BLACK ECONOMIC EMPOWERMENT

1
BLACK ECONOMIC EMPOWERMENT

• Presenters Paul Benjamin
• Langelihle Dhlamini

2
Black Economic Empowerment

• Overview of the Act
• Reinforces and promotes existing empowerment
  legislation. Post 1994 many Acts enacted which
  promote black economic empowerment- Employment
  Equity Act, National Empowerment Fund Act, Skills
  Development Act

3
Black Economic Empowerment

• Overview of the Act (cont)
• Preamble- recognises that under apartheid race
  used to control access to SAs productive
  resources and access to skills and that there was
  little participation by majority in income
  generation- Act aims to remedy this

4
Black Economic Empowerment

• Overview of the Act (cont)
• Act is framework legislation- short, skeletal,
  coherent framework
• Envisaged that charters and Codes provide actual
  flesh of the Act
• Codes released for public comment in two phases.
  December 2004 and revised Codes November 2005
• Act does not apply in isolation

5
Black Economic Empowerment

• Definitions in the Act
• Broad-based black economic empowerment- means
  economic empowerment of all black people
  including women, workers, youth, people with
  disabilities, people in rural areas through
  various socio-economic strategies
• Black people- definition in Codes narrower
  than that in Act

6
Black Economic Empowerment

• Status of codes
• Positive obligation on state institutions to
  apply codes in decision making unless
  unreasonable to do so

7
Black Economic Empowerment

• Sector charters
• Only binding on organs of state and public
  entities if they have been gazetted as sector
  codes. Requirements for gazetting in 2nd phase
  Codes

8
Black Economic Empowerment

• Current charters-
• Mining Industry Charter
• Financial Sector Charter
• Petroleum and Liquid Fuels Industry Charter
• Marketing, Advertising and Communications
  Charter
• Maritime Transport and Service Industry Charter
• Forward and Clearing Industry Charter and
• Tourism Industry Charter

9
Black Economic Empowerment

• Charters initiated but not yet finalized
• Information Technology and Communications
  Charter
• Fishing Charter
• Construction (Built-Environment) and Property
  Charter
• Agricultural Charter
• Forestry Industry Charter
• Gambling Industry Charter
• Healthcare Charter

10
Black Economic Empowerment

• Other empowerment legislation
• Preferential Procurement Policy Framework Act
• Employment Equity Act
• Skills Development Act
• State Tender Board Act
• National Empowerment Fund Act

11
Black Economic Empowerment

• Employment Equity Act, 55 of 1998
• Prohibits unfair discrimination
• Requires designated employers to apply
  affirmative action
• Affirmative action measures -
• includes preferential treatment and numerical
  goals
• excludes quotas
• Employers must comply with the EEA if they
• want to do business with govt

12
Black Economic Empowerment

• Supply chain management
• Treasury regulations apply to -
• national and provincial departments
• Constitutional institutions
• public entities

13
Black Economic Empowerment

• Treasury regulations
• Provide framework for supply chain management
  systems
• Supply chain management systems must be
  consistent with
• PPPF Act
• BBBEE Act

14
Black Economic Empowerment

• Municipal Finance Management Act
• Supply chain management regulations
• Municipalities must
• establish a supply chain management unit
• adopt a supply chain management policy

15
Black Economic Empowerment

• Administrative law
• The granting of a tender is an administrative act
• PAJA applies
• Bato Star Fishing v Minister of Environmental
  Affairs (CC)
• Logbro Properties v Bedderson (SCA)