IMPLEMENTING BLACK ECONOMIC EMPOWERMENT

Abstract

In March 2002, the Department of Transport published the Ports Policy with the objectives of ensuring affordable, internationally competitive, efficient and safe port services and of restructuring port governance and operations and subsequently regulating them. The 2005 Ports Act officially separated operations from a landlord function within ports and further established the Ports Authority to own, manage, control and administer ports to ensure their efficient economic functioning. The Ports Act also established the Ports Regulator to exercise economic regulation of the ports system as well as monitor the activities of the Ports Authority. In addition, the Ports Regulations were developed, setting out the BEE targets that the Ports Authority should achieve in order to promote the economic participation and empowerment of historically disadvantaged groups in port operations. The Regulations further mandated the Ports Regulator to monitor and enforce implementation of the BEE targets when the Ports Authority would be issuing licences or granting concessions in port operations. This monitoring and enforcement function would be exercised through annual reports to be submitted by the Ports Authority, and through hearings that may be conducted by the Ports Regulator from time to time. This study found that the reasons for entrusting the Ports Regulator with the BEE monitoring and enforcement mandate, although not known to everybody, could have been orchestrated by Transnet because the Ports Regulator was seen to be less powerful than the Maritime BEE Charter Council. In addition, Transnet also developed guidelines for granting concessions, licences and permits for ‘auxiliary port services’ and not port operations. These would test the regulatory capability of the Ports Regulator hence it would require preventative enforcement measures in addition to harm-based enforcement measures that are in place (namely, annual reports and hearings). This study also established that having departmental officials on the Board of the Ports Regulator appeared to be in the latter’s best ii interests although it has to strengthen measures meant to curb the financial interests of board members and develop independent capacity for informationgathering, since implementing its mandate of monitoring and enforcing BEE will indeed be an intractable affair.