This year has begun with a bang, as the contents of this Brief will show- there are three major regulatory changes for the NGO sector to understand and respond to:
- A major expansion of the FICA Schedule of “accountable institutions’ and who it now applies to;
- New 18A receipt rules, effective 1 March 23 (so, last week already); and
- Draft Regulations for the NPO Act released for comment and submissions by 23 March.
We will deal with the last one first, as it is crucially important that news about the draft Regulations is spread widely and that the sector engages with it by the deadline set. (Also, we know you will keep reading for the 18A bit, anyway!)
We hope that you find all of this information useful and, as usual, please feel free to send this on to anyone who you think might benefit from it. If you have been sent this by someone else and would like to receive future Briefs from us, click this link to subscribe. If you would rather not be sent these any longer, then please unsubscribe at the end of the email.
Keep the questions coming and send us suggestions for future topics – visit our website, hit the ‘contact’ tab, and enter your question into the ‘Contact Form’ space provided.
Hands to the plough and eyes on the horizon, as ever!
Nicole, Bandile, Janice, Chelsea, Lisa, Dorothy and Alison
NPO ACT : DRAFT REGULATIONS
Status update: Those who have been following (or who were involved in) the submissions made on the ‘Octopus Bill’ will be interested to know that:
- The ‘Octopus Act’ (General Laws (Anti Money-Laundering and Combatting Terrorism Financing) Amendment Act 2 of 2022) was gazetted and promulgated on 29 December 2022; and
- The promised regulations relevant to the NPO Act and the amendments made to it by the Octopus Act were released in draft form for comment on 21 February 2023, with a 30-day deadline for comments which we make to be by close of business on 23 March 2023 (the draft regulations may be accessed at PMG: https://pmg.org.za/call-for-comment/1251/ and comments and enquiries can be directed to the persons there listed.
Parts of these draft regulations will affect all organisations which are already voluntarily registered as Non Profit Organisations (NPOs) as well as that group of organisations for whom NPO registration will become compulsory with effect from 1 April 2023; and then there are parts which will apply only to those who fit the definition of organisation for whom registration is now compulsory.
Recap: Organisations for whom registration as an NPO is now compulsory are those SA-based organisations which:
- make donations to individuals or organisations outside of South Africa; or
- provide humanitarian, charitable, religious, educational or cultural services outside of South Africa.
(Those who have been following the saga will recall that the initial plan was to make registration compulsory for all organisations of a non-profit nature in South Africa. As the proposed changes were intended to deal with the risks highlighted by the Financial Action Task Force, our legislators were persuaded to dial back the requirement and focus on organisations where the perceived risks were higher. Bottom line: your knitting club need only register as an NPO if the knitting is a cross-border project! For a bit more detail on the process so far see the opening part of our previous newsletter https://ngolawsa.co.za/last-quarter-2022-ngolaw-in-brief/ )
Initial note on the draft Regulations:
Those who take the time to read the draft Regulations will soon detect that parts of them are in language not appropriate for regulations and seem to be informative, rather than enforceable.
This is because those who laid the Regulations out included the explanatory notes within the main text of the Regulations. This appears to have been done in error and we suggest that those submitting detailed comments merely reflect, for each of these portions, that they are not part of the Regulations.
For those wanting a shortcut, our list of the probably purely explanatory parts is:
- the last five lines of the para 2(a) on page 3, the top part of which is intended as regulation 8A;
- on pages 4-5, the items numbered (3) to (8);
- at the foot of page 5, items (4) to (6);
- near the end of page the items (80-(10).
The following summary of Regulations is only our snapshot of what each of them contains and then what we think they mean. We have tried to restrain ourselves from actual commentary, where possible, so as not to constrain the creative and independent engagement which will be so useful. For each of the draft regulations, think through the practical impact on the organisation you serve. In your commentary we advise that you give examples and illustrations of any negative or inacceptable practical impact and also, if possible, come up with alternative suggestions for the relevant part of the draft regulation. As we did in the comments on the Octopus Bill. We have provided an easy-to-use tabulated version of the proposed regulations, with a blank column for your own comments and alternate suggestions. Download this from our website at https://ngolawsa.co.za/wp-content/uploads/2023/03/NPO-draft-Amended-Regulations-2023-A.docx.
SUMMARY OF REGULATIONS
7A In December 2022 a new Section 25A was added to the main NPO Act and contains a list of sorts of status or behaviour which will bar people from service on governing bodies of NPOs. This is the first time the NPO Act has had such a list. This list includes disqualifications/ineligibility standards already applicable to directors of NPCs and trustees of trusts, but adds convictions or sanctions for fraud, dishonesty, money laundering or terrorist financing (amongst others) to the list.
This regulation 7A deals with the register of disqualified persons which the Directorate of NPOs must now maintain, the details required to be kept, and a right of public inspection of this list (limited to inspection of a physical list, kept in Pretoria and during office hours only – not terribly useful).
Regulation 7A also seems to place the burden upon registered non-profit organisations to assemble and populate this public list. It requires that a registered NPO having a disqualified person serving on their governing body must provide the necessary details to the NPO Directorate.
8B This Regulation adds to the list of information on persons serving on the governing body (referred to as ‘office bearers’) which must now be supplied to the Directorate in two categories:
- For those who have voluntarily registered as NPOs (and who do not fall inside of the definition of organisations for whom registration would be mandatory) , the following are added:
- Full names
- ID/passport number
- Position or portfolio held
- Postal address
- For those for whom registration is compulsory, those listed above apply and the organisation must in addition supply various other details about the organisation itself including:
- Tax reference number
- Affiliate organisations and ‘fiscal sponsorships’
- Countries worked/donated in for last three years and description of activities
- Details of audit/auditor, if applicable
8C This Regulation stipulates that:
- the information on board/governing body and on activities, affiliates, structures, etc may be requested from organisations under PAIA (the Promotion of Access to Information Act);
- the register of all of this information is open for public physical inspection during office hours and the director ‘may’ provide electronic access.
9A This Regulation deals with an issue which was hotly debated during submissions on the Octopus Act as it was initially proposed that criminal convictions could result from contravention of the amended NPO Act. The ardent rejection of this proposal resulted in an undertaking that sanctions would be ‘administrative’ in nature only and the amended Section 29 of the NPO Act refers to ‘prescribed administrative sanction’.
This Regulation is where it is ‘prescribed’ and the list of possible ‘administrative sanctions’ includes:
- a caution not to repeat the conduct;
- a reprimand;
- a directive to take remedial action; or
- the restriction or suspension of certain specified activities of the non-profit organisation.
Our initial take on this is to wonder about the enforceability of (d) and also the powers it confers on the Director to (once the proper notification procedure has been followed). We still need to research and confer on this aspect before we draft our own submissions.
These introductory notes are provided to assist the navigation of the draft Regulations and to submissions being made. The sector is encouraged to make their own investigation of the Regulations and make independent submissions on their content.
As before, the NPO Working Group will also be making a joint submission on behalf of the sector. To add your points to these, please email them to Suzanne@inyathelo.org.za by COB on Monday 13 March, to give us time to collate and get it into shape for lodging.
Our work at ngoLAW and with the NPO Working Group will continue to inform those wishing to engage. Visit the ‘Civic Society’ portal of Inyathelo or https://ngolawsa.co.za/ for updates and resources.
18A RECEIPTS: 1 MARCH 2023 NEW REQUIREMENTS
In our October 2021 Newsletter https://ngolawsa.co.za/october-2021-news-and-updates-including-npo-amendment-bill/ we gave advance notice that SARS was working on tightening systems to deal with 18A fraud and that the donor details required to be captured on 18A receipts would be expanded and would probably include the donor’s tax reference number.
Government Gazette 48104, issued on 24 February 2023, makes the expanded requirements for 18A receipts effective from 1 March 2023 (so, right away!) , and all receipts issued from this date onwards must comply with the updated rules.
The information and details which organisations have, until now, been required to record were:
- The organisation’s name, address and PBO number;
- The donor’s name and address;
- The date of receipt of the donation;
- The value or amount of the donation; and
- The required certification: that the donation would be used exclusively for the 18A objects of the organisation.
The list of information required has now got quite a bit longer and does include the tax reference number of the donor, but not as a compulsory item.
From 1 March 2023, an 18A receipt must, in addition to the details listed already, also include:
- A unique receipt number
- Contact number
- Email address
- Income tax reference number (if available)
- What kind of legal ‘person’ the donor is: NPC/human being/(Pty) Ltd/CC/(Inc)/trust)
- If donor is a human being:
- Identification type and country of issue (SA ID or passport and country)
- ID or passport number
- If donor is a legal entity:
- Registration number of legal entity (CIPC/trust number)
- If it has a trading name different from its registered name, the trading name
Important Note 1
The Regulations specifically refer to ‘all receipts issued’ which means that, even if the receipts are issued for donations which have been received some time in the past, they must comply.
Important Note 2
An 18A receipt need only be issued when the donor wants to claim a tax deduction. And this tax deduction can only be claimed within the South African tax system. So 18A receipts are only needed by South African taxpayers.
Important Note 3
SARS has not made the recording of the donor tax reference number mandatory. This is because:
- submissions made to SARS indicated that organisations feared that the extra schlep of finding and filling in a tax reference number would disincentivise donations, especially for online ‘quick click’/scan donations;
- SARS has the systems to find tax reference numbers based upon ID/other registration numbers, anyway.
We do still advise that the income tax reference number is collected, when possible.
For those looking for a handy resource, we have created an updated blank-format version for your use, download here
DO WE NOW HAVE TO FICA OUR CUSTOMERS?
Schedule 1 to the Financial Centre Intelligence Act (FICA) was amended by Government Gazette 47596 on 29 November 2022, as part of the (unsuccessful) efforts to ward off threatened ‘grey-listing’ of South Africa for non-compliance with the Financial Action Task Force (FATF) standards. The amendments expand the list of people and businesses who are now ‘accountable institutions’ under FICA, with all of the additional paperwork and administration that this entails.
Classification as an ‘accountable institution’ requires that your business/organisation registers with FICA and performs the same document-gathering sort of due diligence which banks have been required to do (and have irritated us with) for the last long while.
On 5 February 2023 Luke Fraser, writing for BusinessTech.co.za, stated:
‘Organisations that sell any items that total R100 000 or more to anyone in all forms of payments will be considered accountable institutions’.
He refers to the opinion of and quotes Itzikovitz and Gunning of ENS Africa as saying that:
‘dealers in art, motor vehicles, equipment, scrap metal, and even bicycles and televisions will now be treated the same as banks and other financial institutions for purposes of FICA.’
I have been asked, based upon this article, whether non-profits that sell R100 000 or more of, for instance, second hand goods, would now be ‘accountable institutions’ under FICA.
I am pleased to report that a closer examination of the new item 20 in the amended Schedule shows that it is not quite as wide-ranging as could be understood from the Business Tech article.
Item 20, broken down into its component parts, includes as an ‘accountable institution’:
- A person who carries on the business of dealing in high value goods;
- In respect of any transaction where such a business receives payment in any form to the value of R100 000 or more (whether the payment is made in a single operation or more than one operation that appears to be linked;
- Where ‘high value goods’ means any item that is valued in that business at R100 000 or more. (breaking down and brackets added by me)
So, for a business, non-profit, person or any legal entity to become an ‘accountable institution’ under item 20, all three of the following need to be satisfied:
- The business is one which routinely sells ‘goods’ (things, not services) as part of its business; and
- The business ‘deals in’ things which are individually worth R100 000 or more; and
- For the sale of any one of the things dealt in, payment of R100 000 is received (whether in one or more payments).
If an NGO usually sells services, and happens to sell a car or other expensive piece of equipment, that one transaction (or intermittent transactions like this over time) will not suddenly make it an ‘accountable institution’. You have to be routinely selling things, as part of your usual, ongoing activities.
If you are a branch of Hospice or SPCA and total sales of second-hand goods in any period exceed R100 000, this does not make you an accountable institution. It is only if the organisation on an ongoing basis ‘deals in’ individual items worth over R100 000 that it will be an accountable institution.
So, car dealers and dealers in any equipment worth R100 000 or more will now be accountable institutions. Higher-end art dealers, too, will be accountable institutions. I am not so sure about bicycles, unless you are regularly supplying to the very highest end of cyclists. And they would have to be much larger televisions than average for those who sell TVs to be hit. Dealers in farm equipment, ski boats, irrigation systems and pumps, solar systems and medical equipment will more than likely find that they now have to follow the laws and regulations applicable to ‘accountable institutions’.
But organisations which happens to sell something for R100 000 not as part of their usual business dealing can relax. And so can those whose funds come from the sale of second-hand goods, they will not be impacted by the change to Schedule 1.
Michelle Constant’s “Jet Set Breakfast” on SAFM weekend mornings, often highlights the work of NGOs. She had Nicole on as a guest on 19 February to explain (as fast as possible!) a host of confusing NGO acronyms, including “NGO”. Listen here, if you missed it the first time around:
REPORT FROM THE ENVIRONMENTAL JUSTICE FUND’S GRANTEE MEET-UP
We were terrifically excited to be in the room with the current 12 grantees of the Environmental Justice Fund (EJF) https://ejfundsa.org.za/ on 24 February.
What an inspiring gathering of community activist organisations who are, to quote Laurentia Stevens from Doringbaai, bringing Goliath down, even if they have only a very small stone!
Chelsea, Bandile and Nicole hosted sessions on Legal Entities, Compliance, Governance 101, and break out groups dealing with a variety of topics such as 18A status, trading from an NGO, Media matters and Intellectual Property and NPO reporting.
Below Bandile doing some on-the-spot drafting with Spirit of Endeavouring Women, whose work involves caring for the earth, protecting the ocean and natural environment from harm while fighting poverty and hunger in their Doringbaai community.
ANNUAL REVIEW OF SOUTH AFRICAN PHILANTHROPY : ARTICLE BY NICOLE
“To tackle the unprecedented challenges of this decade, we need to remember the roots of philanthropy. At the heart of the field is love for humankind.”
So says Thabang Skwambane, group CEO of Nahana Communications Group, and well-known local philanthropist and contributor to the Independent Philanthropy Association South Africa (IPASA)’s 2022 Annual Review of South African Philanthropy.
The IPASA Annual Review aims to provide valuable public information on the nature, scope, achievements and challenges of some of the many hundreds of philanthropic organisations active in South Africa and we are pleased to be one of the voices in this year’s Annual Review.
Nicole contributed an article dealing with the legal options and practical considerations for those thinking of setting up a philanthropic foundation.
A number of case studies in the IPASA Annual Review of South African Philanthropy provide insights into the nature and scope of philanthropic foundations that are active in fields ranging from early childhood, basic and higher education to community development, environment and climate change, food security, gender-based violence, health, job creation and social justice.
The hope is that the stories and perspectives in the 2022 edition of the Annual Review will inspire others across the country to make their philanthropic giving more strategic and impactful.
You can download a free copy of the Annual Review directly from the IPASA website https://ipa-sa.org.za/annual-review-of-sa-philanthropy/annual-2022-review-of-south-african-philanthropy/ or by contacting IPASA directly. For more information, email Louise Driver Louise@ipa-sa.org.za
PROUDEST PUBLISHING MOMENT – BOOKDASH DURBAN 2022
The mission of Book Dash is to make sure that every child owns a hundred books by the age of five.
On each single Book Dash day, ten teams of volunteer creatives (author, illustrator, designer and editor) work fast to turn enthusiasm, skills (and food) into beautiful African children’s books that anyone can freely access, print and distribute (see bookdash.org/books to read all of the books for free!)
The Durban 2022 event was sponsored by the Otto Foundation Trust and the Young Presidents’ Organisation (Durban Chapter) and hosted by TWIMS Kloof Campus on Saturday the 29th October 2022.
Nicole made the cut this year as an author and was so proud to be chosen.
Over the course of 13 highly intense hours in one day, writers, illustrators and designers are supported by Book Dash facilitators to complete a process that would usually take months.
Everything created on the day is a gift from these creatives, Book Dash and sponsors to the world. Since 2014 Book dash has published 176 books this way, and printed and distributed over 2.5 million copies to young children in every language across the country to own.
This is the Comrades of creativity and the books from the Durban event, including the one Nicole wrote, are here https://bookdash.org/events/28738/ and free to download, print and distribute in any way possible.
If you believe in books for children and want to do some holiday season giving with an impact, donate here https://bookdash.org/what-we-do/donate-to-book-dash/ or make over your MySchool card to them https://www.myschool.co.za/supporter/apply/