Fronting is a criminal enterprise not only because it is fraudulent but also because it is an affront to the human dignity of black people whom the South African Constitution has targeted for an especial economic advancement and protection. The Constitutional Court has at least twice – in 1995 and in 2018 – identified the human dignity of black people as requiring an especial protection. So, why is fronting not prosecuted as the criminal offence that it is?
The state, in all its forms, seems either impotent or disinterested in the economic crimes committed against black people in South Africa. It seems caught up still in the “reconciliation” warp, refusing to address emotional and political blackmail (where black people who point out racial exploitation are accused of “playing the race card”) at the expense of the economic redress that the Constitution demands for black people.
Fronting is principally a race issue in South Africa. Uncomfortable though the implications and impact of the race question may be to some, race being a central factor is a truth from which there is no escape. It has to be confronted and dealt with decisively, not avoided in the hope that it will go away. The Constitutional Court, no less, appreciates this when it says in Bato Star
“measures that bring about transformation will inevitably affect some members of the society adversely, particularly those coming from the previously advantaged communities”.
There is no escaping that when the Constitutional Court refers to “those coming from the previously advantaged communities” it is making an unmistakable reference to white people, whether or not they were born during apartheid. No point in quibbling about this. The question is: how do South Africans bring about the constitutional promise of the achievement of equality despite the inevitable discomfort that white people must of necessity suffer through the process?
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Good day Adv. I’m currently reading and am engaged by a provision which you serve an extract to in Fronting: The Ugly Long Shadow Over SA’s Constitutional Imperative; it is section 13P of the B-BBEE Act where it holds that the National Treasury may maintain a tender defaulters register. My problem is with the word “may” not being “must”; and I perceive this as being – in the least – discordant with the accepted objectives of the statute. This is so in the sense that what the impugned word suggests is a discretion on the part of the National Treasury. This is so at least to my mind and in line with the ordinary meaning of that word as opposed to “must.” In the same breath, the punitive sanctions that you mention, particularly in the case of a juristic person, are anti-climaxed by the possibility of that juristic person re-transacting soon after being mulcted with a fine, with the state a tender contract before the expiration of the required 10 years because of the implied discretion given National Treasury on maintaining a defaulters register.
In view of this, don’t you think that the impugned provision is constitutionally invalid to the extent of the discretion it affords National Treasury on the tender defaulters register issue?
In a sense, it interpetively tells me that the state may choose to take seriously the Constitution’s 9(2) and 217(2) imperatives or not; and this insofar as leeway is given for defaulters to within a short while rebound from the punishments meted them for fronting. In other words, the provision or that discretionary aspect of it serves to encourage rather than address the mischief it is constitutionally addressed against.
In closing, thank you so much for the webpage and the blog; I’d personally been frustrated by the hitherto prominence of slapdash law-related blogs such as Constitutionally Speaking – which belongs to Professor De Vos. With all the drawable respect due to him, many of his views do not plainly speak to me. What is more, the frustrations of trying to engage him on perspectival differences pertaining to his offerings and he skirting to respond and engage one thereon are manifold.
So, again, thanks for this site, and please keep it up and running against the (legal opinion and analyses) orthodox grain which, as a bad diet is to a body, it has been to mine and many other minds.
Keep well.