Broad-Based Black Economic Empowerment Amendment Act: 46 of 2013
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Government Gazette
REPUBLIC OF SOUTH AFRICA
Vol. 583 Cape Town 27 January 2014 No. 37271
THE PRESIDENCY No. 55 27 January 2014 It is hereby notified that the President has assented to the following Act, which is hereby published for general information:–
Act No. 46 of 201 : Broad-Based Black Economic Empowerment Amendment Act, 2013

2 No. 37271 GOVERNMENT GAZETTE, 27 January 2014 Act No. 46 of 2013 Broad-Based Black Economic Empowerment Amendment Act, 2013
GENERAL EXPLANATORY NOTE:
[ ] Words in bold type in square brackets indicate omissions from existing enactments.
Words underlined with a solid line indicate insertions in existing enactments.
ACT To amend the Broad-Based Black Economic Empowerment Act, 2003, so as to insert certain definitions and to amend others; to clarify interpretation; to provide for the remuneration of Council members; to promote compliance by organs of state and public entities and to strengthen the evaluation and monitoring of compliance; to include the creation of incentive schemes to support black owned and managed enterprises in the strategy for broad-based black economic empowerment; to provide for the cancellation of a contract or authorisation; to establish the Broad-Based Black Economic Empowerment Commission to deal with compliance of broad-based black economic empowerment; to provide for offences and penalties; and to provide for matters connected therewith.
BE IT ENACTED by the Parliament of the Republic of South Africa, asfollows:— Amendment of section 1 of Act 53 of 2003
1. Section 1 of the Broad-Based Black Economic Empowerment Act, 2003 (hereinafter referred to as the principal Act), is hereby amended—
(a) by the insertion before the definition of ‘‘black people’’ of the following definitions:
‘‘ ‘B-BBEE initiative’means any transaction, practice, scheme or other initiative which affects compliance with this Act or any other law promoting broad-based black economic empowernment; ‘B-BBEE verification professional’ means a person who performs any work in connection with rating the status of enterprises in terms of broad-based black economic empowerment compliance on the authority of, or for a rating agency accredited by, a B-BBEE Verification Professional Regulator; ‘B-BBEE Verification Professional Regulator’ means a body ap- pointed by the Minister for the accreditation of rating agencies or the authorisation of B-BBEE verification professionals;’’;
(b) by the substitution for the definition of ‘‘black people’’ of the following definition:
‘‘ ‘black people’ is a generic term which meansAfricans, Coloureds and Indians— (a) who are citizens of the Republic of SouthAfrica by birth or descent;
or
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(English text signed by the President) (Assented to 23 January 2014)
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(b) who became citizens of the Republic of South Africa by naturalisation— (i) before 27 April 1994; or (ii) on or after 27 April 1994 and who would have been entitled to
acquire citizenship by naturalisation prior to that date;’’; (c) by the substitution for the definition of ‘‘broad-based black economic
empowerment’’ of the following definition: ‘‘ ‘broad-based black economic empowerment’ means the viable economic empowerment of all black people [including], in particular women, workers, youth, people with disabilities and people living in rural areas, through diverse but integrated socio-economic strategies that include, but are not limited to— (a) increasing the number of black people that manage, own and
control enterprises and productive assets; (b) facilitating ownership and management of enterprises and produc-
tive assets by communities, workers, co-operatives and other collective enterprises;
(c) human resource and skills development; (d) achieving equitable representation in all occupational categories
and levels in the workforce; (e) preferential procurement from enterprises that are owned or
managed by black people; and (f) investment in enterprises that are owned or managed by black
people;’’; (d) by the insertion after the definition of ‘‘broad-based black economic
empowerment’’ of the following definition: ‘‘ ‘Commission’ means the Broad-Based Black Economic Empower- ment Commission established by section 13B;’’;
(e) by the insertion after the definition of ‘‘Council ’’ of the following definitions: ‘‘ ‘Department’ means the Department of Trade and Industry; ‘fronting practice’ means a transaction, arrangement or other act or conduct that directly or indirectly undermines or frustrates the achieve- ment of the objectives of this Act or the implementation of any of the provisions of this Act, including but not limited to practices in connection with a B-BBEE initiative— (a) in terms of which black persons who are appointed to an enterprise
are discouraged or inhibited from substantially participating in the core activities of that enterprise;
(b) in terms of which the economic benefits received as a result of the broad-based black economic empowerment status of an enterprise do not flow to black people in the ratio specified in the relevant legal documentation;
(c) involving the conclusion of a legal relationship with a black person for the purpose of that enterprise achieving a certain level of broad-based black economic empowerment compliance without granting that black person the economic benefits that would reasonably be expected to be associated with the status or position held by that black person; or
(d) involving the conclusion of an agreement with another enterprise in order to achieve or enhance broad-based black economic empow- erment status in circumstances in which— (i) there are significant limitations, whether implicit or explicit,
on the identity of suppliers, service providers, clients or customers;
(ii) the maintenance of business operations is reasonably consid- ered to be improbable, having regard to the resources available;
(iii) the terms and conditions were not negotiated at arm’s length and on a fair and reasonable basis;
‘knowing’, ‘knowingly’ or ‘knows’, when used with respect to a person, and in relation to a particular matter, means that the person either—
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(a) had actual knowledge of that matter; or (b) was in a position in which the person reasonably ought to have—
(i) had actual knowledge; (ii) investigated the matter to an extent that would have provided
the person with actual knowledge; or (iii) taken other measures which, if taken, would reasonably be
expected to have provided the person with actual knowledge of the matter;’’;
(f) by the insertion after the definition of ‘‘organ of state’’ of the following definition:
‘‘ ‘premises’ includes land, or any building, structure, vehicle, ship, boat, vessel, aircraft or container;’’; and
(g) by the insertion after the definition of ‘‘public entity’’ of the following definition:
‘‘ ‘sector charters’means sectoral transformation charters referred to in section 9;’’.
Amendment of section 2 of Act 53 of 2003
2. Section 2 of the principal Act is hereby amended— (a) by the substitution for paragraph (f) of the following paragraph:
‘‘(f) empowering rural and local communities by enabling access to economic activities, land, infrastructure, ownership and skills; [and]’’;
(b) by the substitution for paragraph (g) of the following paragraph: ‘‘(g) promoting access to finance for black [economic empowerment]
start-ups, small, medium and micro enterprises, co-operatives and black entrepreneurs, including those in the informal business sector; and’’; and
(c) by the addition of the following paragraph: ‘‘(h) increasing effective economic participation and black owned and
managed enterprises, including small, medium and micro enter- prises and co-operatives and enhancing their access to financial and non-financial support.’’.
Amendment of section 3 of Act 53 of 2003
3. Section 3 of the principal Act is hereby amended— (a) by the substitution for paragraph (a) of the following paragraph:
‘‘(a) to give effect to its objectives and purposes; and’’; and (b) by the addition of the following subsection, the current section becoming
subsection (1): ‘‘(2) In the event of any conflict between this Act and any other law in
force immediately prior to the date of commencement of the Broad- Based Black Economic Empowerment Amendment Act, 2013, this Act prevails if the conflict specifically relates to a matter dealt with in this Act.’’.
Substitution of section 8 of Act 53 of 2003
4. The following section is hereby substituted for section 8 of the principal Act:
‘‘Remuneration and reimbursement of expenses
8. Council members [will not] must be remunerated for their services[, but will] in accordance with the provisions of the National Treasury Regulations, and must be reimbursed for expenses incurred by them in carrying out their duties, as determined by the Minister, with the concurrence of the Minister of Finance.’’.
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Amendment of section 9 of Act 53 of 2003
5. Section 9 of the principal Act is hereby amended— (a) by the substitution in subsection (1) for paragraph (e) of the following
paragraph: ‘‘(e) guidelines for stakeholders in the relevant sectors of the economy to
draw up transformation charters and codes of good practice for their sector; and’’; and
(b) by the addition of the following subsections: ‘‘(6) If requested to do so, the Minister may by notice in the Gazette
permit organs of state or public entities to specify qualification criteria for procurement and other economic activities which exceed those set by the Minister in terms of subsection (1). (7) A code of good practice remains in effect until amended, replaced
or repealed.’’.
Amendment of section 10 of Act 53 of 2003
6. The following section is hereby substituted for section 10 of the principal Act:
‘‘Status of codes of good practice
10. (1) Every organ of state and public entity must [take into account and, as far as is reasonably possible,] apply any relevant code of good practice issued in terms of this Act in— (a) determining qualification criteria for the issuing of licences, conces-
sions or other authorisations in respect of economic activity in terms of any law;
(b) developing and implementing a preferential procurement policy; (c) determining qualification criteria for the sale of state-owned enter-
prises; [and] (d) developing criteria for entering into partnerships with the private
sector; and (e) determining criteria for the awarding of incentives, grants and
investment schemes in support of broad-based black economic empowerment.
(2) (a) The Minister may, after consultation with the relevant organ of state or public entity, exempt the organ of state or public entity from a requirement contained in subsection (1) or allow a deviation therefrom if particular objectively verifiable facts or circumstances applicable to the organ of state or public entity necessitate an exemption or deviation. (b) The Minister must publish the notice of exemption or deviation in the
Gazette. (3) Subject to section 9(6), an enterprise in a sector in respect of which
the Minister has issued a sector code of good practice in terms of section 9, may only be measured for compliance with the requirements of broad- based black economic empowerment in accordance with that code. (4) Enterprises operating in a sector in respect of which the Minister has
issued a sector code of good practice in terms of section 9, must report annually on their compliance with broad-based black economic empower- ment to the sector council which may have been established for that sector.’’.
Amendment of section 11 of Act 53 of 2003
7. Section 11 of the principal Act is hereby amended by the substitution in subsection (2) for paragraph (b) of the following paragraph:
‘‘(b) develop a plan for financing broad-based black economic empowerment, including the creation of incentive schemes to support effective black owned and managed enterprises;’’.
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Insertion of sections 13A, 13B, 13C, 13D, 13E, 13F, 13G, 13H, 13I, 13J, 13K, 13L, 13M, 13N, 13O and 13P in Act 53 of 2003
8. The following sections are hereby inserted in the principal Act after section 13:
‘‘Cancellation of contract or authorisation
13A. Any contract or authorisation awarded on account of false information knowingly furnished by or on behalf of an enterprise in respect of its broad-based black economic empowerment status, may be cancelled by the organ of state or public entity without prejudice to any other remedies that the organ of state or public entity may have.
Establishment and status of Broad-Based Black Economic Empower- ment Commission
13B. (1) The Broad-Based Black Economic Empowerment Commission is hereby established as an entity within the administration of the Department. (2) The Commission is headed by a Commissioner appointed by the
Minister. (3) The Commission—
(a) has jurisdiction throughout the Republic; (b) must be impartial and perform its functions without fear, favour or
prejudice; and (c) must exercise the functions assigned to it in terms of this Act or any
other law— (i) in the most cost-effective and efficient manner; and (ii) in accordance with the values and principles mentioned in
section 195 of the Constitution. (4) The Minister may issue directives of a general nature, which are
consistent with this Act, to the Commission concerning the performance of its functions and the Commission must comply with any such directive. (5) Each organ of state must assist the Commission to exercise its
authority and perform its functions effectively.
Appointment of Commissioner and Acting Commissioner
13C. (1) (a) The Minister must appoint a person with suitable qualifications and experience to be the Commissioner for a term of not more than five years. (b) When appointing the Commissioner, the Minister must consult the
relevant Portfolio Committee of the National Assembly and the relevant Select Committee of the National Council of Provinces. (2) The Minister may re-appoint a person as Commissioner at the expiry
of that person’s term of office for one additional term of office. (3) The Commissioner, who is the Chief Executive Officer of the
Commission, is responsible for the general administration of the Commis- sion and for carrying out any functions assigned to it in terms of this Act, and must— (a) perform the functions that are conferred on the Commissioner by or in
terms of this Act; (b) manage and direct the activities of the Commission; and (c) supervise the Commission’s staff. (4) The Minister must, in consultation with the Minister of Finance,
determine the Commissioner’s remuneration, allowances, benefits and other terms and conditions of employment. (5) The Commissioner may, on three months’written notice addressed to
the Minister, resign as Commissioner. (6) The Minister may remove the Commissioner from office on account
of— (a) serious misconduct;
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(b) permanent incapacity; (c) engaging in any activity that may undermine the integrity or standing
of the Commission; or (d) any other legitimate ground that justifies the removal of the
Commissioner. (7) If the Commissioner and the Deputy Commissioner are for any
reason at the same time unable to perform their functions assigned to them in terms of this Act, the Minister may, on such conditions as the Minister may determine, appoint a suitable person as Acting Commissioner to perform the functions of the Commissioner.
Appointment of Deputy Commissioner and staff of Commission
13D. (1) The Commissioner, in consultation with the Minister, must appoint a person with suitable qualifications and experience to be the Deputy Commissioner for a term of five years. (2) Section 13C(2), (4), (5) and (6) apply to the Deputy Commissioner,
read with such changes as are required by the context. (3) The Deputy Commissioner must perform the functions of the
Commissioner whenever— (a) the Commissioner is unable for any reason to perform those functions;
or (b) the office of Commissioner is vacant. (4) The Commissioner may—
(a) appoint staff members with suitable qualifications and experience, or contract with other persons, to assist the Commission in carrying out its functions; and
(b) in consultation with the Minister and the Minister of Finance, determine the remuneration, allowances, benefits and other terms and conditions of appointment of each member of the staff.
Finances of Commission
13E. (1) The Commission is financed from— (a) money that is appropriated by Parliament for the Commission; and (b) money lawfully received from any other source. (2) The Auditor-General must audit the Commission’s financial records
every year.
Functions of Commission
13F. (1) The functions of the Commission are— (a) to oversee, supervise and promote adherence with this Act in the
interest of the public; (b) to strengthen and foster collaboration between the public and private
sector in order to promote and safeguard the objectives of broad-based black economic empowerment;
(c) to receive complaints relating to broad-based black economic empow- erment in accordance with the provisions of this Act;
(d) to investigate, either of its own initiative or in response to complaints received, any matter concerning broad-based black economic empow- erment;
(e) to promote advocacy, access to opportunities and educational programmes and initiatives of broad-based black economic empow- erment;
(f) to maintain a registry of major broad-based black economic empow- erment transactions, above a threshold determined by the Minister by notice in the Gazette;
(g) to receive and analyse such reports as may be prescribed concerning broad-based black economic empowerment compliance from organs of state, public entities and private sector enterprises;
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(h) to promote good governance and accountability by creating an effective and efficient environment for the promotion and implemen- tation of broad-based black economic empowerment; and
(i) to exercise such other powers which are not in conflict with thisAct as may be conferred on the Commission in writing by the Minister.
(2) A complaint contemplated in subsection (1)(c) and (d) must be— (a) in the prescribed form; and (b) substantiated by evidence justifying an investigation by the Commis-
sion. (3) The Commission must increase knowledge of the nature and
dynamics and promote public awareness of matters relating to broad-based black economic empowerment by— (a) implementing education and information measures to develop public
awareness of the provisions of this Act, and in particular to advance the purposes of this Act;
(b) providing guidance to the public by— (i) issuing explanatory notices outlining its procedures; (ii) issuing non-binding opinions on the interpretation of any
provision of this Act; or (iii) applying to a court for a declaratory order on the interpretation
or application of the provisions of this Act; and (c) conducting research relating to its mandate and activities and, from
time to time, publishing the results of that research. (4) The Commission may liaise with any regulatory authority on matters
of common interest and, without limiting the generality of the foregoing, may— (a) exchange information with and receive information from any such
regulatory authority pertaining either to matters of common interest or to a specific complaint or investigation;
(b) participate in the proceedings of any regulatory authority; and (c) advise, or receive advice from, any regulatory authority. (5) Notwithstanding the provisions of any law, but subject to the
approval of the Minister, the Commissioner may enter into an agreement with any other person, body of persons or organ of state, including a special investigating unit established under the Special Investigating Units and Special Tribunals Act, 1996 (Act No. 74 of 1996), to perform any of the Commission’s duties and functions under this Act.
Reporting
13G. (1) All spheres of government, public entities and organs of state must report on their compliance with broad-based black economic empowerment in their audited annual financial statements and annual reports required under the Public Finance Management Act, 1999 (Act No. 1 of 1999). (2) All public companies listed on the Johannesburg Stock Exchange
must provide to the Commission, in such manner as may be prescribed, a report on their compliance with broad-based black economic empower- ment. (3) All Sectoral Education and Training Authorities contemplated in the
Skills Development Act, 1998 (Act No. 97 of 1998), must report on skills development spending and programmes to the Commission.
Delegation
13H. (1) The Commissioner may delegate any power conferred on him or her or any duty assigned to him or her under thisAct, to any other person with appropriate knowledge and experience who is appointed to or contracted with the Commission to assist it in the carrying out of its functions.
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(2) Notwithstanding subsection (1), the Commissioner may not delegate the powers referred to in section 13D(1) or (4). (3) A delegation under subsection (1) must be in writing and—
(a) may be subject to any conditions or restrictions determined by the Commissioner;
(b) does not prevent the exercise of the relevant power by the Commis- sioner; and
(c) may be withdrawn or amended by the Commissioner.
Specialist committees
13I. (1) The Minister may appoint one or more specialist committees to advise the Commission on the management of its resources or the performance of its functions. (2) The Minister may assign specific powers to the members of a
specialist committee for the purposes of performing any function contem- plated in subsection (1). (3) A specialist committee may—
(a) be established for an indefinite term or for a period determined by the Minister when the committee is established; and
(b) determine its own procedures. (4) A specialist committee established under this section must—
(a) perform its functions impartially and without fear, favour or prejudice; and
(b) consist of— (i) not more than eight persons who are independent from the
Commission and are appointed by the Minister for a term of not more than five years; and
(ii) not more than two senior employees of the Commission designated by the Commissioner.
(5) A member of a specialist committee must— (a) be a fit and proper person; (b) have appropriate expertise or experience; and (c) have the ability to perform effectively as a member of the committee. (6) Members of a specialist committee must not—
(a) act in any way that is inconsistent with subsection (4)(a); (b) expose themselves to any situation in which the risk of a conflict may
arise between their responsibilities and any personal financial interest; or
(c) use their position or any information entrusted to them to enrich themselves or improperly benefit any other person.
(7) A member of a specialist committee ceases to be a member if— (a) the member resigns from the committee; (b) the Minister terminates the person’s membership because the member
no longer complies with subsection (5) or has contravened subsection (6); or
(c) the member’s term of office has expired. (8)Amember of a specialist committee who has any personal or financial
interest in any matter on which the committee gives advice, must disclose that interest and withdraw from the proceedings of the specialist committee when that matter is discussed. (9) The Commission must remunerate and compensate—
(a) a member contemplated in subsection (4)(b)(i) for expenses incurred to the extent determined by the Minister; and
(b) a member contemplated in subsection (4)(b)(ii) for expenses incurred to the extent that the member’s remuneration and allowances as an employee of the Commission does not extend to that person’s services as a member of the specialist committee.
Investigations by Commission
13J. (1) Subject to the provisions of this Act, the Commission has the power, on its own initiative or on receipt of a complaint in the prescribed
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form, to investigate any matter arising from the application of the Act, including any B-BBEE initiative or category of B-BBEE initiatives. (2) The format and the procedure to be followed in conducting any
investigation must be determined by the Commission with due regard to the circumstances of each case, and may include the holding of a formal hearing. (3) Without limiting the powers of the Commission, the Commission
may make a finding as to whether any B-BBEE initiative involves a fronting practice. (4) The Commission may institute proceedings in a court to restrain any
breach of this Act, including any fronting practice, or to obtain appropriate remedial relief. (5) If the Commission is of the view that any matter it has investigated
may involve the commission of a criminal offence in terms of this Act or any other law, it must refer the matter to the National ProsecutingAuthority or an appropriate division of the South African Police Service. (6) The Commission may, if it has investigated a matter and justifiable
reasons exist, refer to— (a) the SouthAfrican Revenue Services any concerns regarding behaviour
or conduct that may be prohibited or regulated in terms of legislation within the jurisdiction of that Service; or
(b) any regulatory authority any concerns regarding behaviour or conduct that may be prohibited or regulated in terms of legislation within the jurisdiction of that regulatory authority.
(7) (a) The Commission may publish any finding or recommendation it has made in respect of any investigation which it had conducted in such manner as it may deem fit. (b) A decision of the Commission to publish any finding or recommen-
dation it has made may not be put into effect— (i) before proceedings for the judicial review of the decision have been
completed or were not instituted within the period allowed therefor; (ii) if the Commission has referred the matter to the National Prosecuting
Authority or the South African Police Service in terms of subsection (5), and no prosecution has been instituted against the person concerned;
(iii) if the person concerned has been prosecuted and acquitted following the investigation of the Commission; or
(iv) where the person concerned has been convicted by a court of law, following an investigation of the Commission, before such person has in respect of the conviction exhausted all recognised legal proceedings pertaining to appeal or review.
Summonses
13K. (1) At any time during an investigation being conducted by the Commission, the Commission may issue a summons to any person who is believed to be able to furnish any information on the subject of the investigation or to have possession or control of any book, document or other object that has a bearing on that subject— (a) to appear before the Commission to be questioned at a time and place
specified in the summons; or (b) to deliver or produce to the Commission any book, document or other
object referred to in paragraph (a) at a time and place specified in the summons.
(2) A summons contemplated in subsection (1)— (a) must be signed by the Commissioner or by an employee of the
Commission designated by the Commissioner; and (b) may be served in the same manner as a subpoena in a criminal case
issued by a magistrates’ court.
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(3) If a person is summoned to appear before the Commission, or is required to deliver any book, document or other object to the Commission, the Commissioner or an employee of the Commission designated by the Commissioner— (a) may interrogate and administer an oath to, or accept an affirmation
from, the person named in the summons; and (b) may retain any such book, document or other object for examination
for a period not exceeding two months or such longer period as the court on good cause shown, may allow.
(4) A person questioned by the Commission must answer each question truthfully and to the best of that person’s ability, but— (a) is not obliged to answer any question if the answer is self-
incriminating; and (b) the person asking the questions must inform that person of the right set
out in paragraph (a). (5) No self-incriminating answer given or statement made by any person
to the Commission will be admissible as evidence against that person in criminal proceedings against that person instituted in any court, except in criminal proceedings for perjury or in which that person is tried for an offence relating to the disclosure of false information, and then only to the extent that the answer or statement is relevant to prove the offence charged.
Confidential information
13L. (1) When submitting information to the Commission, a person may claim that all or part of that information is confidential. (2) Any claim contemplated in subsection (1) must be supported by a
written statement explaining why the information is confidential. (3) The Commission must—
(a) consider a claim made in terms of subsection (1); and (b) as soon as practicable make a decision on the confidentiality of the
information and access to that information and provide written reasons for that decision.
(4) A person who has made a claim contemplated in subsection (1) in respect of which the Commission has made a decision in terms of subsection (3), may apply to court for a review of that decision within— (a) 60 court days of becoming aware of the decision; or (b) such longer period as a court may allow on good cause shown. (5) When making any finding in respect of an investigation, the
Commission may take confidential information into account. (6) If any finding would reveal any confidential information, the
Commission must provide a copy of the proposed finding to the party claiming confidentiality at least 30 court days before publishing those reasons. (7)Within 14 court days after receiving a copy of the proposed finding in
terms of subsection (6), a party may apply to a court for an appropriate order to protect the confidentiality of the relevant information.
Conflicting interests of employees
13M. The Commissioner, members of a specialist committee and any person appointed to or contracted with the Commission to assist the Commission in the carrying out of its functions, must not— (a) engage in any activity that may undermine the integrity of the
Commission; (b) participate in any investigation, hearing or decision concerning a
matter in respect of which that person has a personal financial interest;
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(c) make private use of, or profit from, any confidential information obtained as a result of performing that person’s official functions in the Commission; or
(d) divulge any information referred to in paragraph (c) to any third party, except as required as part of that person’s official functions within the Commission.
Offences in connection with Commission
13N. (1) It is an offence to disclose any confidential information concerning the affairs of any person obtained— (a) in carrying out any function in terms of this Act; or (b) as a result of initiating a complaint with the Commission, or
participating in any proceedings in terms of this Act. (2) Subsection (1) does not apply to information disclosed—
(a) for the purpose of the proper administration or enforcement of this Act;
(b) for the purpose of the proper administration of justice; (c) at the request of the Commission or a court entitled to receive the
information; or (d) when required to do so by any court under any law. (3) A person commits an offence if that person—
(a) hinders, obstructs or improperly attempts to influence the Commission when it is exercising a power or performing a duty in terms of thisAct;
(b) does anything calculated to improperly influence the Commission concerning any matter connected with an investigation by the Commission;
(c) knowingly provides false information to the Commission; (d) anticipates any findings of the Commission in a way that is calculated
to improperly influence the proceedings or findings; (e) does anything in connection with an investigation of the Commission
that would have been contempt of court if the proceedings had occurred in a court of law; or
(f) refuses to attend when summoned or, after attending, refuses to answer any question or produce any document as required by the summons, other than as contemplated in section 13K(4)(a).
Other offences and penalties
13O. (1) A person commits an offence if that person knowingly— (a) misrepresents or attempts to misrepresent the broad-based black
economic empowerment status of an enterprise; (b) provides false information or misrepresents information to a B-BBEE
verification professional in order to secure a particular broad-based black economic empowerment status or any benefit associated with the compliance with this Act;
(c) provides false information or misrepresents information relevant to assessing the broad-based black economic empowerment status of an enterprise to any organ of state or public entity; or
(d) engages in a fronting practice. (2) A B-BBEE verification professional or any procurement officer or
other official of an organ of state or public entity who becomes aware of the commission of, or any attempt to commit, any offence referred to in subsection (1) and fails to report it to an appropriate law enforcement agency, is guilty of an offence.
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(3) Any person convicted of an offence in terms of this Act, is liable— (a) in the case of a contravention of subsection (1), to a fine or to
imprisonment for a period not exceeding 10 years or to both a fine and such imprisonment or, if the convicted person is not a natural person, to a fine not exceeding 10 per cent of its annual turnover; or
(b) in the case of a contravention of subsection (2) or section 13N, to a fine or to imprisonment for a period not exceeding 12 months or to both a fine and such imprisonment.
(4) For the purpose of determining a fine to be imposed for an offence in terms of subsection (1), the court must take into account the value of the transaction which was derived from, or sought to be derived from, the commission of the offence. (5) A court in which any person is convicted of an offence in terms of
subsection (3) must report the conviction— (a) to the B-BBEE Verification Professional Regulator, if that person is a
B-BBEE verification professional; and (b) to in any other case, to the Council and to that person’s employer. (6) Despite anything to the contrary contained in any other law, a
magistrates’ court has jurisdiction to impose any penalty provided for in this Act.
Prohibition on business with organs of state following conviction under this Act
13P. (1)Any person convicted of an offence in terms of thisAct may not, for a period of 10 years from the date of conviction, contract or transact any business with any organ of state or public entity and must for that purpose be entered into the register of tender defaulters which the National Treasury may maintain for that purpose. (2) Where the convicted person is not a natural person, the court may in
its discretion restrict the order contemplated in subsection (1) to only those members, directors or shareholders who contravened the provisions of this Act.’’.
Substitution of section 14 of Act 53 of 2003
9. The following section is hereby substituted for section 14 of the principal Act:
‘‘Regulations, guidelines and practice notes
14. (1) The Minister may make regulations with regard to— (a) any matter that in terms of this Act may or must be prescribed; (b) the lodging of complaints with the Commission; (c) the conducting of investigations by the Commission; (d) the information that any organ of state, public entity or private
enterprise is required to provide to the Commission and the form and period of such reporting;
(e) requiring all broad-based black economic empowerment transactions above a prescribed threshold to be reported to the Commission; and
(f) any ancillary or incidental administrative or procedural matter that it is necessary to prescribe [in order to ensure] for the proper implemen- tation and administration of this Act.
(2) The Minister may by notice in the Gazette issue guidelines and practice notes relating to the interpretation and application of this Act.’’.
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Short title and commencement
10. (1) This Act is called the Broad-Based Black Economic Empowerment Amendment Act, 2013. (2) Except for section 3(b), this Act comes into operation on a date fixed by the
President by proclamation in the Gazette. (3) Section 3(b) comes into operation one year after the date contemplated in
subsection (2). (4) In the event that the President fixes different dates in respect of different provisions
of this Act, section 3(b) comes into operation one year after section 3(a) commences.
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