ARTICLE
8 February 2021

BBBEE Ownership Transactions

SI
SchoemanLaw Inc.

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SchoemanLaw Inc Attorneys, Conveyancers and Notaries Public, based in Cape Town, is a boutique law firm offering its clients access to high quality online legal documents and agreements, together with a wide range of legal services. The firm has an innovative and entrepreneurial mind-set that distinguishes it from other law firms. We apply our first-hand understanding of the challenges facing entrepreneurs (regardless of their business size) to develop proven, practical solutions incorporating legal compliance, risk aversion and business sense. We achieve this by offering clients tailored, yet holistic support comprising of legal gap analysis, the construction of tailored legal solutions and the practical implementation thereof through training and automation.
Objects of the Broad-Based Black Economic Empowerment Act, 53 of 2003, as amended by Act 46 of 2013, include promoting economic transformation and achieving a substantial change in the racial composition of ownership.
South Africa Corporate/Commercial Law

Objects of the Broad-Based Black Economic Empowerment (“BBBEE”) Act, 53 of 2003, as amended by Act 46 of 2013(hereafter the "Act"), include promoting economic transformation and achieving a substantial change in the racial composition of ownership. It is with that in mind that under the Act, "equity ownership" does not simply mean a transfer of shares. In order to enter into a legally enforceable transaction, that would allow the company to claim the points, the following elements must be present, there must be:

  1. exercisable voting rights;
  2. economic interest; and
  3. net value.

Structures, provisions and transactions that the BBBEE Commission has expressed concerns with:

  • Call options
  • Pledges
  • Some restraint of trade provisions
  • Preference Shares
  • BBBEE warranties and breach provisions
  • Broad-based ownership structures
  • Employee ownership structures
  • Trusts
  • Private Equity Funds

The principle of true empowerment should be at the heart of any transaction.

Originally published Dec 1, 2020

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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