Some agencies have migrated to IRBA, while a couple have closed down.

The following list was sourced from the SANAS web site:

The hope was that companies, competitors, verification agencies would identify fronting activities and stamp it out. This has not happened. If a BEE certificate is presented to a company, it is usually, without question accepted. In some cases companies are checking, and may reject the certificate. Consultants and verification agencies too, often reject certificates that they deem invalid. Few however bother to investigate and report this to the dti. We are one of the few that do report, as per dti guidelines any infringement.
The proposed B-BBEE Amendment Bill, expected to be passed in parliament shortly does indeed criminalise fronting. The bill establishes the office of a B-BBEE Commissioner who is empowered to investigate and prosecute offenders. This however may only happen in one of two years time, after the bill is passed, the BEE Commissioner appointed, budgeted for and staffed properly.

Types of fronting
Companies are guilty of many types of fronting:
Ownership: Shares are sold/given to a black partner who is unaware of his duties/rights or even that he is a shareholder. In some cases the black partner has been forced to sign his sell agreement so the company can “take back” the shares when they wish
General misrepresentation: Companies give incorrect information to the verification agency about turnover, management, employees.
Exempt Micro Enterprise (EME) fraud: An EME is one that has a turnover of less than R5 million (depending on industry) and is automatically allocated level 4. Many companies deliberately understate their turnover in order to qualify as an EME. An extreme case was a R1.2 billion company that said its turnover was less than R5 million – and won business as a result of its BEE status
Qualifying small enterprise fraud (QSE): A QSE is one that has a turnover of between R5million and R35 million (depending on industry). Companies us the same fraudulent mechanism as for EMEs above.
Unaccredited verification agencies: A certificate is only valid if produced by an accredited verification agency. Agencies are accredited by SANAS or approved by IRBA. Many unscrupulous unaccredited agencies offer to produce genuine looking certificates without following any verification procedures. We have seen unaccredited agencies illegally using the SANAS logo. One non-accredited agency created a standard certificate showing 77 points and used “mail-merge” to put the names of his clients onto it. Companies may say they were scammed by these con artists, but when it is pointed out to them that their certificate remains invalid, they continue to issue it, effectively participating in the fraud and fronting process. Often companies will call in these con artists because they know they will not perform any verification checks, or even give them the level they need. Many of these “agencies” are incompetent. An extreme example was an unaccredited agency whose one page certificate had 20 mistakes.

Responsibility to report Fronting
The dti Code obligate companies and verification agencies to report fronting. Reporting is towards SANAS (who do try to take action where the offense related to SANAS), IRBA (who are new in the arena and tend to take less action) , the sector councils (who seem ot feel they have little power to investigate or take action), and the dti (who also feels that they have too little power. The reality is the current B-BBEE act requires that government “take into account and where possible apply” a BEE certificate when awarding tenders, concessions, licenses or similar activities.

This is a very welcome move. The purpose of the document is to explain which sector code a company must follow and from which date if the sector code is newly released. The signatory is Nomonde Mesatywa, the chief director in the BEE Unit.

Recently two new sector codes have been gazetted – the Property Charter and the ICT Charter. Both state that the sector code is effective as from the date of the gazette.

The clarification statement explains that if a company falls within the sector code it must apply that code as from the date of publishing of the sector code. The date of publishing refers not to the date that the minister signed the notice (which is generally some weeks prior to publishing), but the date of publishing of the gazette. In the case of the ICT Sector code, this is 6th June 2012. A problem that cropped up is a company may have been half-way through its verification using the Codes of Good Practice when the ICT sector code was gazetted. The question we asked was must the verification agency redo the verification because the date of issue on the certificate would be after the date of gazetting of the sector code. The dti’s statement also clarifies this. It says that any verification that  was begun, i.e applied for verification, prior to the gazetting of the sector code would use the Codes of Good Practice, whereas a verification applied for after the sector codes were gazetted would need to follow the sector code.

Our comments:

We are very happy that the dti issued a statement so soon after the issue was raised. It completely explains to everyone if a sector code should be followed or  the Codes, and there is no room for misinterpretation. We applaud the chief director for clarifying an issue that does affect a fair number of companies. We recognise that the chief director has no discretion over the actual sector codes and is unable to vary it by for example adding in a transitional period as some are requesting. We sincerely request the BEE Unit to issue more clarification statements of this nature. It will instantly solve most the the problems we have seen with interpretations.

We would recommend that all verification agencies or approved auditors that are affected,i.e who were busy with the verification of a property company or ICT company prior to the gazette include a statement on the certificate as follows:

“Please note that (insert company name) falls within the (ICT Sector/Property sector). The verification agreement was signed prior to the gazetting of the (ICT/Property sector code) and the company was verified in terms of the Codes of Good Practice. This makes their certificate valid”

This will ensure there is no confusion in for example 6 months time when the company’s B-BBEE certificate is scrutinized and a query raised that the certificate was only issued on say 1st July 2012, but not following the relevant sector code. If the disclaimer as suggested is not on the certificate, the company runs the risk that someone will see that the wrong sector code was used and disqualify the certificate. This is especially important if the company is tendering for business, and they do not have the opportunity of explaining why their certificate appears to be incorrect when it is actually entirely valid.

Our answer is quite simple. A certificate is not “done” by an accredited agency. It is verified by an accredited agency. There is a big difference. The agency verifies (checks) that the scorecard is calculated correctly and issues a formal certificate based on an accurate scorecard.

The whole reason for getting a certificate is to achieve a high score or level. The agency cannot “give” a high score. The company itself wanting a scorecard has to build up that good score. They have to take the correct actions in order to achieve the points on the elements. The agency does not do this, as they are only called in after the company has earned the points and calculated their scorecard. The points are not automatically earned. The elements: Ownership, Management Control, Employment Equity, Skills Development, Preferential Procurement, Enterprise Development and Socio Economic Development can all contribute towards points on the scorecard.

A sporting analogy is referees do not award points, until the team has scored the try or penalty of conversion. The team itself has to score the points. The coach helps and advises the team on how to score the points or runs or goals. The team itself has to do the work, both off and field and on it before it can earn its points. In the same way B-BBEE consultants act as the coach to the company (team), and the referee is the verification agency and he confirms that the team has earned the points.

Our up-coming seminar on “How to Prepare for Verification” is a one day event training our clients on how best to “play the game” to earn the maximum points before the verification agency can be called in to adjudicate the points earned. We will help you identify the points you have earned and also prepare your files properly. This will ensure that the verification agency will be able to easily and quickly verify the points and issue the certificate.

However the company’s revenue for the year March 2010 to February 2011 was more than R35 million making them a generic entity. The verification was carried out in December 2011 but by using older data the company was measured as a QSE. Surely this is wrong in terms of B-BBEE?

The Verification Manual states:

“10.1.3 In order to determine if the measured entity is classified correctly the Verification Agency shall obtain the audited financial statements and agree the amount recognised as revenue to the thresholds set by the Codes. When the measured entity is not audited the Verification Agency shall perform some or all of the following procedures as a minimum to verify the accuracy, completeness, occurrence and cut-off of revenue as shown in the financial statements:”

I know that it does not state which audited accounts must be used. However the codes define Total revenue as being determined under generally accepted accounting practice (GAAP). This surely also implies that an entity should be in compliance of the laws, ie be audited where required and financials submitted to SARS, CIPC, JSE etc within the allotted time period (e.g. 6 months after year-end). Therefore, if audited statements are not available, as in this case, the accreditation bodies, SANAS and IRBA should ask agencies to perform the procedures as outlined in 10.1.3. This would have shown that the entity is not longer a QSE, and must follow the generic scorecard. Moving from a generic to QSE and vice versa is a material change that verification should pick up.

We also note the key principles:

2.1 The fundamental principle for measuring B-BBEE compliance is that substance takes precedence over legal form.
2.2 In interpreting the provisions of the Codes any reasonable interpretation consistent with the objectives of the Act and the B-BBEE Strategy must take precedence.
2.3 The basis for measuring B-BBEE initiatives under the Codes is the B-BBEE compliance of the measured entities at the time of measurement.
2.4 Any misrepresentation or attempt to misrepresent any enterprise’s true B-BBEE Status may lead to the disqualification of the entire scorecard of that enterprise.
2.5 Initiatives which split separate or divide enterprises as a means of ensuring eligibility as an Exempted Micro-Enterprise, a Qualifying Small Enterprises or a Start-Up Enterprise are a circumvention of the Act and may lead to the disqualification of the entire scorecard of those enterprises concerned
2.6 Any representation made by an Entity about its B-BBEE compliance must be supported by suitable evidence or documentation. An Entity that does not provide evidence or documentation supporting any initiative, must not receive any recognition for that initiative.
2.7 Wherever a Standard Valuation Method applies to measuring an indicator, the same standard should apply, as far as reasonably possible, consistently in all other applicable calculations in this statement.

What is even more concerning is that most agencies measure ownership, management and employment equity as at the date of verification, but revenue, profits, skills, procurement, ED and SED as at the last audited financials, even if three years older. Surely this is in conflict with 2.7 above?

Let’s identify the errors and problems on it:

1. Produced by Hansie D Labour Brokers – not an accredited agency or approved auditor
2. Ownership states “Male owned”. It does not mention any black ownership. (On contacting the company they confirm they have no black ownership)
3. The rating certificate is called “Unaccredited Transitional SMME”. There was a transitional scorecard in 2007 ending in 2008, otherwise “transitional” does not make sense. In B-BBEE terms we use QSE, not SMME.
4. Spelling: “procerement recognition rating”. Also “Non Complaint Contributor” instead of “Non-Compliant Contributor”.
5. It lists the procurement recognition rating as level 2.  The procurement recognition is 125% for level 2. However if you add up the points “earned” on the four elements, it comes to 100, which is level 1
6. It lists the 7 elements by number 1100, 1200 up to 1700. This numbering methodology was used in the draft codes of 2005. The gazetted codes of 2007 use 801, 802, up to 807
7. It lists code 1200 as “equity ownership”. It should be “Management”
8. It lists code 1500 as “preferred procurement”. It should be Preferential Procurement”
9. It lists code 1700 as “residual”. This is also a relic of the draft 2005 codes, and should be “Socio Economic Development”
10. It awards 25 points to ownership because the business is 100% white owned. It should be zero.
11. It awards 25 points to “equity ownership” (should be management) because the business is 100% white managed. It should be zero.
12. The certificate is unsigned.
13. It mentions a date of 01-02-2011 and a validity date of 28-02-2012. Certificates at most can be valid for one year, not 13 months.
14. The table “BEE Status Qualification” describes the points to levels table: e.g “Level Two Contributor > 85 but < 100 on the generic scorecard”. It should be “Level Two Contributor >= 85 but < 100 on the generic scorecard”. There is a big different between greater than, and greater than or equal to. This is why the entity apparently earned 100 points but is level 2.
15. The points earned for preferential procurement is 25 and enterprise development also 25. Based on the numerous errors we would doubt their methodology and calculations.
16. Based on the errors identified so far we would doubt that they took into account key principle 2.6:  “Any representation made by an Entity about its B-BBEE compliance must be supported by suitable evidence or documentation. An Entity that does not provide evidence or documentation supporting any initiative, must not receive any recognition for that initiative.” We doubt that they have the evidence to support their conclusions.
17. Based on the errors identified so far we believe that key principle 2.4 applies: “Any misrepresentation or attempt to misrepresent any enterprise’s true B-BBEE Status may lead to the disqualification of the entire scorecard of that enterprise.” This certificate definitely misrepresents the company’s true B-BBEE status.

The key paragraph states:

“With effect from the 9 February 2012, the 0-6 year targets will come into operation. However for measured entities whose Measurement Date is prior to 9 February 2012, the 0-5 year targets will still be applicable. But for measured entities whose Measurement Date is post 9 February 2012 the new targets will be applicable.”

The notice of course should have  stated “With effect from the 9 February 2012, the 6-10 year targets will come into operation.”, instead of saying 0-6 year targets. We have notified the dti of this typo.

That notwithstanding the dti has clarified the issue to some extent, but it still is going to cause some serious problems.

The intention of this notice is that a company that is using its financial period of say 1st January 2011 to 31st December 2011 will use the “old targets”, whereas a company whose financial year ends on 29th February 2012 will use the new, higher targets for its next verification. We can therefore expect to see new targets being implemented as from about March or April of this year.

The codes, and this notice uses the term “Measurement Date”.

One of the key principles of the codes (statement 000, code 000) states:

2.3    The basis for measuring B-BBEE initiatives under the Codes is the B-BBEE compliance of the measured entities at the time of measurement.

This, presumably is what the minister had in mind when he stated “However for measured entities whose Measurement Date is prior to 9 February 2012, the 0-5 year targets will still be applicable.”

There has been some discussion about the concept of “measurement date”. We have always seen the measurement date as the end of the financial period under review. However many verification agencies do not see it that way. They correctly use the financial period for financial information like turnover, net profit after tax, skills spend, ED spend, payroll, SED spend and procurement. However those agencies tend to use ownership data and EE data as it appears on the date of the verification. We have argued that this is not a consistent approach. The purpose of verification is to verify that data as it was on the measurement date. This is consistent with for example an audit where the audit is performed many months after the year-end.

The reason that verification agencies give is that SANAS requires them to interview a selection of employees, and if an employee has left they cannot interview the employee.

In our discussions with the dti, they see measurement date in the same way as we do.

To their credit the dti has promised us that they will fix the “0-6 year” error, and give a more detailed explanation of measurement date.

It does mean that verification agencies that have incorrectly used the verification date as the measurement date will have to change their policies. They will also need to satisfy SANAS that they have sufficient information about an employee who has subsequently left the company to justify having awarded them the points.

We have one more suggestion and that is that the measurement date be included on the verification certificate, clearly showing which target is being used. This information should be included o the verification report that agencies submit to their clients, but is not included on the final B-BBEE Certificate.

Employment equity and procurement have target that state “Years 0 to 5″ and “6 to 10″. The 6 to 10 target are higher than the 0 to 5. eg. senior management targets for 0 to 5 are 43% and 6 to 10 are 60%.

Since the codes came out there have been debate about when the new targets kick in. It was presumed that codes have a duration of 10 years as per paragraph 13.2 of code 000 and the new targets apply half-way through. The wording has been ambiguous enough for people to came up with various interpretations.

1) New targets apply for all verifications as from 9th February 2012
2) New targets apply for all verification as from 9th February 2013
3) New targets apply after the 5th verification that a company undergoes.
4) New targets apply for companies whose rating period ends after 9th February 2012.

In May 2011 we wrote to the dti asking for clarity and pointing out that if the minister were to issue a new interpretation, it may have be issued in terms of 9(5) of the act giving the public 60 days to comment before the final gazette would be issued well before 9th February 2012. This is no longer possible.

The new targets will have a very serious effecton your scorecard – there can be up to 15 points difference if you use the old targets.

Latest news from the dti is they are looking at option (4) above as their understanding on the codes. This means if your rating period ends after 9th February 2012, then you will use the the new targets. A rating period generally refers to your financial period, or financial year. So, a company that has a financial year that ends in December 2011 will be rated on the old targets, even if the actual verification takes place in October 2012. A company whose financial year ends on 28th February 2012, and uses that as their rating period will be verified on the new targets, even if that verification takes place in June 2012.

Measurement period:
Key principle 2.3 of the codes state:
The basis for measuring B-BBEE initiatives under the Codes is the B-BBEE compliance of the measured entities at the time of measurement.

There has been much debate over the concept of the time of measurement period or rating period. Is it the date on which you are being verified, or the period during which your scorecard is being calculated?  Financials form a large part of the BEE scorecard so companies generally use their annual financials as the basis for measurement. It does happen that due to delays a company will submit its 2010 financials for verification in 2012 because its 2011 financials are delayed. In this case the old targets would be used. A more diligent company that produces its financials on time will have to use the new/higher targets.

Another issue is many verification agencies do not respect the rating period for their EE, management and ownership calculations. Your measurement period may be 2010 to 2011, but the agency will insist on measuring you on EE, management and ownership as at the date of verification. Under these circumstances we wonder which target the verification agency will use?

The solution is for the minister to issue a gazette or regulation outlining exactly how the new targets will work. It would have to encompass better interpretations around the measurement period.

They have fixed up the errors we identified, and which we had requested them to change – i.e. EMEs that fall into the Tourism or Construction sectors have different EME thresholds. In the original regulations it did not specify that certain sector have different thresholds – it made the blanket statement that EME’s have a turnover of less than R5 million, but did state that the regulations are in line with the B-BBEE Codes.

They have now clarified that an EME is one with an annual turnover of less than R5 million, unless you fall into the tourism sector where the threshold is R2.5 million and the Built Environment Professionals sector where the EME threshold is less than R1.5 million

The second issue relates to acceptable certificates:

The guidelines relating to verification agencies state that certificates will be identifiable by a SANAS logo and a unique BVA number. All certificates bear this logo, other than EMEs, because SANAS has not accredited any agencies to issue certificates for EMEs. No EME certificate issued by a verification agency is allowed to carry the SANAS logo.

The guidelines also do mention with respect to EMEs that “Sufficient evidence to confirm a qualifying EME is a certificate issued by an Accounting Officer (as contemplated in the CCA), a similar certificate issued by a Registered Auditor or a Verification Agency.”

We have spoken to Treasury and they confirm that the intention is for an EME certificate, like all certificates to carry the SANAS logo. While there could well be a legal challenge to the slight ambiguity in the guidelines, there is no doubt that every procurement officer affected by the PPPFA is going to look for a SANAS logo, and if one is not present on the certificate, they will automatically reject it.

Their statement, issued by Nicky Grobler, COO of EMEX stated:

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“Please be informed that Emex Trust’s accreditation has been temporarily suspended as of 14 November 2011 pending corrective action from our recent audit. We hereby wish to give you facts pertaining to this suspension and eliminate any rumours that will be going around.

This temporary suspension simply means that there will be a delay in us issuing QSE and Generic certificates until we have corrected all the Non-conformities identified during our audit. Basically, this will affect all QSE and Generic pre-audits, audits and issuing of certificates until the non-conformities have been rectified. We aim to rectify these mistakes within the next two to three weeks.

Non-conformities identified during our audit. Basically, this will affect all QSE and Generic pre-audits, audits and issuing of certificates until the non-conformities have been rectified. We aim to rectify these mistakes within the next two to three weeks.

All QSE and Generic certificates that have been issued to date are still valid.

We regret that this situation will undoubtedly affect some of our valued clients and we offer our sincere apology to those affected. Be assured of our commitment in thoroughly rectifying these mistakes. Once we have done so, we will certainly be better equipped with a state of the art management system that will benefit all our clients.

Please also be informed that during this process of improving our service, we may be required to visit your premises to discuss next year’s targets and the way forward, and possibly obtain any outstanding information that could benefit you accordingly. In this case, you will be informed in advance of the appointment.

The whole process is an indication of the level of integrity associated with the Emex Trust certificate that you have received or will receive. Be assured of our commitment at Emex Trust towards you as our client, and your B-BBEE verification needs.

We thank you for your continued support and understanding. We will keep you updated.

Kind Regards,

Nicky Grobler

COO, Emex Trust”
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For the actual statement please click here.