PROCUREMENT THROUGH BBBEE IS AN IMPORTANT VEHICLE FOR ECONOMIC TRANSFORMATION – EVEN IN EXTRA ORDINARY TIMES OF COVID-19
(Solidarity//AfriForum v Minister of Toursim – May 2020)
The dismissal of the SOLIDARITY/AFRIFORUM court bid this week in which they were trying to prevent the Department of Tourism from implementing a BBBEE policy criteria in the disbursement of the Tourism Disaster Relief Scheme/Fund represents an important milestone in the battle for reaffirming Black Economic Empowerment as a critical driver for facilitating economic transformation in SA.
In fact, a brutal reminder to opponents of the transformation project that BBBEE is here to stay for as long as economic desparities and inequality in South Africa remain.
Although the case was brought by Solidarity and AfriForum – the afrikaaner minority interest groups that always fight for the retention of the apartheid status quo – as an urgent application brought by the ap applicants in an attempt to interdict the Tourism Department from applying BBBEE and asking the court to find that BBBEE is an unlawful and discriminatory policy, Judge Kollapen was solid in dismissing both applications, effectively reaffirming the relevance and moral significance of the BBBEE policy framework.
In doing so, the judge correctly placed reliance in the constitution, quoting previous constitutional court judgements such as the case involving The Minister of Justice v SARIPA & Others (2016) SA where it was held that ;
“Throughout many years of struggle, the greatest dream of South Africa’s oppressed majority was the attainment of freedom….. persons belonging to certain categories (blacks in general) had suffered considerable unfair discrimination in the past…..
The reason why white people were – and continue to be – disproportionately better qualified and experienced is a function of subjugation of blacks and excluding them from opportunities (economic) through centuries of colonialism and apartheid “.
The biggest important lesson to draw from this judgement is that, as required by Section 10 of the amended BBBEE Act of 2014, the inclusion of BBBEE as a criteria when exercising any of the following functions by government becomes not only compulsory, but non-negotiable.
These functions include, but are are not limited to 1) determining the criteria for issuing of licenses, concessions and renewal of business licenses.
2) developing a preferential procurement policy such as the one used to procure goods and services for the state;
3) criteria for the sale of state owned assets and implementing Private Public Partnerships (PPPs);
And more importantly, 4) awarding of incentives schemes, grants and investment initiatives such as the one the COVID-19 relief fund that was launched for small businesses in response to the economic distress.
The high court correctly emphasized that there is nothing wrong and untoward in government preferring and prioritizing entities based on race, gender, youth, disabilities and so-called military veterans.
This is an important part of economic redress.
Simply put, companies and businesses owned and operated by black people in general, black women, the black youth, people with disability and the Military Veterans are, as a matter of priority, be favoured by government when exercising a procurement function.
So do not believe anyone who tells you that this is another form of racism and discrimination.
The courts have now reaffirmedwhat we have always been saying.
These are designated categories in terms of government policy and are rooted on the constitutional values of fairness and redressing inequality. The constitution is the APEX legislative framework from which all laws policies must be aligned.
Any piece of legislation that does not pass constitutional scrutiny is flawed, invalid and unlawful.
Whilst the principles highlighted in this court judgement are (should be) in fact common cause by now, the question is, why is state procurement not being followed to the core to drive these imperatives.
Why is the pace of economic transformation so slow in a country where public sector procurement is so huge and massive ? Where unemployment is so high.
Undoubtedly, many government officials who are charged with the responsibility to drive transformation are either sleeping on duty or betraying the policy mandate of the government they are expected to serve.
This is tantamount to economic sabotage and constitutional treason.
We must be thankful to the Tourism Department’s BBBEE team for being was vigilant and alive to this national imperative.
Look now, it took SOLIDARITY and AFRIFORUM – that always challenge government transformation programmes – to rush to court only to be reminded that economic transformation and empowerment is a non-negotiable policy within a government function.
If this judgement is anything to go by, then surely the radical critics of the National Treasury’s procurement of the Personal Protective Equipment (PPEs) last week have merit and legitimate course to challenge such procurement decision.
So are concerns with the disbursements of the R500 billion economic solidaity fund and stimulus package that the President recently announced.
But more importantly, this judgement also serves as a necessary wake-up call to communities and business forums in the jurisdictions where the above government functions are exercized by every organ of state, that there is a lever available to challenge government’s decisions where such decisions are not aligned to the policy on BBBEE.
The time has come for communities and affected categories to invoke the relevant sections of the BBBEE legislation, take up activism and challenge all processess that fall short of transparency, accountability and transformation be it in government or even the private sector.
ENDS
Masombuka is a Construction Attorney and Socio-Economic Empowerment Acivist with over 8 years years of BBBEE regulatory and policy formulation experience in the Department of Trade and Industry.
He is the immediate erstwhile Chief Executive of the Construction Charter Council (CSCC), a construction industry executive authority responsible for overseeing empowerment compliance.
He serves in various boards such as the CHIETA SETA and the Construction Management Foundation (CMF).
He is an influencer, an opinion-maker and stakeholder/community facilitation activist on large infrastructure scale projects in South Africa.
He can be found on :
Facebook-Tboze Masombuka
Email; Thabo@nyapotseinc.co.za
Whatsapp ; 0767469741
