Broad Based Black Economic Empowerment Amendment Bill: public hearings Day 4

Meeting report

Chairperson’s opening remarks

The Chairperson, in the lead up to Human Rights Day, said that although there was reference to “degrees of human rights” there should not in fact be any conceptual differentiation between any. She noted the importance of this Committee developing legislation that was robust, and said that the committee’s oversight was aimed not so much as policing, but at supporting and contributing to effective service delivery. This would involve a different mindset, perhaps apposite also in the lead-up to Easter, with its symbolism of rebirth, reconciliation and a change of heart. She hoped that all present would have a memorable Human Rights Day, and wished the delegates attending the BRICS conference well.

She noted that she had received only one written apology and reminded Members to submit apologies in writing if they could not attend meetings.

Broad Based Black Economic Empowerment Amendment Bill Public Hearings (day 4)
Rothschild submission
Mr Martin Kingston, Chief Executive Officer, Rothschild, noted that Broad based black economic empowerment (BBBEE) sat at the heart of economic transformation. It had been a complex concept to introduce. Many of those in the private sector had originally anticipated that by now it would be set, but he said this was not the case and the BBBEE Amendment Bill (the Bill) was a clear attempt to align regulation and practice. He stressed the need for a consistent, transparent and predictable policy. Foreign direct investment was “skittish” and it must improve, since South Africa was fully reliant on long-term capital emanating from both the public and private sectors. There was a need for certainty around BBBEE requirements.

He set out that some of the flaws were identified at the launch of the New Growth Framework (NGF). There were observations also, in the context of the National Development Plan (NDP) that not all its objectives were being achieved. There were various codes under the Department of Trade and Industry (dti) and sector charters. He tabled a chart showing the regulatory progress on BEE since the outset of the first transactions in 1993/4, and said that many perceived there to be overlaps, and the Bill would go far to achieve standardisation and greater homogeny.

Mr Kingston gave a brief introduction to Rothschild, noting that it was involved in restructuring and in handling transactions for others, including design and transformation of other companies’ boards.

KPMG had done an assessment of where South Africa was presently against seven targets. This showed that it was falling short, in some cases even regressing, but he cautioned that some of the statistics were misleading because there was no reliable or empirical data against which to measure the progress in the sectors – as evidenced by the lack of agreement as to targets during the hearings on the Mining Charter. In the past, there had been over-emphasis on ownership, although the funding structures were not sustainable or viable. Little benefit had flowed to beneficiaries. There was an understanding that not enough had been invested in education, skills development and employment equity. He noted the prevalence of a “compliance based mentality”, that undermined the spirit and objectives of BEE. The complexities and regulatory uncertainties also posed problems. Rothschild had compiled a detailed analysis in 2011 which had highlighted challenges and flaws and attempted to outline some lessons.

Since the original publication of the Bill and the November amendments, there had been significant progress and he commended the dti and the commentators. The definition of BBBEE had been tightened to incorporate “viable”, which he said was essential. The reference to “initiatives” was broader than the original wording, and that too was welcomed. He also welcomed the deletion of the “local content” definition to allow sectors to determine their own content and the deletion of the trumping provision. However, there was still more scope to improve.

Page 7 of his presentation (see attached document) set out a table of sections to be amended, the proposed wording and discussed the implications. The amendments to section 9(6) would give the Minister the power to allow organs of state to determine their own qualification criteria, but this was problematic because, as stated previously, a consistent set of criteria was needed to enable companies to know with certainty how they must meet requirements. There had been significant energy and input already by stakeholders, and he said that the private sector was presently suffering “BEE fatigue”, with a lot of human capital having been expended to put systems in place. If they had to change this radically, he feared they would lose energy.

Section 13 was being amended to establish a BBBEE Commission. Rothschild urged that there must be an appropriate relationships between this and other stakeholders, including, but no limited to, the dti. Wherever the Commission was placed, and whatever form it took, its independence must be unquestioned. It had be appropriately capacitated, and he urged that it must be up and running before the Bill was put into operation.

The amendments to section 13F spoke to functions conferred on the Commission to monitor progress, including the registry and analysis of reports. Currently there was no consistent empirical data about the progress made on BEE by sectors, let alone companies. This would have to be established across all sectors, and then measured and interpreted. Rothschild suggested that reports and findings must be made available to the public annually; otherwise the concerns about reliability of data would persist. He believed that the Commission could facilitate dialogue between the public and private sector, and that it could also ensure alignment between BEE Initiatives and sectoral and national needs, with regard to Corporate Social Investment and Preferential Procurement. At the moment, companies were embarking on their own initiatives which were not necessarily aligned either to their own, or the national strategic agenda. There was also a need for greater cooperation and implementation of effective learnership programmes that were needed to address employment equity. Thirdly, there was a need to ensure a higher level of cooperation between the private sector and dti. The Commission could play a role in leveraging the resources of the private sector.

There had been discussion already about what the Commission may investigate and the consequences and sanctions it might impose. He said there was need to consider whether it would have capacity, and what was appropriate, since until superfluous and unfounded complaints were eradicated, this could give rise to significant costs. At the moment, it was envisaged that the Commission would investigate and proscribe after the event, but he suggested it should be approached in advance to give approval or rulings.

In relation to proposals on section 13G, he noted that the legislation was only to apply to spheres of government, public entities, organs of state and JSE-listed companies. Rothschild believed it should apply to all companies with a pre-determined minimum public interest score, to capture all companies of any size; otherwise it would be impossible to monitor progress.

He noted that any fines should be appropriate to the severity of the offence, and should act as a disincentive, but it was also necessary to recognise that they must be “appropriate” and that some companies may make a genuine mistake. He noted that the Bill was not clear on whether non-compliance was an offence, as opposed to fronting and perhaps the definition of fronting should be widened to include deliberate non-compliance.

Mr Kingston said, in summary, that the Bill was a critical piece of legislation and it was important to align all the complex and difficult legislation. It was not clear whether the Mining sector would have to comply with the Mining Charter or this Bill, and the same applied to the financial sector, which were key drivers of the economy. All should be embracing BBBEE, and there should, in his view, be a standard set of regulations. He cautioned against unintended consequences, and reiterated that although the Bill did provide clarity in some areas, more detail was needed. It was necessary to articulate the authority and mandate of the BBBEE Commission better.

Discussion
Members asked specific questions, as detailed below, but Mr Kingston wanted to make some general observations before dealing in more depth with the specifics. He was not suggesting that there was any excuse for past behaviour. There were too many embedded approaches and they had to be adjusted to what was sensible and appropriate. It was not possible or practical to have a one-size-fits-all approach, be it by turnover or number of employees. A balance had to be struck between the level of complexity and the time required to make progress. He held the view that the private sector would probably not willingly change course, and it would respond only to stimuli or sanctions, but progress was halting at best. It had to be made clear that there were consequences for non-compliance.

Dr W James (DA) said that the presentation was analytical and empirical. He referred to slide 5, which reviewed the BEE in various categories, and said that the DA believed that skills and enterprise, and socio economic development, should be entirely non-racial, as these aspects were not aimed at redress but at creating a pipeline of entrepreneurs and skilled South Africans. He asked for comment on that.

Mr Kingston said that the context of BEE legislation clearly meant that there was a racial overtone to driving achievement of certain objectives. The consequences of the legislation, however, should not be detrimental to others. KPMG study had gone as far as it could with the information that was available. No company should be discouraged, regardless of their racial orientation and companies should be attending to skills development anyway.

Adv A Alberts (FF+) agreed with many of the remarks, but said it was disconcerting that the research was not based on full data. He believed that this legislation was cutting out some companies from benefits. The aim, eventually, was that everyone in the country should be treated equally. He asked what could be done to improve research, and setting and measuring of targets. At the moment, when the targets were not reached, government did not accept liability and said the policy must continue indefinitely, although that made a mockery of the Constitutional rights. Measurable and scientific milestones were needed.

Mr Kingston agreed that the quality of the data available was problematic, because nobody now actually knew how empowered the nation was; it had only managed to do a baseline survey to assess how far the private sector had progressed, but that in itself was flawed because it was based on a voluntary questionnaire and it was quite possible the progress reported had been inflated, even though the general conclusion was poor. One of the fundamental tasks of the Commission would be to monitor progress on a consistent and reliable basis, and to publish the information. He cited the fact that there were several different conclusions on the mining industry, based on the same data. Although there must be preferences given to correct material imbalances, it must be ensured that no material disadvantages were not conferred in the process.
 
Mr B Radebe (ANC) said that the sooner people complied with economic transformation, then the sooner there would be movement. He would ideally like to see something definite being achieved by 2013, to see equitable shares in the economy. He wanted clarity on what Mr Kingston meant by “BEE fatigue” and said that the legacy of 300 years was still having an effect.

Mr Kingston said that many companies were “dragged, kicking and screaming” to comply with the legislation. Many were doing only the bare minimum to get the tenders. Others had embraced BBBEE properly. He reiterated that the progress was halting and about 50% of what was required had been achieved, over 19 years. However, BBBEE had in fact given limited material benefit to beneficiaries, and sometimes the transactions were highly leveraged debt-finance structures, which were complex and costly, yet did not result in real benefits. There was a need to change the approach. He cited that the Kumba-Azarro transaction had taken three years to put in place. There was also a problem if the workforce was upskilled, creating an unreasonably high proportion of black executives who then moved on. The private sector, so critical for driving economic growth, should not be reluctant.

Mr Radebe said that BBBEE must the norm, not the exception, and it must persist as long as society was unequal. Even if 10% of turnover was chosen, this was still small. Shareholders should ensure that the Chief Executive Officer complied.

Mr X Mabasa (ANC) said it must surely be agreed that because of the past, South Africa lagged behind other countries, economically and socially. That backlog must be addressed in one way or another to allow South Africa to compete. Imbalances and inequalities hindered South Africa as a country, as well as individuals.

Mr Radebe questioned why there was concern over the Commission being able to issue summons. It would not be summonsing just anyone, but only those with information that could assist in the transformation of society. It was crucial that anyone should be able to seek a remedy and if the Commission did not have that power, it must lie with the court.

Mr Mabasa also asked for proposals on this point.

Mr Kingston said his main concern was that the dti and other functionaries were under estimating the volume of work that was likely to face the Commission. It was surely better to centralise the function rather than dispersing it across other institutions. It was necessary to resource the Commission properly. A single-line interface would be appropriate.

Mr G McIntosh (COPE) thought that South Africa had done quite well in redressing the history of the past. There were questions about what transformation meant, and he cited that Mr Radebe, for instance, believed that the key was education, because that was empowerment. However, he was concerned that white-owned companies with a turnover of greater than R20 million would be precluded from doing business with government – and that was a serious disadvantage and of great concern. The Bill was also described as an attempt to socially engineer transformation, so that white-owned businesses who were not prepared to create black entrepreneurs were also precluded. Entrepreneurs existed in every society. He questioned whether the Bill would exclude a small family business that had then grown, only to find that it was prevented from now doing business.

The Chairperson asked that Mr Kingston expand on the comments about the definitions.

The Chairperson understood that the Bill was an attempt to overcome complexity and confusion that may have existed previously in the Codes, and overcome distortions. This was reminiscent of attempts to deal with tax avoidance and evasion. She had not seen the concept of prevention coming out clearly, and she asked if this Bill was preventing white-owned companies from participating in the economy. The question of fronting had been raised in almost every submission, and there was no disagreement that fronting was a major problem, but the question was how to deal with it. In addition, she noted that some corporates tended to lay down a good track record, and would try to rely on that, not being overly concerned if they were fined on one matter. In fact, nobody should think that s/he would not get a very serious fine, even for one instance of non-compliance. She asked if there was another way to prevent sophisticated and complex fronting.

The Chairperson asked for written answers to the questions that could not be dealt with because of the shortage of time, and to comment also on the proposals on section 9, which had been commented on by almost all submissions.

Black Management Forum submission
Mr Nicholas Maweni, Managing Director, Black Management Forum (BMF), noted that the BMF was affiliated to several other organisations. It was a non-racial, thought-leadership organisation that wanted to influence socio-economic transformation, in pursuit of socio-economic justice, fairness and equity. It aimed to empower managers. Its membership was around 15 000, and there were 40 branches nationally (see attached slide for breakdown). He stressed that it had 3% white membership, 5% Indian and 9% coloured, and all races were welcomed.

The BMF Conference of 1997 had called for establishment of a BEE Commission, which was established in 1998 under the auspices of the Black Businesses Council (BBC). That led in turn to various legislation and the drafting of codes.

He outlined the key drivers of the economy, noting that the economy was still dominated by white owned business. Less than 2% of the JSE companies were black-owned. The major beneficiaries of public sector spending were still white–owned companies. Major beneficiaries of large infrastructure projects remained as the large corporates. Bold steps were needed to change this construct. The current BBBEE legislation encouraged fronting and fraud. He noted, in this regard that BMF thought that “fronting” was not the correct word – it was in fact fraud and misrepresentation – but it was not being properly sanctioned as such. The BBBEE Act and Regulations were highly biased against wholly black owned companies. The Preferential Procurement Policy Framework Act (PPPFA) was one of the major impediments and should be repealed. Another problem was that the development finance institutions (DFIs) were not friendly to start-ups businesses. The economy could not transform itself and the BMF thought the Bill had to be used to deliver true transformation.

BMF was often asked when the “sunset clause” for BBBEE would come into operation. Mr Maweni’s response was that this was an inappropriate question, given that the sun had not even started to shine yet! There had not even been implementation of the preliminary phases of the legislation. 

BMF fully supported the alignment of the Bill with other legislation and with the codes. There had been challenges with alignment of employment equity, and this hopefully would change. The BMF welcomed the establishment of the BBBEE Commission, the introduction of offences and penalties, monitoring and evaluation and inclusion of local content.

BMF was concerned by the continued reference to the sector charters, which were confusing. The Mining Charter was one of the first to be drawn up, but this sector was nowhere near achieving what it wanted. If companies were outperforming the codes there was no problem, but none were performing. BMF further urged government to scrap the sector charters, especially when they did not out-perform the codes

BMF was concerned that the trumping provision was now excluded, because the BMF believed that the BBBEE Act should take precedence over competing provisions in other legislation.

BMF thought that the provisions on the Commission fell short of ensuring its independence. It needed more powers, perhaps even those similar to Chapter 9 institutions. It should report directly to Parliament. This was a moral and transformational issue and if Parliament could not deal with it, then this posed questions on how the whole concept would operate. The Commissioner must be appointed at a level of a Director-General, and the tenure should be non-renewable. The person should be empowered to require relevant organs of state with information on measures taken in advancing BBBEE to report to it, and it should also be empowered to “name and shame” those who did not advance BEE.

In regard to the offences an penalties, BMF welcomed and supported the amendments, but did not believe that the penalty should be based on the contract amount. The Competition Commission focused on turnover, and this may be more appropriate. Another possibility was to focus on what would really matter – such as removing licences. It would also support publication in a public register, and having meaningful fines imposed.

BMF also welcomed and supported amendments on monitoring, evaluation and reporting, and urged government to invest resources and capacity in monitoring on an ongoing basis. It believed that the Commission should only report independently verified information and that non-compliance should attract an adverse audit opinion for the companies.

Mr Maweni noted that BMF was currently conducting research to highlight instances where the legislation was working effectively, as it was concerned that if it was implemented the correct way, in line with its intentions, it would encourage economic and social development.

Discussion
Mr McIntosh noted BMF’s comment that the BBBEE was biased against wholly owned black owned companies and asked if the same applied to wholly-white-owned companies. He thought that the statement that less than 2% of the JSE was black needed to be unpacked. He pointed out that government owned land could also be included as black ownership, essentially, and some other figures of ownership had been mentioned,

Mr Maweni said that this was a perception, and maybe eventually there was a need to find out the actual percentage. It was unlikely to be as high as reported by some.

Mr McIntosh noted that Mr Qobeka, member of BMF and the Black Business Council, who had previously given a presentation, had raised some “myths” about BEE, but he wondered if multi-million rand businesses should be denied the opportunity to network.

Ms S van der Merwe (ANC) commented that the submissions throughout the public hearings had dealt with a number of common themes. She was very interested to hear BMF mention scrapping the sectoral charters. It had always been her view that the charters had a social compact role. It was possible to legislate, but it was necessary to have society behind them to recognise the need for transformation and change. Mr Kingston, from Rothschild, had spoken earlier on the responsibility of the Commission to facilitate dialogue between the private sector and government, and that was n interesting angle. The Committee would need to apply its mind to it. It was necessary to get the public fully cognisant about the need and benefit to society of the BBBEE.

Mr Radebe appreciated the fact that the BMF was non-racial. No sectors of the population should be excluded from economic activity. Mr Radebe noted the comment about the scrapping of the charters, but said that every sector was different, and he questioned how it would help to scrap all wholesale. He also asked for more information on the trumping provision.

Mr Maweni said that there was major confusion in relation to the charters. A number of senior executives still did not understand what BBBEE was all about. When the concept of charters was introduced, (which had conflicting figures to the Act) this had exacerbated the problem. It was not entirely correct that people were looking for loopholes, because they had not performed to standard in the first place. Essentially the charters were not working at all.

Mr G Hill-Lewis (DA) said to the BMF that it was critical to understand what sort of economy South Africa was, and questioned the oft-repeated figure that 2% of shares were black-owned. He asked about the source for the number, and he was unable to get this confirmed. The only credible source was a study done by the South African Institute of Race Relations, which had said that 34% was owned by “black, coloured and Indian”, 44% by whites and the remainder in foreign or state hands. That seemed to indicate, using BMF’s analogy, that the sun was indeed rising, although he agreed that there was a need to make it rise faster and shine on more people.

Adv Alberts commented on the figures quoted also, and said there was a suggestion that there was about a 50%: 50% ratio.

Mr Maweni said that the JSC had done its own research and came up with a figure just over 10%, but this included institutional investors like the PIC and other pension funds. He did not know whether black people were investing heavily into those pension funds. The BMF had disputed that research, but he suggested that it needed to be interrogated more.

Mr Mabasa asked how BMF would propose that the “Broad” concept would be effected. He noted that there were usually a few who benefited from BBBEE but others were left behind. He asked also for comment on informal businesses and said that unless the process was managed carefully, the legislation may end up propping up a few who rose rapidly, but not do enough for real transformation

Mr Maweni thought that the Bill had come quite far and achieved quite a lot already.
Mr Mabasa said that disparities were most apparent in rural areas and he wondered if there was recognition also of the need to address urban and rural areas.

Mr Mabasa asked what should be done to avoid fronting, because it de-legitimised organisations.

Mr Maweni agreed that legislation could be both used and abused and the Committee needed to ensure that it was tight enough. In some cases the codes did seek to deal with these matters.

Adv Alberts noted that a growing divide currently was not so much between black and white empowerment, but between the rich and poor, and he said that more white people were becoming impoverished. It must be remembered that many large companies were multinational, and they all had problems in accessing the economy. He suggested that, instead of trying to disallow white-owned business from being part of the economy, organisations like BMF should perhaps partner with them so that they could access opportunities together in the future. White people should be able to play a mentorship role. Many white people were not rich, or large capitalists. There was an opportunity to be more inclusive. The structure of the economy must change significantly.

Mr Maweni stressed that BMF was non-racial and the white members would not allow it to be a racist organization. The white members had joined the BMF to be able to mentor. BMF tried always to demystify the concept of BBBEE. It gave access to new markets and this made perfect business sense, rather than being seen as limiting or demanding that businesses be handed over.

Peotona submission
Ms Kelly Stuart, Financial Analyst, Peotona, said that one of Peotona’s main concerns was that many empowerment deals were unsustainable from the start, because of the fees. Investor companies did not take this into account when determining the cost. Typically, a BEE deal would be concluded and share certificates opened, but the certificate would immediately be taken back and held as security. Dividends declared were used to finance the “beneficiary” debt and if the debt was not met there would actually not be transfer. This was akin to merely warehousing. It was not the intention of this piece of legislation to allow the legal and financial advisors to earn huge fees. Currently, investor companies were able to “tick the boxes” and claim that they were empowering, but at the end of the day no value was passed on. From a broader perspective, those given shares were not given access to advice. Returns were higher to the investor company, but shares of the beneficiary were still held. She suggested that the transactions with higher rates should be looked in.

Even in BBBEE deals where there was economic transfer, there still often was contractual ringfencing, so that the BEE transaction could not leverage the balance sheets and there was no economic transfer.

Peotona suggested that this could be addressed by putting more requirements into the proposed section 13G, to help transparency, and to avoid fronting. Companies should be asked to report on how much unencumbered value they had transferred, and whether there was positive or negative asset value. They wanted more information on the economic value and the dividends and cash flow coming back. There must be meaningful economic participation by BBBEE partners. Peotona firmly believed that this would flush out any fronting.

Mr Karabo Tekiso, Legal Advisor, Peotona , wanted to address the question of repeat offenders undermining the legislation. In Peotona’s written submission, this was dealt with in some detail. He highlighted some salient features that Peotona suggested needed attention. Peotona thought that BBBEE malpractice could be tracked if the Commission had a blacklist database, and centre of skills. It should have a “look-through” mechanism to show shareholders and actual beneficiaries. The Commission should capture and identify repeat offenders who had committed fraud, fronting, or where there was corruption or lack of delivery. This would be a strong deterrent. Peotona suggested that, before being allowed to conclude deals, companies should provide a certificate similar to a tax clearance certificate, showing that they were BBBEE compliant. The Commission should be able to receive complaints and be able to know who was involved in rendering poor performance in the past to other state entities, and any behaviour impacting adversely on the equitable objects of the legislation.

Ms Jessica Swarts, Legal Intern, Peotona, said that the emphasis was on strong accountability measures, as detailed in the written submission. The Commission was a regulating entity and not a business that traded. Peotona suggested that a three-year, rather than a five-year term, be implemented for the Commissioner, Deputy and Special Commission members, subject to a yearly review by the Minister to ensure accountability and good governance. Section 13E focused attention on legitimacy, and it was suggested that “legitimate” be added in as a specific requirement, to regulate how the Commission was financed and that it must be fully accountable.

Mr Tekiso raised some other points. He noted that the current Amendment Bill referred to “viable” but he suggested that this word merely implied that something was capable of working successfully, and that “sustainable” (which had appeared in a previous version of the Bill) was preferable, as it implied a certain level. There should be an emphasis on long-term growth or opportunities. Peotona hoped that the BBBEE Act would empower long term sustainability, as it should not be seeking quick wins.

Ms Swarts finally gave some background to Peotona. This company was established in 2005 by four business women who came together to form a strong player in the South African business landscape, based on the principles of innovation, integrity, long–term vision and commitment. It was not trying to create wealth and ownership by a few women but rather holistic empowerment that could lead on to more. Between 60% and 70% of the transactions it had acquired to date were allocated to community trusts and ringfenced. Peotona offered mentorship programmes. It strongly believe in the objectives of the BBBEE Act and Amendment Bill to facilitate sustainable growth by ensuring meaningful participation, including the sustainable growth of entities. Peotona urged the dti to continue its leadership role.

Discussion
Mr McIntosh asked Peotona if it had suggestions on the Commission, as a number of the public submissions expressed concern about the independence of the Commission and its powers. He asked if Peotona had thought about making it into a Chapter 9 institution.

Dr James asked Peotona was interested in the avoidance of unsustainable deals. He referred to a Sanlam deal with Patrice Motsepe and he noted that the key reasons this had succeeded was the share price, and the fact that new communities could be insured, so that real value was being added. He added that another deal, involving Media 24 had succeeded, again because of realistic share prices. He made the point that it was impossible to have a successful BEE deal unless there was value added by the partner and often the BEE partner would be too passive. He fully agreed that building in these measures was fundamental. The point had been raised also that it would be useful to have a fund to help small businesses to access funding, and make them workable.

Ms Stuart said that both the examples by Dr James involved listed prices, but the main problem was with private companies. Management forecasts were based on their opinion of the future, and those deals were more tricky.

The Chairperson asked if Peotona could make some written proposals for discounting of shares to contribute to the acceleration of transformation.

Ms Stuart responded that it was not possible to legislate for discounting, and it was not desirable to interfere with negotiations. However, reporting requirements to incentivise would be more favourable than punitive rates.

Ms van der Merwe was interested to hear of Peotona’s suggestion on the certificate, and the comment on repeat offenders.

Mr Radebe said that Peotona had suggested a three year term for the Commissioner, but he was worried that this might be too short. There would be substantial work facing the Commission, and the work could also take a long time. He would be cautious of setting too short a timeframe that might create instability. He agreed with BMF that the appointment of the Commissioner should be at the level of Director General. However, he suggested that a five-year term, renewable once, was probably more viable.

The Chairperson said that whether there was a three or five year term, it was clear that continuity was desirable. She agreed that the Commissioner would have difficult tasks to implement and this was presumably why the Director-General level of appointment was suggested. Mr Maweni, however, had suggested that the contract not be renewable.

The Chairperson thought that it would be difficult for the Commission to become effective immediately.

Adv Alberts asked for the views of Peotona which was essentially representing women, on the fact that the suggestion was that white women and white people with disabilities would be excluded from being part of the designated group.

The Chairperson said that both Peotona, other presenters as well as the dti should give their views on this point and dti should state whether it believed that white women and the disabled were effectively dealt with in other legislation, even if not under this Bill.

Mr Xolani Qobeka, Chief Executive Officer, Black Business Council, commented that BBC was non-racial also and had Group 5 as a corporate member. He said that price determined issues. Transnet and Eskom had applied to National Treasury to implement set-asides and were given exemptions. He maintained that the PPPFA was problematic, because whatever the codes of good practice were implementing, the PPPFA would take it away. That could only be reviewed once the codes had been revised and the Amendment Bill was passed.

The Chairperson asked that everyone should give their views and proposals on the PPPFA in writing. This had been identified as an impediment.

Ms Stuart responded to questions also posed to BMF. Mr Mabasa had questioned how the legislation should address the “broad” concept. She stressed that it was necessary to have public buy-in. It was impossible to legislate for morality and anything that tried to do this by legislation would be seen as too draconian. She noted that in Peotona, about 60% went to development, but that was following a personal conviction of the directors. Ms Stuart also commented that Peotona tried to ensure that the broad base went into rural communities. There was no distinction made between rural and urban initiatives; Peotona chose to support companies wherever based.

The Chairperson asked for written comment on the sectoral charters, including whether they should or could be retained. She reiterated that PPPFA was seen as problematic and she wanted written comment on that. In relation to the Commission, she would like to have written comment on not only the tenure, but also what authority and powers the presenters believed that it should have, and what form it should take. She questioned whether the presenters felt that it should have the same powers as a court.

The Chairperson wanted suggestions in writing also on tackling fronting. She noted that there were some South African companies who were complaining about this legislation but were actually doing business in, and complying with legislation in other jurisdictions that were considerable stricter. She called for comment on how the anomalies could be addressed whilst still retaining the private sector to work with companies.

The Chairperson commented that the presentations had been helpful, and noted that Mr Radebe was chairing a sub-committee dealing with some of the issues raised in depth, and he may well call on those presenting today to present more detail.

The Chairperson noted that almost all submissions had raised the issue of incentivising rather than sanction. However, incentives could differ. In taxation matters, the “carrot and stick” approach had worked and she asked how this could be applied to the BBBEE Act given that it had failed to achieve all its goals.

Oceana submission
Mr Sibusiso Gamede, Commercial Manager, Oceana, stated that the Bill and other legislative instruments were key to the fishing industry. It was important to apply clear and uniform legal principles to ensure transformation and to eliminate conflicting interpretations applied to date.

Oceana had embraced the BBBEE and principles of transformation in the fishing industry. It was the leading, and only JSE-listed fishing company in South Africa. It was a level 2 BEE contributor, and in the last Empowerdex survey published on 15 March 2013, it was rated as one of the ten top empowerment companies.

Oceana’s presentation was premised on the understanding that the duties and rights of affected parties must be provided by the legislation, and it should be clear what should be done, by whom, to comply with policy. It should also be clear how actions should be taken, and what would happen in the event of non-compliance. The legislation should promote uniformity, certainty, justice and fairness.

Oceana supported the Bill but identified four sections that it felt must be amended. Section 10(1) as currently formulated made the application of the codes of good practice voluntary, not mandatory, and made reference to “as far as is reasonably possible”. Oceana thought that this could lead to abuse and an unnecessary department from the codes. The fishing industry was highly regulated and there was a need for integrated and uniform application and interpenetration of the codes. He cited a problem with the first fishing rights application in 2005, when transformation was measured by ownership and control, but other aspects wee ignored.

Mr Gumede showed Members a comparative table of how matters could be interpreted with a narrow and broad base. He suggested that the word “must” should be replaced throughout with “shall”. He thought the words “as far as reasonably possible” must be deleted. Instead, if organs of state needed to depart from the provisions, there should be something in the Bill to say that any departure must be “reasonable and justifiable”.

Mr Gumede was also concerned that, in relation to the proposed new section 13F(1)(a), the Commission may be inundated with frivolous complaints. To ensure that only legitimate complaints were brought, Oceana proposed that the Bill should contain wording to the effect that anyone approaching the Commission must have sufficient interest in the matter – similar to locus standi.

Oceana thought the new Section 13F(1)(d), allowing the Commission to initiate investigations on its own, could lead to abuse, and he thought this should be deleted.

Oceana also proposed a complete revision of section 13A of the Act, which currently provided for cancellation of a contract or authorisation where false or incorrect information was provided to the organ of state. It suggested that the whole section should be subject to the condition that allegedly false information must be sufficiently investigated before the contract was cancelled. The fishing industry relied on authorisation and allocation of rights on permits. If there was cancellation without due process this would impact adversely on the industry. Making the section subject to conditions (as set out on slide 14: see attached presentation) would ensure that questions would be asked around materiality, the role that the false information played in awarding the authorisation, intention to misrepresent and errors of fact.

There was a need to ensure also that the organ of state, before canceling or revoking, followed a fair procedure, that the affected enterprise get the right to reply, and that the results were fair. Oceana read out a new formulation of the section, reading that if any enterprise that had been awarded a contract or authorisation by the organ of state or public entity had furnished untrue information, the organ of state may, by written notice, require it to show cause, within 21 days, why that contract or authorisation should not be revoked, suspended, cancelled, altered or reduced. Section 13A(2) should then state that after consideration of the written submission, or expiry of the 21-day period, the organ of state may take action that could include revoking, canceling, suspending or alter conditions, or do nothing.

Oceana stressed that the Bill should specifically provide for procedural fairness, and in particular that there should be fully compliance with the Promotion of Administrative Justice Act before the decision was made to cancel. Section 13A did not currently set that out in terms but it should.

Oceana also asked that there be provision for an internal appeal and judicial review process. In the industry, if a decision was taken to cancel an authorisation such as a licence, this affected operations and it was generally too time-consuming to approach the court.

Mr Gumede reiterated that Oceana supported the basis of the Bill and wanted to see the industry transform. He also concluded that the legislation must be seen to promote uniformity, certainty, credibility, justice and fairness.

Discussion
Mr Radebe said that the fishing industry was indeed not transformed, as it still experienced a lot of exploitation, and noted that this was Oceana’s personal view that it had presented. He was, however, concerned at the suggestion that the Commission should not be able to instigate its own investigations, particularly if it felt that the fishing sector was not transforming quickly enough.

Mr Gamede assured Mr Mabasa that Oceana was not trying to curtail the powers of the Commission. Many safeguards were in place to ensure that transformation should happen. The Minister may direct the Commission to investigate, and that would provide for the industries where there was less transformation. He suggested that if the Commission had powers to investigate at its own instigation, then there must be safeguards, to avoid any abuse of the system.

Mr Mabasa noted the Oceana was the leading group, but asked how many were in existence, who were listed but were not recognizing BBBEE.

Mr Gamede told Mr Mabasa there were a number of players in the industry, many of whom were not listed. There were also a number of smaller ones. He was not sure if they were embracing the BBBEE, because this had not been investigated.

Mr Radebe noted that in circumstances where a group or company would not sign the relevant charter, the Commission should surely be given powers to intervene. He felt that a powerful Commission was needed, although the final arbiter should be the courts. He asked for comment on why Oceana had a reservation on this.

Mr Mabasa agreed that the broad-base principle should be applicable to all departments.

Mr Mabasa referred to page 15 and asked what suggestions that Oceana would make to amend the legislation.

Mr Gamede answered that, in relation to section 13A, the organ of state, before cancelling, should have the opportunity to adjudicate or assess what had happened. It might be found that the information presented did not significantly impact on the decision to award a contract or authorisation. His suggested wording would allow the issues to be properly interrogated, and he noted that if the matter were to proceed to court, the court would want to know what informed the decision, and whether it was procedurally fair.

Mr N Gcwabasa (ANC) asked if the internal appeal mechanisms suggested by Oceana would allow for legal representation, or if parties should represent themselves, and in this case, he asked how effective it would be.

Mr Gamede answered that the Promotion of Administrative Justice Act guided the procedures around internal appeals. Where the issues were complex, then there was a requirement that the person could have access to legal representation. This would not only affect the larger companies, but also smaller enterprises. That should address the complex issues before the organ of state.

AQRate Verification Services submission
Mr Chris van Wyk, Chief Executive Officer, AQRate Verification Services, noted that the company (AQRate) was one of the leading verification agencies in South Africa, and it had been appointed by the JSE to oversee the methodology and research of its ownership analysis, on which several questions had been raised earlier, and he would expound on the methodology later.

AQRate agreed with the submissions already given, and so it would confine itself to comments dealing with this industry.

Ms Bridget Brun, Chief Operations Officer, AQRate Verification Services, sat on the industry body board and lectured on the dti courses, so her experience in the industry was broad.

Ms Brun noted earlier comments on the different requirements in the Act and codes and said that recently one of AQRate’s clients was requested by a Provincial Gambling Board to ensure compliance with its own requirements – in terms of which “black” was defined as “an African person resident in KwaZulu Natal”. She pointed out that if this was followed by all provinces, it would give rise to substantial problems.

AQRate supported the amendments in general. She made the point, in answer to some questions posed earlier by Members, that the Bill was inclusive of all South Africans. It must be remembered that if 25% was in black hands, then 75% was in white hands. She pleaded that the country must be bold and implement the legislation fully.

AQRate felt that the Bill was inconsistent in how it dealt with verification professionals – who were people who performed work rating the empowerment status. There were two ways for a professional to qualify – either through the Independent Regulatory Board for Auditors (IRBA) or through the South African National Accreditation System (SANAS), but the Bill gave better credence and conditions to the former, and she suggested that all professionals needed to be given fair and equitable representation. The Bill should not allow for audits approved by IRBA professionals to fall outside its scope as this would lead to different standards and forum shopping.

In the commentary on the Bill, SANAS was referred to as an “interim measure” and referred to persons registered “in the future”, which was misleading as IRBA professionals had already been in the industry for 18 months. This gave a negative connotation to the SANAS qualification and there was no indication as to what would happen to the professionals who were accredited and regulated by SANAS once the interim period was over. It would be ridiculous to allow for an interim profession that would become obsolete.

She noted that anti-competitive practices were already followed, because there were different ways in which an audit could be done. For instance, a professional presently was required to be Level 3 accredited before rating others; the auditors had been granted a relaxation of that rule, but the same was not done (and was not wanted) for the SANAS-accredited professionals. SANAS professionals had to undergo a management development programme before becoming a technical signatory, but IRBA professionals did not, and therefore the accreditation course was of a lower level to cater for their lower knowledge base.

The different sets of standards by which the companies were verified was of concern. It was believed that SANAS standards were more strict and correct. The auditors issued only “limited assurance” certificates.

There were about 27 sector codes and scorecards to manage, maintain, validate, train and develop people on, and the professionals had to reapply to SANAS for extension of scope before being able to accredit, but the IRBA did not have this requirement.

AQRate’s most serious concern was that nothing was included in the Bill covering auditors who failed to report. It believed that anyone who failed to behave in terms of the Bill must be punished, and so it agreed with the penalties, but stressed that these must apply to anyone who worked in the industry.

Finally, Ms Brun noted that it was strange that the commentary failed to note consultation, at drafting stage, by dti with SANAS, the industry body.

Mr van Wyk commented on the proposals for section 13O, and particularly the definition of ‘knows, which meant a person who either had or was in a position to have had actual knowledge. This seemed to be criminalizing negligence, a concept not recognised in other legislation. This also affected the bigger issue of proportionality of penalties. He suggested that this problem could be resolved by referring to actual intent only. He pointed out that the common law definition of fraud required actual intent, not negligence.

Mr van Wyk also set out his concerns with paragraph (2)(f), which referred to “land and infrastructure, ownership and skills” to empower rural communities. He pointed out that land restitution fell under another Ministry and he thought it was confusing if the Minister of Trade and Industry were permitted to make subordinate legislation on land and infrastructure.

AQRate felt that the new section 10(2) was appropriate, but it did not cater for consolidated verifications. He explained that one subsidiary of a group of companies may operate within a specific sector with a code, but others could fall under a generic code. AQRate suggested that where the whole group did not operate under a sector-specific code, general codes could be applied.

Mr van Wyk commented that previous submissions had suggested that the PPPFA was not providing for ownership, but he pointed out that the 10 and 20% splits were assessed on the broad-based score, which was inclusive of ownership.

Mr van Wyk explained that he had been part of the research team doing the JSE assessments of ownership. It was now in its third year of conducting the research and was using empirical research on each line item of the top listed companies. The latest study had concluded that 9% of the equity of the top 100 companies on the JSE was held directly by black deals and interests – without adjusting the denominators (by value). Another 9% additionally flowed through mandated investments – which was indirect shareholding made though depositors’ funds – such as pensions, medical aids, and banks, who made acquisitions with depositor’s funds. This included 50% of all investment. Therefore, 18% collectively, before adjustment, was in black hands. The 9% mandate investments were debt-free and so real benefits flowed. Once the figures were adjusted, under the Rules of Good Practice, the figure escalated to 36%. One of the Members had earlier made mention of a figure of around 34%, and he said that this calculation had been based on macro-economics and making certain assumptions, but it was quite close to the 36% assessed through more empirical research.

Discussion
Mr Radebe agreed that there should never be a day where government would disallow people from participating in economic activity, so the profession could not be “interim”. He noted that economic exclusion was not viable but historical facts must recognize the need to correct the past.

Mr Radebe noted the various research and assessment statistics mentioned in the hearings and asked that research results and further information should be sent to the Committee Secretary. It was necessary to use empirical evidence. The country had done a lot and he noted that any development, in order to be sustainable, must be incremental.

Adv Alberts agreed that it would be vital to get the information in writing on the results.

Mr G Hill-Lewis (DA) agreed that more studies were needed. He said that the AQRate study might be available on line and although the SAIRR study was not on line, it could be requested.

Ms Brun quipped that the next time that a “sunset clause” was mentioned AQRate would urge a “sunrise” clause to ensure positive change.

Mr Mabasa noted the comment that some bodies were not consulted, and asked if AQRate itself could consult with and advise other bodies on the implications of the legislation, to ensure that a broad approach was taken.

Ms Brun welcomed the public hearings and clarified that she had been concerned that there was not consultation between dti and SANAS prior to the Bill being tabled. She sought upfront consultation with the industry.

Mr Gcwabasa asked AQRate to expand upon the references to land restitution. He made the point that economic empowerment was intrinsically tied up with land, because land was an economic issue. If a BEE enterprise was in the agricultural sector and required land to practice its business, he wanted to know how it should acquire that land.

Mr van Wyk said that AQRate fully recognised the importance of land tenure. Examples had been given that in the agricultural sector, it was appropriate to consider the way in which land tenure and land restitution was handled. However, the risk in naming “land” as part of the objectives in the Act was that the Act was an enabling framework to allow the Minister to issue subordinate legislation, and the dti Minister should not be doing so for “land” in general, as it fell to another Minister, and the authorities and powers should not cross. The Agricultural Sector Codes were appropriate and well thought-out.

Aeon Investment Management submission
Mr Ashrif Mohamed, Director, Aeon Investment Management, indicated that he was the 100% owner of his own investment management company. The industry was about R3 trillion in size so anything done in that industry would hugely inflate job creation and influence profit. In most of the large companies, there was an overlap between investment and insurance. His own company managed less than R1 million of funds, compared to the largest, who managed over R600 million.

Mr Mohamed said that he was asking for fairness in the industry, as his experiences on the ground indicated that there was not opportunity for all to compete fairly. He said that this manifested itself in a variety of ways, including people simply not bothering to return phone calls.

Mr Mohamed set out his background, the fact that he believed the BBBEE codes were broad-based, and his hope that South Africa would eventually eliminate poverty. He believed good performance, hard work, honesty and integrity were the ways to success. He commended the constructive and positive public hearings.

He repeated that the total industry assets totaled around R3 trillion, but black owned and black managed investment management firms managed less than 3% of assets, in his estimation, although other figures of around 6% had also been cited. Other legislation also needed attention to ensure greater equity.

The excuses given for not letting in the smaller firms, by the “big gatekeepers in the industry”, included statements such as “big is best”, “big is safe” and “show us a track record”. He noted that a bank was managing around R40 billion, had given support to other small managers who were allocated a portion to manage, but none of them was black. There needed to be a more active citizenry and a mindset change. He did not have all the solutions himself but would be happy to give further input. His broad recommendation was that the legislation should include all gatekeepers in the investment management arena, including retirement funds and trusts, asset and actuarial consultants, multi- managed LISP platform providers, and employee benefit service providers.

Mr Mohamed noted that retirement funds were not signatories to the Financial Sector Charters, although they should be. They did not have government as their customers, therefore did not have members who were asking for BBBEE certificates, and there was little pressure for them to comply. He noted that suggestions had been made, over the days of the public hearings, that unless Parliament legislated, set minimum standards, included a trumping provision and set penalties for fronting, there would not be any movement to improve the situation. He urged that attention should be given to how to use the broad-based nature of BBBEE to create small businesses, create transformation, eliminate poverty and perhaps thought could also be given for additional score-points and incentives if there was compliance and creation of jobs for all South Africans.

Discussion
Mr Radebe commented that it was important to hear the plight of the small businessman and said it would be interesting to hear more from Aeon.

Adv Alberts noted that the investment industry was a closed set, and it was difficult for everyone – not only the historically disadvantaged –to enter that industry. He asked whether there might not be an advantage for smaller players to form alliances to try to achieve greater democracy in the industry as a whole.

Mr Mohamed said that similar questions was asked from BMF. There were probably about 100 white-owned asset management firms, and some may consist of ten directors or more. However, the whole idea currently was to try to create and encourage small businesses and competition, and he saw no reason why they should be encouraged to merge. In any event, he also stressed that investment style and philosophy differed from manager to manager, and it would not make for a good business if two different investment philosophies were to merge under one firm. Investment decisions by committees did not work. He made the point also that there were small and young white firms. The industry recruited very few people; he himself had only recruited four since 2010. The industry needed diversity and different viewpoints.

Mr Hill-Lewis appreciated the efforts of Aeon to break into the very competitive industry. He said that South Africa was in the top three rating for well-run and regulated investment industries, according to the World Bank. He asked what Mr Mohamed meant by “gatekeeping”. He seemed to imply that the “gatekeepers” were the large players who were blocking the smaller ones, but he asked for concrete examples. Mr Hill-Lewis commented that track records were relevant and he did not see anything wrong in calling for this. If the larger players were using their own track records to their advantage, that was the nature of competition, but it would be disappointing if the industry was disproportionately stacked against black players by using unfair methods

Mr Mohamed responded that big funds would generally not perform as well as smaller ones, and multi-managers should be spreading the work, and looking for up-and-coming asset managers. However this was not happening in reality. When black asset managers had asked some firms for a portfolio to manage, the “show us a track record” excuse was given, knowing that they would not have their own track record, only one within their last firm. However, in a similar situation that he knew of, a white manager had been given R2 billion to manage, without this excuse being raised.

Mr Mabasa asked if the bursary scheme was annual and congratulated Aeon on creating it.

Mr Mohamed said that he managed it only; it was on behalf of a client, a faith-based organisation, and it operated in other provinces. He was managing it efficiently and effectively to achieve the right outcomes.

Mr Mabasa asked why the retirement funds were not signatories to the Financial Sector Charter, as he would have thought this essential.

Mr Mohamed did not know why the retirement funds were not signatories to the Financial Sector Charter. However, he had recently been appointed to the Sector Charter Board, and he would be able to investigate this further. Their non-signature was a significant setback not just in terms of transformation but also for investment going to targeted areas.

The meeting was adjourned.