Chairperson, in the little time available, I just want to respond to two points. Firstly, I want to make a few points around the point that has just been made by the hon Radebe. I think the question is that under apartheid and colonialism race was a concept which underpinned policies, programmes, disadvantagement, underdevelopment and exclusion. That's a fact.
These policies had a generational and intergenerational impact. The fact is that the effects are still with us, and we have to respond to those effects. The fact that people were discriminated against on that basis gives us a way of saying that those people who were discriminated against on that basis are the people we need to affirm through black economic empowerment, BEE.
I just want to say that the other proposal of trying to establish the currently disadvantaged, I think we would have to surmount tremendous hurdles with a huge amount of red tape - which the party on my left does not support - for people to establish their rights to the programmes of support and affirmation. That is why I think we have to continue with that definition.
Secondly, what I want to say in response to the point made by Mr Koornhof is that I am very happy that he didn't say that we should have the sunset clause now, because I think when we do have a debate on that issue, the question will be how we are going to set an artificial timeframe and say it will be installed by such and such a date, and whether or not it will transform the economy, or is the closing point when the economy starts to represent and reflect the demographics of the people of the country? That's the issue that I think we have to deal with.
Otherwise, I want to thank everybody for their contributions. I want to make a small contribution to the "Know Your DA" campaign. While they told us that they support BEE now, in 2003 they opposed it. I don't doubt the sincerity of the hon Wilmot James, but I wonder whether this has more to do with electoral opportunism than anything else. Thank you. [Applause.]
Debate concluded.
It was announced that amendments to the Bill have been proposed in terms of Assembly Rule 254 and published on the Order Paper in the name of Mr G G Hill-Lewis.
Before I put the amendments as they appear on the Order Paper, there has been a request for declarations on these amendments. I am exercising my discretion in terms of Rule 81 to allow declarations of vote on the amendments.
However, I do need to state that we have just had the debate on this Bill. Normally, the Chair is disinclined to allow declarations of vote immediately after a debate. Please, do not regard this as a precedent in the future. I will now allow parties who wish to do so to make their declarations of up to three minutes on the amendments as printed on the Order Paper.
Declarations of vote:
Chairperson, we have already made it clear that the DA supports the Bill. However, as legislators we believe that we have a duty to produce legislation which is unambiguous, consistent and offers the greatest degree of legal certainty.
One clause in the Bill which relates to the cancellation of contracts does not achieve the standard. This is raised as a serious concern by the Oceana Group, which is a significant black-owned company, and the Banking Association of South Africa, whose member banks are the biggest funders of the black economic empowerment transactions in the country.
Both the Oceana Group and the Banking Association made it clear that the section in question as it is currently worded leaves too much open to vagary and the basic process should be laid out in the Bill to provide some certainty. This is what the amendments I've tabled today aim to do.
The effect of an ambiguous clause is that it will be left to the court to clarify exactly what due process is required before contracts can be cancelled. This leaves it to the businesses that have had their contracts cancelled, many of whom will be small companies run by cash-trapped entrepreneurs. They will now have to approach the court to assert their rights to due process, which they will not be able to afford.
Hon Radebe says that globally big business can go and spend R100 000 a day in the High Courts securing their rights. Hon Radebe, many BEE contractors are not big businesses and they will not be able to afford that.
I am not sure why the ANC is determined to oppose these amendments when this will clearly lead to unnecessary and entirely unavoidable litigation that will clearly hurt the poor, precisely the opposite of the Bill's stated intention.
That's why I have tabled ... [Interjections.] Seemingly much more than you, sir, based on what hon Radebe has just said. That's why I've tabled these common-sense amendments, which are entirely unpolitical and which will improve the Bill, help to keep the courts clear and assist small business owners. I ask that you please support them. Thank you very much. [Applause.]
Chairperson, we have listened to the arguments of hon Hill-Lewis, and Cope concurs with them. We shall support the amendments. [Applause.]
The ACDP will be supporting the amendment. [Applause.]
Chair, we will also be supporting this amendment. Thank you. [Applause.]
The ID will also be supporting this amendment. [Applause.]
Hon House Chair, as I stated in my speech about clause 13(a), I tried to explain that this is a clear case of fronting, or fraud, and it makes it very clear that no cancellation - none - may take place unless you provided false information and, furthermore, it has been knowingly furnished. Therefore, the two elements are false information and knowing that you have done it. Should false information be inadvertently or negligently furnished, etc, the organ of state will not be entitled to cancel the contract itself. The clause is confined to the rather serious matter of furnishing information fraudulently. Any amendment thereof against this backdrop should be seen in this light. Furthermore, any administrative action by organs of state or public entities is by necessary implication subject to just administrative action enshrined in section 33 of the Constitution, and also Paja, the Promotion of Administrative Justice Act, No 3 of 2000.
It therefore follows that any decision to cancel an authorisation must be the legal consequence of administrative action that is lawful, reasonable and procedurally fair. Any decision to cancel a contract will be governed by the law of contract in that a misrepresentation will amount to a breach of contract. [Interjections.] Not that the Promotion of Administrative Justice Act does ... [Interjections.] Since when does the Promotion of Administrative Justice Act ... [Interjections.] Absolutely, don't interrupt me.
Should the legislature be prescriptive in the Act of Parliament in this regard, such statutory prescription will ... [Interjections.] If you go through with this amendment, you will find that it will prove to be problematic in law. The reason is that the provisions regarding the time periods and the procedures to be followed in the case of a breach are invariably to be found in contractual agreements already envisaged.
You may find yourself excluding any further remedy simply because you have decided to be overly prescriptive in the legislation itself. That is all we are saying - and I must say, I always welcome your input. You have been a valuable member of the committee, hon Hill-Lewis. I wouldn't like you to spoil that track record now.
In conclusion, we respectfully recommend that serious consideration be given - and I speak to all the opposition parties - to retaining clause 13(a) in its current form to protect yourself and your members. [Applause.]
Hon members, I want you to follow proceedings very carefully. I will now put the amendments as they appear on the Order Paper.
Amendments to the Bill put, as printed on the Order Paper (p 457), namely:
1. On page 6, line 4, to omit the proposed new section 13A and to substitute: "13A. If an enterprise awarded a contract or authorisation by an organ of state or public entity has furnished information or has submitted any other information in respect of its broad-based economic empowerment status which is not true, the organ of state or public entity may -
1) by written notice served upon such enterprise or sent by registered post to the said enterprise's last known address, request the enterprise to show cause in writing, within a period of 21 days from the date of such notice, why the contract or authorisation should not be revoked, suspended, cancelled, altered or reduced, as the case may be; and
2) after consideration of the written submission or expiry of the period referred to in subsection (1), revoke, suspend, cancel, alter or reduce such contract or authorisation."
Are there any objections to the amendments as they appear on the Order Paper?
HON MEMBERS: Yes.
I put the question. Those in favour of the amendments as they appear on the Order Paper will say Aye.
HON MEMBERS: Aye!
Those who are against will say No!
HON MEMBERS: No!
I think the noes have it.
Chairperson, the DA calls for a Division.
Division demanded.
The House divided.
AYES - 72: Alberts, A D; Berend, S R; Bhanga, B M; Boinamo, G G; Bosman, L L; Botha, T; Cebekhulu, R S; Coetzee, T W; De Freitas, M S F; Dreyer, A M; Dudley, C; Duncan, P C; Esau, S; Ferguson, B D; George, M E; Greyling, L W; Harris, T; Hill-Lewis, G G; Hlengwa, M; James, W G; Kalyan, S V; Kganare, D A; Kilian, J D; Kloppers-Lourens, J C; Kohler-Barnard, D; Koornhof, N J J v R; Kopane, S P; Krumbock, G R; Lamoela, H; Lotriet, A; Mackenzie, G P D; Madisha, W M; Makhuba, H N; Marais, S J F; Max, L H; Maynier, D J; Mazibuko, L D; McGluwa, J J; Michael, N W A; Mileham, K J; More, E; Motau, S C; Mpontshane, A M; Msweli, H S; Mubu, K S; Ndlovu, V B; Ndude, H N; Njobe, M A A; Ollis, I M; Robinson, D; Rogers, F A; Ross, D C; Sayedali- Shah, M R; Schafer, D A; Selfe, J; Shinn, M R; Singh, N; Sithole, K P; Steenhuisen, J H; Steyn, A C; Steyn, A; Stubbe, D J; Swart, M; Swathe, M M; Terblanche, J F; Van den Berg, N J; Van Der Linde, N J; Van Der Westhuizen, A P; Van Dyk, S M; Van Schalkwyk, H C; Waters, M; Watson, A.
NOES -179: Abram, S; Adams, P E; Bam-Mugwanya, V; Bhengu, F; Bhengu, N R; Bhengu, P; Bhoola, R B; Bikani, F C; Bonhomme, T; Booi, M S; Borman, G M; Boshigo, D F; Botha, Y R; Bothman, S G; Burgess, C V; Cele, M A; Chiloane, T D; Chohan, F I; Coleman, E M; Dambuza, B N; Daniels, P N; Davies, R H; De Lange, J H; Diale, L N; Dikobo, K J; Ditshetelo, I C; Dlakude, D E; Dlomo, B J; Dube, M C; Duma, N M; Fransman, M L; Fubbs, J L; Gasebonwe, T M A; Gaum, A H; Gcwabaza, N E; Gelderblom, J P; Gigaba, K M N; Gina, N; Goqwana, M B; Gumede, D M; Hajaig, F; Huang, S - B; Jeffery, J H; Johnson, M; Kekana, C D; Kenye, T E; Khoarai, L P; Khumalo, F E; Khunou, N P; Koornhof, G W; Landers, L T; Lesoma, R M M; Lishivha, T E; Maake, J J; Mabasa, X; Mabedla, N R; Madlala, N M; Madlopha, C Q; Mafolo, M V; Magagula, V V; Magama, H T; Magubane, E; Makasi, X C; Makhubela-Mashele, L S; Makhubele, Z S; Makwetla, S P; Malale, M l; Malgas, H H; Maluleka, H P; Maluleke, J M; Manamela, K B; Manana, N C; Mandela, Z M D; Manganye, J; Mangena, M S; Mashatile, S P; Mashigo, R M; Mashishi, A C; Masutha, T M; Mathebe, D H; Mathibela, N F; Matlanyane, H F; Matshoba, J M; Mavunda, D W; Mayatula, S M; Maziya, A M; Mdakane, M R; Mfeketo, N C; Mfulo, A; Mgabadeli, H C; Mjobo, L N; Mkhulusi, N N P; Mmusi, S G; Mnisi, N A; Mocumi, P A; Mohai, S J; Mohorosi, M; Mokoena, A D; Molebatsi, M A; Moloi-Moropa, J C; Moloto, K A; Mosimane, C K K; Moss, L N; Motlanthe, K P; Motsepe, R M; Motshekga, M S; Mthethwa, E M; Mushwana, F F; Muthambi, A F; Nchabeleng, M E; Ndabeni, S T; Ndebele, J S; Ndlazi, A Z; Nel, A C; Nelson, W J; Nene, N M; Newhoudt- Druchen, W S; Ngcengwane, N D; Ngcobo, E N N; Ngcobo, B T; Ngubeni- Maluleka, J P; Ngwenya, W; Ngwenya-Mabila, P C; Nhlengethwa, D G; Njikelana, S J; Nkwinti, G E; November, N T; Ntapane, S Z; Ntuli, Z C; Nxesi, T W; Nyalungu, R E; Nyekemba, E; Oliphant, M N; Pandor, G N M; Petersen-Maduna, P; Phaliso, M N; Pilusa-Mosoane, M E; Radebe, G S; Radebe, B A; Ramodibe, D M; Schneemann, G D; Segale-Diswai, M J; Selau, G J; September, C C; Sibanyoni, J B; Sibiya, D; Sindane, G S; Sisulu, L N; Sithole, S C N; Sizani, P S; Smith, V G; Snell, G T; Sogoni, E M; Sonto, M R; Sosibo, J E; Suka, L; Sulliman, E M; Sunduza, T B; Thibedi, J D; Thobejane, S G; Thomson, B; Tobias, T V; Tsebe, S R; Tseke, G K; Tsenoli, S L; Tshabalala, J; Tsotetsi, D R; Turok, B; Twala, N M; Van der Merwe, S C; van Rooyen, D D; Van Schalkwyk, M C J; van Wyk, A; Wayile, Z G; Williams, A J; Williams-De Bruyn, S T; Xaba, P P; Ximbi, D L; Yengeni, L E.
Amendments accordingly negatived.
Question put: That the Bill be read a second time.
Question agreed to.
Bill read a second time.