Why do I need a contract?

Why do I need a contract?

Published: 7 December 2018

Many of our clients, justifiably, ask the question “Why do I need a contract?”. Most of the time this question is asked in situations where the business relationship has just started, and things seem to be going really well. I have often heard the phrase “There is no need to get lawyers involved – they just complicate things”. This can be true, however, there is also a lot of merit in getting good lawyers in to draft your contracts.

There are three major reasons why it is good to get a contract drafted by a professional. The first is that you don’t know your unknowns, the second is that contracts help with minor disputes and the third and final reason is that contracts help in situations of major disputes.

You don’t know your unknowns

I used to service my own car – it wasn’t a difficult job as I knew where to get the parts and my car is relatively simple to service. I stopped servicing my car myself when I started running into trouble with my car breaking down and I realised that I needed a professional to look out for things that I couldn’t see or didn’t know to look for. The same is true for contracts; you might feel comfortable with a handshake, conversation or email to seal the deal, but you don’t know what you are missing from a legal perspective.

There may be certain pieces of legislation you need to comply with like the Consumer Protection Act, 2008, the National Credit Act, 2005 or the Companies Act, 2008. You may not realise that you are unintentionally changing the terms of your deal by sending an email out (yes, emails can change your agreements). You might want to go to arbitration or mediation instead of going to court if you land up in a dispute. These are just a few examples of the minefield that can be out there when drafting contracts.

Minor disputes

The beauty of engaging a lawyer to draft your agreement is that you often thresh out issues that you wouldn’t necessarily have considered. This then gives you a solid base to work from when you run into a minor dispute. A minor dispute would be something that is not a deal-breaker but is often a misunderstanding as to who should be doing what. If you have not worked through this and written it down, then you end up engaging in a game of “he said / she said” which can turn into a major dispute. If we are all honest with ourselves, our memories are not perfect, so writing something down that is well thought out helps everyone have clear boundaries and often puts an end to those minor disputes quickly.

Major disputes

Major disputes come in where one person has done something that cuts to the core of the relationship, resulting in the relationship ending. This is probably where a clear and well drafted contract is most important. You might feel like you will never land up in a place like this, and the probability is that you won’t, but a contract is often drafted (like an insurance policy is taken out) for the “just in case” situations.

Where a contract is clear as to who should be doing what and you land up in a major dispute, this can result in the matter being settled before court proceedings are launched, as everyone knows where they stand. If you do land up in court proceedings, it could assist you in getting a better settlement as the vast majority of commercial matters never make it to a court hearing but are settled before they arrive there. If your opponent feels like they have some wiggle room, they may take their chances at a hearing rather than settling with you resulting in long drawn out (and expensive) court proceedings.

Overall, contracts are very useful tools in business and they can be of great assistance. It is important to have them drafted by a professional, although it may not seem like it at the time, and it is more important that they are clear and deal with all the important aspects of your relationship. This could save you and your business a lot of trouble down the line.

Tax consequences: Independent contractors and employees, who’s who?

Tax consequences: Independent contractors and employees, who’s who?

We have had several requests to draft independent contractor agreements for people who are factually employees, however, simply having a person sign an agreement stating that they are an independent contractor does not make them one. In this article, we are going to explore the tax risk of having an independent contractor who, in the eyes of the law, is an employee. This article focuses solely on a situation where you have a natural person contracted to do work for you. There are distinct rules that apply to entities (companies, close corporations, trusts and the like) which you will also need to consider, but are not considered here.

As a start up company, you may think that you do not need to ask this question as “you don’t have time” or “it’s really low risk”, but when you start looking for investors, this is one of the areas that may be highlighted as a tax risk. You are normally called to indemnify your own company against these tax risks when an investor invests into your company. This can have far reaching financial consequences for you as you may be called to pay arrear tax for all your “independent contractors” who are, in the eyes of the law, employees.

SARS determines whether an employee is an independent contractor through two separate tests:

  1. the Statutory Test; and
  2. the Common Law Test.

If either of these tests apply to the person that you have hired, then your company will be required to withhold Pay As You Earn (“PAYE“) tax and pay this over to SARS.

The Statutory Test

The Statutory test is set out in Schedule 4 of the Income Tax Act No. 58 of 1962 (“ITA“). Below is a basic outline of the test (this is not formal tax advice, so you should seek additional advice from your tax advisor). It is important to see if the Statutory Test actually applies in the first place. We will begin looking at exemptions to the Statutory Test:


  1. If the person doing work for you employs three or more employees who are not connected persons as defined in the ITA, the Statutory Test will not apply to this person. The Common Law Test will still need to be considered, however.
  2. If the services rendered by the person are rendered less than 50% of the time on your premises, the Statutory Test will not apply. The Common Law Test will still need to be considered, however.

Other Considerations:

If the exemptions in 1 and 2 above do not apply, then the next questions must be considered, which are:

  1. Is the person subject to your control regarding the way his duties are performed or regarding his hours of work?
  2. Is the person subject to your supervision regarding the way his duties are performed or regarding his hours of work?

If your answer is yes to either of the questions 3 and 4 and the exemptions in 1 and 2 do not apply, then it is likely that you will be required to withhold PAYE tax in respect of that person.

The Common Law Test

The Common Law Test for whether a person is an independent contractor is complex. The common law is made up of case law and historical Roman-Dutch law. Generally speaking, the Common Law Test refers to a “dominant impression” test which consists of various elements.

Because the Common Law Test is complex and difficult to apply with certainty, SARS has produced a helpful rubric as guidance to people who want clarity on this point, this rubric can be found in the SARS interpretation note here at page 18.

If the Common Law Test does apply, then it is likely that you will be required to deduct PAYE.


This issue is one that is often overlooked, but it can have far reaching consequences for you and your company. It is important to consider these questions and look at the relationships that you have with those people who you have hired to perform work for you who are not formally “employees”. Speak to your accountant or tax expert and explore these issues in detail, it may save you a lot of trouble in the future.

Equity crowdfunding vs other types of crowdfunding

Equity crowdfunding vs other types of crowdfunding

A little while ago we wrote an article on the regulatory vacuum relating to equity crowdfunding. Whilst there has been little movement from a regulatory perspective as to how South Africa is going to regulate crowdfunding – meaning that it is still unregulated – there have been some positive steps taken by the Financial Services Board (“the FSB“). Crowdfunding has been at the forefront of the FSB’s recent discussions – hopefully an indication of their support.

If you are unfamiliar with the term “crowdfunding” and you have looked to “professor” Google to gain a bit of an understanding of what it is, here is a small overview on what crowdfunding is and the types that are available.

The term “crowdfunding” is essentially a description of a funding raise of multiple (typically small) sums of money from the general public to fund some form of venture, whether that be a charitable venture or a profit-making venture.

  • Donations based crowdfunding is fairly straightforward – a group of people donate money to an organisation or person that they believe in, generally for a charitable cause. Backabuddy is a good example of this in motion in South Africa.
  • Rewards based crowdfunding is widely used to incentivise people to fund the venture of a small business. This is similar to donations based crowdfunding, but with a key difference, as the person seeking funding offers a reward to the person / people donating. Thundafund is an example of a South African rewards based crowdfunding platform.
  • Loan based crowdfunding occurs where the person / company borrows money from the crowd and the crowd receives interest as their return. Entrepreneurs typically use this to get a better interest rate than they would have gotten if they went to the more established money lenders.
  • ICO’s (Initial Coin Offerings) have become the most recent of the crowdfunding fads. Unfortunately, there have been a few notorious fraudulent schemes using ICO’s. In fact, the Useless Ethereum Token famously launched a satirical ICO that clearly stated that its coins were worth nothing and it raised USD$93,949 (+/- R1 million)! ICO’s are fairly complex, so we are not going to go into them in this article, but if you would like to see a previous article written on the subject, you can read about it here.
  • Equity based crowdfunding occurs where shares in a company are offered to the public in exchange for funding. This is really significant as the crowd become business owners of the company and have certain rights attached to their investment.

Equity based crowdfunding has previously been avoided in South Africa, as people are generally wary of entering a space like this due to the regulatory concerns. Uprise.Africa (which has already had its soft launch) has, however, started an equity based crowdfunding operation in South Africa and is about to become fully operational.

What’s the difference?

Equity based crowdfunding differs significantly from its more underpowered cousins, as shareholders in a company (even minority ones) have certain rights that they can exercise to ensure that startups aren’t off buying bean bags and half-price sushi with investor funds. This means that the crowd has some oversight and can share in the rewards or growth of the business. So, the crowd is rewarded in the long term for investing into the startup (although most startups are high-risk investments and returns are not very common).

What this means for the startup is that they can market test their product to see whether the general public would be interested in the investment. It also means that the startup can probably get a more favourable investment than your average venture capital (“VC“) firm would give as the crowd isn’t normally as interested in the bottom line of the startup as your average VC firm is.

Equity crowdfunding has such huge potential to boost the South African economy, in fact the World Bank recently predicted that the market potential in Africa for crowdfunding will be up to $2.5 billion by 2025. Equity crowdfunding in South Africa will hopefully tap into that and unleash significant potential in the startups that are based here.

The difficulties involved in setting up and managing Section 12J Venture Capital Companies

The difficulties involved in setting up and managing Section 12J Venture Capital Companies

“Section 12J Venture Capital Companies” (Section 12J VCC) seem to be a bit of a buzz phrase doing the rounds in the South African entrepreneurial world at the moment. We have had several requests from new and existing clients to set one up, mainly because of the attractiveness of these structures to investors.

A Section 12J VCC is a company formed in terms of section 12J of the Income Tax Act, 1962 (ITA) – it is essentially a pooling mechanism created by the South African Revenue Service (SARS) to encourage largely high net worth individuals to invest in start ups. The incentive to invest in a Section 12J VCC comes from the fact that investors get a full tax rebate on the funds invested into the Section 12J VCC. So, if a person in the highest tax bracket (presently 45%) invests R 1 million, they will get a tax rebate of R 450,000, meaning that the net investment is R 550,000.

The Section 12J VCC itself is relatively simple to set up, but the real complexity and difficulty comes with the management of it. The legislators have included several anti-avoidance provisions in section 12J of the ITA, which have made it particularly difficult, and in our experience prohibitive, for anyone to manage and run a Section 12J VCC. In fact, at the moment, there are only fifty six Section 12J VCCs approved by SARS and according to the information that we have gathered, and less than half of those are actually trading. It is interesting to note that the legislation allowing these funds was put in place in 2009 – that equates to, on average, seven of these companies formed (not necessarily even operating) every year since inception.

So why is it so difficult to get a Section 12J VCC off the ground? Below we have highlighted some of the major difficulties that some of our clients have had:

  1. No investor into the Section 12J VCC may be a “connected person” in respect of the Section 12J VCC, which essentially means that a natural person cannot own 20% or more of the shares in the Section 12J VCC (directly or indirectly) and a company can own up to 50%, in limited circumstances, of the Section 12J VCC (directly or indirectly), but no more.
  2. No more than 20% of the capital raised through the issue of shares may be invested into any one investee company.
  3. An investee company cannot be a “controlled group company”, meaning that a Section 12J VCC cannot own 70% or more of the equity shares in an investee company.
  4. To be recognised by SARS, the Section 12J VCC must be registered in accordance with section 7 of the Financial Advisory and Intermediary Services Act, 2002 (FAIS), meaning that the company must have a “key individual” in its employment and the Financial Services Board must issue it with a certificate.

There are many more nuances to a Section 12J VCC that we have not highlighted here as they are too lengthy to get into, but they also make for significant barriers to entry.

Regarding point one above – the issue of being a “connected person” – this provision was clearly put in place to avoid situations where a single investor uses this platform to invest in a company where he ordinarily would have done so in any event, but he simply sets up a Section 12J VCC to reap the tax benefit on an investment that he was always going to make.

What we have seen is that there are legitimate arm’s length transactions where investee companies are told that the investor will only invest in them if they are able to use the section 12J of the ITA structure and because of the anti-avoidance restrictions, investee companies are losing out on a potential investment as it is often not possible for this to be done.

Regarding points two and three above, Section 12J VCCs are often restricted in the manner that they can invest when they see a good potential investee company, as they cannot invest more than 20% of their raised capital into the investee company. This means that investee companies can, and do, miss out on obtaining more funding or any funding altogether.

It can also prevent arm’s length investors from investing into one investee company, as they cannot use the Section 12J VCC vehicle to invest into a qualifying investee company because they cannot own more than 70% of the investee company and they cannot use more than 20% of the funds raised in the Section 12J VCC to invest in the investee company. The investor also cannot hold 20% or more of the equity shares in the Section 12J VCC.

The final point is possibly the most difficult, FAIS approval is difficult to obtain as you must have a person who fits the criteria to be a “key individual” in terms of FAIS, which requires experience in the industry and further study. With the fast pace of the business environment, it is often too much of a hurdle to cross to find a party with the correct industry experience to write the exam and become qualified as a key individual.

If you have a legal team that thinks laterally about it, there are ways to manoeuvre within the compliance framework, but even then, there are limitations to the extent that it can be done.

Section 12J VCCs look very attractive from the outside, but when you scratch below the surface, there is a structure that is complex and difficult to manage and balance, which is probably the reason that they have not taken off in South Africa yet. That is not to say that forming a Section 12J VCC cannot be done, as we have assisted in setting up several of them, but it is worth considering it a little bit deeper to see whether this is going to be the best structure for you.

Potential oversights of entrepreneurs – protection of intellectual property

Potential oversights of entrepreneurs – protection of intellectual property

Running a business is a tough ask of anyone – between maintaining cash flows, keeping customers happy, managing your employees and looking for potential investors (or dealing with current investors), there is a lot that can fall through the cracks. One of the things that is very easy to forget about, especially with the more modern, technology-heavy businesses, is the protection of your intellectual property (IP).

In the technology sphere, copyright law governs the development of computer software, which is much of what the entrepreneur of today is dealing with. As an entrepreneur, you may come up with a great idea that is going to be the next “Google”. So you call your business partner up and spend countless hours in the office and cups of coffee developing this new idea, whilst running your business at the same time. You come to the end of this, completely overworked, and you have produced the holy grail of products that is going to revolutionise the industry, and you own it, right…? Well, when considering this a little further, that may not be the case.

If your business is a company, you may be in for a surprise – it is probably the company that owns the product that you have just developed and not you personally. If that previous comment made you break out into a cold sweat, not to worry. Below are some factors that you should consider when developing a new idea as a director of or shareholder in a company:

• Did you use the company’s property or time to develop the product? As an example, did you use a company laptop and normal working hours to develop your new product?

• Is the product that you developed substantially similar to other products developed by the company or did you use the company’s software code to make your new product? As an example, if your company develops an app that is involved in data collection in agriculture and you develop an app that collects data in retail, it is likely that because of the common data collection thread, the products are substantially similar. It may also be likely that you “borrowed” some of the code from the previous app to make your new app.

If your answer to both or one of the above is “yes”, then your company probably owns the product that you just developed. This also should not be too much of a problem though. If you and your business partner (if you have one) are the only shareholders in the company, then both of you can just agree to transfer the product out of the company. The only difficulty comes in where you have investors looking for an opportunity to get a return on their investment.

It is not uncommon for investors to factor in protection against the company disposing of any property (including IP) without their consent, as they will almost always want a good return on their investment. You could be stuck in a situation where you have to share the fruits of your labour with the other shareholders in your company, which is not ideal.

A good way of avoiding this is, as soon as you are in the process of obtaining your first round of funding from your first investor(s), introduce a “pay-to-play” option into your company’s shareholders’ agreement. This will essentially provide that any new intellectual property that you are thinking about developing will be offered first to the company and then to any investor, provided that if they want a share in it, they must put some capital into the project, which project can, and should, be placed into a new company.

There are many more layers to this issue, but the long and the short of it is that you should always be wary of losing all your hard work due to a simple legal slip up.