Once again, the BEE Commission is proactively demonstrating that it is serious about its role in addressing some of the unintended consequence around Broad-Based BEE. The BEE Commission recently released an “Explanatory Notice” with regards to how companies can go about getting a Non-Binding Advisory Opinion as intended under Section 13F(3)(b). The intention is that BEE Commission does this by providing guidance through issuing explanatory notices outlining its procedures, issuing non-binding advisory opinions on the interpretation of any provision of the Act or applying to a court for a declaratory order on the interpretation or application of any of the provisions of the Act. This document is therefore an Explanatory Notice on the procedure for requesting an Advisory Opinion.
The ultimate purpose of such Advisory Opinions is to ensure that it is applied consisently by all relevant parties to achieve the objectives of B-BBEE. An Advisory Opinion provides guidance (subject to the disclosed facts of each case) on the position that the B-BBEE Commission is likely to take in respect of any provision of the Act, and does not constitute a legal obligation of companies in the matter concerned.
Based on the frequency, nature or the significance of an issue raised in requests for Advisory Opinions, the B-BBEE Commission may issue a general Practice Guide on the specific issue, which will be publicised on its website to provide guidance to all other stakeholders. However, what is interesting to note is that the BEE Commission is allowed to charge for such Advisory Opinions but what those fees are need to be published.
For further information, contact
Thato Malebane, Head of Business Development