Article by Lize Bester (SEESA)
Since the inauguration of the Broad-Based Black Economic Empowerment (B-BBEE) Commission, we’ve become aware of a few businesses who have been subjected to investigations done by the Commission. Being investigated by the Commission can be quite unnerving, exacerbated by a lot of procedural steps that need to be taken, not only by the Commission but also by the entity being investigated. The complaint process is set out in Part 4, Section 15(1)-(17) of the BEE regulations as published on the 6th of June 2016.
Herewith a short summary thereof from the perspective of the respondent:
- The Commission can investigate an entity either out of their own accord or if a complaint is received.
- Within 1 year of receipt of the complaint, they must determine whether the complaint is justifiable and if indeed, notify the respondent of the complaint, investigate the complaint and make a finding with or without recommendations.
- If the Commission is of the view that more time is warranted to conclude its investigation, they can do so by informing the complainant of the need to extend the time.
- The Commission can hold formal hearings or decide to refer the complaint about alternative dispute resolution.
- Before making a final finding, the Commission must notify the respondent in writing of any adverse findings against them, and provide the respondent with 30 days to respond.
- If the respondent does not respond to each or any of the adverse findings within the stipulated time, the Commission shall proceed to make the findings final.
- If the Commission is of the view that more time is warranted to conclude its investigation, the Commission must inform the complainant of the need to extend the time. No mention is made that the respondent needs to be informed.
- Any findings or recommendations made by the Commission must be made in writing and communicated to the complainant and published in a manner they deem appropriate. No mention is made that the respondent needs to be informed.
Even though all of your BEE structures and initiatives have been put in place with the intent that it will be in line with the BEE Act, this does not mean that a complaint cannot still be lodged against you. Always ensure that you work hand in hand with your BEE legal advisor to stay up to date with current trends in the BEE milieu. Should a complaint be lodged against you and you wish to learn more about the above mentioned process you are more than welcome to contact us.
ABOUT THE AUTHOR
Lize Bester is an admitted attorney and obtained her LLB and LLM degrees from the University of Stellenbosch. She is currently a Senior Legal Advisor for SEESA BEE at our Cape Town office.