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phase-out period numbering a few years. The new bill will offer a simplified form as companies will be either widely and a closely-held company - depending on the number or If you register as a close corporation or a private company you will need to pay an annual return to Companies and Intellectual Property Registration Office (Cipro) to continue making use of your business's registered name. The How To Keep Your
amounts are not very large. Failing to renew the return on Business Legal
time may see your name being struck from Cipro's database meaning you will have to go to all the trouble of registering again. Visit Cipro's website at www.cipro.gov.za for more information on annual returns.
Read the guide HTG 029 How to Register Your Business January 2009
for more details on the different forms of business listed Introduction
One of the most time-consuming aspects of running a Registering a trademark or patent
business is complying with regulations, including tax, If you have come up with an invention or discovery you municipal by-laws, labour laws and many others. But if can protect it from others stealing it by patenting it with the your business is not compliant, you won't be able to tender Patents Office at Cipro in terms of the SA Patents Act. It is for government (and other) contracts. You could also be also wise to consult a Patents Attorney who will assist in fined for non-compliance, and could even land in jail.
ensuring the widest possible protection for your idea or Any of these problems could mean the end of your business - so it is vital to keep your business legal. The Similarly, you can protect your brand with a trademark.
onus is on you - the business owner - to get to know the The protection covers the specific shape, wording and logo regulations that apply to your business, so you can do of your brand. You can also use copyright to protect But it is not all bad news; staying compliant can have a See Cipro's easy-to-read guides on their website: positive effect on your business as it can strengthen your reputation in the sector you operate in. This guide describes how you keep your business legal right from the start, and introduces you to these areas of regulation: • Registering a trade mark or patent ('intellectual Registering for tax
Once you have gone through the process of setting up your business, you will then need to register for tax. The South African Revenue Service (Sars) has undergone a massive overhaul in recent years. This increased efficiency means that as a business you can fast be Registering your business
caught out if you don't stay on top of the necessary The legal issues you will have to adhere to will depend on the form of business you opt for. Currently you can choose Though Sars introduced a tax amnesty for small businesses in 2007 for those businesses that had fallen behind in their tax payments, the message from the Receiver is that it's highly unlikely to introduce another such amnesty any time soon. Tax compliance if therefore not something to be taken likely if you're running a Registering for provisional tax
The first two forms don't require you to register with any If you trade as a sole proprietor or a partnership you must register with Sars as a provisional taxpayer. See the Guide It is important to bear in mind that the government is for Provisional Taxpayers (IRP12) available to download currently overhauling the Company Act. Once the act is signed into law one will no longer be able to register a closed corporations. The government is planning a Close corporation and companies are automatically registered as taxpayers with Sars when you register with Cipro. You should receive the necessary forms from the Basic Conditions of Employment Act
The Basic Conditions of Employment Act gives the Pay As You Earn (PAYE) tax
minimum conditions for employing anyone. As an If you employ staff you are required to deduct tax from employer, you may not offer conditions below those salaries or wages. You must register for Pay As You Earn specified in this law, which applies to all employees except (PAYE) if you pay wages and salaries to any employees senior managers, independent contractors, unpaid with an annual income that falls above the tax threshold.
volunteers and employees earning over R115 572 a year.
The necessary form is available from your nearest Sars The Act governs conditions such as working hours, office or from their website www.sars.gov.za. Using the overtime, sick leave, maternity leave, annual leave, family same form you an employer can also register for responsibility leave and termination of employment, among Unemployment Insurance Fund and Skills Development Levy. See the section below on Labour regulations for When taking on a new employee, you must record certain Value-Added Tax (VAT) and other taxes
You must also keep records of employment of your Businesses must also register for certain other taxes. If employees, showing how long they have worked for you, your turnover is above R1 million a year you must register and what they have been paid each week or month.
If your business enters into a contract with a labour broker If your annual turnover is below this threshold, you can still (a person or business who finds workers for you and pays register for VAT (voluntarily). One reason for doing this is them on your behalf), the broker is regarded as the that VAT-paying entities are often regarded as more employer. Despite this, both the employer and the broker credible than entities that don't pay VAT. Also, if your share the responsibility for staying compliant with the Act.
suppliers charge you VAT, you can then claim back the The Act also has provisions for those businesses that employ 10 (or fewer) employees, about issues like The Sars publication Tax Guide for Small Business summary of VAT - explaining how to register, how to The Department of Labour's website has various guides on calculate VAT and the tax periods. Sars also has guides to its website that explain the Basic Conditions of help you understand the various tax forms: Labour Relations Act
This Act protects the rights of employees, and explains what an employer must do before they can lawfully dismiss one in their employees. The Act also governs things like Labour regulations
unfair discrimination in the job application stage, the right to strike, access to information for trade unions, and unfair One of the most difficult things any business owner must deal with when running a business, is people, more specifically their own employees. Much has been said As an employer, you need to know how the dispute and about South Africa's labour laws being too strict, but the dismissal process works, so that you can follow the correct regulations are in part to redress the country's poor legacy procedures. Unfair process is often the main reason for the Commission for Conciliation Mediation and Arbitration (CCMA) ruling in an employee's favour when an employer Employers themselves should best familiarise themselves finds themselves before the commission. (The CCMA is a with the various labour legislation as it will save them the dispute resolution body established in terms of the act. For time, hassle and expense of being dragged before the Commission for Conciliation, Mediation and Arbitration (CCMA). The three key pieces of legislation employers Department of Labour's website also has the full Act and should best acquaint themselves with are the: its amendments, as well as a number of useful guides on Occupational Health and Safety Act
Every employer is obligated by law to provide a safe and There are also regulations about occupational diseases risk-free environment to their employees, but many don't.
and bargaining councils that will be discussed in a bit more Although each industry sector also has its own set of detail below, as well as unemployment insurance and skills regulations governing health and safety, the Occupational Health and Safety Acts sets out the general conditions and A useful source of more information is the Department of regulations for a clean and safe workplace, which include: • Having an employee on site trained in first-aid; the guide on the department's website). Also have a look at the department's guide to unfair dismissals and unfair • Suitable fire exits and fire-fighting equipment; and Unemployment Insurance
As the business owner, you must also report any incidents Anyone who employs a person for a period of longer than that lead to injury, illness or death in the workplace to a 24 hours in a month must register them with the labour inspector. If you don't obey health and safety Unemployment Insurance Fund (UIF) at the Department of regulations, a labour inspector may issue a prohibition, Labour. The fund pays out to employees who become contravention or improvement order - which could stop you unemployed as a result of termination of employment or an illness. It amounts to a contribution of 2% of an employee's salary, of which half is contributed by the employee.
If you are not sure about whether your business complies Deductions are paid over to the South African Revenue with the Act or not, you can contact an Approved Inspection Authority (AIA) to do a risk assessment of your For more details on UIF, see the Department of Labour's Again, the Department of Labour's website Skills development levies
this Act, as well as the full Act itself.
If your business has an annual payroll of over R500 000 Compensation for Occupational Injuries and
you must by law pay 1% of your payroll (1% of the total Diseases Act
amount that you pay in salaries and wages) to the South African Revenue Services (Sars) as a skills development If you have employees, you must register with the levy. This is not a deduction from your employees' Compensation Commissioner for the Compensation for salaries, but from the business itself.
Occupation Injuries and Diseases fund. Employees that become sick or injured from working can claim from this You can claim back a certain percentage of your levy if fund. Under the Act, employers must report any workplace you can prove you carried out training on your employees.
accident to the Commissioner within seven days.
For more information on claiming back your levy and training, you should talk to the Sectoral Education Training The forms that you'll need to register are available from the Authority (SETA) that represents your business sector. For The Department of Labour's website has a useful guide to the Act (look under Basic Guides on the site); if you want to download a copy of the Skills Development to read the Act, you can download it from the internet Act from the Department of Labour's website.
Employment equity
Bargaining councils
South Africa has a legacy of discrimination with regards to Your business might fall under an industrial sector covered race, gender and disabilities. The Employment Equity Act by a bargaining council; if you do, you are obliged to aims to correct these wrongs by making employers register your business with the relevant council and pay transform their workplaces through employing people who monthly levies and employee deductions such as holiday pay, sick leave and provident fund contributions. To see if you might be affected by a bargaining council (in your area Small businesses with just a few employees are not or in your industry), look through this list of bargaining affected by this Act. It says that businesses with more than councils on the Department of Labour's website 150 employees must submit an employment equity report every year, showing how they are making their workplaces more equitable in terms of race, gender and disability.
A bargaining council is made up of equal representation Businesses with fewer than 150 employees - as well as from both the trade unions and employee associations of some with fewer than 50 employees (those with high the respective industry. Bargaining council agreements are turnovers) - must submit an employment equity report negotiated by party members. Once a new agreement is drafted, the Minister of Labour will decide whether or not to extend the agreement to non-party members, based on to download a copy of the Employment Equity the council's representation of employees in the industry.
Act from the Department of Labour's website.
Businesses that don't register or don't abide by the Industry regulations
conditions set by their bargaining council risk fines and penalties. The councils can even close down Every industry sector has its own regulations in addition to non-compliant businesses. Businesses can apply to be the general regulations listed above. Talk to the relevant exempt from some of the provisions of a bargaining industry association or employers' association about what franchisors and franchisees, including a 10-day 'cooling off' period after signing a franchise agreement during If you provide finance or micro-loans, for instance, you will which a franchisee is able to rescind the agreement.
have to register as a credit provider under the National Credit Act. If you plan to sell alcohol, you will need to apply The Act also outlaws certain marketing practices such as referral marketing, where one person supplies consumer goods or services in return for receiving a rebate.
Some sectors and professions abide by a code of ethics or best practices, which are also useful to ensure that your Other marketing practices the Act outlaws are: business is seen as a credible and trustworthy • Negative option advertising (where a consumer is made to pay for goods, such as a book posted to Municipal regulations
them, unless they specifically declined the When starting a new business, talk to your municipality to see if there are any regulations you need to know about. If • Bait marketing (where a business owner promises you plan on setting up a new building for your business a certain number of items are for sale at a certain premises, for example, you may need to be approved for price, but when the customer enters the store they zoning and inspected by health and fire officials from the find these items to now all be "sold" or the price • Fake competitions (a business owner can't market Consumer rights
competition when in fact no competition has been Businesses now have to pay more attention to the rights of conducted or the prize of the competition is the consumer, as the Consumer Protection Act came into related to a previously undisclosed condition).
force in 2009. The law prohibits certain marketing practices and has rules on a business's relationship with The Act also specifies certain rules that direct marketers its customers. It will mainly affect retailers, businesses in must abide by, including a cooling-off period for customers the services sector, distributors and manufacturers.
Businesses will get a short reprieve as most of the See this article on the implications of the Act for small conditions in the Act will only take effect in the second half You can download the final draft of the Bill from this The Act will set up a National Consumer Commission, which will investigate complaints brought by consumers.
The commission can then take up a case on the consumer's behalf and penalise businesses for acting Other regulations
unfairly. If a business doesn't comply with a compliance notice issued by the commission, the commission can then There are other laws that business owners should also apply to the National Consumer Tribunal (also a relatively know about. These relate to access to information (all new institution) to fine the business.
businesses need to submit information manuals), corruption, and looking after the environment. Below is a Some of the key implications for businesses are: • The introduction of strict liability, where the supplier of the goods or services - by the Access to Information
manufacturer, retailer, distributor or importer - will The Promotion of Access to Information Act (PAIA) be expected to prove that the goods or services empowers the ordinary citizen to get information so that they supply customers were in good order. Up they can seek redress in some form or other. The law says until now the onus has been on the consumer to that any one has a right to see any document held by an organ or the state. Under the Act, all business owners will • Manufacturers will have to ensure their goods have to submit an information manual to the Human Rights contain warning labels and that if a product contains genetically-modified ingredients, that Small businesses with 50 or fewer employees or that have less than a certain turnover threshold (see this article: • Businesses such as plumbers or handymen who repair, supply or replace parts must now give have been granted a reprieve by the Minister and will only customers a quote in writing (or in another have to submit their manuals by 31 December 2011.
recorded manner) before proceeding with any The manual is essentially a list of categories of documents your business keeps - such as invoices, contracts and • Allowance for an opt-out clause on fixed-term client details. As the owner of a private business, you don't agreements as well as mandatory refunds on have to disclose any document that contains commercially undesirable goods returned to the seller by the sensitive information. You don't need a consultant to do buyer within 10 business days after delivery.
this for you, as it is quite simple to draw up the manual by The Act lays down certain rules in the relationship between The Human Rights Commission, which oversees the act, Further information
has more information on manuals on its website: The Human Rights Commission is a statutory organisation Tender fraud and fronting
set up to protect and promote human rights, as enshrined in the constitution of South Africa. Among its roles is to Fraud can be a serious problem when tendering for manage the Promotion of Access to Information Act, which government contracts. It's not only 'kick-backs' paid to requires businesses to submit information manuals to the officials by some businesses, but the never-ending SAHRC - to improve public access to basic corporate problem of fronting - where businesses deliberately misrepresent their Black Economic Empowerment (BEE) credentials to pass off a person described as black by the Constitution, as having an influencing stake in their In a bid to clamp down on corruption inside and outside the public sector, the government passed the Prevention and Combating of Corrupt Activities Act in 2004.
Most importantly for business owners, the Act created a blacklist (kept by National Treasury) for those businesses SARS collects taxation revenue from businesses and or officials convicted of fraudulent practices in the tender individuals, giving government the money it needs to keep process. The Department of Trade and Industry's BEE the infrastructure of the country in good shape. Businesses portal explains what fronting is and allows one to lodge a must register with SARS when they set up, and pay tax complaint of fronting. A team within the department will regularly on their profits and on behalf of employees.
There is a useful guide on the internet to help you understand the Prevention and Combating of Corrupt Activities Act on the website of the National this guide; you can also download the Act from The Department of Labour ensures that the relationship between employers and employees is fair, and that To visit the Department of Trade and Industry's BEE employees are protected by the law. There are a number of useful guides on the department's website that explain what you need to do to comply with labour laws. To find Environmental legislation
the Department of Labour's centre or office closest to you, Businesses that have a negative impact on the environment - such as manufacturers that produce waste www.labour.gov.za/contact/center_offices_display.jsp.
or small mining companies - should know about the various environmental regulations that control air quality, environmental impact assessments and illegal dumping of Many environmental regulations are contained in the by-laws of municipalities, but government is strengthening its national environmental legislation and increasing penalties so that environmental officers (or 'Green The Companies and Intellectual Property Commission Scorpions') can crack down on those that fail to comply registers companies, trusts, patents, designs and trademarks. (The CIPC takes over the role of the Talk to your municipality to find out about the Companies and Intellectual Property Registration Office, or environmental regulations that they implement, and visit the Department of Environmental Affairs and Tourism's an overview on the impact new environmental legislation Related guides
Starting Your Own Business in South Africa Guy Macleod and Barrie Terblanche 2004 Oxford Websites and magazines
Werksmans Inc is a large legal firm with headquarters in Sandton, Gauteng. It has prepared this overview of South Africa's economy and business environment, and updates Grant Thornton is a global company that offers auditing, tax and advisory services for businesses. On its website, there are a number of useful publications on tax and other Bowman Gilfillan is a large law firm based in Johannesburg. Its website has publications on various legal and compliance issues relating to business.
This information is meant as a starting point only. While all reasonable effortshave been made to ensure that the information is accurate and up-to-date, thepublisher makes no warranties and will not be responsible for any errors oromissions in the information, nor any consequences of any errors oromissions. Professional advice should be sought where appropriate.
Cobweb Information South Africa (Pty) Ltd 2014

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