FSC BBBEE Charter and Codes Game Changing Proposals

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1 FSC BBBEE Charter and Codes Game Changing Proposals Celebrating 20 Years of Change & Transformation Page 1 of 11

2 ABSIP FSC Charter and Code Game Changing Proposal South African has made significant progress since the transition to democracy in the first twenty years. By and large our people are significantly better off compared to Apartheid South Africa. However, South Africa could have achieved a lot more. One such shortcoming was that it could have significantly reduced poverty on a sustainable basis. South Africa should take credit in the poverty reduction it has achieved. ABSIP wants to help South Africa in reducing poverty on a sustainable basis. The current generic BBBEE Charter contains proposals that are intended to help in achieving this objective of poverty reduction on a sustainable basis. ABSIP hereby proposes a couple of potentially game changing proposals to the FSC BBBEE Charter and Codes to help in achieving much faster economic growth and sustainable job creation. We call on ABSIP members and the general public to review these potential game changing proposals and provide comment, review the draft FSC Scorecard and FSC Codes (link to FSC Scorecard and Codes, provide alternative solutions by providing constructive input and suggested solutions in writing to fsc@absip.co.za. The substantive game changing proposals, which in our opinion, should over the next five to ten years potentially help South Africa in achieving significantly above average inclusive economic growth rates and hopefully a significant reduction in poverty. It is therefore important that we need the input of members to make sure that these substantive game changing proposals are achievable and that we are not inadvertently making proposals that may have negative unintended consequences. The substantive game changing proposals can possibly result in the financial sector being a leader in sustainable inclusive economic growth while leading the way in setting the standard for the other sectors in the economy. We call on the financial sector to help in achieving these goals. Tryphosa Ramano President ABSIP Celebrating 20 Years of Change & Transformation Page 2 of 11

3 Introduction: B-BBEE is Voluntary The B-BBEE Charters and Codes are voluntary. Corporate South Africa and related organisations do not have to comply with them. If however, Corporate South Africa sell products and services to government and SOE s or have customers that deal with government or SOE s they have to comply with B-BBEE and achieve the highest score possible as government and SOE s are big procurers of goods and services. It these incentives as a supplier to government both directly and indirectly that have nudged Corporate South Africa to transform. It also is a fact that most retailers and private sector retirement funds in South Africa have very low B-BBEE or no B-BBEE scores. They generally do not bother with B-BBEE certificates as their customers, who are largely individuals, generally do not take into account the B-BBEE level of the entity that they are procuring goods or services. PROPOSAL ONE: B-BBEE ratings should be made compulsory and published for all entities with say a turnover of more than R10m. This must be done within six months of its financial year end. This should cover all state entities and private sector entities including retailers and retirement funds. Celebrating 20 Years of Change & Transformation Page 3 of 11

4 No Agreed Measurement and Evidence of Transformation It is 20 years since the advent of democracy. There has hardly been any measurement of transformation or normalisation (as one should rightly call it) that one can rely on. Where there have been attempts, there has in most instances been a dispute about the extent of normalisation and the assumptions used in the calculations. The FSC and the Trade Associations (Asisa, BASA, SAIA, IBC etc.) as far as one is aware have not published the extent of progress of normalisation in the Financial Services Sector. The FSCC has committed to measure the extent of normalisation as at 31 December This will only be available by June One has not seen any other published study by the trade associations where one agrees with the assumptions or that the assumptions are reasonable. Measured Instances that prove lack of Transformation or Normalisation It is this severe constraint of lack of measurement that impedes our ability to assess the shortcomings of the FSC charter and Codes and the new draft FSC Charter scorecard and codes. In instances where ABSIP members have measured transformation (or rather normalisation) the results have been shockingly poor. Less than 4% of the R6 trillion rand of investment assets are managed by black owned and managed investment firms. Less than 1.4% of value in 2014 has been given to black stockbrokers by investment management firms. This 1.4% gets worse if one takes into account commission sharing arrangements that black stock brokers share with the larger established brokers. PROPOSAL TWO: In order to make sure that the lack of measurement does not happen again, each sector and company within the Financial Sector must measure transformation of each element on a six monthly basis. Only then can we deal with any shortcomings and take corrective action sooner. Celebrating 20 Years of Change & Transformation Page 4 of 11

5 ABSIP and BBC do not support once empowered always empowered notion At the outset ABSIP strongly supports the BBC s stance that we do not support the notion once empowered always empowered notion. One cannot and should not even call this a principle. A copy of the article in Business Report published on the 20 April 2015 soundly and coherently puts out the case why we at ABSIP and BBC do not support the once empowered always empowered concept. What we should consider is that all shareholding entities (retirement funds, CIS funds, Umbrella Funds etc.) must be rated for the ownership element (and also management control, procurement and supplier development and skills development, in certain entities the socio-economic development should be exempt). If mandated investments are taken into account for the ownership element on a look through basis, and the rules are clearly defined, it will remove a lot of the disagreement of the extent of normalisation. PROPOSAL THREE: We will ask the FSC Council to revisit this notion with a view of for one and all removing the once empowered always empowered notion or concept. Celebrating 20 Years of Change & Transformation Page 5 of 11

6 Mandated Investments and a Proposal to B-BBEE Rate Shareholder Entities. If mandated investments are taken into account for the ownership element then the thresholds for B-BBEE ownership must be raised significantly to reflect the demographics of the country. The dti has clearly stated that there are specific non-negotiable guidelines when it comes to the alignment of industry Codes to the Generic Codes. When it comes to ownership, only direct black ownership and control is accepted. Mandated investments such as retirement funds are considered indirect holdings and therefore do not qualify under the Codes. Points to consider when looking at mandated investments are the following: a. Who actually owns the fund credits in a Defined Benefit Fund? b. Some of these issues were highlighted by the NEF in their row with the JSE when discussing black ownership of the JSE. c. Forex controls must also be taken into account given that SA firms, in particular black asset management firms in South Africa A lack skills in managing offshore mandates. PROPOSAL FOUR: All shareholding including mandated investments must be taken into account when determining the ownership level while at the same time lifting the ownership threshold levels to the demographics of South Africa and the comments raised to be discussed and debated. Celebrating 20 Years of Change & Transformation Page 6 of 11

7 Worker s and Educational Endowment Funds Enhanced B-BBEE Points For the ownership element enhanced points should be given to B-BBEE worker ownership and Educational Endowment Funds. Enhanced points or credit should only be given where the beneficiaries of these broad based schemes are from poor and disadvantaged households. Additional credit to be given if the number and pass rates of the educational endowment has above average pass rates and outcomes. PROPOSAL SIX: Enhanced points or credit should only be given where the beneficiaries of these broad based schemes are from poor and disadvantaged households. Additional credit to be given if the number and pass rates of the educational endowment has above average pass rates and outcomes. Celebrating 20 Years of Change & Transformation Page 7 of 11

8 Third Party Procurement Concept must not be removed from the FSC Charter & Codes Third party procurement has been removed from the old FSC codes so that it is not taken into account for B-BBEE procurement. As examples: asset consultants, multi-managers and investment management firms direct asset management services and stock broker commissions on behalf of their clients. This removal of third party procurement should not be allowed. PROPOSAL SEVEN: Third party procurement must be enhanced such that if the third party does not have B- BBEE rating of at least say a B-BBEE level three rating then the measured entity must use the third party procurement in the calculation of its procurement score. It has come to our attention that verification agencies have not been taking into account third party procurement. PROPOSAL EIGHT: The verification agencies and the measured entity should be penalised and B-BBEE rating removed for not taking into account third party procurement. Celebrating 20 Years of Change & Transformation Page 8 of 11

9 Risk Capital Fund not Incorporated into FSC Codes and Black Industrialists Fund: Terms to be determined later The Risk Capital Fund proposal was supposed to be incorporated as part of the Black Industrialists (BI) proposal. It certainly appears that the draft codes have no reference to the Risk Capital Fund proposal. More concerning is that the BI proposal has not been fleshed out in the FSC Codes. We at ABSIP do not want to find ourselves in a weak negotiating position with both the RCF and BI proposals. It should be clear that the R25billion for the Risk Capital Facility is only for the ownership component of the scorecard. If the Trade associations want to also use the Risk Capital Facility to address the B-BBEE transaction financing element and one of the fungible elements it needs to be clear that the current R32 billion stated as a target for B-BBEE Transaction financing for the banks would have to be spent over and above the R25 billion. Also that whatever portion of the R48billion of the fungible components of empowerment financing that will be allocated to the Risk Capital Facility would be over and above the R25 billion plus the portion of the R48 billion as the intention of agreeing for them to participate in the fund is not to reduce their original targets or commitments. PROPOSAL NINE: The Risk Capital Fund must be incorporated into the FSC Codes as discussed. PROPOSAL TEN: The guidance note for the Black Industrialists Fund to be drafted before the Codes have been accepted. Celebrating 20 Years of Change & Transformation Page 9 of 11

10 Employment Equity and Management Control It is also important that for the employment equity element/management control element we need to be able to use two measures to determine black employees management levels. what this means is that we currently use the Employment Equity Act definitions to determine junior, middle and senior management. We need to also look at the total incentives they receive annually relative to their peers and also the actual content of their roles. There was a commitment to draft this into the codes. PROPOSAL ELEVEN: The FSC Codes to be amended to take into account this request explicitly taking into account total remuneration. Empowerment Financing and Risk Capital Fund: Empowerment financing must include the following areas that require support: Enabling vehicles to level the playing field: life companies and CIS Management Companies. Skills development of black financial advisors (under skills development element) Establish black fund administrators, risk managers, LISPS etc. Capital adequacy requirements for financial services companies. Scope must be extended to include value chain of service providers to the savings industry. Celebrating 20 Years of Change & Transformation Page 10 of 11

11 Primary Investments and Secondary Market Transactions It may be that secondary market transactions are being taken into account in the definition of targeted investments. Secondary market transactions generally do not create as much economic growth and job creation as primary transactions. In any event most primary transactions such as renewables, have without any B-BBEE incentives been enough to commit banks and life assurers to invest at very good rates of return. PROPOSAL TWELVE: In general the FSC Charter and Codes should only be giving credit for B-BBEE purposes in the case of primary investments and transactions. The FSC Charter and Codes should be amended take into account this proposal. Celebrating 20 Years of Change & Transformation Page 11 of 11