Reference ID: 09PRETORIA81
Created: 2009-01-15 16:38
Released: 2011-08-30 01:44
Classification: UNCLASSIFIED
Origin: Embassy Pretoria

DE RUEHSA #0081/01 0151638
R 151638Z JAN 09




E.O. 12958: N/A

2 OF 2)

REF: 08 State 123907

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1. (U) Summary. In response to Ref A, this cable presents part
two 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


Chapter 6 Investment Climate Statement FY2009, continued

6.8 Transparency of the Regulatory System

The Companies Act of 1973 provides for the transparent
regulations concerning the establishment and operation of
businesses. Under the Act, for-profit businesses employing
more than 20 persons must register as a company within 21
days. The same rules apply to foreign companies, with the
exception that foreign companies may elect to operate as an
"external company" (with no limit on legal liabilities).
In general, businesses must also register with the local
Regional Services Council, the Department of Labor, the
Workman's Compensation Commissioner, the appropriate
industry council,and the South African Revenue Service.
All businesses must obtain an operating license from local
authorities. The validity of an operating license is
indefinite unless a business is sold or relocated. The
forms to be filled out by investors are straightforward.
The process takes six months on average, but can be done in
one month through TISA. Almost all buisness activities are
open to foriegn investors. The government does not
prohibit or officially discourage a foreign-owned business
from locating in a particular region of the country.
Restrictions that apply to a particular industry apply to
both domestic and international investors. Exceptions
exist in the areas of banking and defense. For example a
branch of a foreign bank may be required to employ a
certain number of South Africans and maintain a minimum
local capital base to obtain a banking license when these
requirements are not applied to domestic banks. In addition
a foreign company must register as an external company
before immovable property can be registered in its name.

6.9 Efficient Capital Markets and Portfolio Investment

South Africa's banks are well-capitalized and comply with
international banking standards. Six of the 35 banks in South
Africa are foreign-owned and 15 are branches of foreign banks.
The "Big Four" (Standard, ABSA, First Rand, and Nedcor) dominate
the sector, accounting for almost 85 percent of the country's
banking assets, which total over $240 billion. Barclays'
acquisition of ABSA received government approval in 2005. The
International Commercial Bank of China purchased a 20% stake in
Standard Bank in late 2007 and the government approved the sale
in early 2008. 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. These include the establishment of: 1) a separate
company; 2) a branch; or 3) a 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
Qletter 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:

The Financial Services Board (FSB) governs South Africa's non-
bank financial services industry (see website: 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 fourteenth largest
exchange measured by market capitalization in the world. Market
capitalization stood at R4.4 billion ($466 million) in December
2008 with over 400 firms listed. The Bond Exchange of South
Africa (BESA) is licensed under the Financial Markets Control
Act. Membership includes banks, insurers, investors,

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stockbrokers, and independent intermediaries. The exchange
consists principally of bonds issued by government, state-owned
enterprises, and private corporations. The JSE is seeking to
acquire the BESA. More information on financial markets may be
obtained from the JSE (website: and the Bond
Exchange (website:

Foreign investors deemed "affected persons" must obtain SARB
approval to borrow amounts greater than R20,000 (approximately
$2,100). "Affected persons" are defined as companies or other
bodies in which: 1) 75 percent or more of the capital assets or
earnings may be used for payment to, or for the benefit of, a
non-resident; or 2) 75 percent or more of the voting securities,
voting power, power of control, capital, assets or earnings are
vested in, or controlled by, a non-resident. No person in South
Africa may provide credit to a non-resident or "affected person"
without an exchange control exemption. Non-residents and
"affected persons," however, may borrow up to 100 percent of the
South African rand value of funds introduced from abroad and
invested locally. The ability to borrow locally increases if
both residents and non-residents own the local enterprise.

6.10 Political Violence

South Africa's political landscape is changing as the nation
approaches national elections in 2009. The Congress of the
People (COPE) is a new opposition party that was formed largely
as an offshoot of the ruling African National Congress (ANC).
There were isolated cases of political violence in 2008, and
there exists some potential for sporadic campaign violence in
the run-up to 2009 elections. Criminal violence remains high.
National and provincial governments have pursued a number of
programs in an attempt to control or stabilize the level of
criminal violence.

6.11 Corruption

The 2000 Promotion of Access to Information Act and the 2000
Public Finance Management Act helped to increase transparency in
government. The 2004 Prevention and Combating of Corrupt
Activities Act (PCCAA) defines graft, bars the payment of bribes
by South African citizens and firms to foreign public officials,
and obliges public officials to report corrupt activities. One
shortcoming of the PCCAA has been its failure to protect
whistleblowers against recrimination or defamation claims.
South African law also provides for the prosecution of
government officials who solicit or accept bribes. Penalties
for offering or accepting a bribe may include criminal
prosecution, monetary fines, dismissal from government
employment, or deportation (for foreign citizens).

South Africa has no fewer than 10 agencies engaged in anti-
corruption activities. Some, like the Public Service
Commission, the Office of the Public Protector, and the Office
of the Auditor-General, are constitutionally mandated to address
corruption as only part of their responsibilities. High rates
of violent crime are a strain on capacity and make it difficult
for South African criminal and judicial entities to dedicate
adequate resources to anti-corruption efforts.

Parliament voted to disband the South African Police Anti-
Corruption Unit and the Directorate for Special Operations (more
QCorruption Unit and the Directorate for Special Operations (more
popularly known as the "Scorpions") and fold its jurisdiction
into the National Police in October 2008.

Transparency International's 2008 Corruption Perceptions Index
reports that corruption in South Africa is perceived to be
greater than it was in 2007. South Africa was ranked 43rd out
of 179 countries (where 1 is the country where corruption is
perceived to be the lowest, and 179 is the one where corruption
is perceived to be the greatest) in 2007 to 54th out of 180
countries in 2008. South Africa was the second least corrupt
country in Africa in 2007; it was the fourth least corrupt
country in Africa in 2008. Public perception of widespread
official corruption, particularly in the police and the
Department of Home Affairs, continued. South Africa is not a
signatory of the OECD Convention on Combating Bribery, but is a
signatory of the UN Convention against Corruption. Transparency
International maintains an office in South Africa.

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6.12 Bilateral Investment Agreements

South Africa has bilateral investment agreements with Argentina,
Austria, Belgium, Canada, Chile, the Czech Republic, Finland,
France, Germany, Greece, Mauritius, the Netherlands, the
Republic of Korea, Spain, Sweden, Switzerland, Turkey, and the
United Kingdom. A Trade, Development, and Cooperation Agreement
went into force between South Africa and the European Union on
January 1, 2000, but it does not contain an investment chapter.
South Africa, as part of SACU, is currently in negotiations for
free trade agreements with Mercosur and India.

The United States began free trade agreement (FTA) negotiations
with the five Southern African Customs Union (SACU) countries
(South Africa, Botswana, Lesotho, Namibia, and Swaziland) in
June 2003, but active negotiations were suspended in April 2006.
In lieu of a U.S.-SACU FTA, the United States and SACU
negotiated a Trade, Investment and Development Cooperation
Agreement (TIDCA), which was signed in July 2008. The four
areas singled out for special attention under the TIDCA are
customs cooperation, technical barriers to trade,
sanitary/phytosanitary (SPS) issues, and trade and investment

Agreements regarding mutual assistance between the customs
administrations of the United States and South Africa became
effective on August 1, 2001. The U.S.-South Africa bilateral
tax treaty eliminating double-taxation became effective on
January 1, 1998.

6.13 OPIC and Other Investment Insurance Programs

South Africa and the United States signed an agreement to
facilitate Overseas Private Investment Corporation (OPIC)
programs in 1993. OPIC has since invested in a number of funds
supporting sub-Saharan Africa development, including the Africa
Growth Fund ($25 million), the Modern Africa Growth and
Investment Fund ($105 million), and the ZM Investment Fund ($120
million). OPIC also established the $350 million Sub-Saharan
Africa Infrastructure Fund (SAIF), which intends to fund
infrastructure projects in sub-Saharan Africa. OPIC helped the
National Urban Reconstruction and Housing Agency (NURCHA) to
establish a $31 million scheme to lend to small contractors for
the construction of affordable houses. OPIC entered into an
agreement with the Homeloan Guarantee Company (HLGC) to fund
low-income home loans for HIV-positive South Africans in 2004.
The pilot program for this project was initiated in 2005. Net
proceeds from a $300 million investment pool will be used to
purchase medication for HIV-positive South African homeowners
holding HLGC guaranteed mortgages. OPIC announced in June 2008
that it will provide up to $250 million to banks and financial
institutions to expand their lending to small businesses.
Additional information on OPIC programs that involve South
Africa may be found on OPIC's website:

South Africa is also a member of the World Bank's Multilateral
Investment Guarantee Agency.

6.14 Labor

The South African government has worked to remove all vestiges
of apartheid-era labor legislation over the last 14 years. In
its place, the government created a labor market characterized
by employment security, reasonable wages, and decent working
Qby employment security, reasonable wages, and decent working
conditions. Under the aegis of the National Economic
Development and Labor Council (NEDLAC), government, business,
and organized labor negotiated all labor laws, with the
exception of laws pertaining to occupational health and safety.
NEDLAC negotiations placed a high value on worker rights and
collective bargaining.

The law allows almost all workers to form or join trade unions
of their choice without previous authorization or excessive
requirements. As of March 2008, total trade union membership
was roughly three and one half million persons, or 31 percent of
the economically active population employed in the formal
sector. Most union members belong to affiliates of the Congress
of South African Trade Unions (COSATU). Other unions are

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affiliated to the Federation of Unions of South Africa (FEDUSA)
or the National Council of Trade Unions (NACTU). COSATU, the
largest of the federations, is strongly allied with the African
National Congress (ANC) and the South African Communist Party in
a tripartite alliance and vigorously lobbies the ruling party to
implement its policy positions.

The right to strike is protected under South African labor law.
A Department of Labor bulletin reported 102 strikes in the 2006-
2007 year ending March 2007, with 264,426 workers participating
and over four million work days last. Data for 2007-2008 has
not yet been released. Sectors most affected have historically
been community services, manufacturing, mining, and retail.
South African business argues that the labor market is rigid and
over-regulation has constrained employment. Trade unions argue
that employers evade labor legislation through the use of labor
brokers who supply casual workers. COSATU has lobbied for and
welcomed a pledge by the Minister of Labor that the next ANC
government will outlaw all labor brokers. Other areas of
contention between business and trade unions revolve around
workplace safety, the application of wage structures to all
firms in an industry whether or not firms participated in wage
negotiations, wage increases, and complex requirements and
appeal procedures for the dismissal of workers.

Major labor legislation includes:

-- The Labor Relations Act, in effect since November 1996,
provides retrenchment guidelines, stating that 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 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 legally called. The CCMA
enjoys substantial popularity among workers and has a caseload
in excess of what was anticipated.

-- The Basic Conditions of Employment Act, implemented in
December 1998, establishes a 45-hour workweek as well as minimum
standards for overtime pay, annual leave, and notice of
termination. It outlaws child labor. No employer may require
or permit overtime expect by agreement, and overtime may not be
more than ten hours per week.

-- The Employment Equity Act of 1998 prohibits unfair employment
discrimination and requires large and medium-sized employers to
prepare affirmative action plans to ensure that black Africans,
women, and disabled persons are adequately represented in the

-- The Occupational Health and Safety Act, last amended in 1993,
provides for occupational health and safety standards and gives
the Department of Labor the right to inspect the workplace. The
Mine, Health and Safety Act authorizes the Inspector of Mines to
provide regulatory oversight for the mining industry.

-- The Skills Development Act of 1998 imposes a levy on
employers equal to one percent of the payroll that is to be used
for training programs devised by industry-specific training
Qfor training programs devised by industry-specific training
authorities (SETA?s). Employers who provide job skills training
can claim back much of their contribution from government.
According to the March 2008 Labor Force Survey (LFS), the
official unemployment rate was 24.2 percent. This rate uses the
International Labor Organization (ILO) definition of
unemployment, which excludes persons who have not actively
sought employment during the previous four weeks. Despite the
high unemployment rate, South Africa has a shortage of skilled
workers across many sectors and businesses allege that their
statutory contributions to government sponsored training
authorities are wasted or misused and that those authorities
have done little to increase the skills base.

South Africa has no country-wide minimum wage, but the Minister
of Labor has issued determinations that set a minimum wage for
certain occupations where collective bargaining is not common.
These occupations include domestic workers, farm workers, taxi-

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drivers, and retail employees. In addition, the Minister can
apply collective bargaining agreements to firms that did not
participate in negotiations.

Companies have complained about the introduction, through a
regulation in early 2003, of a two percent training levy on the
salaries of expatriates in order to enter the country under an
expedited visa procedure. This money goes directly to industry-
specific training authorities (SETA's). The levy does not apply
to expatriates already resident in the country or to inter-
company transfers. Expatriates who enter the country under the
normal visa procedure are exempt from the levy, but the normal
process is complex and time-consuming. The government's
decision to implement the levy-based system through regulation
rather than legislation has also been controversial. A legal
challenge to the regulations further delayed the implementation
of new immigration legislation and this created more uncertainty
about the effective handling of applications for visas.

6.15 Foreign Trade Zones/Free Ports

South Africa designated its first 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 into 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. 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 combinatioQof both.
IDZs are currently located at Coega near Port Elizabeth, in East
London, Richards Bay, and at OR Tambo International Airport near
Johannesburg. An IDZ in Mafikeng is expected to be approved by
Cabinet in 2009.

6.16 Foreign Direct Investment Statistics
Foreign direct investment (FDI) data is readily available in
South Africa, but published statistics vary depending on their
source and definition.  AmQg the numerous institutions that
provide foreign investment data, the U.S. Embassy in South
Africa relies mostly on the SARB.  SARB statistics conform to
the IMF definition of FDI (i.e., FDI is generally defined as
ownership of at least 10 percent of the voting rights in an
organization by a foreign resident or several affiliated foreign
residents, including equity capital, reinvested earnings, and
long-term loan capital) and represent actual investment,
excluding announced but not completed "intended" investment.
The SARB does not provide country-specific figures that
distinguish between actual investment flows and changes in
investment stocks caused by asset swaps, exchange rate
adjustments, and mergers and acquisitions.  This makes it
difficult to track the United States' and other countries' FDI
position in South Africa on an annual basis.
Because SARB statistics only provide an annual total for all the
countries' flows combined, observers also often consult more
Qcountries' flows combined, observers also often consult more
updated information obtained from the South Africa-based firm
"Business Map" (BM).  The latter offers fee-based services for a
wide range of investor-related data and analysis (website:  The following FDI statistics
were drawn from the SARB's December 2008 Quarterly Bulletin. The
conversion exchange rate used was the average exchange rate for
each year cited.
Table A: Average Exchange Rates
2002     10.52
2003     7.56
2004     6.45
2005     6.36
2006     6.77
2007     7.05
Table B: Year-end Stock of Foreign Direct Investment in South
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         Rand (billion)  US$ (billion)
2002     255.84           24.33
2003     303.55           40.14
2004     355.09           55.05
2005     489.32           76.94
2006     611.72           90.36
2007     751.92          106.65
Table C: Year-end Stock of South African Direct Investment
         Rand (billion)  US$ (billion)
2002     189.91          18.06
2003     180.51          23.87
2004     216.66          33.59
2005     232.93          36.62
2006     354.25          52.33
2007     448.62          63.63
Table D: GDP (in billion rand at current prices) and year-end
FDI Stock as a percentage of GDP
         GDP            FDI(%)
2002     1,168.7        21.9
2003     1,260.7        24.1
2004     1,398.6        25.4
2005     1,541.07       31.8
2006     1,741.06       35.1
2007     1,999.09       37.7
Table E: Year-end stock of FDI in South Africa by region/country
REGION/COUNTRY       2006     2007     2006     2007
                     RAND     RAND     US$      US$
EUROPE - Total       535.6    656.1    79.1     93.1
UNITED KINGDOM       440.3    524.2    65.0     76.9
GERMANY               34.1     41.3     5.0      5.9
NETHERLANDS           22.1     28.9     3.3      4.1
SWITZERLAND           12.3     21.3     1.8      3.0
FRANCE                 9.2     12.3     1.4      1.7
ITALY                  2.9      3.5     0.4      0.5
N&S AMERICA (total)   51.2     64.1     7.6      9.1
USA                   37.4     46.3     5.5      6.6
AFRICA (total)         4.1      5.7     0.6      0.8
ASIA (total)          19.8     24.7     2.9      3.5
MALAYSIA               2.4      2.3     0.4      0.3
JAPAN                 14.7     12.9     2.2      1.8
OCEANIA (total)        1.0      1.2     0.1      0.2
TOTAL                611.7    751.9    90.36   106.6
Table F: Year-end Stock of South African Direct Investment
Abroad by Region/Country (billions)
REGION/COUNTRY       2006     2007     2006     2007
                     RAND     RAND     US$      US$
EUROPE (total)       238.8    276.4    35.3     39.2
LUXEMBURG            106.4    122.1    15.7     17.3
UNITED KINGDOM        79.8     92.7    11.8     13.1
AUSTRIA               22.3     22.7    3.32.8   3.23.3
OTHER                 30.3     40.0    4.54.0   5.64.5
N&S AMERICA (total)   23.7     26.8    3.52.6   3.83.5
USA                   21.7     23.8    3.22.3   3.43.2
AFRICA (total)        59.1     84.4    8.73.0   11.98.7
ASIA (total)          25.8     44.3    3.80.2   6.33.8
OCEANIA (total)        6.8     16.6    1.01.1   2.41.0
TOTAL                354.3    448.6    36.6     52.363.6
Table G: Year-end Stock of FDI in South Africa by Industry
Sector (billions)
INDUSTRY             2006     2007     2006     2007
                     RAND     RAND     US$      US$
Agriculture,           0.9      0.8      0.1      0.2
Forestry & Fishing
Mining               250.4    332.2     37.0     47.1
Manufacturing        165.4    197.1     24.4     27.9
Construction           2.0      1.9      0.3      0.2
Trade, Catering,      16.2     27.7      2.4      3.9
& Accomodation
Transport, Storage    13.8     12.8      2.0      1.8
QTransport, Storage    13.8     12.8      2.0      1.8
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& Communication
Finance, Insurance,  162.5    178.6     24.0     25.3
Real Estate &
Business Services
Social Services        0.5      0.5      0.1      0.1
TOTAL                611.7    751.9     90.4    106.6
Table H: FDI Flows into South Africa:
Investment by foreigners in undertakings in South Africa in
which they have at least ten percent of the voting rights
(R billions):
2001*     58.4
2002       8.0
2003       5.6
2004       5.2
2005*     42.3
2006      -3.6
2007*     40.1
*The high inflow in 2001 was due to the DeBeers/Anglo American
*The inflow in 2005 was due to the Barclays/ABSA and
Vodafone/Vodacom transactions.
*The inflow in 2007 was due to ICBC?s purchase of Standard Bank.
Table I: FDI Flows out of South Africa:
Investment by South Africans in undertakings abroad in which
they have at least ten percent of the voting rights
(R billions):
2001*    -27.4 (inflow - decrease in investment abroad)
2002      -4.2 (inflow - decrease in investment abroad)
2003       4.3
2004       8.7
2005       5.9
2006      45.5
2007     -20.9 (inflow ? decrease in investment abroad)
*2001 De Beers/Anglo American transaction resulted in the return
of capital, previously invested abroad, to South Africa.
Since 1994 many foreign firms have opened or re-opened offices
in South Africa.  There are an estimated 600 American companies
(including subsidiaries, joint ventures, local partners, agents,
franchises, and representative offices) doing business in South
Key Investment Industries in South Africa:
South Africa is largely a food self-sufficient country, with
imports of wheat, oilseeds, poultry and pork largely offset by
exports of fresh fruits, vegetables, fruit juice, and wine. The
bulk of the population's food needs are supplied locally.  In
certain instances, South African food and beverage companies
have become global players, such as beer producer SAB Miller.
Major international agro-processing companies with a presence in
South Africa include Unilever, Nestle, Coca-Cola, Groupe Danone,
Parmalat, Kellogg, HJ Heinz, Cadbury-Schweppes, Virgin Cola,
McCain Foods of Canada, and Pillsbury.
The chemical industry is the largest manufacturing sector in the
South African economy, accounting for five percent of GDP.  The
country is a world leader in the manufacture of synthetic fuel
from coal. In addition to Sasol and PetroSA Fischer-Tropsch-
based synthetic fuel operations, four oil refineries dominate
the petroleum and petrochemical industry.  The rest of the
chemical manufacturing sector consists mainly of AECI,
Sentrachem, and fertilizer plants.
The Standard, ABSA, First Rand, and Nedcor commercial banking
groups provide retail and investment banking services and
dominate the South African banking industry.  The European,
Malaysian, and U.S. banks with banking licenses have so far
concentrated on corporate rather than retail banking.  Foreign
banks have gained market share through acquisition, as in the
case of ABSA, by offering competitive lending rates.
The South African automotive and components industry includes
Ford, General Motors, Volkswagen, Bavarian Motor Works, Daimler,
Chrysler, Nissan, and Toyota, all of which benefit from the APDP
QChrysler, Nissan, and Toyota, all of which benefit from the APDP
and have production plants in South Africa.
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Table J: Top Foreign Companies Invested In South Africa
Australia      BHP Billiton
Canada         Placer Dome
Denmark        AP Moller
France         Lafarge
Germany        BMW, Volkswagon
India          Neotel, Tata
Italy          Cirio (Del Monte)
Switzerland    Movenpick Hotels
U.K,           Anglo American, Barclays, British Petroleum,
               Lonrho Plc, Old Mutual, SA Breweries, Virgin,
U.S.           Caltex, Coca Cola, CSX, Dow Chemicals, Ford,
               Forrest,General Motors, Pioneer Energy, Timkin,
Saudi Arabia   Oger
UAE            Victoria and Alfred Waterfront
This is an illustrative listing of companies that have invested
in excess of R1 billion in South Africa since 1994.
Other significant U.S. investors include: Caterpillar, Cisco,
CitiGroup, Dell, Eli Lilly, Fluor, Forrest, General Electric,
Goodyear, HP, IBM, Levi Strauss, Johnson and Johnson McDonalds,
Microsoft, Nike, Proctor & Gamble, Sara Lee, Silicon Graphics,