What is a Guarantee?
Guarantees offered by manufacturers are free of charge but legally binding. In law, a guarantee is considered “an agreement” to provide some benefit for a set period of time in the event of the goods or services being defective”
Companies usually enter into an agreement with your supplier to repair damaged goods sold through the company. When a product is imported, it’s not practical to return defective goods to the supplier for repair.
However, if you offer a guarantee, you would need to outsource to a reputable repair company that can repair the item so that the guarantee agreement can be met.
You can outsource to a local reliable artisan and negotiate a competitive rate. It’s always advisable to have back up and to approach various repair companies around the country, so you do not depend on single service providers.
When does a guarantee start and end?
A guarantee usually takes effect on the date of purchase and expiries 12 months later or as you see fit. You would also have to draw up terms and conditions that would apply to any guarantee that you offer.
Although many guarantees are included in the price of the goods and sold to the end-user as ‘free’, there are costs associated for the suppler. “In your case you will be facing customers, so your liability is big. It’s very important to ensure that your cover yourself adequately.
You would have to build-in service agreements into your business strategy. “I would recommend that you consider taking liability insurance,” advises Nick Tselentis, Economic, and Legislative Affairs Manager for Consumer Goods Council of South Africa.
Have you considered the updated regulations in the new Consumer Protection Act?
The new Consumer Protection Act will introduce a single, comprehensive legal framework for consumer protection and this will have a huge impact on virtually every business in South Africa.
The Act will have serious consequences as far as product liability goes, especially on the right to fair value, good quality and safety. It imposes strict liability on a producer, distributor, or supplier of goods for any loss or damage that results because of a product defect or inadequate instructions or warnings provided to the consumer.
“Companies that sell DIY kits are going to have to review the instruction kit carefully,” says Tselentis. Everyone in the supply chain will now have to pay closer attention to their procedures and policies regarding product quality, product warnings and product labelling.
The Act will only operate from April 2011, but once it is in operation, South African consumers will be the most protected consumers in the world. The suppliers of goods and services need to understand the Act as soon as they can. As long as you conduct sound business practices, you should not have to worry.
Guarantees on imported goods
“As an importer be very careful how you order stock and make sure that your risk is as limited as possible. What I mean is you must arrange that the goods arrive in South Africa in the best possible condition. Go to the end degree to ensure that goods are packed to prevent any damage. Get up to date with the new Consumer Protection Act, especially Section 20, 21 and 61, recommends,” Tselentis.
Can you cost the guarantee into the price of the furniture by estimating what you would perceive as reasonable? Instead of including a guarantee, you can offer a warranty for which you would charge a nominal fee. You could give customers the option of buying the goods with or without a warranty.
Commercial Rights & Legislation
Commercial rights explained
Commercial rights, also known as business or industrial rights, give a person the right to run a business from a certain area.
How to apply for business rights
Business rights must be applied for through the local council (municipality). There are various bylaws that apply to business rights that differ from council to council.
Why is zoning important?
Zoning determines whether a property can be used for business or commercial purposes. These bylaws are set out in the applicable Town Planning Scheme that spells out the rules for possible use. For example, every property in the City of Johannesburg has a set of regulations that are designed to control development. These regulations are determined by the zoning of the property. There are four sub-divisions.
- Business 1: This is for general business in the form of shopping centres or malls and the developer or owner would be allowed to have almost any type of shop on the premises.
- Business 2: This is also for a shopping centre, but with certain restricted businesses. For example, a restriction may be placed on opening a bottle store.
- Business 3: A strict zoning which will not allow a wider variety of businesses to open and operate in a centre.
- Business 4: This zoning excludes shopping centres or malls. It provides for office use (with or without residential use).
Business rights in residential areas
South Africa’s laws require that businesses wishing to operate in a residential area apply for re-zoning. This does not mean that a one-person business or consultancy requires business zoning, however, if staff is employed, signs put up and customers call on you, business rights must be obtained.
Likewise, if the residential building is going to be used solely for business purposes and no one is actually living there, business rights are required. Each local authority has different parameters for approving residential business rights and each case will be assessed individually. With the exception of professionals, it is unlikely that a business will receive business rights in an established upmarket residential area.
Business rights are also controlled by conditions of title. These conditions are set out in the Title Deeds of each property, and can restrict the way in which a property is developed.
Other legislation that regulates development includes the National Building Regulations, the Building Standards Act (Act 103 of 1977), the Public Health Bylaws and other Municipal Bylaws.
Free Payslip And Contract Of Employment Template Download
Download your free payslip and contract of employment here to get you started in the right direction.
In your downloads you will find the following resources below:
- A free payslip template with formula on how to calculate tax (PAYE), UIF, etc for a start-up business.
- A standard contract of employment (template) that complies with all the relevant laws.
The payslip template is merely an example and should you need to have anything checked in terms of your remuneration structure, we can put them in contact with our remuneration specialists in Johannesburg, Tax Consulting.
Download your payslip template here.
Similarly, the permanent contract of employment should be read carefully and changes should be made in line with the offer of employment and the company policies and procedures. Please note the template provided is for a permanent placement.
Download your contract of employment template here.
How Do I Become B-BBEE Compliant?
BEE (B-BBEE) is an important part of doing business in South Africa so its best that you understand every aspect about it. Use this comprehensive guide to ensure your business is compliant and performing at its best.
Content in this guide
- What Is Black Economic empowerment (BEE)
- Why Is BEE Referred To As B-BBEE?
- Who Must Comply With BEE?
- How To Qualify For BEE
- Understanding What Each Pillar Means
- What Are Codes Of Good Practice For Broad-Based Black Economic Empowerment?
- Levels (Of Compliance)
- What Is SANAS?
- Rating Process
- What To Look For In A B-BBEE Partner
What is Black Economic empowerment (BEE)
Black Economic Empowerment (BEE) is a government initiative aimed at increasing equity and uplifting black business owners, stakeholders and employees. The government refers to BEE as ‘positive discrimination’.
BEE is the process by which previously disadvantaged South Africans have been empowered through the transfer of ownership. Compliance with BEE principles are regulated by Codes, which provide details on how BEE should be implemented.
Why is BEE referred to as BBBEE?
When Black Employment Equity (BEE) was first implemented in the nineties, there was no coherent strategy towards its implementation. When the South African Government gazetted updated Codes of Good Practice at the beginning of 2007, it made the implementation of Black Economic Empowerment (BEE) a legal reality.
Even though most think of Black Employment Equity as BEE, as the process was refined, its name changed to Broad-Based Black Employment Equity (B-BBEE) in order to encompass not just Blacks, but Coloured, Indians and the Chinese populations of South Africa.
Related: What Is BBBEE?
Who Must Comply with BEE?
Size is relevant in determining the levels of B-BBEE compliance. All organs of state, public entities and any private enterprise that undertakes business with a public entity must implement the Codes.
Any business providing goods or services to another business that is subject to BEE (B-BBEE) compliance may also need to provide evidence of its own BEE (B-BBEE) compliance.
The size of your business is significant in determining the required levels of BEE (B-BBEE) compliance. The Codes provide for three levels of compliance based on the size of your business:
- Exempted Micro Enterprises (EMEs), which are businesses with an annual turnover of less than R10 million. This is a new amendment, EMEs were previously businesses with an annual turnover of less than R300 000 and less than five staff members.
- Qualifying Small Enterprises (QSEs), which are businesses with an annual turnover of between R10 to R50 million.
- Medium to large enterprises (M&Ls), which are businesses with an annual turnover of more than R50 million.
Advantages of BEE compliance
- Allows participation in the formal South African economy
- Companies will favour you as a client, particularly those aiming to acquire at least 50% of annual procurement from companies with BEE (B-BBEE) certificates.
- Able to bid for Government tenders, apply for licences, get permits and are favourably considered for procurements by the Public Sector and all BEE (B-BBEE) verified enterprises.
- Have access to tax incentives and financial grants, specifically aimed at the BEE (B-BBEE) programme.
- Avoid long questionnaires relating to BEE (B-BBEE) when tendering for a contract.
Legislation Governing B-BBEE
There are three important pieces of legislation that control B-BBEE, namely:
Employment Equity Act (1998)
The Employment Equity Act applies to black people, all women and disabled people, in addition, stipulates the requirements for affirmative action to ensure that qualified people from these groups are equitably represented in all occupational categories and levels of a company.
The Act is binding on any business that employs 50 or more staff, or that has an annual turnover of more than R2 million to R25 million (depending on the industry in which you operate).
Skills Development Act (1998) and Skills Development Levy Act (1999)
These provide a framework for improving the skills and employment prospects of black people.
These Acts also make it compulsory for certain employers to contribute a percentage of their payroll (known as the Skills Development Levy) to a fund that can be used to train staff. The current generic B-BBEE scorecard awards points for skills development, but only for that which is over and above the payment of this levy.
Preferential Procurement Policy Framework Act (2000)
This allows any State entity to give preference to black people when awarding contracts. It also aims to boost SME development, create new jobs and promote local enterprises in specific provinces. Currently, the regulations of this Act are based largely on ownership, but this is likely to be revised in order to align it with the B-BBEE Act and Codes.
Related: The 5 Elements Of BBBEE
How to Qualify For BEE (B-BBEE)
There are four steps you’ll need to take to ensure you qualify for BEE (B-BBEE), including:
Step 1 – Select Your Company’s Annual Turnover
The size of your business is significant in determining the required levels of BEE (B-BBEE) compliance. The Codes provide for three levels of compliance based on the size of your business:
Exempted Micro Enterprises (EMEs), which are businesses with an annual turnover of less than R10 million. This is a new amendment, EMEs were previously businesses with an annual turnover of less than R300 000 and less than five staff members.
Qualifying Small Enterprises (QSEs), which are businesses with an annual turnover between R10 to R50 million.
Medium to large enterprises (M&Ls), are businesses with an annual turnover of more than R50 million.
Step 2 – Match the Turnover to the Scorecard
EMEs are exempt. However, these businesses will automatically receive a level associated with its percentage of black ownership, such as:
|Black ownership||BEE (B-BBEE) Status Level||Procurement Recognition|
|100% Black Owned EME||Level 1||135%|
|>50% Black Owned EME||Level 2||125%|
|<50% Black Owned EME||Level 4||100%|
The annual turnover must be verified by an accredited accountant, auditor or rating agency.
QSE’s used to be able to choose four out of the seven BEE Scorecard elements to score their points. However, from 2014, QSEs must comply with all 5 elements of the revised BEE (B-BBEE) Scorecard to score their points.
M&L must comply with all 5 elements of the revised BEE (B-BBEE) Scorecard to score their points.
Step 3 – Determine the Number of Pillars Required For Your Scorecard
The five pillars of B-BBEE are:
- Ownership (Direct empowerment)
- Management Control (Indirect empowerment)
- Skills Development
- Enterprise Development
- Socio-Economic Development.
Step 4 – Select the Pillars For Your Scorecard
Each of the pillars is worth a certain ‘weight’ in its contribution to B-BBEE compliance. The pillars contribute to overall compliance as follows:
- Ownership 25%
- Management 19%
- Skills Development 20%
- Enterprise Development 40%
- Socio-Economic Development 5%.
Ownership, skills development and enterprise development are now considered priority pillars and a minimum of 40% compliance is mandatory, in order to achieve level 1 B-BBEE.
Understanding What Each Pillar Means
It is important to understand the requirements of each pillar.
Ownership (counts 25 points)
When determining the level of black ownership, a business will score points based on the
- The extent to which black people can influence the strategic direction of the business through their shareholding
- The current net value of their shares
- The amount of profit (percentage of each Rand) that accrues to all of these black shareholders.
- Whether these shares are paid for in full, or will be within 10 years or less.
- Bonus points are awarded if any of the black shareholders are new entrants (who have not previously benefited from a B-BBEE deal)
Management (counts 19 points)
This refers to the proportion of black people who control the direction of the business as well as those in top management who control day-to-day operations.
Skills Development (counts 20 points)
Skills development measures a business’s investment in the training and development of black employees. Only specific types of learning programmes and learnerships qualify when claiming points on the skills development scorecard.
Enterprise Development (counts 40 points)
If the business offers support programmes, then you can claim points on the scorecard. For example, if you donate a vehicle to one of your black company drivers so that he or she can start a delivery company, you qualify.
Socio-Economic Development (counts 5 points)
Companies that spend at least 1% of net profits after tax (NPAT) on Social-Economic Development (SED) are eligible for 5 points under this pillar.
Social-Economic Development (SED), however, is not Corporate Social Investment (CSI). SED’s criteria demands that those being assisted gain long-term access to the economy and receive a lasting benefit. According to the definition in the legislature, any initiative should “facilitate income-generating activities”.
What Are Codes of Good Practice For Broad-Based Black Economic Empowerment (B-BBEE)?
The Codes of Good Practice refers to options that businesses can use in order to evaluate and track their B-BBEE efforts. Within the new B-BBEE regulations companies must meet specific targets. The codes are there to guide businesses into receiving an accurate rating, which it can include on the company profile.
The Codes of Good Practice are legally binding on all state and state-owned entities. These businesses have 10 years to reach this target, which means government will have to use the Codes to measure its B-BBEE compliance when choosing suppliers, granting licences or making concessions. The cascade effect of this focus on B-BBEE compliant companies is that non-compliant businesses will find it hard to grow or maintain their level of business success within South Africa.
On the other hand, private companies will also need to apply the codes if they want to do business with any government enterprise – in order to tender for business, apply for licences and concessions, enter into public-private partnerships or buy state-owned assets.
The Act is broken up into nine Subsections.
- Code 000: Framework for Measuring Broad-Based Black Economic Empowerment
- Code 100: Measurement of the Ownership Element
- Code 200: Measurement of the Management Control Element
- Code 300: Measurement of the Employment Element
- Code 400: Measurement of the Skills Development Element
- Code 500: Measurement of the Preferential Procurement Element
- Code 600: Measurement of the Enterprise Development Element
- Code 700: Measurement of the Socio-Economic Development Element
- Code 800: Measurement of Qualifying Small Enterprises.
Sector Codes Are an Extension of Codes of Good Practice
Companies must also be aware of Sector Codes, which are an extension of the Codes, but apply within a specified industry sector only. For example, there is a Construction Sector Code (a new draft to appear in 2017), a Property Sector Code, Financial Sector Code and Tourism Sector Code. Sector codes are industry-specific interventions and measures driven by major stakeholders in industries where the codes are developed.
Levels (Of Compliance)
|B-BBEE Contribution Level||“Old”
|B-BBEE Procurement Recognition Level|
|1||≥100 points||≥100 points||135%|
|2||≥ 85 but < 100||≥ 95 but < 100||125%|
|3||≥ 75 but < 85||≥ 90 but < 95||110%|
|4||≥ 65 but < 75||≥ 80 but < 90||100%|
|5||≥ 55 but < 65||≥ 75 but < 80||80%|
|6||≥ 45 but < 55||≥ 70 but < 75||60%|
|7||≥ 40 but <45||≥ 55 but <70||50%|
|8||≥ 30 but < 40||≥ 40 but < 55||10%|
|Non-Compliant||< 30||< 40||0%|
Customers (public and private) will prefer to interact and procure from companies with higher B-BBEE status (for its own recognition), level 1 being the ultimate goal. These are the current B-BBEE status levels:
What Is SANAS?
The South African National Accreditation System (SANAS) is recognised by the South African Government as the single National Accreditation Body that gives formal B-BBEE recognition. A B-BBEE Certificate can be issued by any Verification Agency so long as they are approved to do so by SANAS. The Certificate can only be issued once a full verification has been performed and the documentation presented by your company has been verified. SANAS certificates are a formal recognition that an organisation is competent to perform specific tasks.
Ratings Agencies must perform the assessments strictly according to the guidelines set out by the Department of Trade and Industry (DTI). On successful completion it will issue a certificate with the Level (1-9) of BEE (B-BBEE) compliance appropriate to your enterprise.
- A certificate will be issued, which is relevant to all companies requesting it.
- B-BBEE must be validated by a SANAS accredited verification agency.
- Self-accreditation is no longer recognised or accepted.
B-BBEE Rating Process
The rating process only applies to QSEs and M&L’s:
Step 1: Application, Approval and Payment
- Measured Entity (ME) requests an Application Form
- Client Manager sends Application Form to ME
- ME completes and returns Application Form to Client Manager
- Client Manager sends Application Form to Verifications Manager
- Verifications Manager reviews and approves application against prescribed criteria.
- Client Manager sends Quotation and/or Invoice to ME.
- ME approves quote and pays commitment fee (65% of quoted/Invoiced amount).
Step 2: Pre-site Visit and Legal Processes
- Client Manager prepares and sends SLA and other contracts for signature by ME
- Lead Analyst visits ME for a briefing, to explain the verification process and to agree on Verification Plan, Team and deadlines.
- ME prepares all required documents and sends them to Client Manager.
- Client Manager signs-off Document Register acknowledging receipt and hands documents over to Lead Analyst.
Step 3: Analysis, Site visit, Reporting and Certification
- Lead Analyst performs a basic analysis and measures entity against scorecard.
- Lead Analyst visits ME on site for Verification as agreed on Verification Plan.
- Lead Analyst prepares Verification Report and Recommendation for Verifications Manager.
- Verifications Manager performs Vertical Assessment and Quality Assurance on report and then approves recommendation report.
- Client Manager sends Verification Report and Rating to ME for approval.
- ME approves Verification Report and Rating.
- Verifications Manager issues a Rating Certificate and Final Report.
- Client Manager sends Rating Certificate and Final Report to ME.
Who Should Manage B-BBEE Processes In a Business?
The best way to structure the management process is as follows:
- Chief Executive Officer – Ownership and Management Control
- Chief Financial Officer – Preferential Procurement and Enterprise Development
- Employment Equity Committee – Socio-economic Development, Skills Development and Employment Equity.
The Employment Equity Committee needs training, as they are likely to have limited experience in making strategic recommendations to the CEO on these issues. The CEO should sit in the Employment Equity Committee along with someone with HR experience.
Did You Know?
Unlike State-owned entities, private companies are free to develop their own procurement policies, which may include different criteria and different weightings to that of the generic B-BBEE scorecard.
What to Look For In a B-BBEE Partner
When looking for a new partner, specifically for B-BBEE, companies arguably rush through the process. This could leave your business open to having two unaligned partners at the top, trying to force the business into opposite directions, thinking that they each know what’s right for the company.
Every successful business partnership needs three things:
- Someone who can add value to your business
- Operate in a growing industry
- Bringing additional finances or resources to the table.
A good partnership won’t happen overnight; it could take you up to 18 months to work out the details with your new B-BBEE partner. So, using it as an eleventh-hour attempt to save your business or when there’s a big tender on the line, might not work out for you.
To be successful, it’s better to go into this process with the right motives. A great B-BBEE partnership is mutually beneficial and based on growth potential for all involved.
Align Vision and Values
Partner with someone who shares your vision and values in business. Both partners need to be clear on their roles within the business and what they will need to contribute towards the business. Like all great partnerships, a B-BBEE partnership is also built on alignment.
You want a partner who will bring critical skills, experience, knowledge or maybe resources to the table. Having a partner who is only fronting can damage your business’ reputation. Fronting is when you have a partner in name only in order to qualify for a higher B-BBEE level.
Searching For the Right Partner
Networking in the wrong environment can be detrimental, just like networking in the right environment can be advantageous to you and your business.
Ask people you trust for advice or if they know someone who is compatible with you and your work style. You’ll need to approach this as a long-term endeavour as it takes time to find the right person.
Once you’ve found your new partner, structure the best deal possible through a top notch legal team. This will protect both parties if the partnership doesn’t work out. Include roles and responsibilities within the contract, so everyone is accountable, and knows what will result should the endeavour fail.
What You Need To Know About Sole Proprietor vs. Independent Contractor
South African tax specialist, Kobus Muller of Muller Accountants, breaks down sole proprietors vs. independent contractors to assist you with doing business in South Africa.
When considering Sole Proprietorship versus Independent Contractorship – you need to be asking yourself the following questions:
1. Is there a difference between a Sole Proprietor and an Independent Contractor, with regards to how a Company deals with such a person who works on a specific project as far as contracts and SARS are concerned?
2. An IRP5 must be issued to an Independent Contractor (Code 3616 – Income); does this apply to a Sole Proprietor as well?
3. Also is there a difference in the types of expenses that these two “entities” can claim on their tax returns?
To answer these questions, the term sole proprietor and independent contractor must be understood.
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For South African Income Tax purposes the following apply:
A sole proprietor
A sole proprietor, also known as the sole trader is a type of business entity that is owned and run by one natural person and in which there is no legal distinction between the owner and the business. The owner is in direct control of all elements and is legally accountable for the finances of such business and this may include debts, loans, loss etc.
The owner receives all profits of the business and has unlimited responsibility for all losses and debts. Every asset of the business is owned by the proprietor and all debts of the business are the proprietor’s.
The sole proprietor is taxed on his/her profit (Income less tax deductable expenses) at the applicable tax rate for individuals.
For SARS’s’ purposes an independent contractor is someone that renders a service to another company, employer and who;
- employs three or more full-time employees, who are not connected persons in relation to him or her ( family members ect) and are engaged in his or her business throughout the particular tax year
- does not have to performed his/her service mainly at the premises of the client and
- is not subject to the control of any other person as to the manner in which the worker’s duties are or will be performed, or as to the hours of work.
It these three conditions are not met such an independent contractor is deemed not to be an independent contractor and the amount so received by him or her, will be treated as a “salary” from which employees tax must be deducted. This “independent contractor” might be a Close Corporation, Company or a Trust, which differs from the sole proprietor.
If the above conditions are not met that CC, Pty or Trust will be taxed as an employee. When this applies and employee’s tax is not deducted, SARS will hold the company that pays such persons “salary” responsible to pay the employees tax to SARS
Answer to question 1
For such a project, if the independent contractor met the above conditions there will not be a difference between how you treat the sole proprietor/independent contractor who is conducting the work.
The sole proprietor/Independent contractor must supply you with an invoice to enable you to do the remittance.
If such a person’s turnover is more than R 1m per annum a Tax invoice (VAT) must be issued to you.
Answer to question 2
If the sole proprietor and/or the independent contractor does not meet the above three conditions an IRP5 have to be issued.
Answer to question 3
If the independent contractor or the sole proprietor meets the conditions above they can claim the same types of tax deductable expenses from their income and is taxed on the net profit (total income less deductable expenses).
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It is advisable to get an affidavit from a person that do the work that he/she meets the conditions above. This will saves a lot of headache when SARS should levy penalties, because you have not deducted employee’s tax for the Independent contractor.
You will notice reference is made to tax deductable expenses. It is very important to know that not all expenses are tax deductable
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