The Constitution of South Africa is the highest law in the land. The Constitution places an obligation on the State in terms of section 9 (the equality clause) to specifically “redress the inequalities of the past.” This is the aim of all transformative legislation from the Employment Equity Act to the Skills Development Act and Broad-Based Black Economic Empowerment Act, amongst others.
In terms of section 217 of the Constitution, the Constitution requires procurement by organs of state and statutory institutions to be fair, equitable, transparent, competitive and cost-effective and implemented in a manner which seeks to protect or advance previously disadvantaged persons. S 217 (2) allows organs of state to implement procurement policies, providing for categories of preference to advance or protect persons disadvantaged by unfair discrimination (“HDIs”). S 217 (3) provides for the enactment of legislation to prescribe a framework within which the procurement policy referred to in S 217(2) must be implemented.
The ruling by the Constitutional Court has forced the government to review both the PPFA Act and its regulations to ensure alignment with the Constitutional mandate stated above and the B-BBEE Act. This does not invalidate the B-BBEE act. The framework of the B-BBEE and how it’s practicable is clear and therefore not affected by the recent constitutional ruling.
This is not the end of B-BBEE as debated in the media recently. The Constitutional mandate to transform the economy still remains! The Public Procurement Bill is set to be introduced in 2023: This will provide a new framework of government procurement, with each department creating its own procurement framework work that must still be in line with the Constitutional mandate and the B-BBEE Act.
It does not mean B-BBEE is no longer important but rather the setting of new objectives, and so companies should still be compliant to the B-BBEE Act and its objectives. We continue to advise our clients to remain compliant in terms of the specific codes applicable to them, until greater clarity is given on the framework within which public procurement specifically will change. Procurement between private companies is still driven by the objectives of the B-BBEE Act.
The key here, is to implement activities that make business sense! Do you see B-BBEE as a grudge purchase? Or do you want to make a genuine difference in South Africa and still grow your business? Contact us now to show you how our revolutionary managed service has helped thousands of clients implement sustainable B-BBEE activities in a way that makes perfect business sense!
Being one of the oldest B-BBEE consultancies, we have seen all the changes to the legislation and been there through it all. With success stories of skills development and enterprise & supplier development, we know that we can give you strategic advice that can be implemented within your business.
Looking forward to growing our economy and your business, one step at a time in 2023!!
The EconoServices Team
EconoServices (Pty) Ltd is a B-BBEE Level 2 management consultancy company that consults on general compliance issues including Broad-Based Black Economic Empowerment, Employment Equity, Skills Development and Labour Law. We help enterprises understand the requirements and the codes. We assist in designing and implementing strategies to increase the company’s B-BBEE scorecard.