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
The right of access to information vs. The right to privacy
The right of access to information is a unique right in the Constitution of the Republic of South Africa, 1996 [...]
Dealing with unions in the workplace – a multi-layered relationship
Unions worldwide play an essential role in protecting the rights and interests of employees, particularly at lower income levels where [...]
When can a trade union operate outside the ambit of its constitution?
This question was answered by the Labour Appeal Court recently in National Union of Metalworkers of SA & others v [...]
Combatting climate change, one block at a time…
Blockchain, the decentralised database that stores information electronically on a computer network, is synonymous with using large quantities of electricity [...]
Characterisation: Much ado about nothing
"Characterisation is the biggest problem of our time" according to the Competition Commission's (Commission) Cartels Division Manager's statement at the [...]
SARS v Wiese provides clarity on the collection of tax debt from third parties
By Kyle Fyfe, Director Tax Administration Act In a recent judgment of the High Court in a claim for declaratory [...]