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Viewing cable 09PRETORIA80, 2009 INVESTMENT CLIMATE STATEMENT - SOUTH AFRICA
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Reference ID | Created | Released | Classification | Origin |
---|---|---|---|---|
09PRETORIA80 | 2009-01-15 16:38 | 2011-08-24 01:00 | UNCLASSIFIED | Embassy Pretoria |
VZCZCXRO7914
RR RUEHBZ RUEHDU RUEHJO RUEHMR RUEHRN
DE RUEHSA #0080/01 0151638
ZNR UUUUU ZZH
R 151638Z JAN 09
FM AMEMBASSY PRETORIA
TO RUEHC/SECSTATE WASHDC 6997
RUCNSAD/SOUTHERN AF DEVELOPMENT COMMUNITY COLLECTIVE
RUCPCIM/CIMS NTDB WASHDC
RUCPDC/DEPT OF COMMERCE WASHDC
RUEATRS/DEPT OF TREASURY WASHINGTON DC
RUEHJO/AMCONSUL JOHANNESBURG 8801
RUEHTN/AMCONSUL CAPE TOWN 6458
RUEHDU/AMCONSUL DURBAN 0583
UNCLAS SECTION 01 OF 06 PRETORIA 000080
DEPT FOR AF/S/; AF/EPS; EB/IFD/OMA
USDOC FOR 4510/ITA/MAC/AME/OA/DIEMOND
TREASURY FOR TRINA RAND
USTR FOR JACKSON
SIPDIS
E.O. 12958: N/A
TAGS: ECON EFIN EINV ETRD ELAB PGOV OPIC KTDB
USTR, SF
SUBJECT: 2009 INVESTMENT CLIMATE STATEMENT - SOUTH AFRICA
(PART 1 OF 2)
REF: 08 State 123907
PRETORIA 00000080 001.2 OF 006
¶1. (U) Summary. In response to Ref A, this cable presents
the first part of post's two-part 2009 Investment Climate
Statement for South Africa. This is also Chapter 6 of the
Country Commercial Guide for South Africa.
¶2. (U) BEGIN TEXT
Chapter 6 Investment Climate Statement FY2009
6.1 Openness to Foreign Investment
The government of South Africa is open to foreign
investment, which it views as a means to drive growth,
improve international competitiveness, and obtain access
to foreign markets. Virtually all business sectors are
open to foreign investors. No government approval is
required, and there are almost no restrictions on the form
or extent of foreign investment. The Department of Trade
and Industry's (DTI) Trade and Investment South Africa
(TISA) division provides assistance to foreign investors.
The DTI concentrates on sectors in which research has
indicated that the country has a comparative advantage.
TISA offers information on sectors and industries,
consultation on the regulatory environment, facilitation
for investment missions, links to joint venture partners,
information on incentive packages, assistance with work
permits, and logistical support for relocation. DTI
publishes the "Investor's Handbook" on its website:
http://www.thedti.gov.za/ (see "publications").
Macroeconomic management was strong over the past decade,
with reduced levels of public debt, generally low
inflation, and a progression from a fiscal deficit to a
fiscal surplus, and a consistently positive rate of
economic growth. The post-apartheid government has sought
to liberalize trade and enhance international
competitiveness by lowering tariffs, abolishing most
import controls, undertaking some privatization, and
reforming the regulatory environment. While this has
resulted in several large foreign acquisitions in banking,
telecommunications, tourism, and other sectors, foreign
direct investment has fallen short of the government's
expectations. South African banks are well-capitalized
and have little exposure to sub-prime debt or other
sources of financial contagion. However, in the wake of
the recent global financial turmoil, Standard & Poor's
(S&P) and Fitch downgraded their outlook on South Africa's
sovereign credit from "stable" to "negative" in late 2008,
reflecting concerns that capital outflows could depress
the rand and make it difficult for South Africa to finance
its growing current account deficit.
In August 2007, the DTI launched its National Industrial
Policy Framework, and accompanying Industrial Policy
Action Plan, to promote a more labor-absorbing and
broader-based industrialization path in four lead sectors:
capital or transport equipment; automotive; chemical,
plastic fabrication and pharmaceuticals; and forestry,
paper and furniture. Business-process outsourcing,
clothing and textiles, tourism, and biofuels were also
identified for immediate attention. The Policy Framework
anticipates initiatives in the form of tariff reductions,
increased industrial financing, and additional incentives
for investors.
The Black Economic Empowerment (BEE) strategy is a
government program to increase the participation in the
Qgovernment program to increase the participation in the
economy of historically disadvantaged South Africans. BEE
requirements are specified in the Codes of Good Practice,
which were published in the Government Gazette in February
¶2007. The codes set forth best practices for employment
equity, skills development, enterprise development,
preferential procurement, equity ownership, and small and
medium-sized enterprises. They also permit multinational
corporations to score equity ownership "points" through
the use of mechanisms not involving the transfer of equity
PRETORIA 00000080 002.2 OF 006
if these mechanisms are approved by DTI and the
multinationals have a global corporate policy of owning
100 percent of the equity in their subsidiaries. The
American Chamber of Commerce and many individual U.S.
companies had pressed for the right to use such "equity
equivalent" mechanisms. A firm's BEE "score" will be
considered by government departments when awarding
contracts, and in some cases is a requirement for
tendering. While firms are not legally required to meet
BEE criteria, they are less competitive for government
tenders if they fail to meet the criteria. The BEE Codes
of Good Practice and other pertinent BEE legislation may
be found on DTI's website: http://www.thedti.gov.za/.
Some state-owned enterprises were privatized in the 1995-
2004 period. The government has been restructuring most
of the remaining state-owned enterprises rather than
proceeding with plans for privatization since 2004.
Transnet (transportation) is focusing on core sectors that
support its freight transport and logistic business.
Assets or businesses that are not part of this strategy
are in the process of being sold to the private sector or
are being transferred back to the government. Transnet
transferred SA Express to the Department of Pubic
Enterprises in 2008 and Transtel Telecom was sold to
Neotel. Transnet is also selling off Luxrail (The Blue
Train), Autopax, a passenger bus operation, and the IT
service subsidiary arivia.kom. The Department of Minerals
and Energy (DME) contracted with US power producer AES for
a 1000 MW power project, but canceled the agreement when
AES was unable to fulfill its contractual obligations.
Other opportunities for private investment in the power
sector are likely to follow DME's announced policy to
grant up to 30 percent of new energy projects to the
private sector. The planned privatization of smaller
parastatals, such as Safcol (forestry) and, in the case of
Denel (defense), with partial buy-ins by foreign suitors
of Denel subsidiaries, also afford opportunities for
foreign investment.
6.2 Conversion and Transfer Policies
The South African Reserve Bank's (SARB) Exchange Control
Department administers foreign exchange policy. An
authorized foreign exchange dealer, normally one of the
large commercial banks, must handle international
commercial transactions and report every purchase of
foreign exchange, irrespective of the amount, that is
received by South African residents or companies. As a
rule, there are only limited delays in the conversion and
transfer of funds.
Non-residents may freely transfer capital into and out of
South Africa, although transactions must be reported to
authorities. Non-residents may purchase local securities
without restriction. To facilitate repatriation of
capital and profits, foreign investors should make sure
that an authorized dealer endorses their share
certificates as "non-resident." Foreign investors should
also be sure to maintain an accurate record of investment.
South African subsidiaries and branches of foreign
companies are considered to be South African residents,
and, are subject to exchange control by the SARB. South
African companies may, as a general rule, freely remit the
QAfrican companies may, as a general rule, freely remit the
following to non-residents: repayment of capital
investments; dividends and branch profits (provided such
transfers are made out of trading profits and are financed
without resorting to excessive local borrowing); interest
payments (provided the rate is reasonable); and payment of
royalties or similar fees for the use of know-how,
patents, designs, trademarks or similar property (subject
to prior approval of SARB authorities).
South African companies have been permitted to invest in
other countries without restriction (although SARB
approval/notification is still required) since 2004.
South African individuals may freely invest in foreign
firms listed on South African stock exchanges. Individual
PRETORIA 00000080 003.2 OF 006
South African taxpayers in good standing may invest up to
R750,000 in total (approximately $107,000) in other
countries. South African banks are permitted to commit up
to 40 percent of their domestic capital in other
countries, but only 20 percent outside Africa. In
addition, mutual and other investment funds may now invest
up to 25 percent of their retail assets in other
countries. Pension plans and insurance funds may invest
15 percent of their retail assets in other countries.
Before accepting or repaying a foreign loan, South African
residents must obtain SARB approval. The SARB must also
approve the payment of royalties and license fees to non-
residents when no local manufacturing is involved. When
local manufacturing is involved, the DTI must approve the
payment of royalties related to patents on manufacturing
processes and products. Upon proof of invoice, South
African companies may pay fees for foreign management and
other services provided such fees are not calculated as a
percentage of sales, profits, purchases, or income.
SARB approval is also required for the sale of all forms
of South African-owned intellectual property rights (IPR).
Approval is generally granted by SARB if the transaction
occurs at arms length and at fair market value. IPR owned
by non-residents is not subject to any restrictions in
terms of repatriation of profits, royalties, or proceeds
from sales.
Further questions on exchange control may be addressed to:
South African Reserve Bank
Exchange Control Department
P.O. Box 427, Pretoria, 0001
Tel: +27 (0) 12 313-3911; Fax: +27 (0) 12 313-3197
Website: http://www.reservebank.co.za/
6.3 Expropriation and Compensation
The Expropriation Act of 1975 (Act) and the Expropriation
Act Amendment of 1992 entitle the government to
expropriate private property for reasons of public
necessity or utility. The decision is an administrative
one. Compensation should be the fair market value of the
property. There is no record, dating back to 1924, of an
expropriation or nationalization of a U.S. investment in
South Africa.
Racially discriminatory property laws during apartheid
resulted in highly disproportionate patterns of land
ownership in South Africa. As a result, the post-
apartheid government has committed to redistributing 30
percent of the country's farm land to black South Africans
by 2014.
In several restitution cases, the government has initiated
proceedings to expropriate white-owned farms after courts
ruled that the land had been seized from blacks during
apartheid and the owners subsequently refused court-
approved purchase prices. In most of these cases, the
government and owners have reached agreement prior to any
final expropriation actions. The government has twice
exercised its expropriation power. It took possession of
farms in Northern Cape Province and Limpopo in March 2007
and December 2007 after negotiations with owners
collapsed. The government paid the owners the fair market
value for the land in both cases.
South Africa's Cabinet approved for submission to
Parliament a new piece of legislation called the
Expropriation Bill in March 2008. The Expropriation Bill
QExpropriation Bill in March 2008. The Expropriation Bill
sought resolve differences between the Act and the South
African Constitution, which allows the government to
expropriate land not just for reasons of public necessity
but also for reasons that are "in the public interest."
The bill is viewed as a government strategy to speed land
redistribution; as of 2008, only 4.1 percent of total farm
land had been redistributed under the government's land
reform program. In August 2008, the bill was withdrawn -
and ultimately scrapped - in the face of criticism from
PRETORIA 00000080 004.2 OF 006
farmers and private sector groups that questioned its
constitutionality. A retooled version of the bill is
expected to resurface in 2009.
6.4 Dispute Settlement
South Africa is a member of the New York Convention of
1958 on the recognition and enforcement of foreign
arbitration awards, but is not a member of the World
Bank's International Center for the Settlement of
Investment Disputes. South Africa recognizes the
International Chamber of Commerce, which supervises the
resolution of transnational disputes. South Africa
applies its commercial and bankruptcy laws with
consistency and has an independent, objective court system
for enforcing property and contractual rights.
6.5 Performance Requirements and Incentives
DTI offers six investment incentives for manufacturing.
Foreign Investment Grants may provide up to 15 percent of
the value of new machinery and equipment to a maximum of
R3 million (approximately $430,000) per entity for
relocation to South Africa. Industrial Development Zones
(IDZ) provide duty-free import of production-related
materials and zero VAT on materials sourced from South
Africa, along with the right to sell into South Africa
upon payment of normal import duties on finished goods.
The Skills Support Program provides up to 50 percent of
training costs and 30 percent of worker salaries for a
maximum of three years to encourage the development of
advanced skills. The Strategic Investment Project program
offers a tax allowance of up to 100 percent (a maximum
allowance of R600 million (approximately $86 million) per
project) on the cost of buildings, plant and machinery for
strategic investments of at least R500 million
(approximately $70 million). The Critical Infrastructure
Facility supplements funds up to 30 percent of the
development costs of qualifying infrastructure projects.
The Small and Medium Enterprise Development Program offers
a tax free grant of up to R3.05 million (approximately
$435,000) to manufacturers with assets of less than R100
million (approximately $14 million) for a maximum of three
years. The first two years of the grant is based on the
investment in operating assets and the third year on the
level of employment generated.
DTI established the Film and Television Production Rebate
Scheme to encourage foreign and domestic investment in the
local film industry. Eligible applicants may receive a
rebate of 15 percent of the production expenditures for
foreign productions and up to 25 percent for qualifying
South African productions. Film projects must have begun
after April 1, 2004 and must reach a threshold of R25
million (approximately $3.6 million) to qualify for the
rebate. Other requirements include 50 percent completion
of the principal photography in South Africa and a minimum
of four weeks photography time. Eligible productions
include movies, tele-movies, television series, and
documentaries. The maximum rebate for any project will be
R10 million (approximate $1.4 million). Details on the
entire program are available at the DTI website at
http://www.dti.gov.za/.
South Africa's various provinces have development agencies
that offer incentives to encourage investors to establish
Qthat offer incentives to encourage investors to establish
or relocate industry to areas throughout South Africa.
The incentives vary from province to province and may
include reduced interest rates, reduced costs for leasing
land and buildings, cash grants for the relocation of
physical plants and employees, reduced rates for basic
facilities, railage and other transport rebates, and
assistance in the provision of housing.
The Industrial Development Corporation (IDC) is a self-
financing, state-owned development that provides equity
and loan financing to support investment in target
sectors. The IDC also provides credit facilities for
PRETORIA 00000080 005.4 OF 006
South African exporters. Several government-supported
bodies provide technical assistance to industry. The
Council for Scientific and Industrial Research provides
multi-disciplinary research and development for industrial
application.
Technifin is a government-owned corporation which finances
the commercialization of new technology and products.
MINTEK develops mining and mineral processing technology
for company application. The Council for Geoscience
undertakes geological surveys and services related to
minerals exploration.
Under the National Industrial Participation Program
(NIPP), foreign companies winning large government tenders
exceeding $10 million must invest at least 30 percent of
the value of the imported content of the tender in South
Africa.
The government initiated the Motor Industry Development
Program in 1995 to restructure the South African
automotive industry over a period of twelve years. The
program was designed to encourage local manufacturing by
means of a duty rebate scheme on imported vehicles and
component parts, to be phased out over the life of the
program. In 2002, the Minister of Trade and Industry
extended the program from 2007 to 2012. Import duties and
duty rebates will continue to decline over this extended
period. The import duty on built-up light vehicles will
fall to 25 percent and the import duty on original
equipment components will fall to 20 percent by 2012. In
2008, the South African cabinet approved a new Automotive
Production and Development Program (APDP) to replace the
MIDP. The APDP will aim to increase production in the
auto sector to 1.2 million vehicles per year by 2020, with
an associated deepening of components production. The
APDP is structured around a mix of high tariffs and tariff
credits plus other incentives. The new program updates an
old program. The old program included export incentives,
whereas the new program includes production incentives.
The new program epitomizes the government's relatively new
commitment to industrial policy as a source of job
creation and growth. The government launched its National
Industrial Policy Framework with an accompanying Action
Plan in August 2007. As noted above in Section 6.1, the
Policy Framework provides for import tariff reductions,
tighter competition legislation, increased industrial
financing, and an improved incentive scheme for investors
in specific industrial sectors.
6.6 Right to Private Ownership and Establishment
The right to private property is protected under South
African law. All foreign and domestic private entities
may freely establish, acquire, and dispose of commercial
interests. The securities regulation code requires that
an offer to minority shareholders be made when 30 percent
shareholding has been acquired in a public company that
has at least ten shareholders and net equity in excess of
R5 million.
State-owned enterprises dominate a number of key sectors
in South Africa. Eskom supplies 94 percent of South
Africa's electricity. Transnet operates the bulk of the
nation's railways and ports. The South African Post
Office is a legislated monopoly. Telkom is the dominant
QOffice is a legislated monopoly. Telkom is the dominant
fixed-line telephone operator and is 37 percent-owned by
government. Neotel is a second national operator that
began limited business-only operations in October 2006 and
is 30 percent government owned. Neotel entered the
business-to-business market in 2007 and has entered the
residential market in selected areas. InfraCo, a 100
percent government-owned broadband provider, was formed
using the fiber-optic networks of Eskom and Transnet in
December 2006 and was approved for operations by
Parliament in October 2007.
The Competition Act of 1998 and subsequent amendments
PRETORIA 00000080 006.2 OF 006
address anticompetitive practices in both the private and
public sectors. The Competition Commission has
demonstrated increasing capacity to implement competition
policy. There have been more frequent challenges in
recent years against state-owned enterprises that compete
unfairly or otherwise abuse their dominant position.
6.7 Protection of Property Rights
The South African legal system protects and facilitates
the acquisition and disposition of all property rights,
e.g., land, buildings, and mortgages. Deeds must be
registered at the Deeds Office. Banks usually provide
finance for the purchase of property by registering the
mortgage as security.
Owners of patents and trademarks may license them locally,
but when a patent license entails the payment of royalties
to a non-resident licensor, DTI must approve the royalty
agreement. Patents are granted for twenty years - usually
with no option to renew. Trademarks are valid for an
initial period of ten years and thereafter renewable for
ten-year periods. The holder of a patent or trademark
must pay an annual fee to preserve ownership rights. All
agreements relating to payment for the right to use know-
how, patents, trademarks, copyrights, or other similar
property are subject to approval by exchange control
authorities in the SARB. A royalty of up to four percent
of the factory selling price is the standard approval for
consumer goods. A royalty of up to six percent will be
approved for intermediate and finished capital goods.
Literary, musical, and artistic works, as well as
cinematographic films and sound recordings are eligible
for copyright under the Copyright Act of 1978. New
designs may be registered under the Designs Act of 1967,
which grants copyrights for five years.
The Counterfeit Goods Act of 1997 provides additional
protection to owners of trademarks, copyrights, and
certain marks under the Merchandise Marks Act of 1941. The
Intellectual Property Laws Amendment Act of 1997 amended
the Merchandise Marks Act of 1941, the Performers'
Protection Act of 1967, the Patents Act of 1978, the
Copyright Act of 1978, the Trademarks Act of 1993, and the
Designs Act of 1993 to bring South African intellectual
property legislation fully into line with the WTO's Trade-
Related Aspects of Intellectual Property Rights Agreement.
Amendments to the Patents Act of 1978 were also intended
to bring South Africa into line with TRIPS, to which South
Africa became a party in 1999, and provides for the
implementation of the Patent Cooperation Treaty.
The International Intellectual Property Alliance reported
an increase in border seizures of pirated goods, as well
as increased police raids in the optical disc market
during 2006 and 2007. A local watchdog, the South African
Federation Against Copyright Theft reported on its website
(http://www.safact.co.za/) statistics on seizures of
counterfeit DVDs as well as a growing number of successful
criminal cases, including imposition of prison sentences,
against pirates in 2008, demonstrating the government's
commitment to IPR enforcement.