Memorandum of Understanding (2020)

WHEREAS the Parties acknowledge the importance of consultation, mutual support and co-operation regarding aspects such as the disclosure of investigations, information, fining and in general, mutual co-operation and assistance;

AND WHEREAS the CIPC was established as a juristic person to function as an organ of state within the public administration but as an institution outside the public service, entrusted with powers to provide efficient and effective registration of companies; maintain accurate, up-to-date and relevant information concerning companies; promote education and awareness of company and intellectual property laws and related matters, promote compliance with the Act and efficient, effective and widest possible enforcement to achieve the objectives of the Act;

AND WHEREAS the CIPC has jurisdiction throughout the Republic of South Africa and its functions are, as set out in section 187 of the Act:

(a)	promoting voluntary resolution of disputes arising in terms of the Act between a company on the one hand and a shareholder or director on the other, as contemplated in Part C of Chapter 7, without intervening in, or adjudicating on any such dispute;

(b)	monitoring proper compliance with the Act;

(c)	receiving or initiating complaints concerning alleged contraventions of the Act, evaluating those complaints and initiating investigations into complaints;

(d)	receiving direction from the Minister in terms of section 190, concerning investigation to be conducted into alleged contraventions of the Act, or other circumstances, and conducting any such investigation;

(e)	ensuring that contraventions of the Act are promptly and properly investigated;

(f)	negotiating and concluding undertakings and consent orders contemplated in section 169(1)(b)and 173;

(g)	issuing and enforcing compliance notices;

(h)	referring alleged offences in terms of the Act to the National Prosecuting Authority; and

(i)	referring matters to a court, and appearing before the court or the Companies Tribunal, as permitted or required by the Act.

AND WHEREAS the function and objectives of the CIPC (as expressed in the Act) are to exercise or perform the powers, duties and functions assigned to or conferred upon CIPC by the Act in respect of matters referred to it in terms of section 187 of the Act.

AND WHEREAS the B-BBEE Commission is an entity within the administration of the Department of Trade and Industry established in terms of section 138 of the B-BBEE Act, entrusted with powers to oversee the implementation cf the B-BBEE Act, promote compliance with the B-BBEE Act in the interest of the public, strengthen and foster collaboration between the pubic and private sector to achieve the objectves of the B-BBEE

Act;

AND WHEREAS the B-BBEE Commission has jurisdiction throughout the Republic of South Africa and its functions are, as set out section 13F of the B-BBEE Act as follows:

(a)	To oversee, supervise and promote adherence to the B-BBEE At in the interest of the public;

(b)	To strengthen and foster collaboration between the public and private sector in order to promote and safeguard the objectives of broad-based black economic empowerment;

(c)	To receive complaints relating to broad-based black economic empowerment in accordance with the B-BBEE Act;

(d)	To investigate, either on its own initiative or in response to complaints received, any matter concerning broad-based black economic empowerment;

(e)	To promote advocacy, access to opportunities and educational programmes and initiatives of broad -based black economic empowerment

(f)	To maintain a register of major broad-based black economic empowerment transactions, above a threshold determined by the Minister in the Gazette,

(g)	To receive and analyse such reports as may be prescribed concerning broad-based economic empowerment compliance from organs of state, public entities and private sector enterprises;

(h)	To promote good governance and accountability by creating an effective environment for the promotion and implementation of broad -based black economic empowerment;

(i)	To exercise such other powers which are not in conflict with the B-BBEE Act as may be conferred on the B-BBEE Commission in writing by the Minister, and

(j)	Increase knowledge of the nature and dynamics and promote public awareness of matters relating to broad-based black economic empowerment by implementing education and awareness measures, providing guidance to the public and conducting research on matters relating to its mandate and activities.

AND WHEREAS the B-BBEE Commission has identified synergies err need for cooperation to effectively execute its mandate given non-compliance with the B-BBEE Act and the scourge of fronting that the B-BBEE Commission is required to address.

AND WHEREAS the Parties acknowledge the importance of investigating the fronting practices and the relationship between corruption, derailment of economic transformation, lack of protection to minority rights, lack of access to company information, fraudulent attainment of high level B-BBEE status and flouting of corporate governance, and further acknowledging that each Party may have specialised skills and specialist knowledge that assist in conducting investigations;

AND WHEREAS the Parties acknowledge that everything dealt with and agreed to herein is in the context of and subject to all legislation, as amended from time to time, applicable to a Party.

NOW THEREFORE the Parties agree to enter into this Memorandum of Understanding and record the terms of their agreement as follows:

Broad-Based Black Economic Empowerment Act, 2003 (Act No. 53 of 2003)

Memorandum of Understanding, (2020)

1. Preamble