by Rita Felgate (Adv.)
The Small Business Development Act 112 of 1981 contains provisions related to the Small Business Development Corporation Limited (SBDC). However, Act 112 of 1981 was repealed by the National Small Enterprise Act, No. 102 of 1996.
Usually (if I’m are right?) the repeal an Act means any creature of statute which the Act created is also as it were “repealed”. That is why such repealing Acts contain provisions transfering the assets and staff of the “repealed” creature to another creature of statute.
So (again, if I’m are right?), finding the SBDC’s continuity or demise in relation to legislation should be easy: We should start by looking at the repealing Act 102 of 1996 for provisions regarding its continued existence, or its demise and the transfer of such things as its assets and staff to another entity.
However, Act 102 of 1996 does not contain such a provision. All it contains, regarding the SBDC, is a transitional provision in it’s s21 which provides that s2A of Act 112 of 1981 remain in force until the Minister’s fixing of a date by notice in the Gazette effectively terminates its continuation in force. (If you are interested: s2A of Act 112 of 1981 is entitled “Application of Insurance Act, 1943” and provides that the Insurance Act 27 of 1943 shall not apply to the SBDC or company in which the SBDC holds a majority of the shares, in so far as the SBDC or such company carries on guarantee business as defined in section 1(1) of the Insurance Act 27 of 1943).
It would appear, because s21 of Act 102 of 1996 actually refers to the SBDC, that the SBDC does somehow survive the repeal of Act 112 of 1981. Maybe that’s why the repealing legislation does not deal with its existence, continued or otherwise?
So, what legislation applies to the SBDC now? Or has the SBDC somehow slipped the bonds of its foundational legislation and, along with its assets and staff, become a free entity, dominus nullus.
Apparently not: I’m informed by the Business Partners Limited (“BPI”) that they are the SBDS, which transformed and changed its name to theirs in 1998, and that BPI’s registration number with CIPRO is 1981/00918/06. However, a CIPRO search cannot find that registration number or the names of an entity with the name of either the SBDC of BPI. Maybe someone out there is better at searching CIPRO than I am? Or is it too dominus nullus?
I await a return call by the BPI’s information officer around 7 May 2011, secure in the knowledge that the SBDC/BPI just must exist (maybe in the plethora of BEE/E legislation which resulted in its transformation and renaming?) as the alternative is just too ridiculous. Spotting the parastatals is a bit like spotting birds – takes lots of clambering about and patience. But every now and again I’m rewarded with a surprise finding.
While I wait, I’ll take time where I can to explore reasons why the Minister has not implemented the will of the legislature regarding fixing a date for the termination of the transitional provision delaying the coming into force of the repeal of s2A of Act 112 of 1981 by s21(1) of Act 102 of 1996. I’ll start by assuming that the will of the legislature was that this be done within a reasonable time. Is well over a decade later, still undone, a reasonable time? Hmm.