The recent debate about the representativity of the stakeholders in the charter formulation process has raised important

points that the aims to address. This week there were reports about the ICT Charter being potentially derailed by the claims that the ICT working group driving the charter only represented a core of industry activists and thus excluded approximately 70% of the sector. The draft codes of good practice issued by the Department of Trade and Industry (dti) provide clearly outline on most of the issues that have been raised as a concern. The dti codes recognize the necessity of having sector charters that would outline how the sector would contribute to BEE given the available resources and possible constraints that the sector may have. Before the sector can contemplate whether to go ahead with the charter, it must meet the qualification criteria. The qualification criteria are there to prevent a flurry of charters in all sectors of the economy, because having an economy with different targets for the different sectors brings unnecessary complications and imposes burdens on companies. For those sectors that meet the qualification criteria can then go ahead with setting up the body that would drive the charter drafting process forward keeping in mind for the charter to published in the government Gazette, the Minister of Trade and Industry has to satisfy himself that the charter: has been developed by major stakeholders in that sector and advances the objectives of Broad-based BEE Act. The codes outline the relevant stakeholders as including the key enterprises within the sector, industry bodies, government department(s) that interfaces with the sector, labour bodies or trade unions, industry watchdogs and others with a relevant interest in participating in the sector. Furthermore there is a distinction between the consultation and negotiation processes between the relevant stakeholders. Consultation involves providing information about the progress of the charter process whereas negotiations involve a much more hand-on approach in formulating the charter. Negotiations require investment of resources and may potentially exclude those without resources in the negotiation of the charter especially the non-profit organizations who may be the watchdogs of the sector. The codes however acknowledges this constraint and points out that anyone interested in the outcome of the charter must invest some resources either in terms of time or financial to ensure that the charter incorporates their views, concerns and preferred solutions. The distinction between negotiation and consultation has bearing on some of the concerns raised on the inclusivity of the charters. The working group that drafted the ICT charter and negotiated some of the contentious aspects of the charter comprised of industry bodies representing the member companies and different constituencies. However there is contention that the other sectors that makes up the ICT sector such as the media, broadcasting, telecommunications, multinationals were not represented which makes them stakeholders that are consulted but not negotiation partners. This contention could mean that those stakeholders that were consulted but did not necessarily invest time resources to be hands-on in the charter process even though they may have made some financial contributions towards the charter process. The implication of this is that they were excluded from making a material impact on the outcome of the charter and hence they would not want to be necessarily bound by something they did not sign off.

This situation has the potential of delaying the final sign-off of the charter in order for it to be presented to the Minister of trade and industry to gazette potentially as a code of good practice. There may be merit in having a separate charter for the advertising industry as it may meet the qualification requirements as a stand-alone charter and there already has been immense progress made in drafting the advertising charter. The pragmatic approach that could be taken for the other sub-sectors that feel they were not negotiating partners to the charter is to look at those areas that give then acute discomfort in the charter and then address those issues. Drafting the charter from scratch does not seem to be the most effective approach as the ICT charter has principles that do not deviate too much from those outlined in the draft dti codes. This time between the finalization of the entire body of dti codes of good practice on BEE can be used effectively to reach a level of consensus within the sector. The codes also provides the organs of state the ability to use a charter that is gazetted as a code of good practice as a tool to measure the BEE contribution by companies in the relevant sector. This is an option available to ICASA and if it decided not to use the charter as a BEE measurement tool then the generic dti scorecard can be used. However the level of deviations between the ICT charter which would potentially be gazetted as code of good practice and the generic dti scorecard should be minimal. It is imperative to maximize the available resources rather than re-create the entire process which would levy an unpalatable cost to our economy and to our enthusiasm to get on with the transformation process.