A recent email from AQRate said the following
This is probably the question we are asked the most often. Will these Amended Codes and all Sector Codes really become effective on 1 May 2015. A well known BEE Consultancy recently advised that there would be a delay and this was refuted in the strongest of terms the following day by the Dti. We believe that the Dti will continue to pursue the 1 May 2015 implementation date. One of the solutions that have (sic) been suggested is that all current Sector Codes will be repealed before 1 May 2015 and that on this date everyone will use the Amended Codes of Good Practice until their particular sector code has been amended and gazetted.
The underlined section poses a wide number of issues.
- Can the DTI summarily repeal current codes?
- Is there a process that needs to be followed?
- What are the ramifications of such an action?
I can't answer question one in any informed way. I would imagine they can't but will anyway. Which brings me onto the second question. I cannot see that a piece of legislation or secondary legislation can be arbitrarily repealed, there must be a standard procedure contained within our law. I don't know what that procedure is and I don't know how to ask DuckDuckGo how I go about this. Chris van Wyk suggested to me that the action of repealing a code must follow the standard process as prescribed in section 9 (5) of the act which is to put it out for comment for 60 days. 9(5) talks about "issuing, replacing or amending" a code. Chris posits that repealing is either an amendment or replacement.
Time has now run out for the sector codes to meet the 1 May deadline. If they published them all for comment tomorrow then the 60 day comment period would end in early May. They have to consider comments and hence cannot logically publish the final code the day after. The consideration period for the revised shambles was about a year. Let's say it takes them two months to consider the comments, we are looking at about July before the first code comes into effect. We know from the QSE codes et al that were published last year for comment that a sector code has no lead in period (which I certainly believe is unreasonable). July at the earliest.
There are two possible options that could happen.
- The DTI summarily repeals all the codes and tells everyone (as per AQRate's email) that those companies must now follow the revised BEE codes
This would be procedurally wrong and legislatively unfair. We know that all codes issued under section 9(1) enjoy the same legal status. This means that those companies subject to an industry code have no reason to even consider or anticipate implementing the revised codes. They could persuasively argue (unfortunately only in a court of law) that they can't be expected to consider the revised codes in such a short period of time. Also I would encourage some form of litigation from charter councils or their constituents to query as to whether the DTI may do this.
2) The DTI follows the prescribed process
As I wrote earlier I don't know what the prescribed process is but I'm willing to bet that you cannot summarily repeal a piece of legislation without at least putting it to some sort of public vote or similar.
My money is on the fact that there will be a 60 day comment period whether they publish codes for comment or repeal them. If this does happen then this what I recommend you do
RECOMMENDED ACTION IF YOU ARE SUBJECT TO A SECTOR CODE
Avoid the mad rush to get your old certificate issued before the revised codes come into effect on the 1st of May. If your certificate expires during the comment period then you are OK – get a new one issued under the old code. However if you are somewhere in between then wait until the 60 comment period has passed and immediately renew your certificate under the old code. You might be able to drag it out by about a month but I wouldn't wait any longer, don't forget that when the new code comes into effect that's it – there's no lead in period.