Any business that operates within South Africa will need to be aware of Black Economic Empowerment (BEE). BEE is a constitutionally mandated objective driven by government through legislation and policy which aims to remedy historical racial imbalances, created by Apartheid, and achieves economic transformation by increasing the number of black people who participate in the South African economy.
In terms of current legislation, BEE is aimed at being 'Broad-Based' BEE (B-BBEE), rather than only on the basis of the ownership and management control aspects of an enterprise. Enterprises that require licences, concessions or authorisations from the State; wish to provide goods and services to organs of State or public entities; wish to acquire State-owned enterprises; or wish to enter into partnerships with the State, must provide evidence of their B-BBEE status as measured under the Generic Codes.
We have advised on an extensive number of BEE transactions implemented in South Africa to date, including some of the largest and most complex transactions that have been implemented. In addition to advising on the structuring of transactions to derive maximum BEE benefit, we also provide regulatory and compliance advice.
Our expertise, experience and extensive range of contacts place us in a unique position to assist and represent our clients. We are actively involved within developments in BEE legislation, including the Codes of Good Practice and Sector Codes, and we regularly engage with the regulator, the B-BBEE Commission.
Our clients have included listed companies (and also dual listed companies), large global banks, private equity funds and private companies. We have worked across a number of sectors including financial services, industrials, consumer, agriculture, advertising, gas, IT, construction and engineering, and retail. Furthermore, we are specialists in understanding the nuances that may apply to particular industries.
With respect to BEE regulatory compliance, we advise on:
- compliance with the Broad-Based Black Economic Empowerment Act including related legislation and regulations;
- the interaction between the B-BBEE Codes and various charters and sector codes which govern enterprises within specific sectors;
- the registration of major transactions with the B-BBEE Commission;
- general engagement with the B-BBEE Commission; and
- interpreting the B-BBEE Codes and scorecard.
We also regularly advise clients on the calculation of an enterprise's 'points' and the structuring of an enterprise and/or group to improve the B-BBEE profile and to ensure that transaction structures do not contravene prohibitions on fronting.
We have extensive experience in designing and implementing employee share ownership schemes in a manner that is both tax efficient and compliant with BEE legislation.
We are often instructed by clients to prepare legal opinions on the interpretation of the B-BBEE Codes and scorecard, and to confirm the veracity of B-BBEE transactions.