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Broad-Based Black Economic Empowerment Act, 2003 (Act No. 53 of 2003)

Codes of Good Practice on Black Economic Empowerment

Code Series 100: Measurement of the Ownership Element of Broad-Based Black Economic Empowerment

Statement 100 : The General Principles for Measuring Ownership

Annexe 100B : Rules on certain types of Enterprises

 

1) Rules for Broad-Based Ownership Schemes

 

1.1) The following rules apply to Broad-Based Ownership Schemes:

 

1.1.1) the Management Fees of the scheme must not exceed 15%;

 

1.1.2) the constitution of the scheme must record the rules governing any portion of Economic Interest received and reserved for future distribution or application:

 

1.1.3) at least 85% of the value of benefits allocated by the scheme must accrue to black people;

 

1.1.4) at least 50% of the fiduciaries of the scheme must be independent persons having no employment with or direct or indirect beneficial interest in the scheme;

 

1.1.5) at least 50% of the fiduciaries of the scheme must be black people and at least 25% must be black women;

 

1.1.6) the chairperson of the scheme must be independent; and

 

1.1.7) on the winding-up or termination of the scheme, all accumulated Economic Interest must be transferred to beneficiaries or an entity with similar objectives.

 

 

2) Rules for Employee Share Ownership Schemes

 

2.1) The following rules apply to Employee Share Ownership Schemes (ESOP);

 

2.1.1) the scheme constitution must define the Participants and the proportion of their claim to receive distributions;

 

2.1.2) a written record of the name of the Participants or the use of a defined class of natural person satisfies the requirement for identification:

 

2.1.3) a written record of fixed percentages of claim or the use of a formula for calculating claims satisfies the need for defining proportion of benefit and

 

2.1.4) the fiduciaries of the scheme must have no discretion on the above mentioned terms, and

 

2.2) The Participants must take part in:

 

2.2.1) appointing at least 50% of the fiduciaries of the scheme,

 

2.2.2) managing the scheme at a level similar to the management role of shareholders in a company having shareholding;

 

2.2.3) the constitution, or other relevant statutory documents, of the scheme must be available, on request, to any Participant in an official language in which that person is familiar; and

 

2.2.4) All accumulated Economic Interest of the scheme is payable to the Participants at the earlier of a date or event specified in the scheme constitution or on the termination or winding-up of the scheme; and

 

2.2.5) the scheme fiduciaries must present the financial reports of the scheme to Participants yearly at an annual general meeting of the scheme.

 

 

3) Rules for Trusts

 

3.1) The qualification criteria for the recognition of Trusts is as follows:

 

3.1.1) The trust deed must define the beneficiaries and the proportion of their entitlement to receive distributions:

 

3.1.2) A written record of the names of the beneficiaries or the use of a defined class of natural person satisfies the requirement for identification;

 

3.1.3) A written record of fixed percentages of entitlement or the use of a formula for calculating entitlement satisfies the need for defining proportion of benefit; and

 

3.1.4) The trustees must have no discretion on the abovementioned terms; and, on winding-up or termination of the trust, all accumulated Economic Interest must be transferred to the beneficiaries or to an entity representing the interest of the participants or class of beneficiaries.

 

 

4) Additional Criteria Applicable to Trusts:

 

4.1) For a Measured Entity to obtain the maximum points on its Ownership scorecard from shareholding by a Trust, the Measured Entity must be in possession of a certificate issued by a competent person to the effect:

 

4.1.1) That the Trust was created for a legitimate commercial reason which must be fully disclosed; and

 

4.1.2) That the terms of Trust do not directly or indirectly seek to circumvent the provisions of the Codes and the Act.

 

 

5) Additional Criteria Applicable to Broad Based Ownership Schemes and Employee Ownership Schemes:

 

5.1) For a Measured Entity to obtain the maximum points on it's ownership scorecard, the following additional requirements must be met by a Broad-Based Scheme or Employee Share Ownership Scheme.

 

5.1.1) a track-record of operating as a Broad-Based Ownership Scheme or Employee Share Ownership Scheme, or in the absence of such a track-record demonstrable evidence of full operational capacity to operate as a Broad-Based Ownership Scheme or Employee Share Ownership Scheme;

 

5.1.2) Operational capacity must be evidenced by suitably qualified and experienced staff in sufficient number, experienced professional advisors, operating premises and all other necessary requirements for operating a business.