Archive for category True Empowerment

PPPFA Fails

We were very pleased when the finance minister gazetted the changes to the PPPFA regulations. It brought the PPPFA in line with the B-BBEE act and codes. It made for consistency and ensured fairness and objectivity in adjudicating and awarding tenders.

It was a shock therefore to see that the finance minister has issued an exemption to all public/state owned enterprises for the new regulations. SOEs no longer need follow the new regulations and have pretty much carte blanche on how they will issue/ advertise and ultimately award tenders. The exemption is for a period of 12 months to 7th December 2012. The PPPFA does allow the minister to issue those exemptions notices, but we feel that this has set back the entire B-BBEE process, almost irretrievably.

Who is affected? All entities in schedules 2 and 3(b), (d) of the Public Finance Management Act. This includes ACSA, Telkom, Transnet, SAA, Eskom, Rand Water, Umgeni Water. It refers to a huge proportion of government expenditure.

What is left are only government and provincial departments and smaller organisations like Boxing SA that need to follow the new regulations.
We see this as a huge blow for true empowerment. The only measure of empowerment is your B-BBEE certificate, and yet, the largest SOEs are refusing to implement the new regulations in favour of a different, inconsistent system.

The SOEs do have reasons for wanting to be exempt – ranging from difficulty in implementing the new policies to their feeling that B-BBEE is “too soft”. The Black Business Council feels that the new regulations threaten black business because many white owned businesses have a better B-BBEE level, or can win business by giving a discount of more than 10%. They are asking that certain spend be set aside for specifically black business.

This is inconsistent with the B-BBEE scorecard. If there was a problem with the B-BBEE scorecard being “too soft”, then the route to go should be to change the B-BBEE codes and strengthen the fight against fronting rather than throwing out B-BBEE in favour of the old PPPFA regulations.

We do recognise that some SOEs, e.g ESKOM demand that their suppliers have a valid BEE certificate, level 4 or above, so they are not dismantling B-BBEE totally.

The new regulations have been discussed for 3 years, and were gazetted in June 2011, so there was sufficient time for discussion before it was implemented, rather than the minister have to issue his exemption on the date that the new regulations came into effect. It really makes us wonder why the minister bothered to implement any regulations at all if he is going to exempt probably more than 50% of all state procurement from the regulations.
This is not going to improve peoples’ attitudes around tendering and B-BBEE – rather is will harm them and result in lower compliance. At the moment the dti is trying to get its new B-BBEE Amendment Bill accepted by parliament. This is also a set back for the chances of that bill being approved. We, ourselves have spent nearly two weeks writing up our submission on that bill, giving it our qualified support, and making what we consider are positive suggestions. Based on the failure of the PPPFA, our feeling right now is that the Amendment Bill will never be gazetted or implemented, so why bother wasting time on a submission. If that is our feeling, as the biggest supporters of empowerment and B-BBEE, I’d hate to hear what others are saying.

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The New Targets Conundrum

The BEE Codes of Good Practice sets variable targets for employment equity and procurement. For all other elements, there is a fixed target e.g 3% of NPAT for enterprise development.

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.

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Proposed amendments to the B-BBEE Act

Proposed amendments to the Broad-Based Black Economic Empowerment Act (B- BBEE)

Cabinet approved the publication of the Broad-Based Black Economic Empowerment Act (B-BEE) Amendment Bill for public comment.

The proposed amendments to the Act intend to achieve the following objectives:

(a) Align the Act with other legislation impacting on the B-BBEE and with the codes

(b) Establish the B-BBEE Commission to establish an institutional environment for monitoring and evaluation broad-base black economic empowerment

(c) Provide for the regulation of the verification industry by the Independent Regulatory Board of Auditors

(d) Deal with non-compliance and circumvention by introducing offences and penalties

The proposed changes to the B-BBEE codes of good practice:

(a) Enterprise Development (ED) and Procurement to be elevated with each requiring sub-minimum and enhanced recognition for ED targeted at key sectors in IPAP and the New Growth Path

(b) Penalty provision for non-compliance with Enterprise Development and Procurement elements of the B-BBEE scorecard, and discount from overall score

(c) The points of ownership element should be broadened to include designated groups in the main points, creating greater incentives for genuine broad-based ownership such as employee share ownership, co-operatives and community ownership

(d) Setting sub-minimums/threshold for each element of the scorecard save for the adjusted ownership element

(e) The Qualifying Small Enterprises scorecard will be adjusted and certain elements made mandatory.The thresholds for Exempted Micro Enterprises will be reviewed

(F) The Employment Equity element to receive adjusted recognition and to be aligned to the Employment Equity Act (targets, Reporting and Definitions).

(g) Skills Development Element to be aligned to the New Skills development Strategy and the New Growth Path and

(h) Targets in the Ownership Skills Development Procurement and Enterprise Development will be adjusted.
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Comments:

In general, EconoBEE welcomes the proposed changes. We need to see the actual bill to analyse it in more detail, but in general, all the recommendations we have sent to the dti and BEE Council have been addressed.

We like that B-BBEE is being aligned with other acts, in particular the PPPFA which comes into effect on 7th December 2011.

More than a year ago we recommended to the minister that he establish an office of the BEE Ombudsman, to handle issues of interpretations, valid certificates, fronting, disputes. This is now being done via the establishment of a commission.

We also welcome IRBA as the overall regulatory body for verification. The verification industry has always had problems, starting with ABVA, and subsequently SANAS has struggled to handle our volume of enquiries and sort out various issues. We hope that IRBA will be fully staffed to handle the increased workload.

We were one of the first companies to raise the issue of invalid certificates, fronting and other non-conformances. We therefore welcome the approach that fronting will be penalised, and that the B-BBEE Commission will be tasked to investigate this.

In principle,we also welcome any proposed adjustments to the weightings and targets of the elements or the definitions. We have always like the fact that B-BBEE stands for “broad-based” implying it affects all aspects of the economy, and not necessarily only narrow based ownership.

We look forward to seeing the proposed bill and will make representations

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Changes to government procurement rules

As from 7th December 2011, rules for government procurement change in terms of new regulations for the PPPFA – Preferential Procurement Policy Framework Act.

In terms of the new regulations, government must now also follow B-BBEE principles in its procurement process. For the first time all govt agencies, SOEs, organs of state will be required to take into account your GOOD B-BBEE score based on a valid B-BBEE certificate in awarding tenders. For tenders worth between R30 000 and R1 million the new regulations state that govt will use the 80/20 rule where 80% of the evaluation of the tender is based on price and 20% of the tender will be on the basis of your B-BBEE level. e.g if you are a level 1 company then you get the full 20%. If a level 4 then you get 12 points and so on. It means that companies with a good B-BBEE level stand a better chance of winning the tender. Companies without a B-BBEE certificate will need to discount their prices to win. For tenders worth above R1 million the 90/10 rule applies, where 90% is based on price and 10% on B-BBEE level.

The full conversion of B-BBEE level to PPPFA points are as follows:

BBBEE, PPPFA Tender Points Calculator

B-BBEE
PPPFA – Government tender points allocation
B-BBEE Level B-BBEE Score Achieved
80/20
90/10
Level 1 Contributor ≥ 100 points 20 10
Level 2 Contributor ≥ 85 points but < 100 points 18 9
Level 3 Contributor ≥ 75 points but < 85 points 16 8
Level 4 Contributor ≥ 65 points but < 75 points 12 5
Level 5 Contributor ≥ 55 points but < 65 points 8 4
Level 6 Contributor ≥ 45 points but < 55 points 6 3
Level 7 Contributor ≥ 40 points but < 45 points 4 2
Level 8 Contributor ≥ 30 points but < 40 points 2 1
Non-Compliant Contributor < 30 points 0 0

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ArcelorMittal finally gets a B-BBEE Certificate

ArcelorMittal was in the news last year for all the wrong reasons. It tried to undertake a deal -called it a “BEE deal”, that would not have earned many points. There are have been calls for ArcelorMittal to produce its B-BBEE certificate for a long time, and the lack of a certificate has hurt many of its customers’ own B-BBEE scores. As a primary provider of steel, its B-BBEE credentials will flow down to most of the rest of the economy.
ArcelorMittal has now had its certificate verified – it is level 7 as follows.

Ownership 0
Management control 9.42
Employment equity 0
Sills development 11.09
Preferential procurement 15.51
Enterprise development 0
Socio-economic development 5
Total 41.02

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Tutu’s wealth tax and B-BBEE

The recent comments by Archbishop Tutu caused some controversy. He complained that the rate of transformation is too slow and the inequalities in our economy still remain – the gap between rich and poor is still too great. He is of course correct. The recent release of the employment equity statistics by the commission for employment equity shows that management jobs are still dominated by white people.

Tutu then suggested a wealth tax. Please note he did not suggest  a white wealth tax. The “white” was added by the media without foundation. His actual comments can be found here (courtesy of @gussilber via Twitter), and a video of his talk can be seen on Youtube. The Archbishop is probably not aware that B-BBEE is intended to solve all the problems he identified, in a far more elegant manner than a tax.

B-BBEE is not a tax, because it is voluntary and companies are encouraged to comply, by not necessarily only spending money. It is not a tax because it requests actions, rather than a pure monetary spend. In some ways it can be seen as a levy – e..g with regards to skills development it asks companies to spend 2% or 3% of their payroll on training of their own staff. With regards to enterprise development and socio-economic development it asks companies to spend between 1% and 3% of net profit after tax on those activities. The spend does not need to be pure money – it can be a monetary equivalent, e.g a company can spend time helping a smaller business, and this will be classed as enterprise development. There are other methods of earning B-BBEE points that do not require spending money (tax), like procurement where companies will encourage transformation by asking their own suppliers for their B-BBEE certificates. In this way every company will contribute towards transformation, leveling the playing fields, without the need for a wealth tax.

Some companies have done a wonderful job of complying with the B-BBEE codes and genuinely made a difference to the lives of the people they touched. Many other companies have a reluctance to achieve, and it is this reluctance that Tutu, and others are seeing. Their good, but slightly misguided intentions are a direct result at seeing slow transformation.

Some years back we wrote an article headlined “The alternative to B-BBEE is B-BBEE”, implying that when you look at it, and if transformation is needed the best alternate remains the B-BBEE codes, warts and all. Any other alternative proposed would not be as effective or efficient!

With regard to a wealth tax, government does not have a great record of spending our tax money.  Given the option I’d far rather decide for myself whom to support, train than let government tell me, and possibly waste the money. This is what B-BBEE proposes. If you do have to spend 3% of profit after tax, why not decide for yourself how best to do it, in the way that works, and makes business sense to you?

For five years we have been saying that B-BBEE has to succeed – the alternative will be people proposing some outrageous solutions taht we are seeing right now, such as nationalisation or wealth taxes.

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Comments by Rob Davies dti minister during his budget vote

Minister Davies spoke about B-BBEE during his budget vote: He said the following:

“Regarding economic empowerment more generally, the BEE Codes of Good Practice were promulgated 4 years ago and we are now in a better position to assess their impact. The Presidential Advisory Council has made several policy recommendations to allow for greater participation by black people in productive activities and to tackle what is now emerging as increasingly complex practices of fronting. To this end, the dti and the Presidential Advisory Council are focusing on reviewing the BEE Codes of good practice and possibly amending the BBBEE Act. This could entail, amongst others, refinements to ensure greater policy coherence in the application of BBBEE across government and to strengthen access to procurement opportunities through the now approved and aligned PPPFA regulations. We are also looking at ways to strengthen our efforts to combat the fraudulent practice of fronting.”

Business Day – 20th April 2011 is reporting as follows :

“Department of Trade and Industry acting director-general Lionel October said yesterday the recommendations of the advisory council — now being considered by the economic cluster of government departments — would shift the focus of BEE away from equity investment and ownership towards productive activities.

Currently, companies scored high marks on the BEE scorecard for black ownership, which gave them a high overall score even when they performed poorly in areas such as enterprise development and procurement.

A proposal being examined by the economic cluster is that minimum scores would be required for enterprise development and procurement — or the overall score would suffer. This would compel companies to aim for achievement in all areas.

Mr Davies said what was under consideration was that points would be deducted from the overall score if minimum scores for enterprise development and procurement from small companies were not achieved.

It would also not be enough to merely hand over money for an incubator or enterprise development project. Companies would have to be actively involved in fostering small businesses.

“In Asia, small and big businesses have a symbiotic relationship where big business gets a lot of input from small business and works hard to ensure that it has the required capacity and the technology,” Mr Davies said.

Complex forms of fronting also had to be addressed.

“We have seen that people who participate in ownership deals imagine that they have one thing, but then when they look at the fine print, they have something else,” Mr Davies said.

“There is now a whole industry of lawyers and accountants who are structuring these deals in particular ways.”

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The above is not too different from our crystal ball gazing in our previous newsletter.  This is what we said:

The dti has been looking at revising the codes, and recently issued a tender for companies, presumably law firms to take this further. Once the service providers are appointed, the process will take many months or even years to evaluate and then re-evaluate the B-BBEE codes. We are quite sure that this will not result in “canceling” B-BBEE, but gazing into a crystal ball we expect in one or two years time to see the following:

Ownership
Ownership indicators will change to award more points to broad-based and employee ownership schemes. Individual ownership will be awarded less points. Less emphasis will be placed on direct voting rights and more emphasis placed on a new form of economic interest to ensure that new owners get direct benefit out of their investment. To date many companies do not declare dividends so a minority owner has no benefit, other than when he sells his shares, and in private companies there is no good way to value shares like the JSE does.

Management Control
Will be worth less points than present. Currently one new black director can be “worth” up to 6 points. This is seen as only benefiting a few, it is not broad-based enough. Management may be reduced to 5 points or even consolidated into the Employment Equity element reducing the number of elements to 6.

Employment Equity
Definitions will be cleared up. Allowing a significantly more objective measure of “senior, middle and junior” management employees. More points will be awarded. There is a possibility to have the definitions expanded to broaden the reach of the management levels. It should be noted that as from next year the targets for EE go up anyway.

Skills Development
Skills is anticipated to be the biggest beneficiary of the re-evaluations and will certainly be worth more points. Additional indicators, similar to the excellent construction charter will be created. This will include a more detailed breakdown including mentorships and bursaries.
The cost of Skills Development will not be a major discussion point, rather what does that spend get used for. The cost will therefore be targeted in more specific and beneficial areas.

Preferential Procurement
As from next year the targets for procurement go up anyway. Definitions and interpretations, especially around exclusions – imports, third party will be cleared up. The procurement element cannot change substantially as it is the theoretical driver behind Black Economic Empowerment.

Enterprise Development
Points may drop slightly. More indicators like those in the construction charter will be added. Some “easy” points, may decrease in importance. Mentorships for developing enterprises will be added. Increased emphasis will be placed on the type of beneficiary ensuring better Enterprise Development opportunities and not generic spend with any qualifying beneficiary.

Socio-economic Development
Points may drop slightly in favour of the EE and Skills elements.

QSEs may find that the “easy” points on ED and SED will have less value.
The thresholds on EMEs will rise.

The charters will also have to be re-evaluated, so there may be a recommendation to decrease the number of gazetted charters
Let’s re-look at this in two years time and see how accurate we were.

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Dear Minister

Dear Minister,

Please advise urgently.

My client is a QSE BEP. If he follows the BEP scorecard his ED target is R22 500 because ED is based on leviable amount. His SED target is R11250.
If he follows the codes of good practice his ED target is R2800 because we will use indicative profit and R1400 for SED.

If he follows the BEP scorecard he will need to pay R33 750 for both ED and SED, but if he follows the codes his cost is R4200 – a differential of R29 550.

Since the dti and SANAS are still seeking clarity, apparently now from the DG, and you have not any statement either, I need to know if the dti will condone my client following the codes that most suit him. The precedents have of course been set and we all know that SANAS will not regard this as a non-conformance and dti will not withdraw the certificate…….

On the other hand I’ve got some clients who are NOT in the construction sector but tend to like the lower adjustment for gender so are going to follow the construction/BEP codes. Is this also okay?

I know of a company that signed the final gazetted forestry charter but wants to follow AgriBEE and will use generic until that happens. Is this ok?

Now that I think of it, another client who has a turnover of over R1billion would like to follow the QSE scorecard for tourism. Also, a difficult client (you know how clients are) likes the Construction generic ownership element, the freight transport management control (for QSEs), the codes for EE, the QSE codes for Skills, and forestry for the other elements. Can I please have special permission to change the codes to suit my difficult client? He also wants to use a verification agency that had a pre-assessment letter in Feb 2010 but has now expired.

Another client would like to use ArcelorMittal as their verification agency. According to SANAS, ArcelorMittal has been accredited (for legal metrology, specifically weighing instruments), and the client feels that since ArcelorMittal, like SANAS, has no BEE certificate, they are a good organisation to do their BEE verification. Is this possible?

Minister, in any event we know that the dti/BEE Council will never be able to identify and really does not care about fronting, but being law abiding I’d like your approval to recommend fronting to my clients, who are being hamstrung by my honesty.

Yours sincerely

Keith

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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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Yes, business is to blame

We have supported transformation since the day it was genuinely proposed. We have rejected enrichment, and tenderpreneurs, but always felt, and known that economic transformation was needed. Our country’s history was such that the vast majority of the population were denied access to the economy, and a change of government, and allowing all people the vote ensured political transformation, but did nothing for economic transformation. While 80% of the people who have the political power only own 20% of the economy (rough estimates), this country is a powder keg.

Almost every political party or pressure group agrees that economic transformation must take place. The ANC offered B-BBEE. The DA’s policy is “broad-based economic empowerment”. Even Afriforum agrees that some form of transformation must take place. The best thought out is definitely B-BBEE, but not properly implemented.

Unfortunately, not enough economic transformation has taken place. The media, their readers and the general population are more interested in discovering faults with the system, than proposing a better alternative. To generalise, all we have had in the past couple of years are complaints about anyone who become wealthy through government contracts. The companies who have made serious efforts at B-BBEE are ignored or even criticised.

So, why is business to blame? Well, the direction that government is taking with economic policy and jobs is not one that I can fully support. The President, in his recent address spoke about the need for government to create jobs and transform the economy. For many years the B-BBEE act was expected to do that exact job, and for many reasons it did not achieve all that was expected. One big reason is given above. Business did not support it sufficiently. My fear was always that if business did not transform properly and voluntarily, government would step in and start doing the job for them. This is now happening.

I am a strong supporter of a freer economy. The free enterprise economy is more likely to help grow an economy than leaving it in the hands of the government. All governments throughout thew world create laws and the B-BBEE act was not different and no more harsh than any of a thousand laws here and elsewhere. Yet, the B-BBEE act and its codes were more often criticised. Companies did front, companies did ignore the codes, companies did ignore the charters. Every time the President or government made a comment about transformation there is some rude comment or cartoon ridiculing him and our government.

Did those people not realise that economic transformation WAS going to follow political transformation? Did they really think that B-BBEE was going to fall away? Did they think that the level of economic inequity would result in a stable country? Now, by rejecting B-BBEE, and again I’m generalising because many companies have made good and far-reaching efforts, government is moving towards a more controlled economy.

The President now  wants to create more jobs via government. Government already accounts for about one third of the economy. It looks like the President wants government to become an even bigger player in the economy. The free market economy relies on less government, not more, so I would have liked to have seen less government. However since we do need economic transformation, and business made every effort to resist it (and let’s not hold government blameless either), it is no surprise that if government, and the people do not see the positive results of true transformation, it is obvious that they are going to try another approach. This approach is asking government to directly intervene to create those jobs.

Wouldn’t it have been better for the country to have encouraged private enterprise to grow the economy. Wouldn’t it have been better for private enterprise to have taken the initiative? Instead we have a man whom most people love to hate – Julius Malema – accusing white males of dominating the economy. He is of course 100% correct. His proposed solution is incorrect – that of nationalization. From his point of view too little economic transformation has happened so we need an alternative policy.  It would have been nice if business, and government had done the right thing, and rendered Julius’ comments obsolete!

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