Source: Explanatory Notice 1 of 2023 of the B-BBEE Commission
This is part 2 in a series of articles explaining the B-BBEE investigation process of the B-B-BBEE Commission.
What is a B-BBEE complaint?
A complaint is a matter initiated by the B-BBEE Commissioner in terms of section 13J(1) of the Act, or that has been submitted to the Commission in terms of section 13F(1)(c) of the Act. For a complaint to be considered by the B-BBEE Commission, it has to relate to the contravention of the B-BBEE Act and can fall within the scope of any of the B-BBEE elements namely, ownership, management control, skills development, enterprise and supplier development, and socio-economic development, including any specific sector element.
Any forms referred to in this series of articles may be found via the Commission’s link: https://www.bbbeecommission.co.za/b-bbee-forms/
What documents are required to lodge a complaint?
A party submitting a complaint to the B-BBEE Commission must fully complete and submit Form B-BBEE 7.
The B-BBEE Commission further requires the below documentation to support the Form B-BBEE 7:
- Statement under oath giving the background of the complaint from the beginning until the time the matter is being reported to the B-BBEE Commission;
- Certified copy of complainant identity document;
- Share Certificate of the complainant in relation to an ownership complaint;
- Shareholders agreement/Memorandum of Association/ Memorandum of Incorporation of the company(ies) the complaint is against;
5 Resolution or minutes of meetings held in relation to the company(ies) the complaint is directed; - Financial Information/Statement of the party(ies) of the potential respondent;
- B-BBEE Certificate/Sworn Affidavit of the party(ies) the complaint is against;
- Salary advice of the person lodging the complaint;
- Recent contact details of the respondent (Name of contact person, address, email address and contact details);
- Letter of authority if the complaint is lodged on behalf of someone or on behalf of a union; and
- Any other relevant documentation that will assist the B-BBEE Commission with the matter being reported.
Where a document listed above, is not available or does not apply to the complaint being lodged, please indicate so on Form B-BBEE 7 or a statement under oath.
What is the investigation process flow?
Upon receipt of the complaint, the B-BBEE Commission in terms of regulation 15 of the BBBEE Regulations is expected to acknowledge receipt of the complaint in writing within five (5) days and provide a case number.
Following the issuing of a case number, the B-BBEE Commission must within twelve (12) months:
a. Assess the merits of the complaint;
b. Request any further information from the complainant by issuing a Form B-BBEE 8. Where the Commission has requested additional information from the complainant, the information must be submitted within fourteen (14) days of receipt of the notice of request for additional information, and if the party fails to do so, the B-BBEE Commission may close the complaint or continue to investigate as if the Commission initiated the matter;
c. Where the B-BBEE Commission upon assessing the merits of the complaint resolves that the matter does not fall within its jurisdiction or does not warrant an investigation, the Commission shall proceed to issue a notice of non-investigation (Form B-BBEE 11) to the complainant with reasons.
d. Investigate the complaint if it is justifiable to do so, and notify the respondent(s) of the complaint by issuing a Form B-BBEE 10. The investigation will follow the procedures that are in accordance with the Act, and conform to all the rules relating to the fair administration of justice processes applicable to investigations;
e. The B-BBEE Commission is also enabled by section 13H of the B-BBEE Act to delegate any power conferred to the Commissioner or any duty assigned to him or her under the Act, to any person with appropriate knowledge and experience who is appointed to or contracted with the Commission to assist it in the carrying out of its functions.
f. During the investigation the Commission may issue summons in a prescribed Form B-BBEE 20 in line with section 13K of the B-BBEE Act;
g. The Commission as part of the investigation process can also decide to hold a formal hearing in accordance with the procedure of the Commission before a Panel chaired by the Chairperson; and
h. Make a finding in writing, with or without recommendations. The finding will be communicated to both the complainant(s) and respondent(s). Before making its final finding(s) in terms of section 13J(3) of the Act, the Commission must notify the respondent in writing of the details of any adverse findings against them, and provide the respondent(s) with 30 days to respond to each or any of the findings. The Commission may, based on merit or upon request from the respondent(s), extend the 30 days by a further once-off period not exceeding ten (10) days.
i. If the respondent(s) fails to respond to each or any adverse finding within the stipulated time after being notified of such by the Commission, the Commission shall proceed to make its finding(s) in terms of section 13J of the Act.
The Commission may in a manner it deems appropriate publish the findings.
Publication may not take place where:
- A judicial review of the decision of the Commission has been initiated either by the complainant or respondent within the period allowed;
- The Commission has referred the matter to the National Prosecuting Authority or the South African Police Service, and no prosecution has been instituted against the person concerned;
- 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.
If the Commission upon investigating a complaint, is of the view that a matter can be resolved through an alternative dispute resolution mechanism (ADR), the Commission may facilitate the resolution of the matter or refer, in a prescribed Form B-BBEE 12, such a matter to any appropriate dispute resolution process or forum in terms of its procedures. Where the ADR process has not been successful in resolving the dispute between the parties, the Commission may continue to investigate the matter if it considers it justifiable to do so.
In an instance where the Commission has reasonable ground to believe that a document filed in respect of investigation contains false information, the Commission may issue a demand for correct information in Form B-BBEE 9 to the person who filed the document, for such corrected information to be submitted within 14 days of receipt of the notice of demand to correct information.
Where the B-BBEE Commission has decided to initiate an investigation it will do so by issuing a notice to investigate in the prescribed Form B-BBEE 10 and follow the process outlined above.
If the Commission is of the view that more time is warranted to conclude its process in respect of an investigation as contemplated, the Commission must inform the complainant of the need to extend the time, explain the circumstances warranting a longer period, and the exact period required as an extension.
The Commission may, if it has investigated a matter and justifiable reasons exist, refer any concern to the South African Revenue Services, or any regulatory authority, by issuing a FORM B-BBEE 13.
A referral to the other institutions will follow the mandatory prescripts of that institution and the B-BBEE Commission has no control over the decision and processes of that institution.
