. This is a bugger because if you do an ownership transaction, uncle fascist SARS is going to want it's undeserved piece of the pie in the form of CGT.

This is a problem and quite possibly a major deterrent to companies having to undergo a BEE transaction. This does somewhat highlight the punitive nature of the entire BEE system. I would tell the potential partner that they must pay the CGT otherwise no deal. I digress.

Rudolf says that options are a viable vehicle for BEE ownership not only because it doesn't attract CGT. He lists a few benefits

1. It's a top up method. If you have say 25% you could top it with 26% of options and you'll get your level two as an EME or QSE
2. It's a good option for larger companies as well. If this programme exists in the codes then it will pass a verification
3. It can be used by all companies.  The structures may differ slightly but it's widely applicable

I have selected the reference to options and warrants from the Financial Sector Code (the only code that was properly negotiated and drafted) , but the words are exactly the same in the generic codes.

8    OPTIONS AND SHARE WARRANTS

8.1    Exercisable voting rights and economic interest will be recognised where a participant holds an instrument granting the holder the right to acquire an equity instrument or part thereof at a future date, if the following requirements are met:

8.2    The exercisable voting rights attached to that instrument are irrevocably transferred to the holder for the option period and are exercisable by the holder before acquiring the equity instrument.

8.3    The value of any economic interest is irrevocably transferred for the option period and paid to the holder of that instrument before the exercise of that right.

8.4    The value of an instrument must be determined by using a standard valuation method for calculating the net value.

This is where Ownershield appears to be different to other companies. Most target white -owned business that turnover less than R50m. However Ownershield looks at it from the perspective of a prospective black shareholder as well. What if the prospective shareholder (who is black but I'm not going to repeat this) agrees to take an option for 36 months. They get the benefits of ownership because of the voting rights and dividends. They may be able to store up enough money because of that dividend flow to exercise the option when it matures. And they are gaining experience of ownership. Hell there may even be executive employment opportunities. We could call this a long date – where the two parties go out with each other and then decide to marry. As opposed to an arranged marriage at the outset (which is bound to fail).

Having noted that. The option route is still good for white owned companies. There are failsafe mechanisms in the structure that will protect all parties. We can't pretend that that ownership is easy. It's not. It's a hard slog. Different cultures and different expectations get in the way. There's one example of an English speaking white South African working in a very Afrikaans environment in some dorp somewhere and he can't fit in, it's a very poor cultural fit AND THEY ARE ALL WHITE. Also if either party decides this isn't working, cancel the option agreement. Everyone walks away.

I'm not a big believer in the ethical nature of BEE nor do I believe in the spirit of it, mostly because the government's bona fides is not genuine and they have messed it all up. But for some reason I think the option erm.... option is probably the closest to the spirit of these draconian codes.

This is a solution for all businesses, even CCs. Doesn't matter how big or small you are and doesn't' involve preferential shares and a dodgy law firm in Bloem. And the turn around time is quick there's no CIPRO or the master of the high court. None of that. Yes there are a number of documents and agreements that need to be signed, there's also compliance with the Companies Act. Rudolf has got all that sorted. In fact if you don't want to manage it at all, he'll doo that for you too.

You can contact Rudolf here. Hell if I'm nice to him he might include me in the meeting.

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.

 

 

Resistance to transformation stymies economic hopes, says Minister Patel - really?

Patel said resistance to B-BBEE within the South African business community undermined the other policies government introduced to broaden economic participation and deepened already staggering inequality.

"Legal challenges against B-BBEE policies have sought to stall through litigation and aggressive posturing the necessary journey of transforming the economy. It is a dangerous strategy that will fail. It will ultimately undermine the social stability that democracy rests upon," Patel said.

Patel said fronting remained a challenge and that regulators often found black businesspeople lending their names as proxies to BEE truants.

via www.news24.com

Ladies and gentleman, I present to you typical anc arrogance.  This is not something I would have expected from Slaptjips but he had an audience and awdoz was probably cleaning onto every word he said.

That minister Patel is saying to us is the following

The anc, what are greater than heaven itself, will make laws what are good for everyone even though they pay scant attention to the Constitution, what are an irritation.  If you have the cheek to question any or  all empowerment legislation then you are a fucking racist.

Why isn't our fried food hero talking about the frivolous litigation that comes from the esteemed public denialist (masquerading as a protector) or zuma or ace or mpofu or peter  moyo or sodi or lungisa or the Gwedosaurus, the list goes on. 

The answer  is obvious. 

We need more dissent.  We need to ask more questions and involve more courts.  It seem that this is the only way the these incompetents learn.  They are so delightful - they just appeal and lose.

SANAS is wrong, where is the dtic. Are they complicit?

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.