Whoever is responsible for the Accreditation Act should ashamed of themselves

Posted by Kevin Lester
Thursday, 12 March 2009  |  2 comments
Kevin Lester is a BEE Specialist at Transcend Corporate Advisors
Read all of Kevin Lester's Posts

I attended a meeting two weeks ago where the discussion was focussed on that awful document variously named the "Framework for Accreditation and Verification by all Verification Agencies" and "Verification Manual" when a participant at that meeting drew my attention to the existence of a "SANAS Act" that granted to the South African National Accreditation System ("SANAS") the exclusive right to accredit BBBEE Verification Agencies.

I am a lawyer by training and pride myself in a fairly comprehensive knowledge of all legislation relating to South African socio-economic empowerment policy, so I responded with complete incredulity – legislation of that import dealing with subject matter as significant as Broad-Based Black Economic Empowerment (BBBEE) even if it was not known to me, would at least be known to my clients – there was just no way that such a law could exist without BBBEE practitioners knowing about it! I called a few of friends in the Verification business, and they too knew nothing of any such legislation.

I returned to my office, and Googled "SANAS Act", but nothing meaningful came up. I tried a bunch of other search leads, but they all came up blank. Then, I headed off to the SANAS website. Under the heading BEE, all I found was details as to the accreditation status of various Verification Agencies. On the home page, I found the usual gobbledegook of ISO junkies – "SANAS is responsible for the accreditation of Certification bodies to ISO/IEC 17021, ISO/IEC 17024 and 65 (and the IAF interpretation thereof), and laboratories (testing and calibration) to ISO/IEC 17025. Inspection Bodies are accredited to ISO/IEC 17020 standards. GLP facilities are inspected for compliance to OECD GLP principles.” But as to BEE accreditation exclusivity, not a word!

There was nothing else of interest anywhere on the site, but then I tried an advanced Google search looking for the words “Economic Empowerment” on the SANAS site and out popped the Accreditation for Conformity Assessment, Calibration and Good Laboratory Practice Act, 2006 (the "Lab Act"), assented to by Parliament on 12 March 2007 and gazetted a stunning 5 days later on 17 March 2007 – just over 30 days after the gazetting of the Codes of Good Practice (the Codes) under Broad-Based Black Economic Empowerment Act (the BEE Act).

But hell, with a title that refers to "Conformity Assessment, Calibration and Good Laboratory Practice", who would expect to find the following in such an Act:

4. (1) SANAS is recognised as the only national body responsible for carrying out accreditations in respect of conformity assessment, which includes accreditation of-
(a) calibration, testing and verification laboratories;
(b) certification bodies;
(c) inspection bodies;
(d) rating agencies; and
(e) any other type of body that may be added to SANAS’ scope of activity.
And for the more thorough among you, “Rating Agency” is defined as “an organisation that rates the status of enterprises in terms of broad-based black economic empowerment compliance”

So there you have it, SANAS does have exclusive right to accredit BBBEE verification agencies! So before I deal with triumphalism that will now break out from the supporters of SANAS and the Verification Manual, let me first reflect on the following: In President of the Republic of South Africa v Hugo 1997 (4) SA 1 (CC) at para 102, the court ruled that

[a] person should be able to know of the law, and be able to conform his or her conduct to the law. Guidelines should be publicly promulgated and policies kept in government drawers will not suffice.

Now the instigators of the Lab Act need to understand that while the requirement of "public promulgation" is a matter of form, the substance is also important – it is the very antithesis of democratic process to pass an Act into law called the "Accreditation for Conformity Assessment, Calibration and Good Laboratory Practice Act" when it contains regulations regarding Black Economic Empowerment legislation. It reminds one of previous regimes in this country like the South African Party that in 1918 enacted the "Native Land Act" which stripped black people of all of their land rights.

It must surely violate some or other ISO/IEC GLP standard on disclosure, openness and stakeholder engagement to call something a bacteria when it’s a diamond– Indeed I am aware that there is Corporate Social Responsibility ISO standard in the works – I do hope that that document would demand a greater degree of honesty and transparency from corporates than is demonstrated in the subterfuge the hides a BBBEE verification agency accreditation behind a "good laboratory" practice. Making law should never be akin to using a blunt instrument to bludgeon one's way to the top of hill – it should instead be a refined process of open, honest deliberative and transparent discussion.

SANAS and whomever else colluded in presenting this Act to parliament should be ashamed of themselves. Witness the Codes that were gazetted repeatedly for public comment over a four year period with effective public communication and compare this to an Act that was born from a process that was, at worst, cynically manipulative and, at best, grossly negligent in terms of public engagement and transparency.

In my opinion, the enactment of this Lab Act is a shameful act of subterfuge that is contrary to the democratic culture of this country and those responsible for it need to take a good hard long look at themselves in the mirror – from where I stand they look pretty grubby, but I’ll leave it to them to determine their own acceptable standards of respectability.

Now, to quickly to deal with the Verification Manual triumphalists, the existence of this hitherto unknown Act of Parliament does not help spare the Verification Manual any of the embarrassment that arises from publishing an ultra-vires law. None of the BEE Act, the Codes or the Lab Act grants the DTI or SANAS legislative powers. The BEE Act allows the minister of Trade and Industry to gazette Codes (having complied with the requirements of section 9(5) of that Act) and both the BEE Act and Lab Act allow the minster to gazetted regulations, but in such circumstances, the minister must comply with the Promotion of Administrative Justice Act in doing so. None of these requirements have been met in respect of the so-called “Verification Manual” and so it is best to recognise that document for what it is – a grubby little example of the ultra vires actions that have come to proliferate within the space of BBBEE. The Lab Act won’t save the Verification Manual; proper consultative procedure is the only antidote. 

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