Black Economic Empowerment

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Black Economic Empowerment (BEE) is an integration programme launched by the South African government to reconcile South Africans and redress the inequalities of Apartheid. It encourages businesses to integrate black people in the workspace, upskill and mentor, support black businesses, give back to mainly poor communities across the country which remain poor due to the land dispossession, with the majority of these communities being black South Africans. For this exercise businesses are awarded points which they can claim on their BBBEE certificate. This certificate is used in compliance with government spend regulations. Businesses with a good level BBBEE rating, stand a better chance of being awarded government contracts.

Rationale[]

After the transition from Apartheid in (1994), it was decided by the African National Congress government that direct intervention in the redistribution of assets and opportunities was needed to resolve the economic disparities created by Apartheid policies which had favoured white business owners. BEE intended to transform the economy to be representative of the demographics, specifically race demographics of the country. BEE was defined in the 2001 Commission Report as follows,

"It is an integrated and coherent socio-economic process. It is located within the context of the country’s national transformation programme, namely the RDP. It is aimed at redressing the imbalances of the past by seeking to substantially and equitably transfer and confer the ownership, management and control of South Africa’s financial and economic resources to the majority of its citizens. It seeks to ensure broader and meaningful participation in the economy by black people to achieve sustainable development and prosperity."

— BEE Commission Report, pg. 2

The BEE programme was implemented starting from 2005. It was criticised for benefiting only a narrow stratum of previously disadvantaged groups, and this led in 2007 to the introduction of a modified programme called Broad-Based Black Economic Empowerment or B-BEE.^{[citation needed]}

It must be noted that BBBEE is the only law of its kind and could not be copied anywhere else. It was no wonder after implementation there were loopholes found that were used by businesses to sideline black people from benefiting from this programme.

The BBBEE Commissioner reports on the progress of transformation each year and the results are always disappointing.

Legislation[]

On 9 February 2007, the new Codes of Good Practice of the Broad-Based Black Economic Empowerment were gazetted by the South African Government.

This included the following Codes:

• Code 100: Ownership
• Code 200: Management & Control
• Code 300: Employment Equity
• Code 400: Skills Development
• Code 500: Preferential Procurement
• Code 600: Enterprise Development
• Code 700: Socioeconomic development
• Codes 800 – 807: Qualifying Small Enterprises

The following sector scorecards have also been gazetted (in terms of section 12):

• Financial Sector Scorecard^[1]
• Construction Sector Scorecard^[2]
• Tourism Sector Code^[3]

Also gazetted were general guidelines and definitions, among which, the definition of the beneficiaries of BEE. The definition is the same as that of the Black Economic Empowerment Act of 2003 which states that "black people" is a generic term which means Black Africans, Coloureds and Indians and included provisions to ensure that they must have been South African citizens prior to 1994.^[4] The fact that Chinese individuals (some of whom were classified as Coloureds under Apartheid, others as honorary white), who were also submitted to legal discrimination prior to 1990 (but exempt from the Group Areas Act as of 1984 when the Group Areas Amendment Act was promulgated), have been excluded as beneficiaries of black empowerment, has led to a renewed media debate regarding the definition of "black" in current legislation.^[5] As of 2008, Chinese people have been reclassified as "black" after the Chinese Association of South Africa took the South African government to court and won.^[6]

The BEE legislation is supported and functions in conjunction with various other forms of Legislation, including the Employment Equity Act, Skills Development Act, Preferential Procurement Framework and others.^{[citation needed]}

The legislation was developed through numerous task teams and have taken more than 3 years to be gazetted since the first Act (December 2003) and the first Codes of Good Practice released in November 2005 which addressed Statement 100 and 200. Subsequent Codes were released in December 2006 addressing Codes 300 to 700. Based on public and stakeholder comments, the final codes were adjusted and gazetted.^[7]

On 11 October 2013 updates to the Codes of Good Practice of the Broad-Based Black Economic Empowerment were gazetted by the South African Government. These new Codes provided for a transitional period of 1 year 6 months. The changes include the consolidation of duplicate elements such as Employment Equity and Management Control and Preferential Procurement and Enterprise Development. The new Codes have increased the effort of compliance, by introducing priority elements; Ownership, Skills Development and Enterprise Development. The points allocation system includes sub-minimum targets thresholds of 40% for these priority elements, failing to achieve the thresholds result in penalties of dropping the compliance level.^{[citation needed]}

The updated Codes were as follows:^{[citation needed]}

• Code 000: Framework for Measuring Broad-Based Black Economic Empowerment
• Code 100: Measurement of the Ownership Element of Broad-Based Black Economic Empowerment
• Code 200: Measurement of the Management Control Element of Broad-Based Black Economic Empowerment
• Code 300: Measurement of the Skills Development Element of Broad-Based Black Economic Empowerment
• Code 400: Measurement of the Enterprise and Supplier Development Element of Broad-Based Black Economic Empowerment
• Code 500: Measurement of the Socio-Economic Development Elements of Broad-Based Black Economic Empowerment

Sector scorecards were given until March 2015 to submit sector charters.^{[citation needed]}

Scorecards[]

An advert for a company specialising in making South African companies compliant with Black Economic Empowerment (BEE) regulations and government procurement policies.

Enterprises may be rated based on various scorecards, however only the following have been gazetted as of February 2007:^[8]

• Generic Broad Based Scorecard
• Generic Narrow Based Scorecard
• Qualifying Small Enterprises Narrow Based Scorecard
• Qualifying Small Enterprises Broad Based Scorecard
• Financial Sector Scorecard
• Construction Sector Scorecard (repealed on 17 February 2016)

The last two, Financial Sector scorecard and Construction Sector scorecard, have not been passed into law. They were gazetted under section 12 of the act, which is for comment only. They will need to be gazetted in terms of section 9 of the act to become an official sector code. Until that happens all enterprises falling in these two industries are required to use the codes of good practice in producing a scorecard.^{[citation needed]}

Significant leniency for Small Enterprises has been built into the gazetted codes. Based on the Qualifying Small Enterprises Codes, any company with a turnover under R5 million p.a. is completely exempt from BEE and automatically qualifies as a level 4 contributor or achieves 100% BEE Contribution Recognition.^{[citation needed]}

The generic broad based scorecard. All seven pillars must be addressed totalling 100 points

Note: This table is outdated and will be replaced by the revised BEE Codes of October 2013

Qualifying Small Enterprises (those with an annual turnover from R5 and 300 thousand and 40 and 20 – 35 and 50 and 300 and 1 million) are rated on the following scorecard and may choose any four of the pillars to address, totalling 100 points^{[citation needed]}

Exemption[]

Small businesses, generally with a turnover of less than R10m, are considered to be Exempted Micro Enterprises and do not need to be measured against the BEE scorecards as stated above.^{[citation needed]}

Criticism[]

Racial discrimination[]

Critics argue that the aim of BEE is to attempt to create equality in the workforce of South Africa as a whole by enforcing an advantage to the previously disadvantaged and thereby disadvantaging the previously advantaged. This results in businesses having to consider the race and social background of any potential applicant instead of making decisions purely based on qualifications, merit and experience,^[9] resulting in a system in which one's race is the determining factor in finding employment.^{[citation needed]}

Instead of using this type of policy, critics suggest that a policy of qualification equality should be used. This would allow businesses to focus on employing the person with the highest qualifications, the most experience and the best recommendations. To allow previously disadvantaged individuals to achieve these qualifications and experience, critics of BEE say that the government should place more emphasis on secondary and tertiary education, as well as subsidising companies wishing to employ entry level applicants, or fund tertiary education for students from previously disadvantaged communities.^{[citation needed]}

Economic impact[]

BEE is criticised for creating a brain drain, where the qualified expertise is emigrating to countries where they would not be discriminated against. Inkatha Freedom Party leader Mangosuthu Buthelezi is a strong critic of BEE and supports this view. He has stated that "the government's reckless implementation of the affirmative action policy is forcing many people to leave the country in search of work, creating a skills shortage crisis".^[10] Additional criticism has been made that the codes increase the cost of doing business in South Africa due to its complexity thereby often necessitating the hiring of consultants to navigate BEE related regulations.^[11]

State-owned enterprises such as Eskom (Power generation and distribution) were the first to implement aggressive BEE programs with the sole purpose of changing their employee racial content and little regard for the loss of the current skills that existed. In many cases, non-Black employees were given six months to train their replacements, but in most cases they simply resigned for greener pastures or contributed to the "brain drain". The results have been catastrophic and in 2019 SOEs like Eskom, South African Airlines, Public Rail Agency, and Transnet are all faced with leadership, corruption, poor productivity and bankruptcy. The impact to Eskom has resulted in load-shedding, blackouts and large price increases that have in turn crippled the economy, leaving South Africa in 2019 with the largest unemployment figures to date. Eskom has on a number of occasions recognised that they do not have the engineering skills required, the very same skills that were forced to exit over the last thirty years because of BEE policies.^{[citation needed]}

Income inequality[]

The way the law is implemented has also been criticised for exacerbating South Africa's income inequality by unintentionally prioritising wealthy politically connected members of the black elite over poorer black South Africans. Warning that South Africa is sitting on a "powder keg," Archbishop Desmond Tutu argued that Black Economic Empowerment only serves a few Black elite (thus BEE sometimes referred to as 'Black Elite Enrichment') leaving millions in "dehumanising poverty".^[12] In response to criticism, the South African Government launched Broad Based Black Economic Empowerment which is the current gazetted framework for addressing Black Empowerment beyond enriching a few, but with little effect.^{[citation needed]}

Corruption[]

BEE has rather become the acronym for Black Elite Enrichment as only "conected friends and family" of the governing elite is benefiting from the policy.

Other more recent criticism of BEE has focused on the policy's role in enabling corruption by providing a mechanism to improperly award inflated tenders to preferred bidders, thereby inflating costs and negatively impacting on service delivery.^[13][14][15] Testimony given at the Zondo Commission by former Bosasa executive Angelo Agrizzi implicated notable BEE verification agency Empowerdex, contributing to concerns around BEE and corruption.^[16][17] Media reports of BEE company Estina's involvement in the Vrede Dairy Project scandal^[18][19] is another example that has also increased concerns.^[20]

References[]

External links[]

• Broad-Based Black Economic Empowerment Act, 2003
• Broad-Based Black Economic Empowerment Act, with amendments
• Department of Trade and Industry BEE Strategy
• SANAS South African National Accreditation System