The following email was sent to the dti regarding the shortened commentary period for the QSE BEE codes:

 

Dear Acting Chief Director – BEE Unit,

Notice 876 of 10th October 2014 refers, read in conjunction with the B-BBEE Act 53 of 2003 and the B-BBEE Amendment Act 46 of 2013. The minister has provided for a period of 35 days of public commentary until 14th November.

Your comment on Monday night was that the minister may allow up to 60 days.
However sub-section 9(5) of the above act states:

(5) The Minister must, before issuing, replacing or amending a code of good practice in terms of subsection (1)-
(a) publish the draft code of good practice or amendment in the Gazette for public comment; and

(b) grant interested persons a period of at least 60 days to comment on the draft code of good practice or amendment, as the case may be.

Note the words: “must, before issuing, replacing or amending a code of good practice in terms of subsection (1)”, and “at least 60 days”.

Notice 876 was issued in terms of section 9 of the act. While it fails to state the exact sub-section which it should have, it is clearly an amendment of the codes below and can only be issued in terms of 9(5) :
– code 000 statement 003
– code 000 statement 004
– code 100 statement 102
– code 100 statement 102
– code 600

The minister has no discretion to issue these statements and codes in any terms other than sub-section 9(5) of the act.
Section 14 requires the minister to issue notices, but does not override section 9(5).
Therefore the public commentary period MUST be AT LEAST 60 days and notice 876 must be amended to give the public the full opportunity to comment.

I have approached members of parliament who will be taking this further.
I have also informed the broadening participation division.

If no response is received, in terms of the Public Protector’s procedure I will then be able to approach the Public Protector and the courts.