2017 Investment Climate Statements: South Africa

Policies Towards Foreign Direct Investment

The government of South Africa is generally open to foreign investment as a means to drive economic growth, improve international competitiveness, and access foreign markets. Merger and acquisition activity is more sensitive and requires advance work to answer potential stakeholder concerns. Virtually all business sectors are open to foreign investment. Certain sectors require government approval for foreign participation, including energy, mining, banking, insurance, and defense. Excepting those sectors, no government approval is required to invest, and there are few 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. Recently, they announced a One-Stop Shop for investment support, with offices in Pretoria, Cape Town and Durban, and an online presence at http://www.gov.za/Invest%20SA%3AOnestopshop  . The DTI most actively courts manufacturing industries in which research indicates the foreign country has a comparative advantage. It also favors manufacturing under a belief that it can be labor intensive, and where suppliers can be developed from local industries. 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: www.dti.gov.za 

While the South African government supports investment in principle and takes active steps to attract foreign direct investment (FDI), investors and market analysts are concerned that its commitment to assist foreign investors is insufficient in practice. Some of their concerns include a belief that the national-level government lacks a sense of urgency when it came to supporting investment deals. Several investors reported trouble accessing senior decision makers. Additionally, South Africa scrutinizes merger and acquisition related foreign direct investment for its impact on jobs, local industry, and retaining South African ownership of key sectors. Private sector representatives and other interested parties were concerned about politicization of South Africa’s posture towards this type of investment. Despite South Africa’s general openness to investment, actions by some South African Government ministries and statements by politicians provide troubling examples of a lack of awareness of the potential impact domestic policies can have on investments. At times, there also seems to be a lack of conviction in some political circles about the importance of FDI to South Africa’s growth and prosperity. There is also a general inability among South African Government ministries to consult adequately with stakeholders before implementing laws and regulations, which has on occasion produced unintended but serious consequences that hamper investors. Examples include the newly adopted Protection of Investment Bill, the recently passed Expropriation Bill, the Private Security Industry Regulation Act (PSIRA), amendments to the Minerals and Petroleum Resources Development Act (MPRDA), and onerous paperwork required for people travelling with children.

Limits on Foreign Control and Right to Private Ownership and Establishment

Currently there are no limitations on foreign ownership, although the Private Security Industry Regulation Act (PSIRA) which has passed Parliament and is awaiting presidential signature to become law, has a clause requiring 51 percent ownership and control by South Africans of companies in the security industry. President Zuma also announced again, in his State of the Nation Address (February 2017), that he will soon launch a land reform bill that restricts foreign ownership, and will convert foreign-owned land to long-term leases.

Other Investment Policy Reviews

South Africa’s economy was generally strong until the global economic crisis in 2008. Strong demand for South Africa’s commodities and prudent macroeconomic management afforded reduced levels of public debt, generally low inflation, and a substantial economic growth. Inflation remained within the central bank’s target range of 3-6 percent from 2010 – 2015, though it has pushed the upper limit since late 2012 and exceeded 6 percent for much of 2016 and the first two months of 2017, peaking at 6.8% in December 2016 when the effects of a major drought were most evident. Growth has stalled, registering only 0.3 percent in 2016 with continued gloomy forecasts for 2017. S&P downgraded the sovereign debt ratings to sub-investment grade, with a sustained negative outlook, immediately after the Finance Minister was fired in March and Fitch followed with a reduction to sub-investment grade on both domestic and local-currency government debt in early April 2017.

Business Facilitation

The Department of Trade and Industry just announced (March 17, 2017) the opening of a One Stop Shop for investment and business registration. The opening was for “brick and mortar” offices in Pretoria, Durban and Cape Town, and virtual offices with their upgraded web site: http://www.gov.za/Invest%20SA%3AOnestopshop  Adding the “brick and mortar” investment is a demonstration of South Africa’s commitment to reducing barriers to investment and increasing coordination among the various government departments.

Outward Investment

South Africa does not incentivize outward investments, and the largest outward direct investment is from SASOL, with a gas liquification plant in Louisiana. There are some restrictions on outward investment, such as a R1 billion ($71.4 million) per year outward flow per company. Corporates 

South Africa had bilateral investment treaties (BITs) with 41 countries. After a two-year review of BITs, the DTI determined in 2012 that “first generation” BITs, an estimated 30 agreements mostly with EU states, exposed South Africa unnecessarily to international arbitration or created domestic policy conflicts, and should be terminated. South Africa may adopt a new BIT model for the future that exempts investor-state dispute and expropriation provisions, and facilitates the government’s economic transformation goals including Broad-based Black Economic Empowerment (B-BBEE). South Africa has allowed the BITs of Netherlands, Spain, Luxembourg, and Belgium and Germany to expire. Article 52 of the 1999 EU-South Africa Trade, Development, and Cooperation Agreement covers investment promotion and protection. The BITs were replaced with the Protection of Investment Act, signed December 2015.

The United States and South Africa signed a Trade and Investment Framework Agreement (TIFA) in 1999. TIFA discussions were renewed in 2011, and the agreement was updated in 2012, and discussions were held again in April 2015. The United States and the South African Customs Union negotiated in 2008 a Trade, Investment and Development Cooperation Agreement (TIDCA) which also covers South Africa. The U.S.-South Africa bilateral tax treaty eliminating double taxation entered into force in 1998. The U.S. and South Africa signed a new bilateral tax treaty in June 2014 to implement the U.S. Foreign Asset Tax Compliance Act which went into force in October 2015.

Transparency of the Regulatory System

South African laws and registrations are generally published in draft form for stakeholder comment, and legal, regulatory, and accounting systems are generally transparent and consistent with international norms.

South Africa’s Consumer Protection Act (2008) went into effect in 2011. The legislation reinforces various consumer rights, including right of product choice, right to fair contract terms, and right of product quality. Impact of the legislation will vary by industry, and businesses will need to adjust their operations accordingly. The legislation for the Consumer Protection Act can be found at: www.dti.gov.za/ccrdlawreview/DraftConsumerProtectionBill.htm
The implementing regulations can be found at: www.dti.gov.za/ccrd/cpa_regulations.htm  .

International Regulatory Considerations

South Africa is a member of the Southern Africa Customs Union (SACU) and the Southern Africa Development Community (SADC). SACU has a common external tariff and supposedly tariff-free trade between its five members, while SADC is a 15-member free trade agreement. South Africa is generally restricted from negotiating trade agreements by itself, since SACU is the competent authority. In general, South Africa hews to European standards or UK standards where those differ. They are a member of the World Trade Organization (WTO) and attempt to notify all draft technical regulations to the Committee on Technical Barriers to Trade (TBT).

Legal System and Judicial Independence

South Africa has a mixed legal system of Roman-Dutch civil law, English common law, and customary law. The independence of the judiciary is widely lauded, and has been demonstrated in the past years through rulings against President Zuma or individuals close to him.

Laws and Regulations on Foreign Direct Investment

Currently there are no limitations on foreign ownership, although the Private Security Industry Regulation Act (PSIRA) which has passed Parliament and is awaiting presidential signature to become law, has a clause requiring 51 percent ownership and control by South Africans in private companies in the security industry. President Zuma also announced in his State of the Nation Address (February 2017) that he will soon launch a land reform bill that restricts foreign ownership, and will convert foreign-owned land to long-term leases. The Broad-Based Black Economic Empowerment (B-BBEE) policy, requires levels of company ownership by Black South Africans in order to achieve government tenders and contracts.

Competition and Anti-Trust Laws

The Competition Commission is empowered to investigate, control and evaluate restrictive business practices, abuse of dominant positions and mergers in order to achieve equity and efficiency. Their public website is www.compcom.co.za 

Expropriation and Compensation

The Expropriation Act of 1975 (Act) and the Expropriation Act Amendment of 1992 entitles 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 as agreed between the buyer and seller, or determined by the court, as per section 25 of the Constitution. In several restitution cases, in which the government initiated proceedings to expropriate white-owned farms after courts ruled the land had been seized from blacks during apartheid, the owners rejected the court-approved purchase prices. In most of these cases, the government and owners reached agreement on compensation prior to any final expropriation actions. The government has twice exercised its expropriation power, taking possession of farms in Northern Cape and Limpopo Provinces in 2007 after negotiations with owners collapsed. The government paid the owners the fair market value for the land in both cases. There is no record, dating back to 1924, of an expropriation or nationalization of a U.S. investment in South Africa. A new draft expropriation law, intended to replace the Expropriation Act of 1975, was passed and is awaiting Presidential signature. Some analysts have raised concerns about aspects of the new legislation, including new clauses that would allow the government to expropriate property without first obtaining a court order.

Racially discriminatory property laws during apartheid resulted in highly distorted patterns of land ownership in South Africa. In 2011, South Africa tabled a “Green Paper” on land reform to address these distortions. The Green Paper’s “three pillars” include a land management commission, a land valuation-general and a land rights management board with local management committees. These would keep track of land sales, ensure proper record keeping, and “facilitate productive land usage and an equitable land distribution.” Certain provisions in the Green Paper have generated controversy such as proposed “severe limitations” on private land ownership, particularly foreign ownership, the powers granted to a proposed “valuer-general” to assist the Department of Rural Development and Land Reform in assessing the fair value of land, the proposed Commission’s powers to invalidate title deeds and confiscate land, and the state’s right to intervene regarding the use of land. President Zuma suggested that private land ownership will be limited to 12,000 hectares (roughly 30,000 acres) and that no foreigners would be allowed to own land in his State of the Nation address in February 2015. While details about these proposed policies remain hazy and are not yet law, it is an indication of the direction of government policy, and has already caused some investors to cancel potential deals. The Finance Minister planned the creation of the Office of a Valuer-General will be funded in the FY 2015-16 fiscal year, but this office remains to be initiated.

In March 2014, the Parliament passed the Restitution of Land Rights Amendment Bill, which reopens the window for persons or communities disposed of their land after 1913, due to past discriminatory laws and policies to lodge claims for their properties. President Zuma signed the bill on July 1, 2014. As expected, the bill inspired some significant new claims for restoration of property seized during colonization or under the Apartheid government.

The Mineral and Petroleum Resources Development Act 28 of 2002 (“MPRDA”), enacted in 2004, gave the state ownership of all of South Africa’s mineral and petroleum resources. It replaced private ownership with a system of licenses controlled by the South African government. Under the MPRDA, investors who held pre-existing rights were granted the opportunity to apply for licenses provided they met certain criteria, including the achievement of certain BEE objectives. Amendments to the MPRDA passed by Parliament in 2014, but not signed into law by President Zuma, grant the state de facto expropriation rights for projects in the minerals and petroleum sectors; they also grant broad discretionary powers to the person of the Minister to restrict exports and prices for commodities the Minister deems strategic. While seemingly written for the mining sector, the bill’s inclusion of petroleum could complicate, if not obviate, new investment in oil and gas because of the carried interest provisions. The South African government has been strongly urged to separate out petroleum from the bill. In February 2015 the bill was returned to committee because of constitutional concerns over process and policy and currently remains stalled in committee.

In February 2014, the South Africa Parliament passed amendments to the 2001 Private Security Industry Regulatory Act aimed at controlling national security risks associated with foreign investors. President Zuma had not signed the bill into law as of March 2017. This bill would require at least 51 percent domestic ownership of foreign-owned private security companies, possibly including not only private security services providers, but also security equipment manufacturers and service providers like locksmiths and keymakers. The forced ownership transfer requirements likely would be found in violation of South Africa’s commitments under the General Agreement on Trade in Services (GATS). There is concern that passage of the bill with the local ownership requirement would lead other industries to ask for similar provisions.

In December 2015, President Zuma signed the Promotion of Investment Act into law, to put the rights of foreign and domestic investors on an equal footing. The Act provides the government the option to expropriate property at a price lower than market value based on a formulation in the Constitution termed “just and equitable compensation.” This considers market value with discounts based on the current use of the property, the history of the acquisition, current use of the property, and the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property. The Act also allows the government to expropriate under a broad range of policy goals, including economic transformation and correcting historical grievances.

Dispute Settlement

ICSID Convention and New York Convention

Arbitration in South Africa follows the Arbitration Act of 1965, which does not distinguish between domestic and international arbitration and is not based on UNCITRAL model law.

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 commercial disputes. South Africa applies its commercial and bankruptcy laws with consistency, and has an independent, objective court system for enforcing property and contractual rights. South Africa’s new Companies Act also provides a mechanism for Alternative Dispute Resolution. South African courts retain discretion to hear a dispute over a contract entered into under U.S. law and under U.S. jurisdiction. However, the South African court will interpret the contract with the law of the country or jurisdiction provided for in the contract.

Dispute resolution can be a time-intensive process in South Africa. If the matter is urgent, and the presiding judge agrees, an interim decision can be taken within days while the subsequent appeal process can take months or years. If the matter is a dispute of law and is not urgent, it may proceed by application or motion to be solved within months. Where there is a dispute of fact, the matter is referred to trial, which can take several years. The Alternative Dispute Resolution involves negotiation, mediation or arbitration, and may resolve the matter within a couple of months. Alternative Dispute Resolution is increasingly popular in South Africa for many reasons, including the confidentiality which can be imposed on the evidence, case documents and the judgment.

Bankruptcy Regulations

South Africa has a strong bankruptcy law, which grants many rights to debtors, including rejection of overly burdensome contracts, avoiding preferential transactions and the ability to obtain credit during insolvency proceedings. South Africa has a World Bank rank of 74 in the 2016 Doing Business report.

Investment Incentives

There are several incentive programs offered by the Department of Trade and Industry. These include the Business Process Services (BPS) which is aimed at attracting investment and creating employment in South Africa through off-shoring activities, the 12i Tax Incentive, which supports investments in priority sectors of more than R1.6 million (USD139,000), and the Manufacturing Investment Program, which offers an investment grants of up to 30 percent of qualifying investment costs in machinery, equipment, commercial vehicles, land and buildings required for production facilities.

Other programs target specific industries, like the Sector Specific Assistance Scheme (SSAS), which is a reimbursable cost-sharing grant, the Film and Television Production Rebate Scheme, and the Automotive Investment Scheme (part of the Automotive Production and Development Program).

There are several programs for development, such as the Capital Projects Feasibility Program (CPFP), which is a cost-sharing grant that contributes to feasibility studies for projects to increase local exports and stimulate the market for South African capital goods and services, and the Critical Infrastructure Program (CIP), a cost sharing grant for projects designed to improve critical infrastructure in South Africa. The grant covers qualifying development costs up to 30 percent towards the total development costs of qualifying infrastructure. Private firms with a minimum B-BBEE level of four can qualify.

The Incubation Support Program (ISP) supports business incubators for enterprises with the potential to revitalize communities, while the Manufacturing Competitiveness Enhancement Program (MCEP) encourages manufacturers to upgrade production facilities to sustain employment and maximize value-addition. The Support Program for Industrial Innovation (SPII) promotes technology development in South Africa’s industry through the development of innovative products and/or processes. SPII focuses on the development phase, which begins at the conclusion of basic research and ends at the point when a pre-production prototype has been produced.

South Africa is also creating Special Economic Zones, to provide tax and tariff incentives for manufacturing in specified locations.

Research and Development

Foreign companies are eligible for public financed research programs. Most government tenders are subject to a relatively high score on the B-BBEE scorecard.

Foreign Trade Zones/Free Ports/Trade Facilitation

South Africa designated its first Industrial Development Zone (IDZ) in 2001. IDZs offer duty-free import of production-related materials and zero VAT on materials sourced from South Africa, along with the right to sell in South Africa upon payment of normal import duties on finished goods. Expedited services and other logistical arrangements may be provided for small to medium-sized enterprises, or for new foreign direct investment. Co-funding for infrastructure development is available from DTI. There are no exemptions from other laws or regulations, such as environmental and labor laws. The Manufacturing Development Board licenses IDZ enterprises in collaboration with the South African Revenue Service (SARS), which handles IDZ customs matters. IDZ operators may be public, private, or a combination of both. IDZs are currently located at Coega near Port Elizabeth, in East London, and Richards Bay. In February 2014, the Department of Trade and Industry introduced a new Special Economic Zones (SEZs) bill focused on industrial development. The bill was subsequently passed, and the SEZs are in the process of being created. The SEZs are intended to encompass the IDZs but also provide scope for economic activity beyond export-driven industry to include innovation centers and regional development. The broader SEZ incentives strategy allows for 15% Corporate Tax as opposed to the current 28%, Building Tax Allowance, Employment Tax Incentive, Customs Controlled Area (VAT exemption and duty free), and Accelerated 12i Tax Allowance.

Performance and Data Localization Requirements

South Africa uses government procurement policies to promote domestic economic development and fight unemployment. South Africa’s Preferential Procurement Policy Framework Act of 2000 (the Framework Act) and associated implementing regulations created a legal framework and formula for evaluating tenders for government contracts. Certain provisions of the Act provide a pathway for government departments to issue tenders that favor local content providers. Moreover, in a bid to boost industrialization and to create jobs, the government signed with labor leaders in 2011 the “Local Procurement Accord,” which commits the government to increasing the proportion of goods and services procured from South African suppliers to an “aspirational target” of 75 percent.

There are currently no requirements on local data storage for intellectual property rights. However, there is a new draft IP rights policy under consideration, which has not yet been released for public content. The Department of Trade and Industry has received public comment on their “framework” for drafting the new policy, and the framework is due to be finalized in April 2017.

Real Property

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 register mortgages as security when providing finance for the purchase of property.

Intellectual Property Rights

South Africa has a strong legal structure and enforcement of intellectual property rights through civil and criminal procedures. Criminal procedures are generally lengthy, so the customary route is through civil enforcement. There are concerns about illegal commercial photocopying, software piracy, and internet policy.

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, 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 South African Reserve Bank. A royalty of up to four percent is the standard approval for consumer goods, and up to six percent for intermediate and finished capital goods.

Literary, musical, artistic works, 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 (TRIPS). Amendments to the Patents Act of 1978 also brought South Africa into line with TRIPS, to which South Africa became a party in 1999, and implemented the Patent Cooperation Treaty. The private sector and law enforcement cooperate extensively to stop the flow of counterfeit goods into the marketplace, and the private sector believes that significant progress has been made since 2001. Statistics on seizures are not available.

In August 2012, the Copyright Review Commission (CRC) released a report recommending amending laws to hold Internet Service Providers (ISPs) and Wireless Application Service Providers (WASPs) accountable for copyright violations occurring through the internet and improve royalty collection. In December 2013, President Zuma signed into law a bill amending four pieces of intellectual property legislation to protect indigenous intellectual property. IP experts and rights holders have been concerned the legislation could undermine the ability of existing IP rights holders to protect their rights in court. In 2013, the government released a draft National Intellectual Property Policy that would inform the government’s approach to intellectual property and existing laws. The policy recommended South Africa make greater use of TRIPS flexibilities in order to lower the cost of medicines, and ensure the protection of rights reflected in national industrial and public objectives. In February 2015, the government rescinded the draft 2013 policy, and reissued a new draft policy that has not yet been published. In July 2016, DTI issued a draft Framework that laid out a path to drafting a new policy. The final Framework is expected to be issued in April 2017, when work will start on drafting a new IPR policy.

Resources for Rights Holders:

Economic Officer covering IP issues: Edward Winant
Trade and Investment Officer
+27(0)12 431-4343
WinantEH@State.gov

For additional information about South Africa’s treaty obligations and points of contact at local IP offices, please see WIPO’s country profiles at http://www.wipo.int/directory/en/ . List of attorney for various South African districts can be found on the U.S. Mission Citizen Services page: http://southafrica.usembassy.gov/information_for_travelers.html.

Capital Markets and Portfolio Investment

South Africa recognizes the importance of foreign capital in financing persistent current account and budget deficits and openly courts foreign portfolio investment. Authorities regularly meet with investors and encourage open discussion between investors and a wide range of private and public-sector stakeholders. After weak growth prospects and an increasing likelihood of downgrades by credit rating agencies shook investor confidence in late-2015, the government enhanced efforts to attract and retain foreign investors. In February and March 2016, and then again in November, the Finance Minister was joined by senior officials from the South African Reserve Bank and representatives from private business and labor unions on the biannual non-deal “investor road shows” in London, Boston, and New York to actively promote South Africa as an investment destination. South Africa avoided anticipated credit downgrades in July and December 2016. However, the Finance Minister was recalled from a March 2017 investor road show to London and within the week, he was dismissed from office and replaced with a cabinet veteran who had no direct experience in business and finance. S&P immediately downgraded South Africa’s sovereign credit rating, pushing the rating on international debt below the sub-investment threshold. Fitch followed within a week and was the first of the three agencies to push the domestic rating into sub-investment grade. Moody’s is likely to follow.

South Africa’s financial market is regarded as one of the most sophisticated among emerging markets. A sound legal and regulatory framework governs financial institutions and transactions.

The fully independent South African Reserve Bank (SARB) regulates a wide range of commercial, retail and investment banking services according to international best practices, such as Basel III, and participates in international fora such as the Financial Stability Board and G-20 Finance Ministers and Central Bank Governors. The Johannesburg Stock Exchange (JSE) serves as the front-line regulator for listed firms, but is supervised in these regulatory duties by the Financial Services Board (FSB). The FSB also oversees other non-banking financial services, including other collective investment schemes, retirement funds, and a diversified insurance industry. The South African government has committed to tabling a Twin Peaks regulatory architecture to provide a clear demarcation of supervisory responsibilities and consumer accountability and to consolidate banking and non-banking regulation in 2017.

South Africa has access to deep pools of capital from local and foreign investors which provide sufficient scope for entry and exit of large positions. Financial sector assets amount to almost three times GDP and the JSE is the largest on the continent with capitalization of approximately $1 trillion and approximately 400 companies listed on the main and alternative board. Non-bank financial institutions (NBFI) hold about two thirds of financial assets. The liquidity and depth provided by NBFIs make these markets attractive to foreign investors, who hold more than a third of equities and government bonds, including sizeable positions in local-currency bonds. A well-developed derivative market and a currency which is widely traded as a proxy for emerging market risk, allows investors considerable scope to hedge positions with interest rate and foreign exchange derivatives.

The SARB’s exchange control policies permit authorized currency dealers, normally one of the large commercial banks, to buy and borrow foreign currency freely on behalf of domestic and foreign clients. The size of transactions is not limited, but dealers must report all transactions to SARB, regardless of size. Non-residents may purchase securities without restriction and freely transfer capital in and out of South Africa. Local individuals and institutional investors are limited to holding 25% of their capital outside of South Africa. Given the recent depreciation of the exchange rate, this requirement has entailed portfolio rebalancing and repatriation to meet the prescribed prudential limits.

Banks, NBFIs and other financial intermediaries are skilled at assessing risk and allocating credit based on market conditions. Foreign investors may borrow freely on the local market. A large range of debt, equity, and other credit instruments are available to foreign investors, and a host of well-known foreign and domestic service providers offer accounting, legal and consulting advice.

Money and Banking System

South African banks are well capitalized and comply with international banking standards. There are 17 registered banks in South Africa, of which 14 are branches of foreign banks. Four banks – Standard, ABSA, First Rand (FNB), and Nedbank – dominate the sector, accounting for over 80 percent of the country’s banking assets, which total over USD 366 billion. However, Capitec Bank is a notable newcomer in the retail banking space. The SARB regulates the sector according to the Bank Act of 1990. There are three alternatives for foreign banks to establish local operations, all of which require SARB approval: separate company, branch, or representative office. The criteria for the registration of a foreign bank are the same as for domestic banks. Foreign banks must include additional information, such as holding company approval, a letter of “comfort and understanding” from the holding company, and a letter of no objection from the foreign bank’s home regulatory authority. More information on the banking industry may be obtained from the South African Banking Association at the following website: www.banking.org.za/ .

The Financial Services Board (FSB) governs South Africa’s non-bank financial services industry (see website: www.fsb.co.za/). The FSB regulates insurance companies, pension funds, unit trusts (i.e., mutual funds), participation bond schemes, portfolio management, and the financial markets. The JSE Securities Exchange SA (JSE) is the seventeenth largest exchange in the world measured by market capitalization. Market capitalization stood at R11.036 billion (approximately USD 830 million) in March 2017, with over 400 firms listed. Two new exchanges have been approved in the past year. The Bond Exchange of South Africa (BESA) is licensed under the Financial Markets Control Act. Membership includes banks, insurers, investors, stockbrokers, and independent intermediaries. The exchange consists principally of bonds issued by government, state-owned enterprises, and private corporations. The JSE acquired BESA in 2009. More information on financial markets may be obtained from the JSE (website: www.jse.co.za ). Non-residents are allowed to finance 100 percent of their investment through local borrowing (previously, they were required to invest R1 for every R3 borrowed locally). A finance ratio of 1:1 also applies to emigrants, the acquisition of residential properties by non-residents, and financial transactions such as portfolio investments, securities lending and hedging by non-residents.

Foreign Exchange and Remittances

Foreign Exchange

SARB’s 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. Generally, there are only limited delays in the conversion and transfer of funds. Due to South Africa’s relatively closed exchange system, no private player, however large, can hedge large quantities of Rand for more than five years.

While non-residents may freely transfer capital in and out of South Africa, transactions must be reported to authorities. Non-residents may purchase local securities without restriction. To facilitate repatriation of capital and profits, foreign investors should ensure an authorized dealer endorses their share certificates as “non-resident.” Foreign investors should also be sure to maintain an accurate record of investment.

Remittance Policies

Subsidiaries and branches of foreign companies in South Africa are considered South African entities and are treated legally as South African companies. As such, they are subject to exchange control by the SARB. South African 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).

While South African companies may invest in other countries, SARB approval/notification is required for investments over R500 million ($43.5 million). South African individuals may freely invest in foreign firms listed on South African stock exchanges. Individual South African taxpayers in good standing may make investments up to a total of R4 million ($340,000) in other countries. As of 2010, South African banks are permitted to commit up to 25 percent of their capital in direct and indirect foreign liabilities. In addition, mutual and other investment funds can 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.

Sovereign Wealth Funds

South Africa does not have a sovereign wealth fund.

State-owned enterprises (SOEs) play a significant role in the South African economy. In key sectors such as electricity, transport (air, rail, freight, and pipelines), and telecommunications, SOEs play a lead role, often defined by law, although limited competition is allowed in some sectors (i.e., telecommunications and air). The government’s interest in these sectors often competes with and discourages foreign investment. The Department of Public Enterprises (DPE) minister has publicly stated that South Africa’s SOEs should advance economic transformation, industrialization and import substitution. DPE has oversight responsibility in full or in part for six of the approximately 700 SOEs that exist at the national, provincial, and local levels: Alexkor (diamonds), Denel (military equipment), Eskom (electricity generation), South African Express Airways, South African Forestry Company (SAFCOL) (forestry), and Transnet (transportation). South African Airways (SAA) was transferred in 2014 to control by the National Treasury. These six SOEs employ approximately 105,000 people. South Africa’s overall fixed investment was 19 percent of GDP. The SOEs share of the investment was 21 percent while private enterprise contributed 63 percent (government spending made up the remainder of 16 percent). The IMF estimates that the debt of the SOEs would add 13.5 percent to the overall national debt.

The state-owned electricity giant Eskom generates approximately 95 percent of the electricity used in South Africa. Coal-fired power stations generate approximately 93 percent of Eskom’s electricity. Eskom’s core business activities are generation, transmission, trading, and distribution. South Africa’s electricity system operates under strain because of low availability factors for base load generation capacity due to maintenance problems. The electricity grid’s capacity reserve margins frequently fall under two percent, well below international norms. Beginning in November 2013, Eskom periodically declared “electricity emergencies,” and asked major industrial users reduce consumption by ten percent for specified periods (usually one to two days). To meet rising electricity demand, Eskom is building new power stations (including two of the world’s largest coal-fired power stations, but both are years overdue and over budget). Eskom and independent industry analysts anticipate South Africa’s electricity grid will remain constrained for at least the next several years. The South African government has implemented a renewable energy independent power producer procurement program (REIPPP) that in the past 3 years has added 1500MW of a planned 3900MW of renewable energy production to the grid. Following the sovereign downgrade, S&P dropped the rating to Eskom to a highly speculative B+, with a negative outlook.

Transnet National Port Authority (TNPA), the monopoly responsible for South Africa’s ports, charges some of the highest shipping fees in the world. In March 2014, Transnet announced an average overall tariff increase of 8.5 percent at its ports to finance a $240 million modernization effort. High tariffs on containers subsidize bulk shipments of coal and iron ore, thereby favoring the export of raw materials over finished ones. According to the South African Ports Regulator, raw materials exporters paid as much as one quarter less than exporters of finished products. TNPA is a division of Transnet, a state-owned company that manages the country’s port, rail, and pipeline networks. In April 2012, Transnet launched its Market Driven Strategy (MDS), a R336 billion ($25 billion) investment program to modernize its port and rail infrastructure. Transnet’s March 2014 selection of four OEMs to manufacture 1064 locomotives is part of the MDS. This CAPEX is being 2/3 funded by operating profits with the remainder from the international capital markets. In 2016, Transnet reported it had invested R124 billion ($9.2 billion) in the previous four years in rail, ports, and pipeline infrastructure. S&P dropped Transnet’s ratings below the investment-grade threshold in line with the sovereign’s in March 2017, but the company’s stand-alone credit profile remains at BBB. Of the major South African SOEs, Transnet is among the most competently managed.

Direct aviation links between the United States and Africa are limited, but have expanded over the past few years. The growth of low-cost carriers in South Africa has reduced domestic airfares, but private carriers are likely to struggle against national carriers without further air liberalization in the region and in Africa. In South Africa, the state-owned carrier, South African Airways (SAA), relies on the government for financial assistance to stay afloat. SAA has had decades of consecutive losses including a R5.6 billion loss ($412 million) for fiscal year 2014/2015 and a R1.4 billion loss ($103 million) for 2015/2016. In 2016, the National Treasury agreed to another R5 billion ($353 million at the time) guarantee in exchange for a new twelve member board expected to help the airline turn around. The compromise helped the airline continue normal operations, hire Bain & Company for a three month contract to advise SAA on its strategy, and expand its fleet through the leasing of new wide-body aircraft from Airbus. During fiscal year 2016/2017, SAA lost R4.5 billion ($321 million).

The telecommunications sector in South Africa, while advanced for the continent, is hampered by regulatory uncertainly and poor implementation of the digital migration, both of which contribute to the high cost of data. In 2006, South Africa agreed to meet an International Telecommunication Union deadline to achieve analog-to-digital migration by June 1, 2015. As of April 2017, South Africa has initiated but not completed the migration. Until this process is finalized, South Africa will not be able to allocate the spectrum freed up by the conversion. Many of the issues stem from the confusion and infighting caused by the 2014 split of the Department of Communications into two departments—the Department of Communications (DOC) and the Department of Telecommunications and Postal Services (DTPS). The DOC is responsible for the migration and has oversight of the sector regulator, the Independent Communications Authority of South Africa (ICASA). DTPS is responsible for ICT policy.

In October 2016, DTPS released a policy paper addressing the planned course of action to realize the potential of the ICT sector. The paper advocates for open access requirements that could overhaul how telecommunications firms gain access to and use infrastructure. It also proposes assigning all high-demand spectrum to a Wireless Open Access Network. Some stakeholders, including state-owned telecommunications firm Telkom, agree with the general approach. Others, including the major private sector mobile carriers, feel the interventions would curb investment while doing little to facilitate digital access and inclusion. The controversy is expected to delay any policy implementation and contribute to ongoing uncertainty in the sector.

Privatization Program

Although in 2015 and 2016, senior government leaders discussed allowing private-sector investment into some of the more than 700 state-owned enterprises (SOEs) and recently released a report of a presidential review commission on SOE, which called for rationalization of SOEs, no concrete action has been taken on the topic yet.

Responsible Business Conduct (RBC), is well-developed in South Africa, and is driven in part by the recognition that the private sector has an important role to play. The socio-economic development element of B-BBEE has formalized and increased RBC in South Africa, as firms have largely aligned their RBC activities to the element’s performance requirements. The 2013 amendment’s compliance target is one percent of net profit after tax, and at least 75 percent of the RBC activity must benefit historically disadvantaged South Africans referred to the B-BBEE act as black people, which includes South Africans of black, colored, Chinese, and Indian descent. Most RBC is directed towards non-profit organizations involved in education, social and community development, and health.

Allegations of corruption in the public tendering process persist in South Africa at all levels of government, despite the country’s excellent anti-corruption regulatory framework, as highlighted by the Prevention and Combating of Corrupt Activities Act of 2004. The office of the Public Protector, among other agencies, is tasked with conducting independent investigations into allegations of official corruption, and is widely respected for its effectiveness and impartiality. The Public Protector conducted an extended investigation into public spending on President Zuma’s private residence in Nkandla, KwaZulu-Natal. President Zuma was required to repay $560,000 for non-security upgrades.

UN Anticorruption Convention, OECD Convention on Combatting Bribery

South Africa signed the Anticorruption Convention on 9 Dec 2003 and ratified it on 22 Nov 2004. They have also signed the OECD Convention on Combatting Bribery, in 2007, with implementing legislation dating from 2004.

Resources to Report Corruption

To report corruption to the government:
Advocate Busisiwe Mkhwebane
Public Protector
Office of the Public Protector, South Africa
175 Lunnon Street, Hillcrest Office Park, Pretoria 0083
Anti-Corruption Hotline: +27 80 011 2040 or +27 12 366 7000
http://www.pprotect.org  or customerservice@pprotect.org

Or for a non-government agency:
David Lewis
Executive Director
Corruption Watch
87 De Korte Street, Braamfontein/Johannesburg 2001
+27 80 002 3456 or +27 11 242 3900
http://www.corruptionwatch.org.za/content/make-your-complaint 
info@corruptionwatch.org.za

There were reports that the government or its agents committed arbitrary or unlawful killings.

Police use of lethal and excessive force, including torture, resulted in numerous deaths and injuries, according to the Independent Police Investigative Directorate (IPID), Amnesty International, and other nongovernmental organizations (NGOs). Politically motivated killings increased prior to the August 3, 2016 municipal elections. The country has a high crime rate, and criminals are often well armed. The government recorded more than 20,000 killings (or homicides) in the 12-month period ending March 31, 2017. The National Prosecuting Authority (NPA) did not publish statistics on the number of murderers prosecuted, but watchdog groups estimated the conviction rate for all crimes reported was as low as 10 percent.

Over the last 22 years, the South African government has replaced apartheid-era labor legislation with policies that emphasize employment security, fair wages, and decent working conditions. Under the aegis of the National Economic Development and Labor Council (NEDLAC), government, business, and organized labor are to negotiate all labor laws, with the exception of laws pertaining to occupational health and safety. South African law allows workers to form or join trade unions without previous authorization or excessive requirements. Labor unions that meet a locally negotiated minimum threshold of representation (often, 50 percent plus one union member) are entitled to represent the entire workplace in negotiations with management. As the majority union or representative union, they may also extract agency fees from non-union members present in the workplace. In some workplaces, this financial incentive has encouraged inter-union rivalries, including intimidation and violence, as unions compete for the maximum share of employees in seeking the status of representative union.

There were 181 trade unions registered in March 2015, down from the 2002 high of 504. Trade union membership figures are imprecise, but according to the 2015 Second Quarter Labor Force Survey conducted by the government entity Statistics South Africa (StatsSA), 3.7 million workers belonged to a union. According to StatsSA, union membership decreased by 17,000 from the second quarter of 2014 to the second quarter of 2015; some of this decline can be attributed to retrenchments in the mining and metals sectors. Department of Labor statistics indicate union density declined from 45.2 percent in 1997 to 24.7 percent in 2014. A survey by South Africa’s Institute of Race Relations (IRR) released in February 2015 found fewer than one in five economically active South Africans are choosing to join trade unions. IRR analysts concluded declining membership indicates unions are struggling to find relevance and attract young workers. A key finding of the report concludes registered union membership as a proportion of total employment decreased by 20 percent between 1994 and 2014. In recognition of their affiliates’ declining membership, South Africa’s three largest labor federations in 2015 pledged to step up efforts to recruit members in order to strengthen workers’ collective bargaining power.

The right to strike is protected under South African law. There were a number of economically impactful strikes in 2015, particularly in the mining, postal, legislature, communication, municipal/utility, transport, agriculture, and engineering sectors. Strikes in 2015 were triggered in rank order by wages, grievances, recognition agreements, retrenchments, and dismissals. Municipal/utility workers held the most strikes in 2015, followed by mineworkers and transport sector workers.

Improved labor stability is essential for South Africa’s economic stability and development, and vital to the country’s ability to continue to attract and retain foreign investment. Government, business, and labor are attempting to address these challenges through a process led by South African Deputy President Cyril Ramaphosa. Stakeholders in NEDLAC have agreed in principle on a national minimum wage, but are still discussing the modalities of instituting it and policies for minimizing strike violence and frequency. Department of Labor-determined sectoral minimum wages already exist for vulnerable sectors, such as agriculture, domestic and security services; they are frequently reviewed and adjusted. South Africa has the most stratified minimum wage system in Sub-Saharan Africa, with 124 wage schedules through Department of Labor-determined sectoral minimum wages in 11 sectors, bargaining council agreements reached between unions and employer associations in several sectors, and company-level collective bargaining agreements in other sectors.

Collective bargaining is a cornerstone of the current labor relations framework. Forty four bargaining councils exist through which parties negotiate wages and conditions of employment. Per the Labor Relations Act, the Minister of Labor must extend agreements reached in bargaining councils to non-parties of the agreement operating in the same sector. Employer federations, particularly those representing Small and Medium Enterprises (SMEs) argue the extension of these agreements – often reached between unions and big business – negatively impacts SMEs that cannot afford to pay higher wages. In 2015, the average was settlement was a 7.7 percent increase, on average 3 percent above inflation and down from the average increase of 8.1 percent in 2014.

Major labor legislation includes:

The Labor Relations Act (LRA), in effect since 1995 with amendments made in 2014, provides fair dismissal guidelines, dispute resolution mechanisms, and retrenchment guidelines stating employers must consider alternatives to retrenchment and must consult all relevant parties when considering possible layoffs. The Act enshrines the right of workers to strike and of management to lock out striking workers. The Act created the Commission on Conciliation, Mediation, and Arbitration (CCMA) which can conciliate, mediate, and arbitrate in cases of labor dispute, and is required to certify an impasse in bargaining council negotiation before a strike can be called legally. The CCMA’s caseload currently exceeds what was anticipated; the South African Government provided the CCMA an additional USD 60 million to handle its caseload and any possible increase caused by the 2014 amendments to the LRA. Amendments to the LRA deal with the regulation of temporary employment service firms, extend organizational rights to workplaces with a majority of temporary or fixed term contract workers, reduces the maximum period of temporary or fixed term contract employment to three months, establishes joint liability by temporary employment services and their clients for contraventions of employment law, and strengthens other protections for temporary or contract workers.

Basic Conditions of Employment Act (BCEA), implemented in 1997 and amended in 2014, establishes a 45-hour workweek and minimum standards for overtime pay, annual leave, sick leave, and notice of termination. The Act also outlaws child labor. Further, it states that no employer may require or permit overtime except by agreement, and overtime may not be more than ten hours per week. Amendments made in 2014 clarify the definitions of employment, employers, and employees to reflect international labor conventions, closing a loophole that previously existed in South African law between the LRA and the BCEA. The Act gives the Minister of Labor the power to set minimum wages and annual minimum wage increases for employees not covered by sectoral minimum wage agreements.

Employment Equity Act of 1998, amended in 2014, prohibits employment discrimination and requires large- and medium-sized companies to prepare employment equity plans to ensure that historically disadvantaged South Africans, such as Blacks, South Asians, and Coloreds, as well as women and disabled persons, are adequately represented in the workforce. The Employment Equity Act amendments increase fines for non-compliance with employment equity measures and have a new provision of equal pay for work of equal value. The Act prohibits the use of foreign nationals to meet employers’ affirmative action targets and relaxes the standards for parties in labor disputes to access the CCMA instead of going directly to the Labor Court.

More information regarding South African labor legislation can be found at: www.labour.gov.za/legislation .

Since a 1993 agreement to facilitate Overseas Private Investment Corporation (OPIC) programs, OPIC has invested in a number of funds supporting sub-Saharan Africa development, including the Africa Catalyst Fund ($300 million focused on small- and medium-sized enterprise development), Africa Healthcare Fund ($100 million focused on private healthcare delivery businesses, and ECP Africa Fund II, ($523 million, focused on telecommunications, oil and gas, power, transportation, agribusiness, media, financial services, and manufacturing). Tailored products to support clean and renewable energy are a particular focus. OPIC opened an office in Johannesburg in 2013 to support investment to key African countries through its financing and risk mitigation instruments. Additional information on OPIC programs that involve South Africa may be found on OPIC’s website: http://www.opic.gov .

*Source: South African Reserve Bank website .
Table 3: Sources and Destination of FDI

Table 4: Sources of Portfolio Investment

Edward H. Winant
Trade and Investment officer
877 Pretorius Street, Pretoria, South Africa
+27 (0) 12 431 4343
WinantEH@State.Gov