Black Management Forum launches litigation fund to fight flawed laws

Andile Nomlala, BMF chair. Photo: Austin Malema
Andile Nomlala, BMF chair. Photo: Austin Malema

The recently launched Black Management Forum (BMF) litigation fund is set to challenge a raft of laws that have proven to be detrimental to economic transformation.

The fund, according to BMF president Andile Nomlala, will also take on private prosecutions where necessary and where it feels government has failed to act in clear cases of illegality.

“However, we are not going to concentrate on private prosecutions because we are not going after individuals. Our approach will be in reviewing economic legislation, not people,” Nomlala said.

The fund, which raised R86 000 within 24 hours of its launch earlier this week, will be tackling laws and pieces of legislation that, though well intended, have had a negative impact on economic transformation.

Nomlala highlighted the Preferential Procurement Policy Framework Act (PPPFA) as one piece of legislation that has had a devastating effect on the progression of black businesses.

According to the PPPFA, tenders valued above R1 million should be scored with 90% weighting on price and 10% on the bidder’s broad-based BEE level, while for those below R1 million the ratio is 80:20.

Nomlala said the rule does not give black businesses any advantage as the bigger corporate always outbid them by far, in spite of having little or no black ownership.

“The PPPFA must definitely be among those we take to court, as well as some sections of the BEE Act. The number of laws we have to challenge is immense. We are going to have to review a lot of legislation.

“We are going to create a legal research unit to review all these unjust anti-transformation pieces of legislation. Some of these laws had good intentions but the outcomes are horrible. That will be our resource arsenal,” he said.

Nomlala pointed out that the litigation fund does not close the door on engagement and lobbying.

“We will still lobby Parliament and the executive and if we fail we will go to court because we have no time to be nursing feelings of legislators, because it’s now 25 years since the dawn of democracy,” he said, adding that some of the laws the fund would be challenging are 40 years old.

In addition, Nomlala said the fund would have to look at the economic impact of section 25 of the Constitution and its related reports. Section 25 allows for the expropriation of land under specific listed circumstances and has been a hotly debated matter in Parliament.

“The report that was issued on section 25 only goes after the Ingonyama Trust. The BMF must look at private unused land as well as the economic worth of rural land being determined by the banks,” he said.

Nomlala emphasised that only high-impact test cases would be taken on, as the approach is not open-ended.

He added that a target or limits on how much should be raised for the litigation fund have not been set, but that the fund would be staffed with “highly-skilled lawyers and advocates”.

According to a statement issued by the organisation earlier last week, the fund was agreed on during the BMF’s conference last year and will provide litigation financing in endeavours intended to, among other things, champion all public interest litigation incidental to the founding principles of the organisation, as well as hold public interest companies accountable for not achieving targets set out in employment equity plans.

It also wants to use the fund to reinforce its monitoring capacity and as a tool to enforce transformation.

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