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Let BBBEE Make (and Not Break) Your Business

Unpacking the new BBBEE scorecard elements.

Nicolene Schoeman-Louw

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As most of us are by now aware, on 11 October 2013 the revised Broad-Based Black Economic Empowerment (BBBEE) Codes were gazetted by the Minister of Trade and Industry (DTI).

These (new) Codes were originally to become effective in October 2014, recently however the effective date was postponed to April 2015, when these will come into operation thereby replacing the existing BBBEE Codes of Good Practice.

Until April 2015 businesses may themselves consider and elect whether to follow the old or new codes.

Accordingly, it is crucial for businesses to not only understand these codes, but also to consider strategies that would facilitate compliance.

That way, businesses would comply, remain competitive and not run the risk of losing clients or work (suffering losses) due to an unexpected / unplanned decrease in rating or not being compliant at all.

Broadly speaking, the most important change is that the new codes reduce the existing seven scorecard elements (generic scorecard) to five. This is illustrated by the below generic scorecard:

BBBEE-Scorecard_BEE_Doing-business-in-SA

Each element briefly means as set out below:

1. Ownership:

This interpretation of the meaning of this scorecard element remains un-changed.

2. Enterprise and Supplier Development:

Essentially, this newly introduced element represents the merger between what was previously known as enterprise development and preferential procurement. The interpretation of this element has accordingly changed as follows :

To measure the extent to which the business procurers or purchases/supports other businesses in buying / supporting suppliers who are BBBEE compliant. Furthermore, it also measures the extent to which enterprises and supplier development initiatives are intended to assist the growth and the sustainability of black enterprises (interpreted in line with the BBBEE Act broadly, see item 3 below).  

3. Management Control:

Essentially, this newly introduced element represents the merger between what was previously known as management control and employment equity.

This element measures the effective control of the entity by black people (i.e people from designated groups in terms of the BBBEE Act, importantly people from designated groups means black in the broad sense).

4. Skills Development:

This element essentially measures the extent to which employers carry out initiatives designed to develop the competencies of employees belonging to the aforementioned designated groups.

It furthermore relates to employees internally and to persons being trained or skills otherwise developed externally (in relation to the business). Accordingly, the interpretation of the meaning of this scorecard element remains un-changed.

Socio-Economic Development:

In many circles it is also known as the  CSI (corporate social investment ) element of the scorecard. Essentially this measures the support (financial or otherwise) by the business towards more philanthropic causes.

Naturally, the causes in this context must again benefit persons from the designated groups aforementioned and as such should be distinguished from donations to PBO’s that would qualify for an income tax deduction.

Although it should be distinguished from deductions in terms of income tax, a donation in this context could very well benefit both the businesses’ BBBEE scorecard (under this element) in addition to being income tax deductible.

Nicolene Schoeman – Louw is an admitted attorney of the High Court of South Africa, as well as being a Conveyancer, Notary Public and Mediator. She is the Managing Director of Schoemanlaw Inc Attorneys, Conveyancers and Notaries Public (Schoemanlaw Inc Attorneys) in Cape Town. Visit www.schoemanlaw.co.za for more information or email enquiries@schoemanlaw.co.za

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BEE

It’s Do Or Die In BEE Compliance

What this means when doing business in South Africa.

Jacolien Botha

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More and more, we see businesses and BEE verification firms coming under the spotlight for fraud and non-compliance. BEE ratings are viewed as a ‘hot commodity’ and many BEE services firms have popped up over the past few years to accommodate the demand.

Pressure mounts on businesses to reassess their skills development spend, youth contributions, ownership and management structures in-line with the BEE scorecard, and the Government has been particularly verbal in highlighting the need for BEE compliance.

AJ Jordaan, Sales Manager for leading BEE-aligned Skills Development training company, LFP Training says that its more than compliance – it’s a way of life for businesses today. “Over time, businesses have realised that while they are doing almost everything right, what would make or break a deal could very well be their BEE rating,”

“Businesses receive additional points for doing business with BEE-compliant companies. Enterprise & Supplier Development is key to a firm’s business strategy. With legislation changing on a regular basis, we always advise that clients do it right from the get-go,”

Related: How Do I Become B-BBEE Compliant?

A scorecard is not a target – it should be incorporated into a business’s vision and growth strategy; it is just as important as any other top-line business matter these days. “With the need for more and more guidance in the realm of BEE, more suppliers have popped up to provide strategic counsel and it’s easy to get caught up in the ‘hype’. Terminology, weightings, paperwork and implementation are daunting tasks, but with so many businesses still failing their BEE audits – even under advisory – how do we know who to trust?

“Referrals by word of mouth are always great. I also believe that businesses must ask for a company’s success rate and previous customer testimonials. More than anything, the consultant/ BEE supplier that a company chooses must understand how to truly implement BEE strategies to achieve exactly what it’s there for – to empower the previously disadvantaged and help bridge gaps in society” says AJ.

With all the hype, we forget about what its there for. “Trading in points is not the intention; the end goal is economic transformation and fair opportunities for all,” he continues. “If a company fails its BEE audit, it’s essentially failed to promote exactly what BEE is all about. Money has been wasted and no transformation has really occurred. Partnering with a credible and knowledgeable partner is therefore key.”

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BEE

BBBEE Share Schemes – A Ticking Time Bomb?

At the forefront of these mechanisms are employee share schemes.

Nicolene Schoeman-Louw

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BBBEE Share Schemes

Since the promulgation of the amended codes of good practice under the Broad Based Black Economic Empowerment Act 53 of 2003, as amended (“BBBEE” or “the Act”), compliance with the ownership element has become a compulsory compliance element for both Qualifying Small Enterprises (“QSE” having between R10 and 50 million annual turnover) and generic enterprises (over R50 million annual turnover). As a result, businesses have found themselves considering mechanisms which aim to address this element. At the forefront of these mechanisms are employee share schemes.

The first of these structures were constructed in the early 2000’s by JSE listed companies. The aim of these structures were essentially two-fold:

  1. An employee retention strategy similarly constructed as executive share schemes in many ways, and
  2. Compliance with BBBEE.

These structures have recently been under the spotlight again . Mainly because of the questions it raises in terms of whether it is true empowerment or not.

Related: Corporate BBBEE Compliance Turned Into BBBEE Investment

For businesses wanting to utilise these structures, a number of aspects are to be considered:

  1. Employers and employees stand in a vertical relationship with one another. This is because the employer directs the expectations and the standards of the services exchanged between them. Shareholders, on the other hand, are in a horizontal relationship as they are equally entitled to regulate and direct matters which may affect their shareholding or investment. So, to shift from a vertical to a horizontal relationship requires the necessary professional inputs, management and attention.
  2. These share schemes are separate entities that require the necessary attention and inputs. As such, it is not just a case of setting it up and it simply running itself.
  3. These structures need to have a shelf life in my view. In this regard, I mean that a clear commercially feasible strategy needs to be devised and implemented in regards to the trust. This would include a structured plan whereby employees would not only be entitled to dividends but would also have the opportunity to up-skill and to improve themselves in various ways. The financial benefits should aim to facilitate direct ownership.

It is important to remember that inviting partners to sit at the table, needs to fully embrace the concept. If it does not, it not only negatively impacts the relationship, but disempowers the people involved. The human aspect thereof is as devastating as the legal non-compliance which may even go as far as constituting fronting.

Related: The 5 Elements Of BBBEE

In order to avoid this, these structures need to be setup correctly and managed correctly, which means:

  1. The trust deed must clearly define the beneficiaries and the proportion of their right to receive distributions;
  2. The trustees must actively take part in managing the trust at a level similar to the management role of shareholders in a company having a shareholding;
  3. Based on the aforesaid, in my view, the trustees should be appointed by the beneficiaries;
  4. A written record must be kept identifying the beneficiaries as well as prove that they fall within the designated groups as defined in the Act. The trustees must have no discretion in this regard;
  5. A written record must be kept of fixed percentages of claims or outlining formulas for calculating claims. The trustees must have no discretion in this regard;
  6. The trustees must present the financial reports of the trust to the beneficiaries yearly at an annual general meeting of the Trust;
  7. The trust deed or other relevant statutory documents of the trust must be made available, or on request, to any beneficiary in an official language in which that person is familiar;
  8. On winding up or termination of the trust, all accumulated interest must be transferred to the beneficiaries or to an entity representing the interests of the participants or class of beneficiaries.

Expert professional guidance is therefore crucial in order to avoid these structures becoming your own ticking time bomb.

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BEE

How Incubator Project National Gives Your Enterprise a One-Stop-B-BBEE Shop

Turn your B-BBEE compliance spend into investment spend in 2017.

The Investment House

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Vital Stats

B-BBEE does not have to be a one-sided redistribution of wealth and power. “There certainly is a way to turn your compliance spend into investment spend. This year we are giving corporates the one-time opportunity to be part of our unparalleled Project National,” says Jack Janse van Rensburg, director of The Investment House.

“Project National is a complex incubation model that provides a one-stop-solution to empower, develop and skill South African entrepreneurs.”

Related: How To Get Your B-BBEE Money Back

The Investment House’s incubator concept, Business Mastery Program, is designed for “strategic accelerated business serendipity,” according to Janse van Rensburg.

Project National is realised nationwide in multi-industrial hubs, which create a strategic accelerated business serendipity through establishing a complete supply chain, or ‘one-stop shop’ for the public, for large scale tenders and corporates.

The unique benefits for participating enterprises include:

  • Increased opportunities to be part of complex tenders and contracts
  • Immediate market access through internal hub usage of each other’s services and products
  • Increased marketing and sales opportunities through beneficial location strategy (at convenient, easily accessible and visible shopping malls/office parks)
  • The greater chance of interactions that give birth to new ideas and collaborations
  • Increased learning and development opportunities through small, medium and corporate business partnership (business skills transfer, mentoring, industry-specific training).

business-investment-advice

Investing wisely

Project National is an unparalleled incubator concept in South Africa that brings a wide array of business advantages and B-BBEE-ROI opportunities to corporates, who can choose to make either monetary or non-monetary contributions within their B-BBEE spend.

Related: To B-BBEE Or Not To B-BBEE

How your B-BBEE compliance spend turns into investment spend with Project National:

1Create a consistent supply chain

Through your involvement in Project National, your struggle with inconsistent and unreliable supply chains can be over. Project National provides you with suppliers who can supply on demand, in the right quantity, to the right quality and the right price. More control and insight into your supply chain creates better competitiveness for your business.

2Extend your sales arm into new markets

Project National entrepreneurs provide you with an extended and widened sales arm into various different markets and distribution chains through the development of entrepreneurs acting as resellers of your product.

3Diversify your product range

Buying and financing assets can be a difficult task, therefore it’s often not possible for companies to diversify their range. Project National’s black owned start-up enterprises are more likely to obtain funding for assets and equipment and can therefore be a great asset to you when becoming a supplier to your company, allowing you to diversify your product range by outsourcing production of new components.

Related: Sustainable Growth For Future Prosperity

4Allow for lower imports

It can be hard to compete with Chinese imports on a price and now even a quantity level. While the demand for low quantities and tailor-made products is high, it’s hardly profitable for many big corporates. Project National’s entrepreneurs leave the doors open for you as they are smaller and organisational overheads are lower; making it profitable to manufacture lower quantities.

Be part of The Investment House’s unique incubator concept and see your ROI on your B-BBEE spend flowing.

 

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