Registering the business, compliance and finance
Dear Friends of iZindaba Zokudla.
Please join us for a workshop on business registration and compliance. We will conduct this workshop at the end of the session.
Please also welcome Andrew Potts from Smart Food Growing Technologies and https://sfgtec.com/ and Andre Laas from Indagatus or www.indagatus.co.za.
Please see the documentation from these organisations below in this blog or in a separate blog.
We are particularly interested in the technologies Andrew and Andre will present to us. The technologies they proffer are all optimised for home and township gardens, and they aim to empower urban farmers. We look forward to taking a look at their technology and growing systems!
Please bring an ID document, Passport or Birth Certificate or generic identification to gain access to campus.
We aim to start at 9 am for 930 am and will meet in B2 in Enoch Sontonga Halls, UJ Soweto Campus.
To join with MS Teams, please click this link: https://teams.microsoft.com/l/meetup-join/19%3ameeting_MjdlYmQxYzMtMzYxZS00NTM5LWI0YzItNWNiZmU0YzMzNTA5%40thread.v2/0?context=%7b%22Tid%22%3a%22fa785acd-36ef-41bc-8a94-89841327e045%22%2c%22Oid%22%3a%22d9ec2883-9bca-4af7-a566-ab88fff0f5a6%22%7d
You can also join by clicking this link to the Facbook Events page: https://www.facebook.com/events/1425725548111406
The registration of a business is a really important issue to attend to for any entrepreneur. It is necessary to register a business and it is important to understand what goes on in the background to this registration. Accompanying registration are many other issues, from compliance, to tax, to finances. In this chapter I will set out how to go about thinking about and registering a business. I will also detail what is necessary to register and what the “compliance” universe for an urban farmer looks like. There are many things to attend to in this regard, and in this chapter, I set out some answers.
1. What happens when we register a business?
Registering a business is part of a more complicated contractual arrangement between the entrepreneur and society. Society allows us to do business, and gives us certain advantages, but also needs something in return in order to give the entrepreneur some advantage and protection as an entrepreneur.
This is part of the larger social contract between society and citizens, and I dealt with that in the beginning of this book. When a company is registered, we create a safe space for the business to operate in society. When we register businesses, we register them as “limited liability” entities and organisations. This is to protect the entrepreneur and give the entrepreneur space to operate the business. This limited liability is a real thing. It means the entrepreneur and company are liable to pay damages that comes about through the workings of the business, only to the value of the business itself. There is thus a limit to damages anyone can claim from an entrepreneur, and this is the protection an entrepreneur needs to take risks and start a new venture.
Let’s say you sell food, and someone gets really sick. They may sue you for damages due to the sickness. Say this person was a billionaire and due to sickness missed an opportunity to build another billion-dollar business. You are liable for these damages the billionaire suffered. However, if you are registered as a company, your liability is “limited” to the value of your business. Say your chesa-nyama was worth only R 10 (what someone would pay for the business). This R10 is thus the limit of your liability and the billionaire can only sue you for the value of the business, which is R 10. Registering a business triggers this kind of protection for the business owner.
If the business was not registered, it becomes, almost by default, a personal liability company, and the liabilities of this company is unlimited, due to not being registered or being formed only as a “sole trader”. In this case you will be liable to the billions the billionaire lost, but would most probably be found insolvent, as the business is not worth as much as the billionaire lost.
As you can see, there are benefits to registering a business. However, to register and enjoy the protection of the state as a limited liability company, you have to subject yourself to the governance by the state and society. We as society simply cannot let you go and trade with limited liability and not receive any benefits in return.
To be registered, and enjoy protection, we as society need to know that you are conducting business in an honest and accountable way. We need to know that you are following laws, that you protect your customers, and that you are paying taxes. To ensure that companies do behave like good citizens, we thus subject them to regulation. Each and every company needs to have their finances audited by an independent auditor. You have to pay for this service, and it is unallowed for an auditor to do this for free. This is to ensure that no “favours” or conflicts of interest enter the space where the company operates. You will pay for the auditing according to how much money you have generated.
Auditing is the cornerstone of how we regulate companies. Auditors look at more than mere finances and will ask questions on BBBEE status, on how you deal with thefts in your company, how you deal with laws and compliance, and they have the opportunity to express an opinion on your business. They can help you but note how important it is for your own integrity and reputation that you have an INDEPENDENT auditor. You do not need to do much to be audited. The most important is to keep record of all income and expenditure and the auditor can complete your books if they have full access to your records. It will be simple to do so, and it is important, also for yourself, to keep records.
2. When should you register a business.
Businesses need to be registered, but you have to exercise judgement on when to register your business. You should register your business only after you have traded already, and it is not a good idea to register first. Registration should come when you are trading, have clients and after you have paid your own personal income tax.
In all tax regimes there are minimum thresholds to cross before you need to register. You have to manage these thresholds and await the best time to register your business. Note also that there are different tax categories you should keep in mind. You are firstly liable for personal income tax, and here there is also a threshold. Your company is also liable to pay tax when thresholds are crossed.
My personal opinion would be to start trading and to keep records. Start accumulating money and also save it in the bank, but hold off on company registration until you have a large turnover, in the region of a few hundred thousand rand per year. When you start receiving an income, and if it is regular and large enough, register for personal income tax. At this stage, you and the business are probably losing money, and in a real sense, you are not liable for tax. Note also, that you have invested your time and your own money in setting up the business, so in a sense the business owes you money, and thus the business is not yet solvent. You are thus underpaid, as the business owes you money. No one needs to pay tax in such a scenario.
I would consider registering the business if the money you receive from the business is sufficient to start paying personal income tax. At this stage, the business may only just be solvent, and turnovers may be very low. At this point you should register for turnover tax for the business, and try to keep the business afloat without any undue and large profits, as the business is probably still underpaying you. Turnover tax is a opportunity for emerging business to pay only 1-3% tax up to a turnover of R3 million. This is available in South Africa, but similar clauses may be found on other tax regimes.
When you are trading and you are earning sufficiently to trigger tax laws, register for turnover tax for your business. This is a way to enable small business to trade with no undue tax burdens, and this can help you up to the point where your business turns over up to R 3 million per year. You will pay a reduced tax (3%) and R 300 000.00 on top of this. This is a lot better than the flat rate of 28% you will pay as a company.
Once you breech the threshold of R 3 million per year, you can also pay a reduced tax as a small business and all you have to do is to indicate this on your tax return and the reduced rate will apply. This is possible in south Africa, but many other tax regimes may also have a concessionary tax for small business.
It is necessary to strategize how to register a business. It should only be done when you clearly are earning enough money from the business, and tax should not unduly burden you. You should have at least 6 moths of records and trade behind you before you register. You are in fact earning the funds for the nation, so be responsible but also mindful of your own interests in this regard.
With the above said, it is best to delay your registration until the moment is right. Selling good food produced in biological ways is a very low risk activity, with a low likelihood of something calamitous taking place. However, it may be possible for some urban farmers to earn in the region of R3 million per year, and this is important. Registering, paying tax, and receiving some protection from the state, will have deep effects on society. Establishing local food production and retail shops as legitimate business will place urban agriculture as a viable and legitimate path for economic development. Urban agriculture is seen by many as a marginal activity that cannot be taken seriously. If urban farmers do not build proper enterprises, with services, products, and benefits for the community, it will always be seen as a marginal activity that is only survivalist.
It is possible that we can create new enterprises that combine production and retail, and these could expand much further and there are many middle size smaller town in the world where these ideas really come to fruition. The harvesting of waste and its incorporation into business processes will leave us with a new value and enterprise proposition. It is possible that a few farmer/retailers can expand these ideas further and construct large enterprises that serve specific communities.
By being compliant and by registering we signal to the world that a farmer/retailer is a viable economic proposition and that this can lead to improvements in the food system.
3. What forms of enterprise are relevant to urban agriculture?
There are many cooperatives in existence out there in South Africa. A cooperative is defined as an: “autonomous association of persons united voluntarily to meet their common economic, social and cultural needs and aspirations through a jointly owned and democratically-controlled enterprise” by international organisations This definition could also apply to other kinds of activity but the joint ownership is important. However, a cooperative should benefit from that which is owned communally, like a piece of land, and it should be the joint ownership, as opposed to linking together lots of individual ownerships, that should give it an advantage.
For instance, if 5 persons own 4 sewing machines, the joint ownership can make the 4 sewing machines work like 5 (by structuring the use of the machines) and this should be evident in a cooperative.
Many cooperatives in South Africa do not own anything jointly, and often, when they do, the use of this joint property is done as if each had individual ownership of this joint property. This is where disputes and disagreements emerge.
It may be better to form a partnership and not a cooperative and do so based on a joint memorandum of understanding. Partnerships do not have to be audited and cooperatives have to, and this can incur savings. However, the mere fact that you are a cooperative will not make you work harder, nor will it let your plants and animals grow faster. Owning 4 machines and using them as 5 will however put you ahead. Most cooperatives do not understand what they have in common, and how to use such a common property as if each had full access to it. Cooperatives fail because there is no real cooperation, and often people are merely organized like a bunch of potatoes in a sack!
It may also be important to note that the idea of a cooperative can be further specified. A “production” cooperative will produce together and aggregate production. This will be sold together, but if the agreements between cooperative members are not right, it may be that those who make a large contribution to aggregate production may not be equitably rewarded and the gains may be divided equally and not proportionally. All coops would have to have these benefits very narrowly prescribed for it to function. It is better to form a “marketing” cooperative than a “production” cooperative. They also have to be structured in such a way that each coop member benefits from communal ownerships but you have to guard against some “free riding” on the efforts of others. This shows how complicated things could become, and most coops are not able to specify and pre-empt such highly specific benefits. This is why they fail, as the way the arrangements are to be made need to both reward the individuals, offer them incentives, but still protect the communal base from which all this activity comes from.
A partnership may be a better idea. However, partnerships are only the second in the line of enterprise forms you should be aware of.
When you trade, you establish yourself as a personal liability trader. This is the most basic form of enterprise and does not have to be registered (but you are liable for personal income tax). You would be liable for any eventuality in this scenario, but note that selling unprocessed and fresh foods is not high risk…. However, everyone has to start here. The unbroken line of transactions that is your enterprise starts here.
When you trade with others, as “co-owners” you are engaging in a partnership. Partnerships are governed by contract, verbal or written. It is better to have written contract and clear specifications of what is expected of each partner. Partnerships do not need to be registered at the CIPC, and they are not liable for company tax until they reach a certain threshold. This is a good way to avoid auditing fees, but each member is liable for personal income tax.
When you are serious about forming your own company, and you have substantial turnover, more than turnover tax allows you, you would have to register as a private company. It is private in the sense that it belongs to you. You do not have to disclose your finances or anything about the business except to the auditor and the revenue service. You will pay the flat rate 28% company tax and have to also register for VAT. Below I set out what a company should do to be compliant, and you would have to follow all these prescripts. This company will be limited in its liabilities, and this is appropriate for the large scale trade that it will do.
If you want to seek investors on the stock market, you will form a publicly listed company. Because investments are sought from the ordinary public, and to protect the ordinary public who invests in these companies, these public companies have to make their finances and communications open to the public. This is to ensure that the public can make an informed choice about investing in these companies, and so society can see that they conduct their business honestly and with integrity. The price of these shares is thus public knowledge, and they can be traded immediately. These companies also enjoy limited liability.
Besides these forms of the “firm” we can also identify mutual societies and “clubs” as organisational forms that maybe relevant to urban agriculture. A club will function like a partnership, but would be structured by the membership contract or constitution. The law will force you to be consistent with your own constitution, and this is how we can regulate business, by insisting in the integrity of conduct.
A mutual society is very much like a cooperative, except members do not contribute any capital or property to the society. They contribute through their custom, and what they buy. This may help with a buying club, and is also similar to a stokvel. This is also governed by the contract amongst the members, and we thus say it is governed through private law – the agreements people make amongst themselves.
4. Being audited
Auditors perform a very important function, accounting for money, but they do so in a way that brings integrity and honesty to dealing with money. They have to be independent of the client, and they express an independent opinion. They will cost you money, and that is why it is important to approach them when it is needed. You could do so when you are in a partnership to bring integrity to the finances and the relationships amongst the partners.
To engage the services of an auditor you need to keep records. Record keeping will also allow you to analyse your sales and activity at the farm, and please see the previous chapters where we discuss how you should keep records so you can analyse them.
The services of an auditor will propel your enterprise to a new level of integrity and compliance. However, sequence the services of an auditor with how you are planning the registration of your company. The decision to register, be audited and become compliant in all other aspects needs to be planned and worked towards. Consider also a bookkeeping service, and coordinate this with your audit, as this way may be slightly cheaper.
5. What must I do to register the business and be compliant?
There are more or less 13 steps to follow in registering a business and becoming compliant. However, this is a shifting target and new forms of compliance may emerge at any moment. Compliance is broader than registration and there are many state departments we need to answer to, to be compliant. It is simply not possible to do this as a one-stop shop, as you would have to assure many entities that you are capable of running the business properly. Engaging with our customers is one way to be compliant to their needs, and you are also governed by this engagement. Some of the things you can do, revolve around customer engagement and education. The Companies and Intellectual Property Commission in South Africa is only one entity you need to satisfy, and there are very many regulations you need to be mindful of. You have to note that there is a “universe” of compliance that you have to satisfy, and you would have to mindful throughout the life of your enterprise to changes in this area.
A. Your business needs a name. This name must be unique and at the CIPC or authority a search will be done to see if this name is unique. A name links with marketing and this name will have to inform your branding.
B. The type of enterprise is also important. You will only be engaged in registering at the CIPC if you want to form a Cooperative, a Private Company, or a Publicly listed company. A personal liability business and a partnership does not need to be registered as such at the CIPC, but a Partnership needs a written or verbal contract to commence. To do this registration, you need to have an address and premisses. You will also have to make available your ID and many other documents in this regard, as you need to have the legal capacity (18 years or older) to register a business. When you do so, you will be asked for a Memorandum of Incorporation that sets out the enterprise form, officers of the enterprise, and many other aspects, like how you will make decisions and conduct meetings.
C. Should you be using proprietary technology, like patents, trademarks and designs, you have to declare this. Those who own this Intellectual Property need to be notified that you will be using it. In most cases you will make such an arrangement when you acquire technology, and this really only applies to high technology that is protected in some way. When you do your own DIY technology, it is not necessary to declare this, as it is not protected by any entity or belongs to any specific person.
D. If you make claims about products, like skin creams of herbal remedies, you have to have your claims verified. Many are in the business of manufacturing their own creams and cosmetics with herbs and plants, and the point is to only make a claim about this that has been tested and verified scientifically. This is to protect consumers. If you are making a cream or cosmetics, sell this without making any claims, and this would be acceptable practice. However, note that if anything happens to your customers through the use of these products, you may be liable. It is best to sell them with no claim and to make the customer understand that the product does not make any claims – even if you believe it is useful. If you make such creams and ointments, ensure you use only natural and benign ingredients.
i. However, the testing of products is only one part of this aspect of compliance. To tell people where your food comes from is part of this. This refers to the traceability of your food and an urban farmer who produces and sells can combine these aspects. This is where you show the community and customers how you produce, by showing them your composting systems, your production systems and the farm or garden in general. People will know where their food comes from, and this is a key feature of your enterprise.
ii. Some have linked with certification schemes, and I recommend you consider the Bryanston Organic Market’s “Participatory Guarantee Scheme” for organic produce. This is a producer friendly and developmental scheme that enables smaller producers to achieve an organic certification at low cost. The certification process will also enable you to achieve organic production, and this is part of the UVP that you offer, and they will also supply you with a branded label. They will help you achieve this certification. This increases the value of your produce, and this is very much worth considering.
E. Local authority trading licence (if applicable). If you sell food, you have to apply for a local authority trading licence. This may be a sufficient form of registration, if you also pay personal income tax and your business operates at volumes lower than tax thresholds. Obtaining such a licence will stand you in good stead in engaging with the local state. The kinds of enterprises that must have a Local Authority Trading Licence in Johannesburg are listed below:
i. Food provision: You need a licence to sell or supply meals, take-aways or perishable foodstuff. When the local authority trading licences were designed, urban agriculture was not on the agenda, and they did not foresee these enterprises to emerge. However, as such a farm trades in food, it seems appropriate to adopt a local trading licence. Please speak to your local Ward councillor about this. If you adopt the suggestions in this book or blogs, please note that you will be a food trader and you would need a local authority trading licence.
ii. Health and entertainment facilities;
iii. Turkish baths, saunas and health baths;
iv. Massage or infra-red treatments;
v. Male and female escorts;
vi. Three or more slot machines and electronic games;
vii. Three or more snooker or billiard tables;
viii. Nightclubs and discotheques (where live or loud music is played);
ix. Cinemas and theatres; and,
x. Adult premises.
5. The Revenue service: Everyone and any entity that earns money needs to register for employee tax, company tax, Value added tax, and owner personal income tax. When you register your business at the South African Revenue Services, you have to also register employees as taxpayers. You have to register to pay VAT, and you yourself have to pay personal income tax. Read this provision with the suggestions I made above on how to register your business and plan the time and ways you will register as this will bring tax obligations.
6. Unemployment Insurance Fund: South Africa has provision for unemployment insurance and many other countries do so as well. You yourself and your workers are able to register for the Unemployment Insurance Fund or UIF. This is triggered when you pay them sufficient wages and if you employ people full-time. By paying a UIF contribution (that can be included in the wages of your workers), you can give them some form of protection for unemployment. Should you be a registered business, this can be made available to workers and note that this is a benefit that you give them, and this enhances the value they receive from your labour contract.
7. South Africa provides for injury protection during employment and many other countries do so as well. COIDA, The Compensation for Occupational Diseases Act is a social security measure that protects workers from accidents whilst on duty. Once you are register as a company you need to also register for this provision. Once you register you receive a letter of good standing. When one of your workers suffer an injury, this protection will be triggered and the worker will receive compensation and provision is also made for medical expenses like hospitalisation. Once again, this is a benefit that you extend to your workers and is a bonus in the labour contract.
8. Manufacturing enterprises: In South Africa, enterprises that manufacture must register at the Department of Trade and Industry as a manufacturer. This will bring about important benefits. Manufacturing is a key sector that enjoys priority in state policy, and there are several multi-stakeholder initiatives in place that can help you build such a business. I am thinking of those that are able to manufacture technology for urban and other farmers.
Many opportunities for business incubation transpire in the manufacturing space, and many kinds of enterprise development are organised in a similar way. In these multi-stakeholder groupings opportunities for funding, mentoring and coaching, and enterprise development are made available. Once you are reaching revenue that makes you eligible to register your enterprise, find a development programme that can assist you in building your business further. The suggestions made in these pages on this website are different than how agricultural development agencies conceptualise development of new entrepreneurs. Make sure that these development programmes serve the ideas you want to follow and let them support you instead of them leading you.
9. Compliance universe: any business has to comply with the rules and legislation appropriate to them. You need to constantly keep an eye out for new developments and legislation that will affect your business. This also includes keeping an eye open for new technology, productions systems, and techniques. To operate a business is not to be taken lightly, and you have to constantly endeavour to ensure you are able to respond to any and all future challenges. Develop a system of inf0rmation gathering and analysis that will help you stay abreast of new developments. This is a formalisation of your own inquiries into the world, and it helps to systematically keep an eye open for new information that may affect you and your business.
10. Labour relations: Contracts, labour rights, BCEA, Skills Development Act, BBBEE.
Employing someone is more than just a labour contract. Your workers have to develop your business for you, and you need to treat them accordingly. They are the means to build your business, and you will benefit if their own learning, skills and competencies improve.
For all formal employment have to have contracts, even if they are verbal, with your workers. A contract is also the information the worker needs to do the job best. However, you really have to appreciate your workers and they are the means for your business to get ahead in the future, and it pays to invest in your workers. Develop a labour contract together with your workers in an open session where you discuss it together. Give your workers the rights they are due, but also note that you have to create a culture amongst your workers that emphasises their responsibilities to keep the farm and enterprise going. Give them rewards and they will create a culture that supports your enterprise. Do not cast their position as opposing your business, but find the sweet spot where they see the value they receive from the business, and how the business, through their work, creates this value for them and society.
It is important to streamline your workers culture also with the overall culture and orientation of the farm. You are there to build value for the community in producing food and also in producing this food by harvesting the waste in the community. Through your endeavours you are lowering food prices and enabling communities to influence their food choices in a positive way. This is the culture that you are creating and this leads to your UVP and this needs to be part of the labour culture on your farm. By creating such a culture, you will motivate both your workers and community and build a system that creates value for all. Try this, when you succeed, it will take care of itself.
a. Economic and Social Governance:
As an emergent entrepreneur, you should involve yourself with others, either in a dedicated multi-stakeholder enterprise development programme or with others like you who are also farming. In these stakeholder engagement processes, and in the economy in general, people are attentive to transforming society through business. As an urban farmer who farms sustainably and regeneratively, you are in fact a highly lucrative prize and “statistic” for development agencies.
You yourself may be female, African and farming sustainably, and you sould be selective what stakeholder engagement process you get involved in. Do not simply get involved in such processes and think if it does indeed benefit you. As a farmer, your first loyalty lies in your own sales and your own customers. This is why you farm. Get involved in a stakeholder engagement process only if you have a clear objective in mind in getting involved. This could be expanding to new markets, adopting technology, or being involved in a development programme that will advance your business. Many will want you to become involved, but remember, you are a farmer to sell food not to mingle and chat about ideas that may not help you.
Documentation from SFGTEC:
Comments