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 workinggroup 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 thathave been raised as a concern.

The dti codes recognize the necessity of having sector charters that would outline how thesector 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 economywith 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 processforward 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 amuch 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 makesthem 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 somefinancial 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 advertisingindustry 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 notnegotiating 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 notdeviate 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 thecharter 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 tomaximize 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.