The BEE Commission and investigations they may undertake in normal business practice

Have you ever wondered where the basic requirements of the BEE Commission’s daily investigative workings are derived?

It all stems from Government Gazette Number 37271 dated January 2014 which is the B-BBEE Amendment Act 46 of 2013 (as amended).

Sections 13J, K, L, M, N, O and P cover this matter in detail. For this article, only sections 13J, K and L have been summarised below. A second article will deal with Section M, N, O and P.

Investigations by Commission – section 13J

  1. The Commission has the power, on its own initiative or on receipt of a complaint in the prescribed form, to investigate any matter arising from the application of the Act, including any B-BBEE initiative or category of B-BBEE initiatives.
  2. The format and the procedure to be followed in conducting any investigation must be determined by the Commission with due regard to the circumstances of each case, and may include the holding of a formal hearing.
  3. The Commission may make a finding as to whether any B-BBEE initiative involves a fronting practice.
  4. The Commission may institute proceedings in a court to restrain any breach of this Act, including any fronting practice, or to obtain appropriate remedial relief.
  5. If the Commission is of the view that any matter it has investigated may involve the commission of a criminal offence in terms of this Act or any other law, it must refer the matter to the National Prosecuting Authority or an appropriate division of the South African Police Service.
  6. The Commission may, if it has investigated a matter and justifiable reasons exist, refer to the South African Revenue Services any concerns regarding behaviour or conduct that may be prohibited or regulated in terms of legislation within the jurisdiction of that Service or any regulatory authority any concerns regarding behaviour or conduct that may be prohibited or regulated in terms of legislation within the jurisdiction of that regulatory authority.
  7. The Commission may publish any finding or recommendation it has made in respect of any investigation which it had conducted in such manner as it may deem fit.

Note: A decision of the Commission to publish any finding or recommendation it has made may not be put into effect before proceedings for the judicial review of the decision have been completed or were not instituted within the period allowed and includes:

If the Commission has referred the matter to the National Prosecuting Authority or the South African Police Service in terms of sub-section(5), and no prosecution has been instituted against the person concerned and, if the person concerned has been prosecuted and acquitted following the investigation of the Commission or where the person concerned has been convicted by a court of law, following an investigation of the Commission, before such person has in respect of the conviction exhausted all recognised legal proceedings pertaining to appeal or review.

Summonses issued by the Commission – section 13K

At any time during an investigation the Commission may issue a summons to any person who is believed to be able to furnish any information on the subject of the investigation or to have possession or control of any book, document or other object that has a bearing on that subject:

  1. To appear before the Commission to be questioned at a time and place specified in the summons or
  2. To deliver or produce to the Commission any book, document or other object referred to in (1) above at a time and place specified in the summons.

A summons must be signed by the Commissioner or by an employee of the Commission designated by the Commissioner and may be served in the same manner as a subpoena in a criminal case issued by a magistrates’ court.

If a person is summoned to appear before the Commission, or is required to deliver any book, document or other object to the Commission, the Commissioner or an employee of the Commission designated by the Commissioner may:

  1. interrogate and administer an oath to, or accept an affirmation from, the person named in the summons
  2. may retain any such book, document or other object for examination for a period not exceeding two months or such longer period as the court on good cause shown, may allow.

A person questioned by the Commission must answer each question truthfully and to the best of that person’s ability, but:

  • is not obliged to answer any question if the answer is self-incriminating and
  • the person asking the questions must inform that person of the right set out in (a) above.

No self-incriminating answer given or statement made by any person to the Commission will be admissible as evidence against that person in criminal proceedings against that person instituted in any court, except in criminal proceedings for perjury or in which that person is tried for an offence relating to the disclosure of false information, and then only to the extent that the answer or statement is relevant to prove the offence charged.

Confidential information – Section 13L

When submitting information to the Commission, a person may claim that all or part of that information is confidential however any claim must be supported by a written statement explaining why the information is confidential.

The Commission must:

  • consider a claim made.
  • as soon as possible make a decision on the confidentiality of the information and access to that information and provide written reasons for that decision.

A person who has made a claim in respect of which the Commission has made a decision may apply to a court for a review of that decision within 60 court days of becoming aware of the decision or a longer period as a court may allow.

When making any finding in respect of an investigation, the Commission may take confidential information into account.

If any finding would reveal any confidential information, the Commission must provide a copy of the proposed finding to the party claiming confidentiality at least 30 court days before publishing those reasons. Within 14 court days after receiving a copy of the proposed finding, a party may apply to a court for an appropriate order to protect the confidentiality of the relevant information.

Rather than fall foul of the law, it is advisable that any business obtains professional B-BBEE services and support at all times.

This article is a summary only and is not to be construed as legal advice in any form whatsoever.

Author Craig Tonkin

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