Amended B BBEE Codes What you need to know!

Transcription

1 What you need 1 Session 1: Introduction The Bigger Picture An Overview of the Legislative Framework governing BEE Compliance & New concepts, principles and definitions introduced in the Amended BEE Codes of Good Practice 1. Background of B BBEE 2. Legislative Overview & where we are at now 3. Changes in the scorecard composition 4. Definitions & new concepts introduced 5. Questions & Answers 2 Session 2: Equity Ownership "Adding & Creating Value" 1. Ownership Scorecard Overview (Priority Element) 2. Sub Indicators & Verification Requirements 3. Net Equity Value / Sub Minimum scoring 4. Shareholding Forms & Structures 5. Fronting Practices, Indicators & Penalties 6. Questions & Answers 3 Webinar Series - Session 2 1

2 Revenue Thresholds EME Current Criteria Turnover below R pa Exempt from compliance targets New Criteria Turnover below R pa Exempt from compliance targets QSE Generic Turnover below R pa Easier targets Best 4 of 7 Elements Turnover above R pa Stringent Targets All 7 of 7 Elements Turnover below R pa Stringent Targets All 5 Elements Turnover above R pa Stringent Targets All 5 Elements 4 Scorecard Overview Amended Thresholds & Compliance Requisites Automatic Recognition: Level 4 if <51%Black Owned Level 2 if 51% Black Owned Level 1 if 100% Black Owned NPO / NGO Recognition: Level 4 if <51%Black Beneficiaries Level 2 if 51% Black Beneficiaries Level 1 if 75% Black Beneficiaries Note: Black Beneficiary Base does NOT automatically equate to Black Ownership NPO s & Trusts wanting to claim Ownership Recognition MUST comply with the Rules for Broad-Based Schemes / Rules for Trusts in order to obtain Black 5 Ownership recognition Scorecard Overview Ownership: Definitions "Black People" Is a generic term which means African, Coloureds and Indians: (a) (b) who are citizens of the Republic of South Africa by birth or decent; or who became citizens of the Republic of South Africa bynaturalization (i) before 27 April 1994; (ii) on or after 27 April 1994 and who would have been entitled to acquire citizenship by naturalisation prior to that date. 6 Webinar Series - Session 2 2

3 Scorecard Overview Ownership: Definitions "51% Black Owned" (a) means an Entity in which: Black people hold at least 51% of the exercisable voting rights as determined under Code series 100; (b) black people hold at least 51% of the economic interest as determined under Code series 100; and (c) has earned all the points for Net Value under statement 100; 7 Scorecard Overview Evidence Requirements: EME s & Black Owned QSE s Sworn Affidavit confirming: Black Ownership % Black Women Ownership % Level of Turnover (< R10 mil or between R10mil & R50mil per annum) Empowering Supplier Status: Automatic for EME s under R10mil Turnover per annum Confirmation for Black Owned QSE s that they have complied with the Empowering Supplier Criteria (either on the Affidavit or through independent verification of Empowering Supplier Status). Cannot obtain an Accountant s / Auditor s Confirmation Letter or even a Verification Certificate to confirm B BBEE status 8 Ownership Scorecard Overview QSE & Generic (Compulsory Priority Element) 9 Webinar Series - Session 2 3

4 Scorecard Overview Comparison of Codes (Generic) Element 2007 Codes 2013 Codes Ownership Equity 20 Points +3 bonus 25 Points Management Control 10 Points +1 bonus 19 Points Employment Equity 15 Points +3 bonus Skills Development 15 Points 20 Points +5 bonus Preferential Procurement Enterprise Development (+Supplier Development) Socio Economic Development 20 Points 40 Points +4 bonus 15 Points 5 Points 5 Points TOTAL 100 Points +7 bonus 109 Points +9 bonus 10 Scorecard Overview Comparison of Codes (QSE) Element 2007 Codes 2013 Codes Ownership Equity 25 Points + 3 Bonus 25 Points Management Control Employment Equity 25 Points + 2 Bonus 25 Points + 2 Bonus 15 Points Skills Development 25 Points 25 Points + 5 Bonus Preferential Procurement 25 Points 30 Points + 3 Bonus Enterprise Development 25 Points (+Supplier Development) Socio Economic Development 25 Points 5 Points TOTAL 100 Points +7 bonus 100 Points + 8 bonus 11 Generic Scorecard Overview Ownership Equity Sub Element Voting Rights Indicator Exercisable Voting Rights in the Enterprise in the hands of black people Exercisable Voting Rights in the Enterprise in the hands of black Women Weighting Points Compliance Target % + 1 Vote % Economic Interest of black people in the Enterprise % Economic Interest of black Women in the Enterprise % Economic Interest of any of the following Black natural people in the Measured Entity: Black Designated Groups (Youth, Unemployed, Economic Interest Rural Living, Disabled) Black Participants in Employee Share Ownership % Programmes; Black people in Broad based Ownership Schemes; Black participants in Co operatives Involvement in the ownership of the Enterprise of black new entrants % Sub Minimum scoring Realisation Points Net Equity Value 8 requirement 3.2 of 8 Points 12 / 25 Webinar Series - Session 2 4

5 QSE Scorecard Overview Ownership Equity Sub Element Voting Rights Indicator Exercisable Voting Rights in the Enterprise in the hands of black people Exercisable Voting Rights in the Enterprise in the hands of black Women Weighting Points Compliance Target % + 1 Vote % Economic Interest of black people in the Enterprise % Economic Interest Economic Interest of black Women in the Enterprise Economic Interest of Black New Entrants or Black Designated Groups Realisation Points Net Equity Value % % Sub Minimum scoring requirement 3.2 of 8 Points / Audit Requirements All Measured Entities being Verified 14 Audit Requirements Measuring Ownership Equity 15 Webinar Series - Session 2 5

6 Audit Requirements Measuring Ownership Equity 16 Audit Requirements Measuring Ownership Equity 17 Audit Requirements Measuring Ownership Equity 18 Webinar Series - Session 2 6

7 Audit Requirements Measuring Ownership Equity 19 Forms of Ownership Entities Qualifying for Ownership Recognition 20 Forms of Ownership Rules for Broad Based Schemes & Trusts 21 Webinar Series - Session 2 7

8 Forms of Ownership Rules for Broad Based Schemes & Trusts 22 Forms of Ownership Rules for Broad Based Schemes & Trusts 23 Net Equity Value Calculations & Sub Min Requirements 10% for the first year after the current equity interest date. 20% for the second year after the current equity interest date. 40% from the first day of the third year after the current equity interest date to the last day of the fourth year after the current equity interest date. 60% from the first day of the fifth year after the current equity interest date to the last day of the sixth year after the current equity interest date. 80% from the first day of the seventh year after the current equity interest date to the last day of the eighth year after the current equity interest date. 100% from the first day of the ninth year after the current equity interest date to 24 the last day of the tenth year after the current equity interest date. Webinar Series - Session 2 8

9 Net Equity Value Calculations & Sub Min Requirements Ownership Example: 10% Black Equity Transaction BEE Shareholder (20% black) 50% Measured Entity 50% (10% black) 80% Company (25% black) Non Black Shareholders (White) 20% Individual (White) 25 Net Equity Value Calculations & Sub Min Requirements Ownership Example: 10% Black Equity Transaction YEAR 1 Value of Measured Entity R % AcquisitionValue (R ) 10% (Black Participants Only) 1 st Year Repayment Required R (Y1) 10% of 10% Remaining Debt (R ) (90% of 10%) Deemed Net Value R / R % Net Value Recognition 3.2 Points of 8.00 Points Graduation Factor: 10% for the first year after the current equity interest date. Net Equity Value Calculations & Sub Min Requirements Ownership Example: 10% Black Equity Transaction YEAR 2 Value of Measured Entity R % AcquisitionValue (R ) 10% (Black Participants Only) 2 nd Year Repayment Required + R (Y2) 20% of 10% Remaining Debt (R ) (80% of 10%) Deemed Net Value R / R % Net Value Recognition 3.2 Points of 8.00 Points Graduation Factor: 20% for the second year after the current equity interest date. Webinar Series - Session 2 9

10 Net Equity Value Calculations & Sub Min Requirements Ownership Example: 25% Black Equity Transaction BEE Shareholder (50% black) 50% Measured Entity 50% (25% black) 50% Company (100% black) Non Black Shareholders (White) 50% Individual (White) 28 Net Equity Value Calculations & Sub Min Requirements Ownership Example: 25% Black Equity Transaction YEAR 1 Value of Measured Entity R % AcquisitionValue (R ) 25% (Black Participants Only) 1 st Year Repayment R (Y1) 10% of 25% Remaining Debt (R ) (90% of 25%) Deemed Net Value R / R % (sub min is 40% of this i.e. 1% in Year 1) Net Value Recognition 8.00 Points of 8.00 Points Graduation Factor: 10% for the first year after the current equity interest date. Legislative Overview Amendments to the BEE Act (2013) 30 Webinar Series - Session 2 10

11 Fronting Offence An offence is committed if a person knowingly provides false information or misrepresents information to a B BBEE Verification Professional in order to secure a particular (B BBEE) status or any benefit associated with compliance with this Act; provides false information or misrepresents information relevant to assessing the (B BBEE) status of an enterprise to any organ of state or public entity engages in a fronting practice. misrepresents or attempts to misrepresent the broadbased black economic empowerment status of an enterprise 31 Fronting Practices Window-dressing Benefit Diversion Opportunistic Intermediaries Fronting Indicators Black participants are unaware / uncertain of their role Significantly different roles to non-black peers Significantly lower income, salary structures No significant indication of active participation Enterprise conducts peripheral functions rather than core 32 functions Fronting Indicators Enterprise relies on third parties to conduct most core functions Enterprise cannot operate independently without a third party (contractual arrangements, technical or operational competence) Enterprise displays evidence of circumvention or attempted circumvention Enterprise procures goods or services at significantly different rate than market related from related persons / shareholders Enterprise obtains loans, not linked to good faith share purchases or ESD initiatives at excessive rates from related persons Enterprise shares all premises and infrastructure with a related person or with a shareholder with no B-BBEE status or a third party operating in same industry where cost of premises and infrastructure is disproportionate to market related costs 33 Webinar Series - Session 2 11

12 Fronting Fines & Penalties Up to 10 years in prison for the Directors of the entity and a fine not exceeding 10% of revenue for that entity. Procurement Officer, Verification Professionals, Organs of State or Public entity can face up to 1 year imprisonment for failing to report an offence. NB: Person(s) who: know, knowingly, knows 34 New Ownership Principles Priority Element 40% of annual Net Value targets (3.2 out of 8 Points) Discounting Principle: Ownership is a Compulsory Priority Element Non compliance with priority elements will result in the discounting of the overall BEE Status by 1 (one) Procurement Recognition Level 35 Questions? 36 Webinar Series - Session 2 12

13 Reg Glutz: E mail: reg@bee4business.co.za 37 Webinar Series - Session 2 13