Comments on BBBEE revised Codes October 2012
We wish to bring to the attention of this committee, our observations
and comments pertaining Code 300 and 200, as Gazetted in 2007 and now recently revised in October 2012.
These Codes are the "Measurement of the Employment Equity element of Broad based Black Economic
Our issue lies not with any proposed amendments to the Codes but to the
Employment Equity related codes in general, and to how they relate to and discriminate against persons
with Disabilities as a whole and White persons with Disabilities in particular.
This issue stems from the repeated use of the term, "Employment Equity", in the language of the Codes..
As can be seen, from Statement 300
"Statement 300 - The General Principles for Measuring Employment Equity".
This statement clearly suggests that the concept of Employment Equity will apply henceforth.
However, in reality, this is not the case and it is our assertion that in fact since Disability is
Equitably included in the original Employment Equity Act no 55 1998; as a designated group regardless
of race, that it is incorrect and misleading to refer to Employment Equity in the context of BBBEE,
where only black people with Disabilities are referred to.
Secondly, Code 300 clearly removes any focus on levels of employment of (black) persons with
Disabilities. The following note taken from code 300 confirms this.
"Please note that this exclusion of black people with disabilities is a deliberate deviation from
the current Interpretive Guide to the Codes of Good Practice © 2007 The Department of Trade and
Industry" Regardless of its deliberateness, to ignore levels of employment of persons with Disabilities
, totally deviates from the principles of the EEA.
Thirdly, the 2% scorecard target for persons with Disabilities, as per Code 200 refers;
"2.5 Disabled Employees 2.5.1 Black disabled employees as a percentage of all employees,
counts 2 points and the target percentage is 2% of your workforce".
This targeting serves only to undermine pre existing efforts and mechanisms as provided by the EEA.
We will deal with each item in greater perspective below.
- The insistence that BBBEE and Code 300 requirements are somehow compatible or in concert
with Employment Equity activity is simply incorrect and misleading and highly prejudicial to
previous and current Employment Equity Act obligations.
Some background is required here. The 1990's were pivotal in Disability rights History. Many
countries began to pay overarching legislative attention to Disability rights. These rights issues,
importantly, concerned all aspects of societal implications that affected the lives of persons with
Disabilities. This of course is not confined to the individuals disability alone but highlights and
attempts to address the societal barriers faced by people with Disabilities. Issues highlighted
Included; welfare, housing, transport, Health, education, employment etc. At the same time, the U
nited Nations, with significant contribution from South Africa, was also well on its way to establish
what would become the UN Convention on the Rights and Dignity of Persons with Disabilities in 2007.
Africa too, took part in this global consciousness and made the precedent setting move of
Disability into our first Democratic Constitution 1996. In 1998 the Employment Equity Act no 55
was promulgated, and notably incorporated Disability as a designated group, along with Black people
and Women. Also importantly, no disaggregation was made in terms of whether the person with the
Disability was white or Black.
The reason for this is simple, The Employment Equity Act, recognized that barriers to Disability
inclusion were not confined to apartheid alone but to historically entrenched societal barriers
common to most countries in the world. This is amply demonstrated by the fact that even today; white
or black, students with physical and sensory Disabilities are excluded from almost all mainstream
education facilities. White or black, people with (particularly) physical Disabilities are still
unable to access the overwhelming majority of public transport and most other facilities and
amenities in the public and private sectors. Finally, white or black, persons with Disabilities
have the highest rate of under or unemployment in the country.
To further and deliberately drive a racial wedge into an already weak and compromised sector, but
which has Constitutional and global support and attention, makes no political or economics sense.
- The deliberate exclusion of the measurement and reporting of levels of employment of (Black)
people with Disabilities. Once again, this is in total opposition to principles and values of the
EEA, and amounts to nothing more than an invitation to simply count heads and enter into the worst
kind of numbers game playing. One of the most crucial elements of the Employment Equity Act, is that
it was identified at the beginning, that an affirmative action mechanism such as those employed by
the EEA should never become a simple numbers game, with merely counting the affirmative action
candidates. Therefore careful attention was and is paid to ensuring that levels of employment are
taken into account in all EEA reporting and do not exclude Disability from these rules.
The seriousness of this oversight needs to be explained.
Historically, people with Disabilities have been seen as not being particularly productive in the
world of work and for the most part have been excluded resulting in very limited employment
opportunity. For generations, this prevailing mindset has set the stage for widespread generalization
and stereotyping and the net result, with few exceptions is that where the few employment
opportunities exist they are invariably at a lower level regardless often of the training
or skill of the individual with the Disability.
By removing the directive to pay attention to levels of employment for Disability, companies,
when populating their BBBEE scorecards, have no incentive to pay attention to or put effort into
altering these stereotypes. Once again, this results in (black) people with Disabilities being
relegated to the lowest levels of employment, with little hope of change as long as there is a
complex compliance mechanism such as these codes, preventing it. .
- The stipulation, in Code 200, that 2% of the workforce be made up of black people with
Disabilities. As has been stated above, this requirement works against original EEA compliance
obligations in a number of ways. Firstly, the EEA does not demand a specific target to be reached
in terms of the employment of persons with Disabilities, and if it did, it would have had to include
white people within that target as they legitimately fell within the scope of the Act. Secondly, as
has been noted in point 2 above, with little direction or incentive to raise the levels of
employment for (black) persons with Disabilities, the additional pressure of targeting will
simply perpetuate the stereotypic and menial disability employment trends, specifically for black
people with Disabilities.
- Finally, Government, in 2000, notwithstanding that there were no formal targets or quotas, put
out a national goal that by 2005, 2% of Governments workforce would be made up of persons with
Disabilities. It is important to note that white people were included in this goal. Sadly by 2006
and indeed to the present, less than 1% of Governments workforce was made up of people with
Disabilities, drawn from all racial sectors. What this illustrates is that with significantly
compromised historically disadvantaged sectors such as Disability, quotas and targets alone cannot
achieve automatic and equitable inclusion into the world of work where generations of ignorance,
prejudice and fear on the part of the employer, have retarded the ability to equitably enjoy the
skill, training and right to work of persons with Disabilities. Therefore simply insisting on over
ambitious targeting, with no focus on levels, cannot succeed but instead will result in an
increasingly frustrated and discriminated sector.
Conclusion and recommendations
An important question needs to be asked. Can Companies comply with both EEA and BBBEE? The answer
theoretically must be yes of course because The Department of Labour has not slackened its pressure on
companies to submit their EE reports. At the same time all companies and organizations need to in some
way comply with and work toward populating their BBBEE scorecards if they wish to be competitive.
However, the reality is that there is far greater incentive to oblige and comply with BBBEE criteria
than EEA obligations. This is demonstrated by the fact that the Department of Labour is becoming
increasingly threatening about non reporting.
Unfortunately, the fact is that more energy and attention is paid to the former. The problem is that
given the frequent referencing of Employment Equity within BBBEE language such as can be seen with Code
300 and 200, companies are increasingly confused as to which to comply with, or there is an assumption
made that by complying with BBBEE, will, given that its Codes clearly quote, "employment Equity" that
it must therefore be compliant with the EEA and its reporting mechanisms.
The hard fact is that they do not compare or work in concert. By fixating on BBBEE requirements in
populating their scorecards, companies are forced to disregard good EEA practice of including both
White people with Disabilities as well as to consider their levels, while they scramble to somehow
fill an impossible 2% target.
Conversely, when a white person with a disability applies for a job, legitimately expecting good
Employment Equity practice, as is her right under the EEA, she is, now, almost always met with the
same negative response. As can be seen from the quoted statement from a senior HR manager in a large
organisation. "Unfortunately we have to target African candidates first failing which we can look at
coloured and Indian. It's just the way our transformation scorecard works". What this demonstrates,
by the use of the term "scorecard" is that BBBEE criteria are driving this organizations transformation,
regardless of the legitimate claims of the Employment Equity Act and those supposedly under its support
It is our assertion therefore , based on the above that all so called "employment Equity "
referencing in BBBEE legislation, codes and guidelines have not been properly considered and thought
through, with respect to Disability.
The clashes and contradictions between BBBEE's so called employment Equity mechanisms and pre existing non
discrimination legislation is undeniable.
The overt and punitive discrimination against persons with Disabilities resulting from this must
be viewed in the context of the established anti discrimination legislative framework, all of which
acknowledge Disability equitably, including: The South African Constitution, The Employment Equity
Act, The Promotion of Equality and the prevention of discrimination Act, The skills development Act
amongst others. Finally it must not be forgotten that South Africa was a founder signatory of the
United Nations Convention of the Rights and Dignity of persons with Disabilities (2007) . This globally
respected convention must be our leading guide toward the rapidly growing universal sentiments toward
fair and equal Disability inclusion into Mainstream society.
The continued unchecked violation of these national and Global anti discrimination mechanisms
mentioned here by BBBEE facilities will continue to cause disempowerment and distrust amongst
an increasingly frustrated Disability sector, while also resulting in embarrassing international
scrutiny, with our failure to adhere to the most basic principles of non discrimination regarding
It is therefore our recommendation that all references to Employment Equity be either removed
from BBBEE language until such time that it is properly linked with and in concert with genuine
Employment Equity Act sentiments and requirements so as not to misguide and compromise companies
efforts to comply with them.
In addition, we recommend the immediate removal of all racial discrimination criteria pertaining
Disability within the BBBEE legislation.
Finally, we recommend, the the insertion of similar levels of employment criteria thus far excluded
for persons with Disabilities.