It’s ironic that the push for racial normalisation of business has been set back at times by the very modernising trends that arrived with democracy in 1994.
As black people thrust their way into South African boardrooms, they can hear the chill winds of international competition rattling the windows.
So spare a thought for Iqbal Surve, head of Cape-based black economic empowerment (BEE) company Sekunjalo, whose purchase of 18% of Leisurenet has come back to haunt him. Surve is one of the Leisurenet directors being sued. Along with the 18% interest in Leisurenet came a seat on the board — and liability for the sins of the management.
But Sekunjalo lost about R145-million in the Leisurenet liquidation, and as a non-executive director Surve was the whistle-blower that led to the uncovery of Leisurent irregularities.
As Surve himself told a Sunday newspaper, empowerment leaders made a mistake in trying to follow business models from the old corporate South Africa.
Being a non-executive director in the 1980s and before often meant little more than offering polite advice at board meetings in return for some small remuneration and a round of drinks after the meeting. For that reason, some non-execs were known as the G’n T brigade.
With the change in the attitude to corporate governance after the King Report, the distinction between non-executive and executive directors has all but vanished for legal purposes. All directors are to be held liable for the decisions of the board. Yet executive directors have knowledge the non-execs don’t have, and can mislead the non-execs.
Empowerment deals rarely lead to outright control that would dictate executive directorships. The three major charters specify a target of 25% or 26%, and in the Financial Services Charter the target for direct ownership is 10%. Control is normally considered 35% and above, if no other party has more than that figure, though control can be exercised with less in some circumstances.
Hence black owners of minority stakes through some or other charter are going to find themselves in a tricky position: either they have nothing to do with the company and simply collect the dividends, or they take a seat on the board to try to influence the company and expose themselves to litigation. Holding management to account is difficult enough at the best of times, and if you don’t have any expert knowledge of finance or the business concerned, you could end up in hot water.
But what is the alternative? Does getting a dividend cheque every now and then, even if a handsome one, qualify as ”empowerment”?
The plight of Surve, because of changes to corporate governance rules, is an extreme example of the problems of empowerment in a business environment subject to rapid change.
There are now reports that the tax-man is to go after ”hybrid” financial instruments, such as dividend —paying redeemable preference shares and interest-bearing preference shares. Dividends are not taxed. Interest is. Instruments that straddle the two can be used to avoid tax.
The taxing of redeemable preference shares could remove another arrow from the quill of the merchant bankers who do the financial engineering essential to transfer equity for BEE.
It’s a small point, but it underlines the increasingly difficult environment in which empowerment deals take place. No wonder some BEE deals seem from the outside to be little more than options to own a stake at some stage in the future.
What all this means is that the focus of BEE will have to change, as government intends it to, from high profile equity transfer in big companies to fundamental racial change in mainstream business. On the one hand we probably need to concentrate on smaller, more durable BEE, where people learn real skills. On the other hand, racial transformation of mainstream business to be more diverse — and more representative — cannot be resisted.
South African companies need to be transformed beyond race. They have to be increasingly competitive in finding investment and markets, and that means greater corporate governance and less reliance on government cosseting. Rather than cosmetic changes, businesses need to look beyond prejudice to find a way to tap the skills of the now much bigger pool of talent available to them. If that means the focus shifts from equity transfer to training and coaching, so be it.