TO ‘B-E-E’ OR NOT TO ‘B-E-E’


Melissa Maritz

Since South Africa became a democratic republic in 1994, our economy and our law underwent transformation in various aspects such as human rights and equality.The South African government has, over the course of the past 20 years, attempted to implement certain legislative frameworks to constitute a democratic SA by giving individuals an equal opportunity to economic privileges, whilst encouraging change in areas of business-like ownership, management and control, employment equity, skills development, supplier and enterprise development.

The most popular framework, being the promotion of black economic empowerment (BEE), was formally defined in the 2001 Commission Report as follows:

“It is an integrated and coherent socio-economic process. It is located within the context of the country’s national transformation programme, namely the RDP. It is aimed at redressing the imbalances of the past by seeking to substantially and equitably transfer and confer the ownership, management and control of South Africa’s financial and economic resources to the majority of its citizens. It seeks to ensure broader and meaningful participation in the economy by black people to achieve sustainable development and prosperity.”

Accompanying the implementation of BEE is The Broad-Based Black Economic Empowerment (“B-BBEE”) Act No. 53, 2003[1] that contains Codes of Good Practice that can be awarded to BEE compliant businesses.

But what does this mean for businesses and companies all over SA?

BEE compliance is determined according to the number of points a business scores on the so called generic scorecard. The more points it scores, the higher its level of compliance.

It is also important to keep the size of the business in mind when determining the levels of B-BBEE compliance. All organs of state, public entities[2] and any private businesses that undertakes business with a public entity must formally implement the Codes of Good Practice.

Here is a breakdown of the different Codes and what each code contains:[3]

Code What it applies to
Code 000 Outlines the general principles of BEE,
Code 100 Measures the level of black ownership of a business.
Code 200 Measures the level of black management and control of a business.
Code 300 Outlines general principles for measuring employment equity in the workplace.
Code 400 Measures the extent to which employers develop the skills and competencies of black people
Code 500 Measures the level of goods and services that a business buys from BEE compliant suppliers.
Code 600 Measures a business’s contribution to enterprise development.
Code 700 Measures the extent to which a business promotes access to the economy for black people and contributes to socioeconomic development.
Code 800 Contains the general principles for measuring qualifying small enterprises (QSEs) in all aspects of the scorecard

Together, the measurement principles in Codes 100 to 700 make up the generic BEE scorecard, which is used to measure the total contribution that a business makes towards BEE.

Being BEE compliant is a choice each business has the comfort of making. Although there are no direct financial penalties non-BEE compliance companies face, is it evident that procurement managers and buyers will favour those businesses who are on some level more BEE compliant than others, thus increasing the financial prospects of these businesses.

As a law firm, we are proud to celebrate our new status as Level 1 BBEEE contributor and we hope to serve a whole new sphere of likeminded businesses that also believes in transformation the same way that we do. Should you require any additional information on BBEEE legislation and implementation, do not hesitate to give us a call.

  • [1] Board – Based Black Economic Empowerment Act – Codes of good practice pg 56-66
  • [2] https://en.wikipedia.org/wiki/Black_Economic_Empowerment: Date visited: 19 January 2109
  • [3] Board – Based Black Economic Empowerment Act – Codes of good practice pg 56-66

PROTECTION OF CHILDREN IN THE CRIMINAL JUSTICE SYSTEM


Kimesha Govender

It is almost unimaginable that children are able to make themselves guilty of criminal offences, yet it is something that happens every day. Our law has however developed and implemented alternative measures for a child offender other than the normal court procedure to be tried and tested in criminal matters and this is called diversion.

The use of diversion in the law of Criminal Procedure with specific reference to the Child Justice Act 75 of 2008 (hereafter referred to as the Act) will therefore be discussed in this article.

The aim of diversion is to give a child offender a second chance by the prevention of a criminal record against the child’s name. Diversion aims to address the main reason for the causes of criminal behavior by implementing an appropriate diversion program or intervention. Irrespective of the nature of the offence and / or whether diversion had been used in previous cases regarding the child, it may be considered in all cases. One of the main aims of the Act was to set up a child justice system especially for children in conflict with the law. Due to the child justice system, children under the age of 18 who are guilty of committing a crime will no longer be dealt with in terms of the normal criminal procedure, but will be dealt with in terms of the child justice process.

There are a number of benefits that the Act provides for children and the country as a whole and many of these benefits have a long term effect. One of the benefits of the child justice system is that it heals the children as well as those that were affected by the child’s action. This process encourages forgiveness and rehabilitation as well as taking into consideration the needs of the child and the victim. The Act balances the rights and responsibilities of the child, the victim as well as the community. The victim or his / her families’ views are also taken into consideration by the prosecutor and the court when determining the diversion options. The child’s background or upbringing will be taken into consideration when determining the diversion option, this ensures the needs and circumstances of the children in conflict with the law are assessed before a decision is made on how the child should be dealt with. This process facilitates the healing and peace-making between the victim and the child offender. It also expands and entrenches the notion of restorative justice. There is a possibility of diverting matters involving children who have committed offences away from the criminal justice system as provided for in the Act. The Act makes it easier to assist with the rehabilitation and reintegration of the child offender back into society and his / her family in order for the child to make a useful contribution to society one day. These matters are dealt with higher priority as courts often fast-track children’s matters in terms of the child justice system, resulting in a reduction in the number of children awaiting trial.

The Act covers children between the ages of 10 and 18. According to the Act a child is someone who is under the age of 18. According to section 9 of the Act, children who are under the age of 10 and commit an offence cannot be arrested as these children do not have criminal capacity and cannot be charged or arrested for an offence. In this instance the child will be referred to the Children’s Court. According to section 10 of the Act a child older than 10 but below the age of 14 is also assumed to lack criminal capacity, however if the state proves that he / she has criminal capacity, the child can be arrested. A child above the age of 14 but under the age of 18 is said to have criminal capacity.

According to section 6 of the Act, in order to determine the seriousness of the offences for the purposes of this Act, the categories of offences are listed as offences contained in Schedule 1 which is considered the least serious offence, followed by offences contained in Schedule 2 and 3. Minor offences are defined as theft of property not worth more than R2 500.00, malicious damage to property that is not more than R1 500.00 and common assault.  More serious offences include theft of property worth more than R2 500.00, robbery which excludes aggravating circumstances, assault that includes grievous bodily harm caused, public violence, culpable homicide and arson. The most serious offences include robbery, rape, murder and kidnapping, amongst others.

Section 43 states that a preliminary inquiry may be defined as an informal pre-trial procedure that will be held 48 hours of the child’s arrest, before the first court appearance. It is inquisitorial in nature and may be held in a court or any other suitable place. The preliminary inquiry would be of a benefit to children accused of committing an offence. During the preliminary inquiry, a proper age determination of the child is made and this is also when the diversion process meets the needs of the individual child. Even if a child’s case is unlikely to be diverted, the preliminary inquiry is still necessary to determine where the child should be placed while awaiting trial.

There are various sentencing options provided for in section 55 of the Act and these sentencing options take the needs of the child into consideration. According to section 55(2) of the Act there are two levels of diversion options. Level 1 applies to offences referred to in Schedule 1 and level 2 applies to all other offences referred to in Schedule 2 and 3. Level one is a community based sentencing which allows the child to remain in the community. This sentencing option allows for community service under the supervision or control of an institution or organization or a specified person or group of persons identified by the court. There are also restorative justice options which involve the child, the victim, the families concerned and the community members who are all able to identify the damage, the needs as well as the obligations that arise as a result of the child’s act. Reconciliation can be promoted if the child accepts responsibility and makes some effort to prevent this type of incident from occurring.

Level 2 diversion option would be a fine or a symbolic restitution. The court may consider this option provided that the child is 15 years or older as an obligation is placed on the child to provide some service or benefit. An offer to pay the fine or to make another form of symbolic restitution would also be sufficient. Correctional supervision is another option which can be determined by the courts and in this instance the child will be supervised by the Department of Correctional Services to do what is listed in the court order. A child could also be ordered by the court to attend a non-custodial sanction program such as a school program or the child could be sentenced to stay in a child and youth care centre for a specific amount of time. Depending on the seriousness of the offence and as a measure of last resort, a child could also be sentenced to direct imprisonment in correctional facilities for the shortest appropriate period. However, a child under the age of 14 may not be sentenced to imprisonment.

Herewith a step-by-step summary:

  1. If child is suspected to have committed an offence, the child will be apprehended by the police and depending on the seriousness of the alleged offence, the child may be warned, summoned or arrested to appear at a preliminary inquiry.
  2. The child and his / her parents or care givers will be informed of the charges laid against the child, the child’s rights, the immediate procedures to be followed and the date, time, place where the child must appear in court.
  3. Every child who is alleged to have committed an offence must be assessed by a probation officer.
  4. The parent or care givers or police must bring the child to court.
  5. A preliminary inquiry will be held to inquire into the matter and to decide on the appropriate way to deal with the child and whether diversion should be used.
  6. At the preliminary inquiry there are four possible steps that may be taken:
  • If the child is in need of care or protection, the matter will be referred to the Children’s Court which will determine suitable interventions.
  • If the child accepts responsibility, it may be recommended at the preliminary inquiry that the child be diverted. If the child does not complete or comply with the diversion, he / she will be brought back to court.
  • If no diversion order is made by the court, or the child is not found to be a child in need of care and protection, the case is referred to the Child Justice Court for trial.
  • If the matter has been referred for trial in the Child Justice Court, the preliminary inquiry Magistrate will decide on the detention or release of the child pending the finalisation of the criminal case.
  • At the end of the trial the child may be convicted and sentenced or acquitted.

CONSUMER PROTECTION AND PROCEDURE


Tjaart de Beer

The playing field between the supplier and consumer has been levelled on 31 March 2011 when the Consumer Protection Act No. 68 of 2008 (“the Act”) came into effect.  There are many examples of victories by the vulnerable consumer against the typical conniving supplier to attest to the success envisioned by the purpose of the Act.

The Act’s main purpose is to “promote a fair, accessible and sustainable marketplace for consumer products and services and for that purpose to establish national norms and standards relating to consumer protection, to provide for improved standards of consumer information, to prohibit certain unfair marketing and business practices, to promote responsible consumer behaviour, to promote a consistent legislative and enforcement framework relating to consumer transactions and agreements”[1].

The Act also established channels to promote access to justice and enforcing the rights as consumer through making the process less expensive, whereby the consumer can institute a claim against a supplier, on its own efforts.  These channels are prescribed by section 69 of the Act, and are:

  1. referring the matter directly to the Tribunal, if such a direct referral is permitted by this Act in the case of the particular dispute;
  2. referring the matter to the applicable ombud with jurisdiction, if the supplier is subject to the jurisdiction of any such ombud;
  3. if the matter does not concern a supplier contemplated in paragraph (b)—
  • referring the matter to the applicable industry ombud, accredited in terms of section 82 (6), if the supplier is subject to any such ombud; or
  • applying to the consumer court of the province with jurisdiction over the matter, if there is such a consumer court, subject to the law establishing or governing that consumer court;
  • referring the matter to another alternative dispute resolution agent contemplated in section 70; or
  • filing a complaint with the Commission in accordance with section 71;

Access to the courts is provided for by Section 69(d), however, only after all other remedies available to that consumer, in terms of any relevant legislation, has been exhausted.

Section 52 of the Act lays out the powers of the court to ensure fair and just conduct, terms and conditions.  This can only be done under the proviso that the supplier contravened sections 40 – Unconscionable conduct, 41 – False, misleading or deceptive representations, or 48 – Unfair, unreasonable or unjust contract terms, and the Act does not otherwise provide a remedy sufficient to correct the relevant prohibited conduct, unfairness, injustice or unconscionability[2].

The merits will differ in every matter and therefore, without delving into too much detail regarding the merits and apart from faulty, unsafe or bad quality goods, another common denominator can be the cause of action and the reason why a consumer is taking action against supplier and this is established by the content of the agreement between them.

It should however be noted that with an agreement, both the consumer and the supplier have to be cautious. The consumer has to look out for the conditions of sale which are against public policy. A consumer will however be protected by a court if such conditions are indeed found to be unfair and unjust, but it will cost the consumer time and money to get clarity on such matters. It would thus be in the interest of both parties not to haste into such contracts, to discuss same with an attorney beforehand and to avoid being cornered into a “take-it-or-leave-it” situation that might have detrimental ramifications.

The reason why one should be mindful of this is that the courts will still want to honour the sanctity that is the freedom to contract and will also apply it within the principles and “the founding provisions of our Constitution[3][4].  This was seen in the case of Naidoo v Birchwood Hotel[5] where the application of these principles was applied as formulated in Barkhuizen v Napier[6].  This is important as the Constitution is supreme law and all other legislation has to be in-line with the Constitution in order to be lawful.

Overall, the Act attempts to protect both the consumer and the supplier to level the playing field and to promote fairness in the marketplace minimising the exploiting of vulnerable consumers.  If such exploits do occur, the Act provides for the procedures and channels to follow in order to have justice be done.

The Act was, as mentioned above referring to the purpose of the Act, to be just that, a promotion, if not extension, of the spirit, purport and objects of the Bill of Rights. It therefore contains provisions to which suppliers must heed to comply. It would therefore be a good idea to approach an attorney, if you are a supplier, to make sure your conditions of sale are all in check.

  • [1] From the introduction of the Consumer Protection Act No. 68 of 2008.
  • [2] Section 52(1)(b) of the Act.
  • [3] Constitution being the Constitution of the Republic of South Africa, 1996.
  • [4] http://www.polity.org.za/article/sa-courts-approach-to-exemption-clauses-and-the-potential-impact-of-the-cpa-2015-06-22 visited on 2019-01-31 at 23:21.
  • [5] 2012 6 SA 170 (GSJ)
  • [6] 2007 (5) SA 323 (CC)

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

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