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

Regulations

Broad-Based Black Economic Empowerment Regulations, 2016

Regulating the Administration and Implementation of the Broad-Based Black Economic Empowerment Act and the Functions of the Commission

Part 6 - Permission to Exceed the Qualification Criteria

Division C - Applications to the Minister

19. Procedure to exceed the qualification criteria

 

(1) In terms of section 9(6) of the Act, an organ of state or public entity may, for purposes of accelerating transformation, apply to the Minister for permission to exceed the qualification criteria for procurement and other economic activities set by the Minister in the Codes of Good Practice, by:
(a) lodging an application with the Minister in writing in the prescribed FORM B-BBEE 14;
(b) attaching to the form a motivation for exceeding the set qualification criteria;
(c) providing a clear indication of the extent to which the set qualification criteria will be exceeded;
(d) adhering to the rules which define the proposed scorecards; and
(e) providing any additional information that may be relevant for the consideration of the Minister in support of the application.

 

(2) The organ of state or public entity applying for permission to exceed the qualification criteria must address the application to the Minister at the following head office or postal address—
(a) delivered by hand at:

Department of Trade and industry

77 Meintjies Street

Sunnyside

Pretoria

Republic of South Africa

(b) addressed by registered post to:

Department of Trade and Industry

Private Bag X84

Pretoria 0002

Republic of South Africa

(c) transmitted by Fax on 012 394 2577; or
(d) transmitted by electronic mail to B-BBEEApplications@thedti.gov.za.

 

(3) The Minister must after receiving the application to exceed the qualification criteria—
(a) acknowledge receipt of the application;
(b) assess it within ten (10) days of receipt for compliance with the application requirements on the FORM B-BBEE 14;
(c) inform the applicant in writing within thirty (30) days of receipt of the application of any additional or outstanding information required, which the applicant must submit within fourteen (14) days of receipt of the notification;
(d) ensure that the application meets all the prescribed technical requirements; and
(e) satisfy himself or herself that the proposed scorecard exceeds the qualification criteria set in the Codes of Good Practice.

 

(4) The Minister must within three (3) months of receipt of the application to exceed the qualification criteria, or receipt of additional or outstanding information from the applicant, as the case may be—
(a) grant the permission to the applicant to exceed the qualification criteria; or
(b) refuse the application for permission to exceed the qualification criteria.

 

(5) If the Minister decides to refuse the application to exceed the qualification criteria, the Minister must—
(a) inform the applicant of the decision in writing; and
(b) provide reasons for refusing the application.

 

(6) Where the application to exceed the qualification criteria has been refused by the Minister, the applicant may re-apply.

 

(7) Where the Minister decides to grant permission to the applicant to exceed the qualification criteria, the Minister must—
(a) grant the permission, with or without conditions, for a specified period not exceeding ten (10) years;
(b) issue the applicant with the certificate of approval in the prescribed FORM B-BBEE 15; and
(c) publish the decision by notice in the Gazette.

 

(8) The Minister shall, within thirty (30) days of making his or her decision to grant permission to exceed the qualification criteria, notify the Commission of such decision in writing.

 

(9) The permission granted by the Minister for the applicant to exceed the qualification criteria cannot be assigned, ceded or transferred to another person.

 

(10) An organ of state or public entity that has been granted permission to exceed the qualification criteria by the Minister shall ensure that the annual report required in terms of section 13G(1) of the Act is in accordance with the revised scorecard exceeding the qualification criteria, and reflects the impact of exceeding the qualification criteria.

 

(11) Where the permission is granted with conditions and the organ of state or public entity fails to comply with the conditions, the Minister may request a comprehensive report providing justification for non-compliance and how it will be remedied.

 

(12) The Minister may withdraw the permission for the organ of state or public entity to exceed the qualification criteria anytime if he or she is of the view that the organ of state or public entity has failed to meet the qualification criteria for procurement and other economic activities as specified in the Codes of Good Practice.

 

(13) If the Minister withdraws the permission to exceed the qualification criteria as contemplated in subregulation (12), the Minister shall notify the organ of state or public entity in writing of:
(a) the withdrawal of the permission;
(b) the reason for the withdrawal; and
(c) the date on which the withdrawal of the permission becomes effective.

 

(14) The Minister shall publish the withdrawal of the permission for the organ of state or public entity to exceed the qualification criteria by notice in the Gazette.