16 March 2018 - NW639
Alberts, Adv A to ask the Minister of Trade and Industry
(1) Whether the programme of broad-based black economic empowerment (BBBEE) is an exception to the principle of equality in terms of section 9 of the Constitution of the Republic of South Africa, 1996; if so, according to which criteria and time line will the BBBEE programme be discontinued; (2) whether the said programme is an integral part of the principle of equality that will never be abolished; if not, in what way and on what legal basis will the programme be a permanent aspect of the South African society; if so, what are the relevant details of the legal basis on which the interpretation is based?[NW713E]
(1) B-BBEE is not an exception to the principle of equality in terms of section 9 of the Constitution of the Republic of South Africa:
In fact, section 9(2) of the Constitution states that:
“Equality includes the full and equal enjoyment of all rights and freedoms.
To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.”
In promoting equality as envisaged above, the Broad-Based Black Economic Empowerment Act No. 53 of 2003 (“the Act”) was enacted and subsequently amended by the B-BBEE Amendment Act No. 46 of 2013. The Act as amended and the B-BBEE Codes of Good Practice constituted the legislative and other measures which are designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination.
- Section 14(1) of the Act entrust the Minister of Trade and Industry to make regulations with regard to:
- Any matter that in terms of the Act may or must be prescribed;
- The lodging of complaints with the BEE Commission;
- The conducting of investigations by the Commission;
- The information that any organ of state, public entity or private enterprise is required to provide to the Commission and the form and period of such reporting;
- Requiring all broad-based black economic empowerment transactions above a prescribed threshold to be reported to the Commission; and
- Any ancillary or incidental administrative or procedural matter that is necessary to prescribe for the proper implementation and administration of the Act.
- Section 14 (2) of the Act provides as follows:
- The Minister may by notice in the Gazette issue guidelines and practice notes relating to the interpretation and application of the Act.
(2) B-BBEE is an integral part of the principle of equality in terms of section 9 of the Constitution of the Republic of South Africa;
- In terms of the Statement 000 of the B-BBEE Act 46 of 2013, as amended-
- Paragraph 12: Duration of the Codes
- A Code remains in effect until amended, substituted or repealed under Section 9 of the Act.
- The Minister may review the Codes at any stage and regular reviews will take place to monitor the implementation of BBBEE throughout the economy