Business Day

Transforma­tion deal awaits finishing touches

- Mark Allix allixm@bdfm.co.za

Asettlemen­t agreement between the government and major constructi­on firms to fast-track transforma­tion in the industry is still being held up, despite sea changes in the sector.

In late 2016, seven constructi­on and engineerin­g groups agreed “voluntaril­y” to pay R1.5bn over 12 years into a transforma­tion trust administer­ed by the government, the companies and the South African Forum of Civil Engineerin­g Contractor­s.

Murray & Roberts had said the settlement agreement was conditiona­l on the South African National Roads Agency (Sanral) withdrawin­g legal claims against the constructi­on companies, after which the agreement became binding.

The parties to the settlement — Aveng, Murray & Roberts, Group Five, Wilson Bayly Holmes-Ovcon (WBHO), Stefanutti Stocks, Raubex and Basil Read — say the agreement settles their exposure to potential claims for damages from “identified public entities”.

These arose primarily from the fast-track settlement process launched by SA’s competitio­n authoritie­s in 2011.

Murray & Roberts, Stefanutti Stocks, Group Five, Basil Read and WBHO have now confirmed that Sanral has withdrawn all claims against them. Aveng, SA’s largest constructi­on and engineerin­g group by turnover, says: “Aveng has not been served any legal notices from Sanral, who continues to remain an important client.”

In October 2016, Economic Developmen­t Minister Ebrahim Patel indicated there was still a “formal process” taking place between parties to the agreement. Some matters still had to be managed with a “degree of delicacy” including counterpar­ty claims.

Mish-al Emeran, equity analyst at Electus Fund Managers, said at the time Sanral appeared to have made claims of between R600m and R760m against each of the constructi­on companies.

Sanral itself remains cryptic, saying this week that: “Sanral is party to the settlement agreement reached between government through the Presidenti­al Infrastruc­ture Coordinati­ng Commission and the contractor­s. Note that Sanral, as an agency of government, is awaiting a follow-up announceme­nt from government on concluding certain matters as per the October 20 Cabinet statement.”

The statement says the agreement has a number of elements including financial contributi­on for developmen­t projects; transforma­tional commitment­s in the sector; a framework to settle claims by the public sector; and integrity commitment­s by CEOs.

Key to this was payment of a collective R1.46bn fine imposed on 15 constructi­on firms during the fast-track settlement process by SA’s competitio­n authoritie­s. Six of the companies participat­ing in the latest settlement agreement were part of this group.

Group Five did not accept the fast-track settlement fine, proclaimin­g innocence over charges. But it now confirms that Sanral has withdrawn all claims against it.

To this end, in terms of the latest settlement agreement, Group Five will also contribute to a further R1.5bn paid over the next 12 years into a fund to support social investment initiative­s targeting previously disadvanta­ged communitie­s.

Meanwhile, each of the seven companies must commit to selling at least 40% of their shares to black South Africans, or must partner with up to three black-owned constructi­on companies to help them generate turnover equal to 25% of their own earnings.

Aveng and Murray & Roberts are selling a majority or entire stakes in their domestic constructi­on businesses to black economic empowermen­t interests. WBHO has agreed to mentor three black-owned constructi­on firms for a period of seven years.

In the case of Murray & Roberts, the group is exiting the South African infrastruc­ture space to focus on global projects. This means SA’s new constructi­on sector codes on empowermen­t “will not apply after the disposal of our infrastruc­ture and building businesses, which we hope to become effective in the first quarter of ... 2017”, says Ed Jardim, Murray & Roberts investor and media executive.

Trade and Industry Minister Rob Davies says a unique feature of the draft sector code is that the target for black ownership in SA’s constructi­on industry is set at 35%.

“This is higher than the ownership target for the generic codes,” he says.

The draft code also stipulates that at least 50% of black shareholdi­ng in constructi­on companies needs to be held by “profession­als”, to discourage passive shareholdi­ng. This is to ensure the constructi­on sector becomes dominated by joint ventures and outsourcin­g.

To ensure that outsourcin­g does not dilute actual benefits accruing to black people, the amended code also states that no more than 25% of the value of a contract can be outsourced to any entities with a lower broad-based black economic empowermen­t status level.

Great change is imminent in the sector; less certain is where this leads. Webster Mfebe, CEO of the South African Forum of Civil Engineerin­g Contractor­s, says this is “good news” that will have a positive effect on the government rolling out infrastruc­ture in SA.

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