Promotion and Development of Factoring in Africa: Towards a Facilitative Legal and Regulatory Environment"

Transcription

1 Promotion and Development of Factoring in Africa: Towards a Facilitative Legal and Regulatory Environment" Implementation of a Factoring Law in Africa The case of South Africa Presenter: Nick Hough CEO of Accountants@Law and Corporate Cashflow Solutions

2 Number of Clients utilizing Factoring and Invoice Discounting in South Africa Full Disclosure Confidential Invoice Disc Total

3 Advances to Clients utilizing Factoring and Invoice Discounting in South Africa (ZAR billions)

4 Turnover Invoices purchased in 2013 (in ZAR billions)

5 The South African Market by Bank/Financier Sasfin, 0.6 Merchant, 0.8 Reichmans, 0.6 FNB, 2.3 Grindrod, 0.75 Independents, 0.5 Standard, 2 Absa, 2 Advances (ZAR billion) Absa Nedbank Standard Nedbank, 3.5 FNB Reichmans Merchant Sasfin Grindrod Independents Disclaimer: The above figures have been estimated by the Presenter

6 African Factoring Turnover by Country Euro Millions (Total 23,123) Egypt Mauritius Morocco South Africa Tunisia

7 Types of Factoring and Invoice Discounting in South Africa 1. Full Service Factoring Fully disclosed, with recourse and includes debtor administration and credit control 2. Selective Invoice Discounting Normally fully disclosed, with recourse and can include debtor administration and credit control 3. Confidential Invoice Discounting Undisclosed, with recourse and the client remains in control of the collections, debtor administration and credit control 4. Export and Import Factoring 5. Reverse Factoring

8 Common forms of security taken by SA Banks & Financiers Security over financial instruments is usually created by either a pledge or a cession in security (or a combination of these). A cession in security is a way of granting security over intangible movable property. It is created by the debtor (cedant) granting security by way of cession over intangible movable property in the creditor's (cessionary's) favour. It can be structured as either: 1. A cession in securitatem debiti where title to the property remains with the cedant (as with a pledge). 2. An out-and-out cession, where title to the property is transferred to the cessionary, subject to the cedant's right to have the property transferred back to it by the cessionary once the debt, or other obligation secured, is discharged.

9 Common forms of security (continued) Pledge. A pledge is a type of mortgage of movable property given by a borrower (pledgor) in favour of a lender (pledgee) as security for a debt or other obligation. A pledge can be used as security for both tangible and intangible movable property. General notarial bond. A general notarial bond is a mortgage by a borrower of all of its tangible movable property in favour of a lender as security for a debt or other obligation. Special notarial bond. A special notarial bond is a mortgage which: Is created over the tangible movable property (which can be specifically identified) Personal Suretyships and Guarantees

10 Some of the issues affecting the South African Industry 1. No Central Registry South Africa has no central register for cessions of book debts - efforts are continuously underway to lobby the Government in this respect. To date no progress has been made. 2. Restrictions on Assignment/Cession of Receivables (Book Debts) Certain large buyers (government, municipalities, para-statals and mining companies) continue to place restrictions on the assignment of book debts - Attempts are being made to have this practice curtailed as it restricts smaller companies (SMEs) selling their debts for working capital purposes. To date the industry has had very little success 3. Supplier Trade Agreements Dilution of original debt due to trade discounts, warranties, advertising allowances 4. Fraud 1. False (fresh air) invoices 2. Client banking the receipts (money) due to the financiers/bank s 3. Dilution of Debt - Suppression of credit notes, Supplier discounts (see 3 above)

11 A selection of actions taken to resolve issues 1. No Central Registry of Cessions a) Confirmation from the clients bankers & financiers b) Confirmation from the clients auditor/accountant c) Confirmation from the clients major creditors/suppliers 2. Restrictions on Assignment/Cession of Receivables (Book Debts) a) Limiting exposure to these debtors to a certain percentage of the book debts b) Opening a dedicated bank account in clients name but with no power to transact and advising debtors to pay directly into that account c) Obtaining additional collateral security i.e stock, plant & equipment, guarantees 3. Supplier /Creditor Trade Agreements a) Increasing the retention percentage from say 25% to 35% 4. Fraud a) Regular client visits and audits by well trained staff b) Up to date financial info from client (management accounts, creditors etc) c) Use of specialised accounts receivable risk management software

12 Questions?

13 Thank You Nick Hough