Franchising is a popular business model in South Africa, allowing entrepreneurs to start their own businesses using an established brand and business system. In this article, we'll explore the legal requirements and key considerations for franchise law in South Africa, including the legal framework for franchising, the legal obligations of franchisors and franchisees and the potential benefits and risks associated with franchising.

What is a Franchise?

A franchise (or franchising) is a method of giving certain persons the right to market, sell or distribute products or services subject to certain conditions using the trademark of another business (i.e. the franchisor, who established the brand's trademark or trade name and a business system).

Whether or Not To Become a Franchisee?

Deciding to purchase a franchise can be a very tricky decision to make. What is critical though, it that before you make this decision is to make sure that you have properly investigated the franchise that you are buying into and that you have been provided with a disclosure document (as required by the CPA) in respect of the franchise. The purpose of the disclosure document is to make sure that you are able to make an informed decision when buying into a franchise.

What is a Franchise Agreement?

A franchise agreement is an agreement between two or more parties, namely the franchisor (the grantor of the franchise) and its franchisees (those who acquire a franchise), and which agreement grants the franchisee the right to operate under the name of the franchisor and use its trademarks, know-how, methods and procedures.

Franchise agreements regulate the relationship between the franchisor and the franchisee by specifying the respective parties rights and obligations and as a result, are often quite lengthy agreements which should be vetted by a competent commercial attorney who has experience with franchise agreements.

Legal Framework for Franchising

Franchising in South Africa is regulated by the Consumer Protection Act (“CPA”) and the Franchise Association of South Africa (“FASA”), which sets out the legal requirements for franchising. The legal framework for franchising includes:

• Disclosure requirements: Franchisors must provide comprehensive disclosure documents to potential franchisees, including details of the franchise system, the franchise fees and royalties, and the franchise agreement.

• Franchise agreement: Franchisors and franchisees must enter into a written franchise agreement, which sets out the terms and conditions of the franchise relationship, including the rights and obligations of both parties.

• Code of conduct: Franchisors must comply with the FASA code of conduct, which sets out the ethical and business practices expected of franchisors in South Africa.

A franchise agreement must comply with the provisions of the Consumer Protection Act (“CPA”), which means that the agreement cannot contain provisions which are not in accordance with the CPA.

Should the franchise agreement not contain these details, the franchisee may resile from the agreement, affirming that the franchisee may elect to get out of the agreement, attracting no penalty to the franchisee. This means that the agreement is not binding on the franchisee. For examples: every franchise agreement must now contain a cancellation clause and should such an agreement fail to do so, the franchise agreement may be declared void.

For this reason, it is critical to ensure that any franchise agreement you intend to execute has been properly and duly vetted by a commercial attorney with experience with franchises.

Legal Obligations of Franchisors and Franchisees

Franchisors and franchisees in South Africa have specific legal obligations, aimed at promoting good business practices and protecting the interests of both parties. Some of the legal obligations of franchisors and franchisees include:

• Good faith and fair dealing: Franchisors and franchisees must act in good faith and deal fairly with each other, without engaging in conduct that is unfair, deceptive or dishonest.

• Training and support: Franchisors must provide training and support to franchisees, to ensure that they are able to operate the franchise successfully.

• Financial reporting: Franchisees must provide regular financial reports to franchisors, to ensure that they are able to monitor the financial performance of the franchise.

• Marketing and advertising: Franchisors and franchisees must comply with the marketing and advertising guidelines set out in the franchise agreement, and must ensure that all marketing and advertising materials are accurate and not misleading.

Benefits and Risks of Franchising

Franchising can offer several benefits for both franchisors and franchisees, including:

• Established brand and business system: Franchisees can benefit from an established brand and business system, which can increase the chances of success for the franchise.

• Training and support: Franchisees can receive training and support from the franchisor, which can improve their skills and knowledge and increase their chances of success.

• Economies of scale: Franchisees can benefit from economies of scale, including bulk purchasing power and centralized marketing and advertising.

However, franchising also carries risks for both franchisors and franchisees, including:

• Financial obligations: Franchisees must pay franchise fees and royalties, which can be a significant financial obligation.

• Limited control: Franchisees may have limited control over the operation of the franchise, as they must comply with the franchise system and guidelines set out by the franchisor.

• Reputation risk: Franchisees may be held responsible for the actions of other franchisees, or for the actions of the franchisor, which can impact the reputation of the franchise.

Conclusion

Franchising is a popular business model in South Africa, offering entrepreneurs the opportunity to start their own businesses using an established brand and business system by understanding the legal requirements and key considerations for franchise law in South Africa, franchisors and franchisees can make informed decisions and take proactive steps to ensure compliance with legal requirements and protect their business interests. With proper planning and implementation, franchising can be a successful and rewarding business venture in South Africa.

Barter McKellar’s professionals have extensive experience with franchise agreements and dealing with disputes that arise between franchisors and franchisees. If you need any assistance in this regard, contact our offices to schedule a consultation with one of our specialist franchise lawyers.