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When you want to keep something confidential, you need a non-disclosure agreement (NDA). This document legally binds the person receiving your confidential information from disclosing it to anyone else. If you're doing business in South Africa, you'll need an NDA that's tailored to the country's laws. In this blog post, we'll provide templates for two different types of NDAs: one for general information and one for trade secrets. We'll also give you some tips on how to customize these templates to fit your needs.

## What is a Non Disclosure Agreement (NDA)?

A non-disclosure agreement (NDA), also known as a confidentiality agreement (CA), is a contract used to protect information from being shared. The agreement establishes a confidential relationship between the parties involved, typically to protect any proprietary information or trade secrets. An NDA may also be used to protect other sensitive information, such as personal information or medical records.

The purpose of an NDA is to maintain secrecy and prevent the disclosure of certain information by limiting access to those who have signed the agreement. By doing so, it helps businesses keep their competitive edge and avoid potential legal problems. NDAs are commonly used in business deals, relationships between employers and employees, and situations where sensitive information may be shared.

If you are planning on sharing any type of sensitive information, it is important that you have a strong NDA in place. This will help ensure that the information remains confidential and help avoid any potential legal issues.

## Why use an NDA in South Africa?

There are a number of reasons why you might want to use an NDA in South Africa. For example, if you have confidential information that you need to protect, or if you want to make sure that your trade secrets remain secret, then an NDA can be a helpful tool.

An NDA can also be used to ensure that any confidential information that is shared during negotiations remains confidential. This can be important in ensuring that the parties involved in the negotiations are able to trust each other and feel comfortable sharing information.

Finally, an NDA can also help to prevent leaking of confidential information before a product or service is launched. This can be important in preventing competitors from getting a head start on marketing or developing a similar product or service.

## The Different Types of NDAs

There are several different types of NDAs that can be used in South Africa, depending on the particular situation.

One type of NDA is the mutual NDA, which is used when both parties want to keep information confidential. This type of NDA typically includes a clause that requires both sides to keep the information confidential.

Another type of NDA is the one-way NDA, which is used when only one party wants to keep information confidential. This type of NDA typically includes a clause that requires the receiving party to keep the information confidential.

A third type of NDA is the two-way NDA, which is used when both parties want to keep information confidential. This type of NDA typically includes clauses that require both sides to keep the information confidential and not disclose it to any third parties.

## What to Include in an NDA

When you are looking to create a Non Disclosure Agreement template in South Africa, there are a few key elements that you will want to include in order to make sure that it is legally binding. These elements include:

1\. The names and contact information of the parties involved.

2\. A description of the confidential information that is being protected.

3\. The duration of the NDA, or how long it will remain in effect.

4\. The consequences for breach of the agreement, which could include financial damages or legal action.

5\. An arbitration clause, which stipulates that any disputes relating to the NDA must be settled through arbitration rather than going to court.

6\. A signing page, where both parties can sign and date the agreement.

## How to Draft an NDA

When you need to protect your confidential information, you should consider drafting a non-disclosure agreement (NDA). An NDA is a contract between two parties that outlines what information will be kept confidential and prohibits the unauthorized disclosure of that information.

If you're doing business in South Africa, it's important to use a template that complies with South African law. This article will provide you with a template for an NDA that complies with South African law.

1\. Determine the purpose of the NDA. The first step in drafting an NDA is to determine the purpose of the agreement. What information do you want to keep confidential? What are the consequences of disclosing that information?

2\. Choose the right type of NDA. There are two types of NDAs: unilateral and bilateral. A unilateral NDA only binds one party to keep information confidential. A bilateral NDA binds both parties to keep information confidential.

3\. Draft the confidentiality clause. The confidentiality clause is the most important part of the NDA. This clause will outline what information is considered confidential and cannot be disclosed without prior written consent from the other party.

4\. Include a time limit on the confidentiality clause. The confidentiality clause should include a time limit that determines how long the information must remain confidential. Once the time limit expires, either party can disclose the information without fear of legal repercussions.

5\. Draft an exceptions clause. The exceptions clause outlines circumstances

## Enforcing an NDA in South Africa

If you have signed a non-disclosure agreement (NDA), also known as a confidentiality agreement, you are legally bound to keep the information contained therein confidential. If you disclose the information to anyone without prior written consent from the person or company who owns the information, you could be sued for damages.

There are many ways to enforce an NDA in South Africa. The most common is to sue for breach of contract. However, this can be expensive and time-consuming. You will need to prove that the person who breached the NDA knew that they were under an obligation to keep the information confidential.

Another way to enforce an NDA is to get an injunction from the court. This is a court order that prohibits the person who breached the NDA from disclosing the confidential information. It can also prohibit them from using the information for their own benefit.

If you are thinking of suing someone for breaching an NDA, you should speak to a lawyer first. They will be able to advise you on whether you have a case and what your chances of success are.

## Conclusion

A non disclosure agreement template is an important tool for businesses in South Africa. By using a template, businesses can ensure that their confidential information is protected and that their interests are safeguarded. A well-drafted NDA will also help to prevent disputes between parties and protect the business's intellectual property. If you are looking for a non disclosure agreement template, be sure to check out our selection of templates.


Non Disclosure Templates in South Africa

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Starting a business is an exciting adventure, but it can be an extremely daunting and stressful task if you do not know how to address the many legal aspects your business will face. In this guide we will briefly evaluate the decision you need to make from a legal perspective. The first important decision to make, is decide on the structure of your business

> When looking to start a business, the first important decision to make is the structure of your business. 

## The structure of your business

There are few business structures which you may choose from, the common ones of which include:

1.  Sole proprietorship;

2.  Partnership; or

3.  Company.

When selecting a business structure, some of the important factors to consider in this decision are the following:

*   Do you want bear personal liability for business activities?;

*   Would you like the business to continue even when there is a change in the ownership/ control?;

*   Management structures and control;

*   Legal formalities / registration formalities / administrative formalities;

*   Growth and expansion;

*   Tax liability. 

Below we have set out descriptions of some of the salient features comprising the different business entity types. 

### Sole proprietorship

This is the simplest form of business structure. There are no registration formalities to start a business as a sole proprietor, as the business structure is an informal one. The business is headed by a single person, the sole proprietor. 

This form of business structure is common if you are a freelancer as you naturally work alone, like a photographer or a social media influencer. 

Advantages of choosing the sole proprietor structure include the following:

*   Sole ownership and sole right to profits- you get to enjoy your profits on your own and do not need to share ownership and control with anyone else. 

*   No registration requirements – as a sole proprietor, you are not required to register the business, which makes it easy to start. 

*   Very few formalities and costs – starting the business is inexpensive.

One the other hand, disadvantages of choosing the sole proprietor structure include the following:

*   High personal risk – the debts and liabilities of the business become your personal debts and liabilities. This means that creditors of the business can go after your personal assets such as your home or car in order to satisfy debts owing to them from your business.

*   Risk – you bear all the risks of starting and operating capital alone. 

*   Tax – you will be personally subject to income tax on a sliding scale up to over 45%.

*   No perpetual succession- should anything happen to you, your business dies with you. 

The sole proprietor business structure is only advisable (if ever) should you be starting a small business, to test the waters of your business and its potential success, prior to converting into another, more formal, business structure at a later stage, once the business has proven itself. 

### Partnership 

A partnership structure is much like a sole proprietor, except it involves more than one person. A partnership is an structure in which all partners normally participate in the management and in sharing profits and losses of the business. 

The advantages of a partnership structure include:

*   No requirement for registration- While is it in the best interests of partners to enter a Partnership Agreement, there is no formal requirement that the partnership be registered. 

*   No restriction on the number of partners you may have. 

*   Partners share risk of liabilities and losses. 

*   Partners can benefit from the skills or capital of other partners for business purposes. 

The disadvantages of a partnership structure include:

*   There is no perpetual succession- If partners change or die, then the partnership is dissolved.

*   No separate legal personality from its owners- The debts and liabilities of the business become the partners personal debts and liabilities. This means that creditors of the business can go after each partners personal assets in order to satisfy debts owing to them from the partnership.

*   There is high personal risk- Related to the above, partners are ultimately liable for the debts of the business. If one partner makes a reckless decision, then all partners could ultimately be liable.

*   Tax– Partners will be liable for personal income tax on a sliding scale of up to 45%.

A partnership can be a decent structure as the business benefits from the skills and capital of more than one person. For example, say you are an excellent photographer but you edit or shoot videos, you can form a partnership with a videographer and start a partnership that benefits from both your skills and resources.   

Much like a sole proprietor business structure, partnerships are only advisable should you be starting a small business, to test the waters of your business and its potential success, prior to converting into another, more formal, business structure at a later stage, once the business has proven itself.

### Company

A company is a legal entity registered in terms of the Companies Act with the CIPC having its own ‘legal personality’ and which is formed for the operation of a business. 

There are many advantages of starting your business as a company, some of which include: 

*   A company has a separate legal personality, which means that you will generally not be personally liable for the debts of the company. Further, assets of the business are owned by the company and not to the shareholders.

*   Related to the above, there is low personal risk, as shareholders have limited liability.

*   There is the benefit of the Companies Act to fall back on which provides a great base level of protection for the directors, shareholders and the company itself.

*   Profits of the company belong to the company itself and not the shareholders until and only if a dividend is declared.

*   There is perpetual succession- Should something happen to a shareholder or should a shareholders leave the business, provided that there are other shareholders, the business may continue without you.

*   It is often easier to raise capital for the business, because the company can sell shares of the company. 

*   There is a split between ownership and management of the company. The Board of Directors control the business while the Shareholders own the business. 

*   Tax is charged at a flat rate of 28%. 

There are some disadvantages of electing to form a company, which include:

*   The Companies Act imposes strict registration requirements which may be tedious, costly and time consuming. 

*   There are many legal formalities imposed by the Companies Act that need be complied with.

*   Company documents are open to public scrutiny. For example, the Companies Memorandum of Incorporation is publicly available, and an audit of financial statements may be required in certain instances. 

We recommend that when starting a business, a company should always be the default go to as the appropriate structure. 

#### Types of companies

There are two broad categories of companies namely non-profit making and for profit making. The difference between the two, other than the profit-making goal is that profit companies have shares while a non-profit company does not have shares. Instead of shareholders a non-profit has members and/or directors. 

These are the types of profit companies:

##### 1. **Private company – (Pty) Ltd**

This structure is by far the most common company structure utilised, and unless there are compelling reasons otherwise, this type of company structure should be pursued. 

A private company is owned by its shareholders, and run by the board of directors. Often, especially in smaller businesses, the shareholders and directors may be the same persons.

Private companies are constituted by a Memorandum of Incorporation along with, very often, a Shareholders Agreement which, when read with the Companies Act, set out the governing relationship between the shareholders, directors and company.

##### 2. Personal liability company - (Inc)

This form of company is often only required in instances of a governing body which requires its professional members to form such a company. This is the case for both attorneys and doctors.

In this instance, the shareholders are required to take personal liability for the debts of the company, much like a sole proprietor or partnerships, allows the company to benefit from perpetual succession should shareholders die or leave the company. 

##### 3. Public Company

In a public company shares may be offered to the public; and /or shares are freely transferable. 

Due to the public nature of the company, the company has increased accountability requirements. 

The following are some of the requirements of a public company:

*   Auditor;

*   Audit committee;

*   Company secretary;

*   Social and ethics committee;

*   Financial statements must be auditeds.

Most public companies started as private companies that, after meeting all regulatory requirements, opted to become public to raise capital. It is very uncommon that you would elect this structure when starting a business. Examples of public companies include Google, Vodacom and Glencore. 

##### Non-Profit company

A non-profit company is a company with public benefit object, or object relating to cultural/social activities or communal / group interests. 

Even though a company might be an NPC, it can still make profits, but the profits, cannot be distributed to its members, directors offices or other persons.

If you are starting a business to retain profit for yourself then this is not the structure for you. This company structure is only advisable for businesses that are for public benefit or other have as its object cultural or social activities, or communal or group interest. This might be, for example, a church, or wildlife research and conservation. 

#### Registration of a Company 

Once you’ve decided which business structure is best suited for your business, you need to think about registering the business. As stated above, the sole proprietor and partnership structures do not require you to register your business. 

##### Company Registration at the CIPC

If your chosen business is a company, registration with the CIPC is required. It is a short process which normally takes a maximum of a week.

Company registration are done through the Companies and Intellectuals Property Commission (CIPC), at the following link: <https://eservices.cipc.co.za/>.

In terms of the Companies Act, 2008, a company may be registered with or without a company name. When a company is registered without a reserved name, its registration number automatically becomes the company name. This is the quickest way to register a company.

You may apply for between 1 and 4 options as names during each application process, whilst only one will be reserved. Each name reservation application costs R50. A company registration may vary between R125 and R475 (R125 for a private company, R475 for a non-profit company).

Here are some of the documents you may be required to submit to the CIPC in the process of registration:

*   Certified identity copy of applicant;

*   Certified copies of the Identity Documents of the Directors and Incorporators;

*   Certified passport copies are only accepted as proof of identity for non-residents of South Africa. For South African residents a green bar-coded/ smart  ID copy must be lodged (certified).

*   The name confirmation certificate if applicable;

*   Power of attorney (if applicable) if someone is registering the company on your behalf.

#### BBBEE Certificate or Affidavit

Broad-based Black Economic Empowerment (BBBEE) is an integration programme launched by the South African government to reconcile South Africans and redress the inequalities caused by Apartheid. It encourages businesses to integrate black persons and other persons of colour into their business. 

If you’re just starting out, you probably need a B-BBEE Affidavit rather than a B-BBEE Certificate. Businesses which earn less than R10 million in turnover (sales) per year may depose to a B-BBEE Affidavit which is a simple and quick alternative to the process of obtaining a certificate.

What is a B-BBEE Affidavit and how is it different to a B-BBEE Certificate?

An Affidavit is a form of self-declaration or deposition made under oath. A B-BBEE Affidavit is a self-declaration of your business’s Black Economic Empowerment status which needs to be stamped by a Commissioner of Oaths. After it has been stamped (commissioned), it will serve as your legal B-BBEE document for that year.

Where can I get a B-BBEE Affidavit or a B-BBEE Certificate?

You can order a B-BBEE Certificate on the CIPC’s ePortal. 

##### Employer Tax Registration at SARS

When your business employs someone, you need to register as an employer at SARS within 21 days. 

How do you register as an employer?

You can visit the SARS website for guidance on the process of employer registration.

##### COID Registration (and a Letter of Good Standing) at the Department of Labour

The Compensation Fund helps your business cover certain medical or remuneration costs in the case of any work-related harm or injury to your employees. In order to get this financial support, you need to contribute a small fee each month to the fund. This sum is determined as a percentage of your employees’ salaries. If any of these fees are outstanding none of your employees will be covered. 

How do you do COID Registration?

You can register for COID directly with the Department of Labour. 


The Guide to start your business

The Guides to start your business

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