BBBEE wrong

[Greig Whitton]

Finally we get to the truth. BEE is discrimination and should be challenged in court.

Absolutely. I genuinely believe that there is a strong case to be made for challenging the constitutionality of Broad-Based Black Economic Empowerment, especially the new Codes that clearly and blatantly discriminate between black and non-black business owners to the extent that it is impossible for a white business owner to achieve the same B-BBEE rating (and, therefore, competitive parity) as a black business owner.

Per Section 9 (3) of the Constitution:

"The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth."

Now consider the following extract from the Preamble of the Broad-Based Black Economic Empowerment Act that contextualises the purpose of this legislation (bold text my emphasis):

"AND WHEREAS, unless further steps are taken to increase the effective participation of the majority of South Africans in the economy, the stability and prosperity of the economy in the future may be undermined to the detriment of all South Africans, irrespective of race;

AND IN ORDER TO—

promote the achievement of the constitutional right to equality, increase broad-based and effective participation of black people in the economy and promote a higher growth rate, increased employment and more equitable income distribution; and
establish a national policy on broad-based black economic empowerment so as to promote the economic unity of the nation, protect the common market, and promote equal opportunity and equal access to government services."

Nothing in that Preamble, in my opinion, justifies the unfair discrimination introduced by the new Codes. In fact, the new Codes arguably fly in the face of the reasons for the introduction of B-BBEE in the first place as indicated by the Preamble elements that I highlighted:

(a) Protecting economic stability and prosperity for all South Africans irrespective of race;
(b) Promoting the Constitutional right to equality;
(c) Promoting economic unity;
(d) Protecting the common market; and
(e) Promoting equal opportunity and equal access to government services.

But who has the resources to take our government to the Constitutional Court? Anyone reading this post does! Last year, Mark Shuttleworth set up a R250 million trust to fund legal cases against the South African government and protect the constitutional rights of all South Africans.

If you are passionately opposed to B-BBEE and want to do something about it, here is your chance. Reach out to Mark Shuttleworth's trust and apply for assistance.