October 2018 Newsletter
The question on everyone's lips at the moment is "Are the B-B BEE codes busy crumbling under their own weight, has the DTI actually lost sight of the initial intention of their goals, OR will they be scrapped?"
It is my feeling that all the uncertainty and changes have resulted in a loss of momentum, and at the same time placed many companies in a precarious situation regarding their B-BBEE status.
The last B-BBEE interpretive guide was issued by the DTI in June 2007 and the last verification manual was gazetted in June 2015. In November 2015 we had a glimpse of a draft issued with proposed changes for a 60-day comment period - since then nothing has happened, except for emails from the B-BBEE Commissioners office that states clearly "- This Practice Guide is issued as a non-binding guide purely to assist with the interpretation to ensure consistency in the application of the Act. Why bother?????
We then saw SANAS come back into the verification space with a vengeance and with it their own interpretations, rules, and regulations.
Wonderful - so no interpretive Guide, no verification manual, no binding opinions from the commissioner, and the outstanding proposed changes to the codes to be gazetted, and SANAS making the rules based on the Commissioners non-binding notes.
Then we have new elements like the YES initiative, and guess what, more questions that the DTI and SANAS to date have not been able to answer!
Absolute chaos, and then you are trying to decipher what you can and what you can't implement in your own B-BBEE Strategy.
So where to now for a company that needs to have a good B-BBEE certificate? Where can you get sound advice and guidance?
The SANAS R47 manual clearly prevents verification agencies from offering advice and guidance on your B-BBEE so the only avenue is a B-BBEE consultancy.
So then to answer the question; Where can you get sound advice and guidance? FROM A GOOD B-B BEE Consultancy, that's where!
This places you between a rock and a hard place. Who is a reputable B-BBEE consultancy, and where do you find one? The only answer is, do your homework, references will go a long way in getting you a reputable consultancy with solutions and a track record to resolve your problems.
A consultancy that can create a workable strategic plan, fight your fight, that can calculate your final score prior to your onsite verification and supplies substantive proof to back up your claims for rating points. A company that has a proven track record with workable solutions. A consultancy that takes the pain and guesswork out of your verification and delivers the results. A consultancy that updates you with unverified audits throughout the year to ensure you are on track with your plan.
You have too much to lose by not having a certificate, ask your receptionist how many calls she or he is getting weekly asking for your B-BBEE status if you do not have a decent certificate it's translating directly to lost business for your company!
Don't be like an ostrich and put your head in the sand, it's costing your business!
To answer my starting question - yes, the codes are crumbling, they are confusing, badly written regulations and are stringent and punitive.
Are they going to go away - the government and unions are permanently pushing radical economic transformation - so no, in my opinion, it is here to stay for a long time to come?
THE SOUTH AFRICAN HUMAN RIGHTS COMMISSION (SAHRC) RECENTLY FOUND THAT SOUTH AFRICA’S AFFIRMATIVE ACTION AND EMPLOYMENT EQUITY POLICIES WERE UNCONSTITUTIONAL.
The SAHRC specifically took issue with the Employment Equity Act’s definition of designated groups and South Africa’s system of data disaggregation.
Government’s failure to measure the impact of various affirmative action measures on the basis of need is also a failure of international legal conventions, it said.
In a statement released in August, the SAHRC said:
The definition of designated groups as contained in the Employment Equity Act and the current system of disaggregation of data could give rise to new imbalances in the labor market.
Affirmative action measurements must be targeted at groups and individuals who are subject to unfair discrimination, to eventually achieve substantive equality and a society based on non-racialism and non-sexism.
Decisions based on insufficiently disaggregated data fail to target persons who have been disadvantaged by unfair discrimination.
Without first taking the characteristics of groups into account, varying degrees of disadvantage and the possible intersectionality of multiple forms of discrimination faced by members of vaguely categorized groups cannot be identified.
The Act must be amended to target more groups on the basis of need and should take into account social and economic indicators.
Once the objective of affirmative action, namely substantive equality, is achieved, temporary special measures should cease.