B-BBEE ENSight | 31 January 2018

Regulators join forces to ensure B-BBEE compliance

by Sanjay Kassen and Parusha Desai Valodia

On 15 December 2017, the South African Department of Trade and Industry (the “DTI”) published a memorandum of understanding entered into between the Companies and Intellectual Property Commission (the “CIPC”) and the Broad-Based Black Empowerment Commission (the “B-BBEE Commission”) (the “CIPC MOU”).

The CIPC MOU regulates the exchange of certain information and the interface of a system in order to, inter alia, enable the B-BBEE Commission to access the CIPC business registration information for purposes of executing its mandate and performing its functions as set out in the Broad-Based Black Economic Empowerment Act, 2003 (the “B-BBEE Act”). Furthermore, the CIPC MOU provides that the CIPC and the B-BBEE Commission:

  1. may agree to participate in the conduct and review of projects that may be deemed necessary from time to time. In this regard, it is unclear from the CIPC MOU as to what constitutes a “project”;
  2. must endeavour to cooperate with one another on the prevention, detection and investigation of unlawful activities that come to their attention;
  3. must, to the extent legally permissible and upon request, disclose certain information; and
  4. must assist one another to plan and implement training programmes designed to share expertise in common areas. 

Notably, earlier in 2017, the B-BBEE Commission also entered into a memorandum of understanding with the Competition Commission (the “CC MOU”). The focus of the CC MOU is twofold and seeks to regulate the manner in which these bodies will interact with one another in respect of: 

  1. the investigation, evaluation and analysis of merger transactions; and 
  2. complaints involving persons subject to regulation in terms of the B-BBEE Act and the Competition Act, 1998. 

As regards the investigation, evaluation and analysis of merger transactions, the CC MOU is intended to facilitate the establishment of a consultative platform from which the Competition Commission and the B-BBEE Commission may share information, learnings and insights relevant to their respective focus areas. 

Notably, both the CIPC MOU and the CC MOU provide for the collaboration of the respective regulators in deterring unlawful practices and the disclosure of certain information in order to promote the provisions of the B-BBEE Act and other legislation. One of the key differences between the CIPC MOU and the CC MOU is that the CIPC MOU does not provide for the establishment of a joint working committee similar to that of the CC MOU. 

The collaboration between the B-BBEE Commission and other regulators is indicative of the government’s continuous efforts to put measures in place to monitor compliance with the provisions of the B-BBEE Act and other related legislation.  

 

Sanjay Kassen

corporate commercial | director
skassen@ENSafrica.com
cell: +27 82 561 1509

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Parusha Desai Valodia

corporate commercial | senior associate
pdvalodia@ENSafrica.com
cell: +27 82 560 4129

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