Archive for category BBBEE Knowledge

A dti scandal – The beginning of the end of the sector codes and B-BBEE

The dti, gatekeeper of the BEE codes has wasted an enormous amount of taxpayers money in setting up the BEE codes, and the sector codes. Latest rumours are they are about to dump the sector codes.

Way back, before the B-BBEE act was gazetted, the financial sector came up with its financial sector code, and other sectors stated following suit. The B-BBEE codes specifically made allowances for sector codes. Many sectors, believing that they were being steamrolled into following a charter spent huge amounts of time and effort to try to create their charter, mostly without success. At the time we are totally anti the charters, as we said that it would cause more confusion and costs and not contribute towards transformation. At the time we were criticised by the dti.

It turns out were correct all the time: The sector codes have proven a total waste of time and money. Industry bodies, government and private enterprise have wasted our money, to create a non-functioning sector codes process.

The minister did indeed gazette four sector codes, construction, transport, tourism and forestry back in 2009. All four came into effect on the date of gazetting, and only one had a transitional period – but implying that all had to be followed from the date of gazetting. In 2009, no one bothered to follow those charters.Around about 10 other charters have been or are still in the process of gazetting including covering Financial services, ICT, property, accountants and legal.

Also in 2009, the minister stated that BEE certificates would only be valid if produced by a SANAS accredited verification agency. His initial notice gave a deadline of 31 July 2009. We pointed out to the minister that at the time SANAS did not have a methodology to accredit agencies based on the sector codes. It would imply that every company in the affected industry would be unable to produce a valid certificate. The minister then delayed the deadline to 1st February 2010. Even with this delay SANAS did not manage to accredit any agency to verify against the sector codes until March 2010. Only a small number of agencies ever managed to become accredited for the sector codes.

It did not really matter – most companies in the affected industries continued using the generic codes and passing that certificate off as a valid certificate – contrary to the regulations of SANAS and the codes. One need only look at certificates produced in 2010 for transport companies, hotels, freight and all the other affected industries to see that the sector codes and the minister’s notice was being completely ignored.

The rumours around BEE from SANAS is that “the dti may make a pronouncement as there have been complaints from the industries saying they should have a choice of utilizing the sector codes.  Apparently the DG is aware of the complaints. There was a meeting in Cape Town last week where this was discussed, and from the SANAS point of view they will not view this as a non-conformance until clarity is given by the DTI.”

So legislation is being run by the DG “being aware of problems”, and SANAS, four years after the codes were gazetted is still waiting for clarity on an issue they have been accrediting agencies to do for over a year.

Is there anyone at the dti or SANAS who has the faintest idea of what is going on?

We knew this would happen. SANAS and the dti were unable to keep up with the sector codes. Most agencies did not even know about the sector codes, and failed to check the industry of their client when the client requested verification. Each sector code requires the formation of a sector council, so for example the Tourism Sector Council was formed to manage and report back on the progress the sector has been making in accordance with the sector codes. To date, no sector council has reported back to the minister of the BEE Council as to the progress made. It would be quite easy to do so: They would say “NO PROGRESS”. Every sector council is therefore in breach of their own sector code. If the dti, SANAS and sector councils can’t manage the process, it is not surprising that most measured entities have no idea what is going on, and their level of compliance is lower as a result.What is quite ironic is that even companies that were signatories to the sector codes have not even bothered to use them. For example both York Timbers and Hans Merensky were signatories to the forestry charter. Neither even follow the forestry charter.

It is exactly as we said many years back – sector codes are a waste of time and will result in lower levels of compliance. However, once the sector codes did come out we supported them, because that is what the codes say we must do. We are the consultancy raising these issues with the dti and SANAS. We are the people identifying the errors and inconsistencies. We are the people confronting the verification agencies, measured entities, the dti and SANAS about which scorecard to use.

The problem is that until the minister issues a notice removing the sector codes, any company in an affected sector that issues a certificate that bears the SANAS logo as its official BEE status will be misrepresenting its BEE status. The codes say that deliberate misrepresentation constitutes fronting and is fraud.

A COMPANY THAT ISSUES A CERTIFICATE CARRYING THE SANAS LOGO FOR THE WRONG SCORECARD IS FRONTING.

This is the beginning on the end for the sector codes, and I’m not sorry about that. I have to state that the only high profile person who agreed with us about the useless sector codes was Jimmy Manyi! Even as late as the end of last year Thabo Masombuko of the dti angrily confronted anyone who said that the sector codes serve no purpose. Well, his own DG had has to be brought into the fray, and SANAS, the organisation appointed by the dti still don’t know that a certificate issued in terms of the wrong scorecard is non-conformance.

What I am genuinely sorry about is if this debacle by the dti and SANAS is anything to go by, it looks like the B-BBEE codes could die a similar death. Many people will be only too happy to see the BEE codes go the same way. To them I say “Be careful what you wish for”. (I’ll explain this last statement in a future blog.) We personally will continue to support the codes until the very end.

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Jimmy Manyi

Everyone has an opinion on the Jimmy Manyi interview issued by Solidarity. Strange then that as at this morning (3 March 2011) only 6474 people have actually viewed it. I have to suspect most critics of Jimmy have not seen it, and none have seen the entire interview nor the context in which he made these comments. The part that has been uploaded is only 47 seconds, and very selectively chosen.

The context is he was talking about was the employment equity act, and he is very well briefed on the B-BBEE codes.

He knows that companies earn BEE points by employing black people in various management, and sometimes non-management positions. Many companies will specifically try to find a certain profile person in order to improve their BEE scorecard. We ourselves always tell our clients that they will earn more points, if they were to employ a higher percentage of black people in certain management categories.

At the same time we tell our clients that for example a black female in a particular category will earn them more points, and therefore they should try to find the best person for the job, but be aware that they will earn or lose points based on their decision.

From the black person’s viewpoint, we can easily direct a particular person to where there are opportunities. We know that for example most construction companies would be keen to interview a black female civil engineer. We would not hesitate to advise a person on how best to market themselves to get a good job. At this very moment I have 1300 CVs in front of me from people who are desperate for a job as a junior admin clerk – a very sad state of affairs. I’d like to employ every single person, but obviously cannot.

Let’s look at Jimmy’s comment.  The number of coloured people in the Western Cape is generally higher than the rest of the country, just as we would expect more Indians in KZN than the rest of the country. I would have no hesitation in advising a coloured person who is unsuccessfully looking for a job in Western Cape to look further – specifically target regions and companies than have poor employment equity scores.

Is this what Jimmy meant? Is this what Jimmy said? Please watch the video and decide if it leaves out the context.

Also decide if the context is as I have described.

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ED and SED Proposed Changes

The minister has gazetted proposed changes to the B-BBEE Codes of Good Practice.

The proposals are gazetted in terms of Section 9(5) of the act, which gives interested persons the opportunity of commenting for a period of 60 days from the date of publication of his notice. (18th February 2011).

The proposals affect enterprise development (codes 600/806) and socio-economic development (codes 700/807).

1) Enterprise Development – Shorter payment periods:

Change in shorter payment periods: The existing codes state that you can earn ED points by offering shorter payment periods to suppliers. The codes say that if you pay COD,  you can claim 15/15 (i.e 100%) of the value of the payment. If you pay one day after receiving the invoice you can recognise 14/15th of the value. If you pay 5 days after receiving the invoice you can recognise 10/15th , ie. 66.6% of the payment value and so on. The old codes stated that you cannot go beyond 10 days for your payment.

The actual formula used is (15 minus number of days from date of invoice)/15

The proposed amendment allows you to take as long as 15 days to repay. It should actually be only 14 days though!

If you take 14 days to pay then you can recognise (15-14)/15 of your payment: ie 1/15th of the payment – 6.67% of the payment.

If you take 15 days to pay, the formula is (15-15)/15 = 0% which is why we stated that it can only be 14 days!

Commentary:
This is an extra dispensation given to companies and public enterprises that find it difficult to arrange payment as fast as 10 days. The extra benefit is very small though. If you take 12 days to pay an invoice to an approved beneficiary, you can only recognise 3/15th, ie 20% of your payment spend.

What is more interesting is the fact that the minister has given this dispensation on the shorter payment periods. Without doubt shorter payment periods is the most controversial ED activity. In the past many agencies used to regard only a small portion of the shorter payment as being recognisable ED spend. They use the formula of (15 – days to pay) as a percentage. so, if you paid COD, ie zero days, they saw it as (15-0)% of the payment = 15% of payment. We had asked the dti for an explanation and they gave us the interpretation as we have always used. Recently ABVA issued practice notes reverting back to the old arrangements. Fortunately only a few verification agencies are following this incorrect method.

There must be a reason for the dti emphasising shorter payment period, and maybe this is it. In our own submission, we will recommend that the dti issue a very specific explanation and worked example to ensure consistency.

2) Enterprise Development/Socio-economic development – Change from average annual spend to annual basis:

The codes state that ED and SED contributions are measured cumulatively (average annual) from date of inception of the codes, or even up to 5 years prior to the codes (which were issued in 2007.). This means that if your NPAT (net profit after tax) in 2007 was R1m and R1.5m in 2008, R1.3m in 2009 and R2m in 2010, then for your ED calculation our target is set at 3% of the cumulative profit of R5.8m = R174 000.

Your spend is also cumulative so if you spent R24 000 in 2007, R100 000 in 2008, R50 000 in 2009, then you would have reached target in 2010 by 2009 already, and would earn full points in 2010. We used to use the phrase “you can bank your overspend”, so if a company had overspent one year, the overspend would be carried forward to the next. There are good reasons to use the cumulative method: No one really knows what their net profit after tax will be until after their audit and their tax assessment. The best they can do prior to the year-end is use estimates and budgeted figures. With the new proposal, to be on the safe side, a company will have to overspend slightly just in case it turns out that their net profit after tax is higher than expected. The overspend will be lost next year.

Other considerations:

Many companies have not yet begun their empowerment journey. Some have spent no money on ED or SED, so they would have had to make up a huge amount of spend if the cumulative had applied. This could have been asking them to spend 12% of NPAT on ED and 4% on SED over the past 4 years. Since the majority of businesses are not yet compliant they will be happy with the new proposed ruling. Businesses that have overspent on their ED and SEC will be unhappy.

Transitional period: There is no direct transitional period for the proposed changes. Paragraph 5 of code 600 and code 700 does state: “The Minister may from time to time by notice in the gazette revise or substitute the Benefit Factor Matrix. Any changes will only be applicable to Compliance Reports prepared for a measured entity in respect of the first 12 month period following the gazetting of a revision or substitution.”

The benefit factor matrix  (annexe 600 (a)) lists the various types of contributions that can qualify as ED (and similar with SED). Paragraph 5 states that any changes to this annexure comes into effect only after 12 months. The Minister’s proposed changes however affect both the benefit factor matrix – the early payment periods , and the actual code 600 – the change from average annual to annual.

The shorter payment period will therefore only come into operation in 12 months time, but the change from cumulative to annual would come into effect as soon as it is gazetted.

Overall Commentary:

We do not disagree with the proposed amendments, though we will recommend that the minister allow a transitional period for those companies that have overspent on their ED and SED targets. We welcome the fact that the minister is issuing amendments, proving that B-BBEE is still top of mind. We still have huge problems with lack of standards, fronting and lack of clear interpretations of the codes. Even these proposed changes will not clear up many issues and we will be issuing our comments to the dti recommending that when they issue this amendment, they clarify some of the issues referred to.

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Issued by EconoBEE

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Call for SANAS to be suspended

Code 000, statement 000 paragraph states that various entities are measurable under these codes. The list includes SANAS.

SANAS is the South African National Accreditation System, a public enterprise whose job is to accredit various organisations. Their job of accreditation includes that of BEE verification agencies.

The term “measurable under the codes” implies that those organisations require a valid BEE certificate.

SANAS does not have a valid BEE certificate. This is especially ironic since SANAS is the body whose job is to accredit BEE verification agencies. I wonder how SANAS is allowed to operate as an accreditation body when it does not adhere to the law of the land? Surely SANAS is not competent to do its job when it flouts the law?

The minister’s recent proposals for statement 005 require all accreditation bodies, including SANAS to be at least a level 3 contributor. Whether or not the proposals are gazetted, I cannot see how the minister can allow SANAS to operate while not in possession of a valid BEE certificate. I informed SANAS of this requirement more than a year ago, and today on calling them they still do not have a valid BEE certificate. It is four years since the codes were gazetted, and SANAS have still not bothered to become compliant.

We can only speculate why they have chosen to neglect their legal duties. Perhaps they don’t know, or maybe they don’t care about obeying the law. Maybe they know that their score is very low and are embarrassed. Either way SANAS is in breach of the law – the very law they they supposedly follow in order to accredit BEE verification agencies. I cannot imagine how can an organisation can insist on others following the law while they are in breach of it. How can they effectively accredit BEE agencies when they themselves do not follow the law?

I call upon the minister to immediately suspend SANAS as an accreditation body, and appoint other organisations that do choose to follow the law as a BEE accreditation body. I call upon the minister to remove the board and the CEO from their positions and institute an inquiry why SANAS has failed in its duty towards the country.

The law has been broken, and charges should be laid against both the board and the CEO.

Parliament has been very vocal about stopping fronting. They have so far been very quiet about SANAS and its willful neglect and denial of the law. SANAS have not fulfilled its mandate. It is time for SANAS to face the music!

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Call for changes to BEE certificates

Currently all BEE certificates contain an item called “Date of issue”. This represents the data on which the verification agency issued the certificate. All certificates are valid for a period of one year from date of issue.

The codes talk of a “Measurement period”.  This represents the period under measurement. This would be the financial year on which the verification is based. Typically this is used to provide turnover figures. It is also used for procurement, skills development spend, ED and SED spend and net profit after tax.

Verification can take place many months, or even years after the end of the financial year.  Most verifications make use of audited financial statements, and producing audited financials can take anywhere between 3 month and more than a year.

Verification can take many months from the initial appointment of the agency, to gathering the information, verification, queries and appeals until the final certificate is issued.

It sounds wrong that a certificate that is based on financials for the year ended 2009 can be issued today (6th January 2011), and it remains valid for the rest of 2011.

On the other hand a certificate issued in March 2010 based on the same financial period is valid from March 2010 until 2010.

Some verification agencies, wrongly, use current information for some of the other indicators including ownership, management and employment equity.  One of the key principles of the codes (2.2) is “The basis for measuring B-BBEE initiatives under the codes is the B-BBEE compliance of the measured entity at the time of measurement”. In the case of financials it is the period used for the financial statements. It would not make sense to use disparate measurement periods, like 2009 for financials, but 2010 for ownership.

We would propose that the measurement period and validity date of the certificate be aligned. A new certificate based on two year old data is not an accurate representation of the BEE status of the measured entity, certainly not as it stands today, yet that certificate is regarded as valid because it was issued today and is valid for another year.

One option we have considered is that the certificate validity period be one year after the end of the measurement period: If your year-end is December 2010, then your certificate issued based on that period is valid for a year until 31st December 2011, no matter when the certificate was actually issued. If a measured entity delays getting its financial statements until October 2011, then its certificate will only be valid for 2 months.

This sounds a bit harsh, and it is impossible to obtain audited financial statements on the last day of the financial year. The JSE and SARS gives deadlines as to when financial statements should be issued, and we suggest this be incorporated into certificate validity dates, for example give a leeway of six months. so, if the financial year end is December 2010, then the measured entity would have a gap until June 2011 to get its financial statements and obtan a verified certificate. That certificate would be valid until June 2012. If the entity was only verified in December 2011, then its certificate is also only valid until Jun 2012, and not December 2012.

This will encourage entities to be verified as soon as possible after year-end, and to use current information. It will also ensure that the certificate is a more accurate representation of its BEE status.

It should be noted that audited financial statements are not a pre-requisite for verification. Signed management accounts are also acceptable – though the verification agency will have to perform extra checks to confirm some data. Therefore undue delays in preparing financial statements is not a good excuse for not obtaining an accurate and up to date verification certificate.

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Categories of B-BBEE Compliance

The Codes of Good Practice provide for 3 categories of broad-based Black Economic Empowerment compliance and the only criteria used to define these categories is a measured entity’s total annual revenue. The listed categories therefore include:

  1. Exempted Micro Enterprise
  2. Qualifying Small Enterprise
  3. Generic Enterprise

In this article we will focus on the first category; Exempted Micro Enterprises.

What Is An Exempted Micro Enterprise (EME)?

Measured entities with less than R5m annual turnover are accordingly exempted from producing a BEE Scorecard. Annual turnover thresholds for the Tourism and Construction (Built Environment Professionals) industries is R2,5m and R1,5m respectively. Qualifying entities are therefore regarded as Exempt Micro Enterprises (EMEs) and are deemed to be automatic level 4 (four) BEE Contributors. Any qualifying purchases from such an enterprise can be claimed at 100%. In a scenario where black ownership is more than 50%, such an entity is deemed as a level 3 BEE contributor whereupon Procurement Recognition is at 110%.

Start-up companies are regarded as EMEs for the first year following their formation regardless of their expected revenue with the exception of tendering for contracts above R5million.

What Does an EME Need?

An EME must obtain the relevant documents as full proof for their status. At EconoBEE this is a very short and simplified process, which has a turnaround time of 2 working days. For further information, please contact us at eme@econobee.co.za or 0861 11 3094

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Consistency in Verification

I think that consistency is one of the most important aspects of verification. The whole aim of verification is to give confidence to any company that their supplier’s scorecard is accurate.

One of the key paragraphs of the Verification Manual is the Purpose of Verification which states:

The overall aim of verifying is to give confidence to all parties that rely on upon the score set out in the verification certificate that the information on which the certificate is based has been tested for validity and accuracy

Verification is intended to reduce the risk of misstatement of individual scorecard elements to an acceptably low level, and to provide an assurance of the integrity of the information on which the Verification is based. An acceptably low level of risk is achieved if a reasonable person with sufficient knowledge of the Codes will be able to arrive at a similar conclusion based on the same set of information.

Unfortunately this is often not the case. Different verification agencies continue to differ by up to 20 points on the companies they verify. Each agency has a different interpretation of the codes – moreover they change their minds each year, and each verification analyst has his/her own interpretation. It is becoming a lottery as to what score any measured entity is going to achieve. The agencies unilaterally ignore directives from the dti, from SANAS, and even their own policies. The peole toblam must be SANAS and the dti. It is SANAS’ job to accredit agencies, and this has to entail giving direction as to how to go about the actual verification. In practice SANAS is more worried about issuing a non-conformance due to a mis-hanging certificate, or unlocked filing cabinet than in assuring consistency in the industry. Even when they are made aware of specific issues and queries, different SANAS analysts have different rules they want verification agencies to follow.

The dti hardly fares better: They do sometimes give interpretations, but don’t care to follow up on queries, probably because they are far too busy.

The third organisation, ABVA does no better. ABVA says they represent most verification agencies and even have a disciplinary process – in theory.

In the past weeks the minister has been complaining about fronting taking place in the industry. He is right to complain, but his own department is slow to react. One of the key fronting indicators occurs when different agencies award vastly different points. In the past weeks we have come across agencies that use the wrong scorecard or charter to verify. Not only is this inconsistent but is contributing to fronting. We have seen verification agencies award EME certificates to companies that have turnovers far exceeding R5 million.

In all cases, it guarantees that other agencies will NOT come to the same conclusion based on the same data. It guarantees that no one can have confidence in any certificate.

The whole aim of verification was to achieve consistency. It has not worked out this way.

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The points mean something

Imagine watching your team play rugby and at the end of the match, a panel of experts gather to decide which is the better team. They then award the World Cup trophy to the team they think is best. It would be ridiculous. Rugby is a game with rules. The rules are enforced by the referee. Each team, and coach works out strategies beforehand to find weaknesses in the other team to find a way to score points. Depending on the team, conditions and players your team will win the game by scoring the most points – be it via tries, conversions, penalties or drop goals. A game has a specific duration, rules, players and methods of scoring. To score points takes 5 or 10 minutes, or more and is earned by following the required strategies.

Let’s look at B-BBEE: B-BBEE has many more ways of scoring points, 7 elements and over 30 indicators, all of which contribute towards earning points.  Some commentators have been saying that points are not a good measure of transformation. They see companies chasing points instead of transformation. The point (pun intended) they miss is that points are an excellent indication of transformation. The only way to earn points is to follow transformational guidelines. Anyone who says that the points don’t matter has no real understanding on the intricacies

You don’t earn points by “giving your business” to someone else. You don’t earn many points by doing “non-transformational” activities. The only way to earn lots of points is by following transformational principles. To earn points shows commitment to many aspects of society and the economy – that is why it is called “broad-based”. It shows commitment to charitable institutions, to helping grow businesses, to training your staff, to improving employment equity, to finding ways of helping suitable business people get involved in ownership. While it may sound complicated, the rules for points even include involving women and disabled. To say that this is not true transformation is not true.

In a way B-BBEE is therefore similar but more complex than a simple game of rugby. It has to be – it has to try to improve the lives of all South Africans. Anything less than using a scorecard would not be able to measure the impact of various activities.

Many management experts have used the phrase: “If you can’t measure it, you can’t manage it”, and in the case of B-BBEE, this is very applicable. One company that achieves a level 3 can be fairly regarded as having a better B-BBEE score, and better credentials than a level 4.

The points do matter. Points are an excellent way to monitor and manage transformation.

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Suspect scorecards

We are seeing more and more queries of scorecards. Not because there is necessarily fronting but because more people are checking the scorecards.

We have been at the forefront of checking scorecards: we have discovered fronting and reported it. We have discovered mistakes, and asked the agency to correct it. We have raised queries that we satisfactorily resolved. We continue to try to check every scorecard  received: We look at the entity – it is an EME, QSE or generic. Does it belong to a sector code and is it done correctly.

In the news lately has been the Kelly Group (www.kelly.co.za). Reports were that they changed/manipulated their employment equity credentials. Latest reports (http://www.fin24.com/Companies/Kelly-denies-fudging-BEE-status-20101019) are that they deny the charges.

This is the Kelly Certificate Expiry 19 May 2011-1 that was produced for them.  On face value there is nothing wrong, other than it is surprising to see each element with a completely round number. We usually see ownership, employment equity and skills development calculated to two decimal places and in this case they earned 18, 10 and 12 points respectively for those elements. (They earned full points for procurement, otherwise we would have expected to see decimals as well).

We have asked them for their full report.

On a personal level, we sincerely hope that there is nothing to back up the allegations and we currently have no reason to believe that Kelly’s certificate is invalid. What we are pleased about is that people are checking certificates. This self-monitoring mechanism is what we always had in mind when we stated that the dti does not absolutely need another law to criminalise fronting. We stated that fronting IS fraud, and that it is not the customer or verification agency that will always catch fronting, but the opposition, or other involved people. Obviously the BEE consultant and then the verification agency is the first step to stopping fronting, or misrepresentation or even mistakes. Thereafter the media and other people will question the company’s credentials.

When someone talks of B-BEE, there is a distinct trend to looking at the scorecard or certificate. This is good news.

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Broad-based continues to make gains

The PIC has now stated that they are unhappy with the ArcelorMittal deal. They specifically ask why the BEE deal was not broad-based. See http://www.businessday.co.za/articles/Content.aspx?id=122763.

We were the first BEE Consultancy to express reservations about the deal, by calculating the number of points that AM would earn via the deal. Our concern then, and now is AM chose to call this a broad-based deal when it hardly earned 5 points on the scorecard. They had various clauses in their deal that were unenforceable, showing really poor knowledge of B-BBEE and the codes. At one point they have stated that after the deal is completed they will call in a verification agency to evaluate their BEE score. Our view has always been that you evaluate your score BEFORE doing the deal, and getting a verification agency only to verify the points earned. You never call in a verification agency to help you see how many points you have earned, AFTER the deal. It is obvious that the deal was never intended to be broad-based.

At the same time we have noticed that some government departments are using the B-BBEE level as a criterion for awarding grants. We have recently asked the Public Protector to investigate why government departments, organs of state and public enterprises invariably do not use B-BBEE as a criteria in doing business. There now seems to be a distinct trend to slowly using B-BBEE principles, which we sincerely welcome.

We believe that this new approach to empowerment is going to remove a lot of the negativity around BEE, and ensure that the right people benefit, in the right way.

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