Legal updates and opinions
News / News
Further tightening of Broad Based Black Economic Empowerment rules proposed by Minister of Trade and Industry
On 29 March 2018, the Minister of Trade and Industry published draft amendments to the Broad Based Black Economic Empowerment Codes (“Codes”) for public comment. The proposed amendments are in line with the Government’s policy to actively promote and support BBBEE (and especially majority owned black businesses) in South Africa.
The proposed changes include:
- clarifying the measurement of the minimum requirements for the priority BBBEE elements (namely ownership, skills development and enterprise, and supplier development);
- providing that the provisions whereby 100% and 51% black owned Exempt Micro Enterprises and Qualifying Small Enterprises are deemed to have a level 1 and level 2 BBBEE rating, respectively, will only apply if the black ownership is measured using the flow through principle using actual black shareholdings. The modified flow through principle whereby a majority black shareholding may be deemed to be 100% black owned may no longer be used for the purpose of these deeming provisions
- extending the deeming provisions to large enterprises (businesses with an annual turnover of over R50 million) if they are 51% or 100% black owned in accordance with the flow through principle. Furthermore large/generic enterprises cannot benefit from the deeming provisions if any of the following is utilised or recognised in the calculation of their black ownership:
- the modified flow through principle;
- the exclusion of ownership by organs of State or public entities;
- the exclusion of any BBBEE facilitators;
- private equity funds as contemplated in the Codes;
- the exclusion of mandated investments;
- the sale of assets, equity instruments and other instruments; and
- ownership following the sale or exit of black shareholders;
- clarifying the measurement of unincorporated joint ventures for BBBEE ownership purposes;
- changing the generic score card (which is used for measuring the BBBEE status of large enterprises) to increase the number of weighting points for management control from 15 to 19;
- introducing financial targets for entities qualifying for the Youth Employment Service (Y.E.S) Initiative.
The proposed changes are not yet finalised and the sixty day period for public comment expires on 28 May 2018. The implications of the proposed changes on existing BBBEE structures and strategies will have to be carefully reviewed and, if necessary, appropriate changes made. Any change to the BBBEE policy framework (especially changes to the Codes) unfortunately causes uncertainty and makes it difficult for businesses to prepare and implement medium to long term BBBEE strategies. The Department of Trade and Industry has already received some objections to certain of the proposed amendments. It is hoped that the final version of the amendments both removes uncertainty and promotes the adoption of financially and commercially sustainable medium to long term BBBEE strategies by business.
Latest News
Working in a pandemic: what is a safe and healthy workplace?
by Bradley Workman-Davies, Director An employer which has been issued a permit as a provider of essential goods or services [...]
Pension funds distress rules & FSCA operations during lockdown
by Hilah Laskov, Senior Associate and Chelsea Roux, Candidate AttorneyReviewed by Shayne Krige, Director and head of the Investment Funds [...]
South Africa: Closure of the trade marks, designs and patents office during national lock-down
by Janine Hollesen, Director and Donvay Wegierski, Director South Africa is currently in a 21 day national lockdown to combat [...]
Being resilient in these tough economic times is a necessity… practical steps for directors to consider in extra-ordinary times of financial distress!
by Dr. Eric Levenstein, Director and Head of the Business Rescue, Restructuring and Insolvency practice; Nastascha Harduth, Director; and Roxanne [...]
Not Today, April fool Protection of Personal Information – South Africa falling further and further behind
by Ahmore Burger-Smidt, Director and Head of Data Privacy Practice Group, Werksmans Attorneys and Dale Adams, Candidate Attorney With everyone [...]
Exemptions from competition law in the banking, retail and hotel sectors amidst covid-19 pandemic
by Paul Coetser, Director and head of Competition Practice, and Mishkah Abdool Sattar, Candidate Attorney Since the issue of our [...]
