[In terms of 14(1) of B-BBEE Act, 2003 (Act No.53 of 2003), as - - PowerPoint PPT Presentation

B-BBEE REGULATIONS, 2016 [In terms of 14(1) of B-BBEE Act, 2003 (Act No.53

• f 2003), as amended by the B-BBEE

Amendment Act, 2013 (Act No. 46 of 2013)]

EXECUTIVE SUMMARY

2

B-BBEE Regulations

• B-BBEE Commission Office: Functions, responsibilities, and administrative issues
• B-BBEE Compliance Reporting:

(i) Sphere of government, public entity, or organ state; (ii) Public Company listed on the Johannesburg Stock Exchange (JSE); (iii) Sectorial Education and Training Authority (SETA) (iv) Sector Charter Councils

• Access to Information: Restricted or Confidential Information
• B-BBEE Complaints: Lodging a complaint and withdrawal of complaints
• Registration of a major B-BBEE Transaction: A transaction above a threshold determined by the

DTI Minister

• Applications to the Minster: By organ of state or public entity

(i) Exceed the B-BBEE Qualification Criteria (ii) Exemption or Deviation from applying the Codes of Good Practice

EXECUTIVE SUMMARY … Cont.

3

B-BBEE Amendment Act, 2013: Key amendment issues/areas –  Black people definition (African, Coloureds and Indians: citizens by birth or descent; became

citizens by naturalization before 27 April 1994; or would have been entitled to acquire citizenship by naturalization before 27 April 1994.)

 Remuneration of BEE Advisory Council members  B-BBEE compliance by organs of state and public entities  Strengthening the evaluation and monitoring of B-BBEE compliance  Creation of an incentive schemes to support black owned and managed enterprises  Cancellation of a contract or authorization (on account of false information)  Establish the B-BBEE Commission: To deal with B-BBEE compliance  To provide for B-BBEE offences and penalties

4

B-BBEE REGULATIONS, 2016

B-BBEE COMMISSION OFFICE

5

• Established in terms of S13B of the Act
• Open to the public – Monday to Friday
• Documents: (i) Accept the delivery of documents relating to the Commission functions; (ii) Issuing
• f documents; and (iii) Filing documents
• May charge fees (for filing complaints and for services rendered)
• Forms for (i) notices, (ii) applications, (iii) certificates, and (iv) receipts: Forms B-BBEE 1 to B-BBEE

21

• May publish notices in the Gazette: Example, to invite submissions and/or report a decision

B-BBEE COMPLIANCE REPORTING – ENTITIES THAT MUST REPORT

6

By – a. Sphere of government, public entity, or organ of state b. Public company listed on the Johannesburg Stock Exchange (JSE Listed companies) c. Sectoral Education and Training Authority (SETA) d. Sector Charter Councils – Submission of reports by the Minster

B-BBEE COMPLIANCE REPORTING – COMPLIANCE AREAS

7

By government entities and JSE listed companies – Form B-BBEE 1

Verified information reflecting the state of compliance with respect to –

i. Ownership (where applicable) ii. Management Control iii. Skills Development iv. Enterprise and Supplier Development v. Socio-economic development vi. Any other sector specific element

Reflect –

How each element contributes to the outcome of the B-BBEE Scorecard

When –

• Government Entity: Annually within thirty (30) days of the approval of audited annual financial

statements and annual report

• JSE Listed Company: Annually, within ninety (90) days of the end of the financial year; or annually within

thirty (30) days of the approval of audited annual financial statements and annual report

B-BBEE COMPLIANCE REPORTING – SETA

8

Sectoral Education and Training Authority must submit a report on skills development spending

and programmes – Form B-BBEE 2 Verified information reflecting the state of compliance with respect to – i. Skills training provided by member entities ii. Skills development services iii. Implementation of the Scorecard iv. Critical and priority skills v. Workplace Skills Plan

Reflect –

How each element contributes to the outcome of the Scorecard

When –

• Annually within ninety (90) days of the end of the financial year; or within thirty (30) days of the

approval of audited annual financial statements and annual report

B-BBEE COMPLIANCE REPORTING – NON-COMPLIANCE WITH THE ACT

9

• Notice of non-compliance by the Commission – Form B-BBEE 3
• Corrective Action: Within thirty (30) days
• Failure to comply after 30 days: Reject report by issuing of Form B-BBEE 4
• May arrange closed or open meeting to respond to questions as part of the consideration of the

report

• Where the report complies with the requirements of the Act, after consideration: Commission

notify the entity by issuing Form B-BBEE 5

• For cases of non-compliance: Commission my conduct a site visit and/or initiate an investigation

The Commission may publish reports on B-BBEE compliance reporting

ACCESS TO INFORMATION

10

Restricted or Confidential Information (5 Classes): a) In terms of S13L of the Act: Where a person submitting the information claim, in writing, that such information is confidential b) Identity of the complainant: A person submitting information may request that their identity be treated as restricted information c) Information received by the Commission during investigation (until findings and recommendations are issued). Information received regarding a major B-BBEE transaction (prior to the transaction being made public by the parties d) Document containing Commission internal communication, including opinion, advice, report or recommendation obtained or prepared by or for the Commission e) Restricted information in terms of the Promotion of Access to Information Act, 2000 (Act 2 of 2000)

ACCESS TO INFORMATION, … Cont.

11

• Any person may inspect or copy any record that is not restricted information
• If it is restricted information, to the extent permitted
• Commission may release restricted information relating to a possible agreement of terms of an

appropriate order

• Restricted information ay also be accessed by –

i. Person who provided the information; ii. Person to whom the confidential information belongs iii. Any other person, with a written consent of the owner

B-BBEE COMPLAINTS

12

• The Commission may institute an investigation on receipt of a complaint
• Any person my lodge a complaint (on a conduct or practice relating to B-BBEE) with Commission –

Form B-BBEE 7

• Commission may request further information from the complainant – Form B-BBEE 8
• Commission may issue summons – Form B-BBEE 20. And hold formal hearings. Make findings with
• r without recommendations
• Where false information is submitted regarding a complaint, the Commission may issue a demand

for correct information – Form B-BBEE 9

• Own investigation by the Commission – By issuing Form B-BBEE 10
• In a case of non-investigation due to no jurisdiction or where the complaint does not warrant an

investigation the Commission shall issue Form B-BBEE 11

• The Commission may recommend an alternative dispute resolution mechanism – Form B-BBEE 12

B-BBEE COMPLAINTS, … Cont.

13

• The Commission may, with justifiable reasons, refer a matter to SARS or any regulatory authority –

Form B-BBEE 13

• Multiple complaints: The Commission may consolidate or join two or more complaints under a

common investigation

• Where the complaint investigation period has lapsed, the Commission may issue Form B-BBEE 21

requesting the complainant to extend the investigation period

REGISTRATION OF A (B-BBEE OWNERSHIP) TRANSACTION

14

• Major B-BBEE transaction: A transaction above the threshold determined by the Minster by notice

in the Gazette

• Registration of the transaction: Within fifteen (15) days of concluding the transaction – Form B-

BBEE 18. Registration of the transaction does not constitute a requirement to obtain approval for the implementation for the transaction

• Certificate of Registration: Issued within ten (10) days to the party that submitted the transaction –

Form B-BBEE 19

• Concerns on the transaction: May be raised by the Commission ninety (90) days after the

transaction has been registered.

• Failure to address the concerns: Commission may initiate an investigation
• Parties to a transaction: May seek advice from the Commission prior to concluding the transaction
• Material Change to B-BBEE elements after registering a transaction: A notification must be made

with the Commission

APPLICATIONS TO THE MINISTER: ORGAN OF STATE OR PUBLIC ENTITY

15

Permission to Exceed the Qualification Criteria

• Application – Form B-BBEE 14
• Purpose: To accelerate transformation
• For procurement and other economic activities
• Provide motivation for exceeding the set qualification criteria
• Certificate of Approval by the Minster: Form B-BBEE 15. Publish notice in the Gazette
• Maximum approval period: 10 years

Application for Exemption or Deviation

• Application – Form B-BBEE 17
• Provide motivation setting out reasons which necessitate an exemption or deviation
• Application for exemption: To include a plan to comply with the B-BBEE Codes of Good Practice
• Application for deviation: State the elements of the Codes that the entity wishes to deviate from
• Certificate of Approval by the Minster: Form B-BBEE 15. Publish notice in the Gazette
• Maximum approval period: 10 years
• Report to the Minister: Form B-BBEE 16

16

THANK YOU

17

Jackie Mathebula | Principal Transcend Capital MBA (UP), Master of Management (WBS), B Admin Hons (UNISA) T +27 11 442 2433 | M +27 83 257 5553 / +27 73 730 0358 E jackie.mathebula@transcendcapital.co.za 1st Floor, Grapnel House, 3 Glenhove Rd, Melrose Estate www.transcendcapital.co.za