LEGISLATIVE AMENDMENT AND DEVELOPMENT NEWSLETTER - NOVEMBER 2022
This newsletter highlights the latest statutory amendments, enactments, case law, notices, and ancillary developments relevant to the SERR Synergy legal compliance products and services for the month.
- B-BBEE
- INFORMATION COMPLIANCE AND CONSUMER PROTECTION
Preferential Procurement Policy Framework Act, 2000 (Act No. 5 of 2000)
With regards to the February 2022 Constitutional Court ruling in Minister of Finance v Afribusiness NPC (CC) (16 February 2022), the Minister Finance, Enoch Godongwana, in Government Gazette No. 47452 dated 4 November 2022, published the revised Preferential Procurement Regulations, 2022.
Succinctly, Minister of Finance v Afribusiness NPC specifically dealt with the former Minister of Finance (Pravin Gordhan) exceeding his powers by acting ultra vires regarding the establishment of the Preferential Procurement Regulations, 2017.
Broad-Based Black Economic Empowerment Act, 2003 (Act No. 53 of 2003) (B-BBEE Act)
In a media statement released by the South African National Treasury on 8 November 2022, it explained the purpose of the above Regulations. National Treasury reiterated that organs of state must comply with the B-BBEE Act when developing their own procurement policies. Furthermore, National Treasury highlighted that the Public Procurement Bill was in the process of being finalised and would empower the Minister of Finance to set preferential procurement criteria. The Preferential Procurement Regulations, 2022 published on 4 November 2022 are a “placeholder” while the Public Procurement Bill is being finalised.
On 9 November 2022, the B-BBEE Commission released a statement indicating that “the [Preferential Procurement Regulations, 2022] have not removed the obligation for organs of state and public entities to implement the B-BBEE Act […] and its requirements concerning preferential procurement […] thus in implementing preferential procurement, an organ of state or public entity will have to comply with both the requirements of the [Preferential Procurement Regulations, 2022] and the B-BBEE Act, which means that B-BBEE criteria will still be part of the 20 and 10 points under the 80/20 and 90/10 procurement system which currently empowers organs of state and public entities to set a goal, which in this regard includes promoting access by black people and black enterprises to procurement opportunities in organs of state and public entities”.
To summarise, State Organs may apply the Preferential Procurement Regulations, 2017 until the Preferential Procurement Regulations, 2022 published on 4 November 2022 take effect on 16 January 2023. These Preferential Procurement Regulations, 2022 shall apply on an interim basis until a new set of procurement regulations are published. State Departments and Organs of State can also use their own procurement criteria. Either way, the B-BBEE requirements must be complied with.
We have published an article on our website for more information - please follow the link 'B-BBEE is here to stay!'
Protection of Personal Information Act, 2013 (Act No. 4 of 2013)
The Information Regulator published the Code of Conduct for the–
- Banking Association South Africa (BASA) effective from the 28th day after its notification in Government Gazette No. 47257 dated 7 October 2022.
- Credit Bureau Association (CBA) effective from the 28th day after its notification in Government Gazette No. 47257 dated 7 October 2022.
Department of Employment and Labour
The Department of Employment and Labour published the updated lists of Registered and Cancelled Employer Organisations and Federations of Employer Organisations and Trade Unions for October 2022:
- Cancelled Employer Organisations;
- Cancelled Trade Unions;
- Federations of Employer Organisations;
- Federations of Trade Unions;
- Registered Bargaining Councils;
- Registered Employer Organisation;
- Registered Trade Unions.
Essential Service Committee
The Minister of Employment and Labour, Thulas Nxesi, in Government Gazette No. 47333 dated 21 October, created and published the Essential Service Committee Regulations.
Cancellation notice, cancelled or registration of Employers’ Organisations and Trade Unions
The Registrar of Labour Relations cancelled the registration of the following Trade Union:
- Welfare Employers Organisation of South Africa (WEO) in Government Gazette No. 47302 dated 14 October 2022, with effect from 4 October 2022.
The Registrar of Labour Relations authorised the registration of the following Trade Union:
- National Enterprises Workers Union Ya Afrika (NEWUYA) in Government Gazette No. 47333 dated 21 October 2022, with effect from 10 October 2022.
The Registrar of Labour Relations gave notice of the intention to cancel the registration of the following Trade Unions and invited interested parties to submit comments as to why the registration should not be cancelled, or objections to this matter, within 60 days from the publication date of these Government Gazettes:
- Chemical Wood and Allied Workers Union (CWAWU) in Government Gazette No. 47257 dated 7 October 2022.
- Shosholoza Workers Union of South Africa (SHOWUSA) in Government Gazette No. 47331 dated 18 October 2022.
- Workers Against Regression (WAR) in Government Gazette No. 47329 dated 18 October 2022.
Commission for Conciliation, Mediation and Arbitration (CCMA)
The Governing Body of the CCMA, in Government Gazette No. 47254 dated 7 October 2022, repealed the Tariff of Fees published in Government Gazette No. 43376 dated 1 June 2020 and also published the amended Tariff of Fees which will be effective from 1 September 2022 in this gazette.
Extension, Cancellations and the Application for Variation of Registered Scope of the Main Collective Agreement of Bargaining Councils:
Metal and Engineering Industries Bargaining Council (MEIBC):
- Extension of the Consolidated Main Collective Agreement to Non-Parties published in Government Gazette No. 47254 dated 7 October 2022, effective from 17 October 2022 to 30 June 2024.
- Cancellation of Government Notice R1729 in Government Gazette No. 45864 of 3 February 2022 and the Extension of the Registration and Administration Expenses Collective Agreement to Non-Parties published in Government Gazette No. 47254 dated 7 October 2022 effective from 17 October 2022 to 31 March 2025.
- Extension of the Dispute Resolution Collective Agreement to Non-Parties published in Government Gazette No. 47254 dated 7 October 2022 effective from 17 October 2022 to 31 March 2025.
- Extension of the Plastic Industry Main Collective Agreement to Non-Parties published in Government Gazette No. 47254 dated 7 October 2022 effective from 17 October 2022 to 30 June 2025.
National Textile Bargaining Council:
- The Minister of Employment and Labour, in Government Gazette No. 47302 dated 14 October 2022, extended the National Textile Bargaining Council Main Collective Agreement to Non-Parties in the industry with effect from the second Monday after publication of this gazette, which shall remain in force until such time as it is amended by the parties to the Council from time to time.
Furniture Bargaining Council:
- The Registrar of Labour Relations gave notice in Government Gazette No. 47302 dated 14 October 2022, that an application for the variation of its registered scope had been received from the Furniture Bargaining Council, accompanied by a subjoined table and objection grounds.
Building Industry Bargaining Council (Cape of Good Hope):
- The Minister of Employment and Labour, in Government Gazette No. 47304 dated 14 October 2022, published a notice inviting representations from the public by no later than 21 days from the date of this gazette’s publication in response to the application by the Building Industry Bargaining Council’s (Cape of Good Hope) extension to Non-Parties of its Consolidated Main Collective Agreement which was submitted to the Department of Employment and Labour on 3 August 2022.
- The Director: Collective Bargaining, Stephen Rathai, in Government Gazette No. 47371 dated 28 October 2022, extended the period of operation of the Main Collective Agreement of the Building Industry Bargaining Council (Cape of Good Hope) to be effective from 1 November 2022 until 31 October 2023.
National Environmental Management Act, 1998 (Act No. 107 Of 1998)
- The Department of Health, in Government Gazette No. 47257 dated 7 October 2022, published the Environmental Management Plan (Fourth Edition: 2020-2025).
- The Minister of Forestry, Fisheries and the Environment Barbara Creecy, in Government Gazette No. 47377 dated 28 October 2022, amended the enabling provision under which the Regulations laying down the procedure to be followed for the adoption of spatial tools or environmental management instruments.
Occupational Health and Safety Act, 1993 (Act No. 85 of 1993)
- The Department of Employment and Labour, in Government Gazette No. 47337 dated 21 October 2022, published a Correction Notice regarding the Code of Practice for Lifts Inside Wind Turbine in Government Gazette No. 46917 dated 16 September 2022, to incorporate the Code of Practice for Lifts inside Wind Towers into the Lift, Escalator and Passenger Conveyors Regulations. Interested parties can submit written comments to the Department within 60 days from the publication of this Government Gazette on the Draft Code of Practice for Lifts inside Wind Towers into the Lift, Escalator and Passenger Conveyors Regulations.
- The Minister of Employment and Labour, in Government Gazette No. 47337 dated 21 October 2022, published the Draft Physical Agents Regulations, 2022, for written public comments to the Department within 90 days from the date of publication of this Government Gazette.
- The Minister of Employment and Labour, in Government Gazette No. 47337 dated 21 October 2022, published the Draft Noise-Induced Hearing Loss Regulations, 2022, for written public comments to the Department within 90 days from the date of publication of this Government Gazette.
- The Chief Inspector, Phumudzo Maphaha, in Government Gazette No. 47373 dated 28 October 2022. withdrew Government Notices No. R 829 of Government Gazette No. 33561, No. R1148 of the Government Gazette No. 40294 and R484 of the Government Gazette No. 41622 and incorporated the safety standards specified in the Schedule in the Lift, Escalator and Passenger Conveyor Regulations, 2010.
- The Minister of Employment and Labour, in Government Gazette No. 47413 dated 31 October 2022, published amendments to the Regulations for Hazardous Biological Agents.
- The Minister of Employment and Labour, in Government Gazette No. 47413 dated 31 October 2022, published amendments to the Commercial Diving Regulations.
National Health Act, 2003 (Act No. 61 of 2003)
The Department of Health, in Government Gazette No. 47337 dated 21 October 2022, published the National 2021 Normative Standards Framework for Interoperability in Digital Health.
Compiled by:
SERR Synergy Research Division
Lané Boshoff - research@serr.co.za