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Start-up Guide

The Consumer Protection Act

Understanding the Consumer Protection Act and how it impacts your business.

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Many business owners were concerned about the impact the Consumer Protection Act (CPA) would have on their companies, but the Act holds some benefits for SMEs too. Certain of the Act’s provisions actually prevent competitors from undermining your business through unfair or dishonest marketing or business practices.

The CPA’s definition of consumers includes corporations with an asset value or annual turnover of less than R3 million. This means small businesses purchasing goods or services from their suppliers have the same rights and protection as ordinary consumers.

Key implications of the Consumer Protection Act

More importantly, entrepreneurs need to be aware of the impact the Act has on the way they operate their businesses. They should ensure that they comply with the legislation. Here are some of the practical implications of the Act. It is advisable that you seek legal advice to ensure that your company complies with the CPA.

1. Terms and conditions

Many businesses protect themselves by having customers sign standard terms and conditions. This is in order to prevent future disputes and give the business essential protection against non-payment, product or service liability.

The Act makes many of the terms previously included illegal or unenforceable, so businesses need to obtain a new document to properly protect their business interests and avoid administrative fines.

2. Fixed-term consumer agreements

The maximum period for fixed-term consumer agreements is 24 months from the date of signature by the consumer, unless otherwise specified. Longer periods are only permitted if the consumer agrees and there is a demonstrable financial benefit to the consumer.

3. Competition entries

The cost for consumers to submit and entry to a competition should not exceed R1,50. This includes the total cost for all subsequent electronic communication to the consumer regarding that entry.

4. Contacting customers

Companies are prohibited from contacting customers at certain times, including Sundays or public holidays, Saturdays before 9am and after 1pm, and between 8pm and 8am the following day during the week. Direct marketers can’t send material to consumers unless they have confirmed (in writing) that no pre-emptive block was registered.

5. Defective products

The Act stipulates that a consumer is no longer required to prove negligence against the importer, producer, distributor or retailer of a product when claiming damages arising out of defective products. This includes a product failure, defect in any goods or even inadequate instructions or warning provided to the consumer. This will affect the level of indemnity insurance required by businesses.

6. Money-back guarantees

All goods sold are subject to an automatic warranty that they are suitable for the intended purposes, are of good quality and free of defects. If a product does not live up to these standards, the consumer is entitled to return the product for a refund, replacement or repair, within six months of the transaction. Companies that in the past agreed to exchanges but not refunds can no longer do so. A sale is only really a sale after six months. There is also a ten-business-day window for consumers to return goods which they have not had the opportunity to examine beforehand.

7. Delivering goods

Products must be delivered within a reasonable time after the agreement is entered into or as agreed between the parties. If there is going to be a delay in the delivery, the supplier needs to inform the consumer and arrange a new date. The consumer is, however, entitles to cancel the deal and go elsewhere. If goods are incorrectly delivered, the supplier runs the risk of the goods being declared ‘unsolicited’, in which case their ownership can pass to the person to whom they were delivered.

8. In plain language

The Act states that everything must be in plain language – all agreements must be easily understandable. Suppliers may not use false, misleading or deceptive representations to win over consumers to their products. They must also make full and honest disclosure about products, including their price. Sales that advertise goods ‘while stocks last’ can no longer use the same tactics, for example, if a TV is advertised for R1 000 and the consumer arrives to buy the TV as advertised, the supplier cannot offer a different TV for a different price in its stead.

Protect your business

While the bulk of the Consumer Protection Act is common sense and good business practice, complying to the Act does require a little work by business owners who should ensure they have a strong risk management system in place. You can start by double checking all interaction and points of correspondence between your business and clients, including emails, calls, adverts, SMSs, websites and how walk-in customers are treated by staff.

You can also mitigate risk by creating templates for all correspondence. Ensure that the words ‘All Terms and Conditions Apply’ appear on everything. To ensure that your agreements use plain language, get someone else to read through all the business’s documents with a critical eye.

3 Phases of Compliance

Neville Melville, advocate and author of The Consumer Protection Act Made Easy unpacks a three-phase approach to compliance:

Phase 1:

Establish whether the provisions of the Act apply to your business.

Phase 2:

Determine which areas of the Act apply to your business. If your business is multi-departmental, decide which areas of the Act apply to which departments. The departments will need to communicate with each other, however. The Act calls for a transformation in how business is conducted, and this requires transparency – within and beyond an organisation.

Phase 3:

Undertake a compliance audit: You should seek expert legal advice to assist you with the audit, as well as to correct any areas highlighted through the audit. The audit will comprise the following:

  • What does the Consumer Protection Act require?
  • What is the existing position in your organisation or department in this regard?
  • If you fall short, in what respects?
  • What action needs to be taken to ensure that compliance will be achieved?
  • Who will be responsible for carrying out the change?
  • By when must the change be brought about?
  • Compliance must be checked by the responsible party and signed off.

Useful resources

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Start-up Guide

What You Should Include In The Partnership Agreement

How to create a formal written partnership agreement.

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When taking on a business partner, it is critical to have a formal, written partnership agreement. While this is not a legal requirement, it does provide a framework for the partnership in terms of everyone’s obligations, settling conflicts, disagreements and other issues that could occur. The agreement is needed for the wellbeing of the business.

Create your written partnership agreement with the assumption that anything that can go wrong with your partnership will. Friction between partners over things such as money, power or ego frequently undoes business relationships.

Related: Developing Partnerships With Fintech Innovators

Your partnership agreement should prepare you for all possible “what-if” situations, and set methods for resolving them.

You can save money by drafting your own version of the key parts of your agreement, then taking it to your firm’s attorney to be reviewed, clarified, modified and finalised. It is important to have an attorney review the contract.

These are some of the key areas you should include in your written partnership agreement:

writing-a-business-plan

1Partnership Agreement Basics

  • What is the name of the partnership?
  • What is the purpose of the partnership?
  • What is the duration of the partnership?

2Responsibilities, performance and remuneration

  • What is each partner’s role?
  • What are each partner’s responsibilities within the company, and what level of performance is expected?
  • Are partners expected to make a full-time commitment to the venture, or are business activities permitted?
  • What will be the income of each partner, and how will profits or losses be distributed?

3Contributions

  • What will each partner be contributing to the partnership in terms of cash, assets, loans, investments, and/or labor?
  • If a partner loans the company money, what will be the terms or repayment?
  • Will the business partners be expected to make additional contributions to the partnership, and if so, how will that be handled?
  • Withdrawal of partners/admission of new partners
  • What guidelines should be followed if one partner wants to leave the partnership?
  • Will partners be allowed to sell their interests in the business to outsiders?
  • On what grounds can a partner be expelled from the partnership (misconduct, non-performance of duties)?
  • How will new partners be admitted to the partnership?

Related: 10 Questions To Ask Before Committing To a Business Partner

4Buy-out procedures

  • What guidelines should be followed if one partner wants to retire or leave the business partnership?
  • What happens if a partner is incapacitated or dies?
  • Will the partnership take out “key man” life insurance to ensure the surviving partner is able to buy the deceased partner’s shares from his/her heirs?
  • Will partners who leave have to sign a non-compete agreement?

5Dispute resolution

  • What methods will be used to settle disputes that can’t be otherwise resolved?
  • What procedures should be used in the event of a tie vote between partners on crucial partnership decisions?
  • Will you use mediation or binding arbitration?
  • If disputes can’t be resolved, is there a mechanism in place for dissolving the business partnership?

6Financial arrangements

  • What banking arrangements will be made for the partnership?
  • Which partners will have check signing privileges?
  • Who will be authorised to draw on the partnership’s accounts?
  • How will the books be kept?

Related: Essential Elements of Working with a Business Partner

7Method for dissolving the partnership

  • When can the partnership be dissolved?
  • What happens to the partnership if the partners decide they can’t work together?

8Valuation

  • What methods will be used to determine the value of the business in the event of a sale, dissolution, death, disability or withdrawal of a partner?

9Useful resources

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Start-up Guide

Do You Speak Start-up?

The start-up dictionary for every budding entrepreneur.

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Venture capital in South Africa is starting to take hold. With a host of venture funds, section 12J companies, incubators and start-up clubs being launched, start-ups are becoming more popular and investors are encouraged to consider these new opportunities.

Chris Ball, an investment analyst at AlphaWealth and a co-founder of Fincheck.co.za, a financial comparison fintech start-up, explains the colloquial jargon of venture investors and start-up entrepreneurs.

Chris wrote this ‘dictionary’ initially to educate AlphaWealth’s high net worth clients about the start up world so that they could consider becoming investors.

[dropcap]A[/dropcap]

Angel investor

An angel investor is generally someone who provides seed capital to a start-up in its infancy. In South Africa, there are a few well known angel investors. However, most entrepreneur’s first funds are generally received from family and friends who believe in the idea.

Resource: How to find an angel investor to back my business idea? 

[dropcap]B[/dropcap]

B2B, B2C, P2P

Business to business – This describes a business that is targeting another business with its product or services. This type of service is also known as enterprise technology. Salesforce would be a great example of this technology.

Business to consumer – describes a start-up that sells directly to consumer.

Peer to peer – is a platform concept, where the technology matches buyers and sellers. One of the earlier peer to peer technologies was Ebay. Today, the peer to peer platform has evolved to incorporate finance institutions such as Lendico.

Bootstrapping

This is a concept where founders pool their own capital resources to get the start up as far as possible before looking for external funding.

The term comes from “pulling oneself up by one’s bootstraps”. This mindset links directly into the lean start up methodology.

Related: 6 Tips For Bootstrapping

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Disruption

Both technology and business models can be disruptive and is defined when a start-up disrupts the current market place by displacing old businesses and winning market share. Outsurance and Uber have disrupted the insurance and personal transport businesses.

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Entrepreneur

This is someone who starts a business or venture, assuming all potential risk and reward for his or herself.

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Ground floor

This is the start of a venture where a founding team have enough to illustrate the concept but are yet to execute the initial steps of their plan.

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Lean start-up methodology

The lean start-up methodology, is a business thesis that was founded by Eric Reis. The business methodology is based on the practice of testing multiple small iterations in an effort to find the product, design or user experience or even business model that is best adopted by the end consumer.

Read more on the Lean start-up methodology here.

[dropcap]I[/dropcap]

Incubator

An organisation that helps develop early stage companies. Generally this help is offered in exchange for equity. The Israeli start-up ecosystem has some of the best incubators where they offer workspace, networks and guidance.

[dropcap]M[/dropcap]

Moonshot

‘Go big or go home’ – this is the impossible idea that a team wants to accomplish. The term was originally coined when John F Kennedy challenged American scientists to get a human to the moon.

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Pivot

A company that changes its business direction as a result of a dead end or the ability to use their technology in a more significant way. Instagram was originally a location check in service before pivoting to become a photo sharing application.

Pre-money and post-money

Post-money = Pre-money valuation + new funding.

Valuing a start-up has become a bit of an art, but more and more funds are starting to adopt a common methodology as the industry matures. In essence, the pre-money value is the monetary value of the company before a new investment is made.

Proof of concept

After the idea comes the execution. One of the first hurdles entrepreneurs need to clear is the proof of concept. This is a point where the start-up proves that the business model is feasible.

[dropcap]S[/dropcap]

Saas

Software as a service. These businesses are hosted in the cloud and the software can be rented out as a service.

Related: 10 Steps To Starting Your Business For Free (Almost)

Seed, A Round, B Round…

Start-ups raise capital in several tranches because raising it all at once would dilute the founder’s share before they have even had a chance to build the business. The seed round is done to prove proof of concept. The A round is raised once proof of concept has taken place. There can be several rounds before an exit or IPO is achieved. Some of these companies have grown so large through several rounds of investment that they are termed a unicorn business.

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Start-up Guide

Understanding Your Responsibility As An Employer

Now that you have your own employees, here is what you should know about your new responsibilities.

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Hiring employees requires more work from you as the employer than simply placing a job ad, hiring the right person and training them on their role.

You need to be aware of the Labour Law requirements in terms of the various funds and other stipulated registrations. The law does not differentiate between different size organisations, and therefore it is imperative that SME’s fully understand the implications of all aspects of Labour legislation.

Related: 5 Factors That Make a Great Boss

Salary deductions

Employers may only deduct money from a worker’s salary if the worker agrees or if they are required to do so. The provisions for deductions do not apply to workers who work less than 24 hours a month.

Employers may not deduct money from a worker’s pay unless –

  • the worker agrees in writing to the deduction of a debt, or
  • the deduction is made in terms of a collective agreement, law (e.g. UIF contributions), court order or arbitration award.

Deductions for damage or loss caused by the worker may only be made if –

  • the employer has followed a fair procedure and given the worker a chance to show why the deduction should not be made,
  • the worker agrees in writing, and
  • the total deduction is not more than 25% of the worker’s net pay.

Employers must pay deductions and employer contributions to benefit funds (pension, provident, retirement, medical aid, etc.) to the fund within 7 days.

What is UIF

UIF-Logo

UIF stands for Unemployment Insurance Fund and you need to register for it, whether or not you employ staff. It applies to all employers and workers (except those working less than 24 hours a month), learners, public servants, foreigners working on contract, workers who get a monthly State (old age) pension and workers who only earn commission. The fund makes short-term provision for individuals who become unemployed, or are unable to work because of illness, maternity or adoption leave. It also provides financial relief to the dependants of deceased contributors.

As an employer it is your responsibility to register with UIF and make the monthly payments. These include a 1% payment from you (based on your employees’ individual salaries).

Each individual employee needs to make a further 1% payment, but it is your duty to deduct this amount from their salary and pay it to UIF, together with your contribution, on a monthly basis to SARS if you are registered for PAYE or directly to the UIF if you are not.

You can register your business by completing a UF8 form and each new employee needs to be registered using a UI-19 form. These can be obtained from the Department of Labour.

Related: Why Your Business Needs Employment Contracts

What is COIDA

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COIDA stands for the Compensation for Occupational Injuries and Diseases Act and being registered for it works in your favour. It is based on a no-fault system which means employees are entitled to compensation regardless of who caused the injury or illness.

But it also exempts you from liability for injuries or diseases contracted by your employees in the course of their work. In other words, employees can’t claim damages from you in those events. Instead, COIDA allows them to claim compensation for total or permanent disablement and death as well as reasonable medical expenses arising out of injury for two years.

You are required to pay the employee 75% of their normal salary for three months during the time that they are injured or ill but the fund pays you back this entire amount and covers all the relevant medical expenses.

If you are not registered, however, you are not indemnified. Getting registered involves submitting a WAs2 form, together with a copy of the registration certificate from the Registrar of Companies, or your ID document, if you are a sole proprietor. Every year before 31 March you will need to submit a statement of earnings paid to your employees. You will also be required to pay an assessment tariff, which is fixed according to your class of industry.

If an employee gets injured during the course of their work or falls ill as a result of their work, they can claim from the Worker’s Compensation fund. Dependants of employees can claim if a family member dies from an accident or disease. Employees wishing to claim will need to be furnished with one of the WG30, WAs2 or WAc1(E) forms, which they need to submit to the Compensation Commissioner for compensation.

How Does Maternity Leave Work?

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The law protects women against unfair discrimination arising from any form of prejudice. An employer may not ask a candidate who applies for a job if she is pregnant, nor if she is planning to start a family at any stage.

If you do, she could argue that you are discriminating against her. Equally, she is in no way obliged to disclose her pregnancy when applying for a position. The bottom line is that it has nothing to do with the candidate’s ability to meet the requirements of the position. And nothing stops her from resigning once she has returned to work after taking maternity leave. She has rights regardless.

The Basic Conditions of Employment Act stipulates that an employee is entitled to four months unpaid maternity leave. All that is required is a notification by the employee that she is pregnant, accompanied by a doctor’s certificate. This leave should start four weeks before the expected date of birth, or when a doctor or midwife certifies that leave is necessary for the health of the mother or child. An employee must notify her employer in writing of the date on which she wants to start maternity leave. She may not work for six weeks after delivery, unless she is declared fit to do so.

Related: Richard Branson on Why Hiring Should Be Your No. 1 Job

An employee who has a miscarriage during the last three months of pregnancy or who bears a stillborn child is also entitled to six weeks maternity leave, whether or not she has started maternity leave at the time. Companies in South Africa are not obliged by law to provide paid maternity leave. A female employee who works for a company that does not offer maternity benefits can claim from the Maternity Benefit Fund if she has been contributing to the Unemployment Insurance Fund (UIF).

An employer who pays maternity leave does have some rights, however. Paid maternity leave is a benefit, and the company is within its rights to conclude a contract with the employee stating that if she does not return to work for at least one year following her confinement, she will be obliged to return the salary she earned during her maternity leave.

South Africa has no paternity leave provisions in place, but workers who have been employed at a company for longer than four months may take three days’ paid family responsibility leave during each year of employment.

Family Responsibility Leave

Workers may take up to three days of paid leave a year to attend to certain family responsibilities. The provisions for family responsibility leave do not apply to workers who work less than:

  • Four months for their employer
  • Four days a week for one employer
  • 24 hours a month.

Family responsibility leave expires at the end of the annual cycle. Employees may take family responsibility leave:

  • when their child is born
  • when their child is sick
  • in the event of the death of a:
    • spouse or life partner
    • parent or adoptive parent
    • grandparent
    • child or adopted child
    • grandchild
    • sibling.

Employers may require reasonable proof of the birth, illness or death for which a worker requests leave.

Related: What Young People Want From Work

Overtime

The amount of overtime a worker may work is limited. Workers must get 1,5 times their normal hourly pay or paid time off in exchange for overtime. Alternatively, a worker may agree to receive paid time off or a combination of pay and time off.

The section of the Basic Conditions of Employment Act that regulate working hours does not apply to:

  • workers in senior management
  • sales staff who travel and regulate their own working hours
  • workers who work less than 24 hours in a month
  • workers who earn more than R115 572 per year
  • workers engaged in emergency work are excluded from certain provisions.

Workers may not work:

  • overtime, unless by agreement
  • more than 10 hours’ overtime a week (collective agreement may increase this to 15 hours per week for up to two months a year)
  • more than 12 hours on any day.

Employee Pay Slips

Employee-pay-slip

Each time workers are paid, employers must give them a pay slip containing certain details. Employers must give workers the following information in writing when they are paid:

  • Employer’s name and address
  • Worker’s name and occupation
  • Period for which payment is made
  • Total salary or wages
  • Any deductions
  • The actual amount paid
  • If relevant to the calculation of pay:
    • Employee’s pay and overtime rates
    • Number of ordinary and overtime hours worked
    • Number of hours worked on a Sunday or public holiday

The total number of ordinary and overtime hours worked in the period of averaging, if a collective agreement to average working time has been concluded

Public Holidays

Workers must get paid time off for public holidays, but if they agree to work, they must be paid double their normal daily wage. The provisions for public holidays do not apply to –

  • senior management
  • sales staff who travel
  • workers who work less than 24 hours a month

Workers must get paid time off for any public holiday that falls on a working day. Working on a public holiday is by agreement only. A public holiday can be exchanged with another day by agreement. A public holiday cannot be counted as annual leave.

Related: Sick and Tired of Employees being Sick and Tired?

Employee Sick Leave

Workers may take the number of days they would normally work in a six-week period for sick leave on full pay in a three-year period. Employers may insist on proof of illness before paying a worker for sick leave. The provisions for sick leave do not apply to:

  • workers who work less than 24 hours a month
  • workers who receive compensation for an occupational injury or disease
  • leave over and above that provided for by the Act.

During the first 6 months of employment, workers are only entitled to one day of paid sick leave for every 26 days worked. An employer may require a medical certificate before paying workers who are absent for more than two consecutive days, or who are often absent (more than twice in an eight-week period).

Staff Working Hours

overtime

Basic Conditions of Employment laws set maximum working hours and minimum rest and break periods for workers. The section of the Act that regulate working hours does not apply to:

  • workers in senior management
  • sales staff who travel and regulate their own working hours
  • workers who work less than 24 hours in a month
  • workers who earn more than R115 572 per year
  • workers engaged in emergency work are excluded from certain provisions.

The maximum ordinary hours per day for someone who works one to five days per week is nine, the maximum amount of hours per week is 45. For those who work more than five day per week should work a maximum of eight hours per day and 45 hours per week. Workers may agree, in writing, to work up to 12 hours a day without getting overtime pay. However, these workers may not work more than:

  • 45 ordinary hours a week
  • 10 hours’ overtime a week
  • five days a week

Workers must have a meal break of 60 minutes after five hours’ work. A written agreement may:

  • reduce meal intervals to 30 minutes
  • eliminate meal intervals for workers who work less than 6 hours a day

Workers must have a rest period of 12 hours each day; and 36 consecutive hours each week (must include Sunday, unless otherwise agreed).

Workers working between 18h00 and 06h00 must:

  • get an allowance, or
  • work reduced hours, and
  • have transport available to them.

Skills Development Levies

Employers must pay 1% of their workers’ pay to the skills development levy. The money goes to Sector Education and Training Authorities (SETAs) and the Skills Development Fund to pay for training. The Skills Development Levies Act applies to all employers except–

  • the public service;
  • religious or charity organisations;
  • public entities that get more than 80% of their money from Parliament; and
  • employers:
    • whose total pay to all its workers is less than R 250 000 per year; and
    • who do not have to register according to the Income Tax Act

Employers who are required to pay the skills development levy must register with the South African Revenue Services (SARS). Employers must pay 1% of all their workers’ pay to the skills development levy every month. Employers must pay the levy to the South African Revenue Services (SARS) by the seventh day of each month. Employers who do not pay will have to pay interest on the money they owe and may also have to pay a penalty.

What is PAYE

All employers are required to deduct Employees’ Tax from their salaries. The amounts deducted must be paid by the employer to SARS on a monthly basis. The process of deducting or withholding tax from remuneration as it is earned by an employee is referred to as Pay-As-You-Earn (PAYE).

Employers are required to:

  1. Deduct the correct amount of tax from employees’ remuneration.
  2. Pay this amount to SARS monthly, ensuring SARS receives a Monthly Employer Declaration (EMP201).
  3. Reconcile these deductions and payments with the completion of the interim and annual Employer Reconciliation Declarations. During the reconciliation periods, employers are required to submit an Employer Reconciliation Declaration (EMP501) confirming or correcting the PAYE, SDL and UIF declarations per EMP201s submitted, the payments made and the tax values of the Employee Tax Certificates [IRP5/IT3(a)].
  4. Issue tax certificates to employees
  5. An employer must issue an employee with an IRP5/IT3(a) where remuneration is paid or has become payable and from which Employees’ Tax was deducted. The IRP5/IT3(a) discloses the total employment remuneration earned for the year of assessment and the total deductions. IRP5/IT3(a) certificates must be issued to employees during the annual Employers tax season.

Related: 5 Ways to Make Your Payroll & HR Solution Pay for Itself

Seek professional advice

There is a lot to keep track of once you become and employer. It is advisable to call in an expert. You can use the services of a suitable experienced and qualified HR consultant who can help to set up the principles and processes of the above, and then work on an ad hoc basis only as and when needed reducing the cost of a full-time HR manager.

Useful resources

Related: 10 Ways to Pump Up Your Employees

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