10 Legal Tips for Foreign and Local Investors in South Africa
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1 Successful together 10 Legal Tips for Foreign and Local Investors in South Africa Anna-Lena Becker Cape Town 04 October
2 Agenda 01 Rödl & Partner Legal Tips for Foreign and Local Investors in South Africa 2.1 Legal Entities 2.6 Financing 2.2 Labour Law 2.7 Building Plan Approval 2.3 Immigration Law 2.8 Environmental Impact Assessment 2.4 B-BBEE 2.9 Generation Licence 2.5 Tax Law 2.10 Outlook to other African Countries 03 Contacts 2
3 Agenda 01 Rödl & Partner Legal Tips for Foreign and Local Investors in South Africa 2.1 Legal Entities 2.6 Financing 2.2 Labour Law 2.7 Construction Permit 2.3 Immigration Law 2.8 Environmental Impact Assessment 2.4 B-BBBE 2.9 Generation Licence 2.5 Tax Law 2.10 Outlook to other African Countries 03 Contacts 3
4 Rödl & Partner Profile Founded in 1977 international expansion since 1989 Your one-stop shop: audit, legal, management, tax consulting and tax declaration Tailor-made solutions for internationally active companies Rödl & Partner
5 Rödl & Partner worldwide Austria Azerbaijan Belarus Brazil Bulgaria Croatia Cyprus Czech Republic Estonia Ethiopia Finland France Georgia Germany Hong Kong Hungary India Indonesia Italy Kazakhstan Kenya Latvia Lithuania Malaysia Mexico Moldova Myanmar People s Republic of China Poland Romania Russian Federation Serbia Singapore Slovakia Slovenia South Africa Spain Sweden Switzerland Thailand Turkey Ukraine United Arab Emirates United Kingdom USA Vietnam approx colleagues 102 offices 46 countries Rödl & Partner
6 About Rödl & Partner in Africa Offices in Africa Associated offices in Africa South Africa Kenya Ethiopia Egypt Algeria Angola Botswana Ivory Coast Ghana Cameroon Kenya Morocco Namibia Nigeria Zambia Tanzania Uganda Rödl & Partner
7 Agenda 01 Rödl & Partner Legal Tips for Foreign and Local Investors in South Africa 2.1 Legal Entities 2.6 Financing 2.2 Labour Law 2.7 Building Plan Approval 2.3 Immigration Law 2.8 Environmental Impact Assessment 2.4 B-BBEE 2.9 Generation Licence 2.5 Tax Law 2.10 Outlook to other African Countries 03 Contacts 7
8 Agenda 01 Rödl & Partner Legal Tips for Foreign and Local Investors in South Africa 2.1 Legal Entities 2.6 Financing 2.2 Labour Law 2.7 Building Plan Approval 2.3 Immigration Law 2.8 Environmental Impact Assessment 2.4 B-BBEE 2.9 Generation Licence 2.5 Tax Law 2.10 Outlook to other African Countries 03 Contacts 8
9 Legal Entities External Company Private Company Public Company Partnership Joint Venture 9
10 Legal Entities Subsidiary in form of Private Company 10
11 Agenda 01 Rödl & Partner Legal Tips for Foreign and Local Investors in South Africa 2.1 Legal Entities 2.6 Financing 2.2 Labour Law 2.7 Building Plan Approval 2.3 Immigration Law 2.8 Environmental Impact Assessment 2.4 B-BBEE 2.9 Generation Licence 2.5 Tax Law 2.10 Outlook to other African Countries 03 Contacts 11
12 Labour Law Employment Rights in South Africa are Constitutionally Entrenched Legislation Case law World Economic Forum s Global Competitiveness Index: Employer employee relations 140 out of 144 Hiring and firing practices 138 out of 144 Labour Legislation Basic Conditions of Employment Act Labour Relations Act Employment Equity Act Employment Services Act 12
13 Labour Law Fairness in Substance Fairness in Procedure Dismissal 13
14 Labour Law Review contracts and policies against the labour amendments 14
15 Agenda 01 Rödl & Partner Legal Tips for Foreign and Local Investors in South Africa 2.1 Legal Entities 2.6 Financing 2.2 Labour Law 2.7 Building Plan Approval 2.3 Immigration Law 2.8 Environmental Impact Assessment 2.4 B-BBBE 2.9 Generation Licence 2.5 Tax Law 2.10 Outlook to other African Countries 03 Contacts 15
16 Immigration Law Extensive immigration law reform in 2014 Application submission at South African mission in home country in person No change of status in South Africa No work on a tourist visa Short stay: Authorisation to work section 11 (2) Immigration Act 16
17 Immigration Law Intracompany Transfer Visa Critical Skills Work Visa General Work Visa Business Visa 17
18 Immigration Law Renewable energy is a DTI priority sector 18
19 Agenda 01 Rödl & Partner Legal Tips for Foreign and Local Investors in South Africa 2.1 Legal Entities 2.6 Financing 2.2 Labour Law 2.7 Building Plan Approval 2.3 Immigration Law 2.8 Environmental Impact Assessment 2.4 B-BBEE 2.9 Generation Licence 2.5 Tax Law 2.10 Outlook to other African Countries 03 Contacts 19
20 B-BBEE Promoting economic transformation to enable meaningful participation of black people in the economy Scorecard point based system 5 criteria Specific sector codes No direct financial penalties to non-b-bbee compliant businesses, but buyers are scored according to the B-BBEE score of their suppliers 20
21 B-BBEE Criteria Points Ownership 25 Management & Control 15 Skills Development 20 Enterprise & Supplier Development 40 Socio-economic Development 5 Total
22 B-BBEE Implement B-BBEE requirements into the company structure from the beginning 22
23 Agenda 01 Rödl & Partner Legal Tips for Foreign and Local Investors in South Africa 2.1 Legal Entities 2.6 Financing 2.2 Labour Law 2.7 Building Plan Approval 2.3 Immigration Law 2.8 Environmental Impact Assessment 2.4 B-BBEE 2.9 Generation Licence 2.5 Tax Law 2.10 Outlook to other African Countries 03 Contacts 23
24 Tax Law Company Taxes Rate Corporate Income Tax 28 % Capital Gains Tax % Interest Withholding Tax 15 % Dividends Withholding Tax 15 % Service Withholding Tax 15 % VAT 14 % 24
25 Tax Law Skills Development Levy Unemployment Insurance Fund Withholding PAYE Employer Workman s compensation Fund 25
26 Tax Law An external company bears a PE risk 26
27 Agenda 01 Rödl & Partner Legal Tips for Foreign and Local Investors in South Africa 2.1 Legal Entities 2.6 Financing 2.2 Labour Law 2.7 Building Plan Approval 2.3 Immigration Law 2.8 Environmental Impact Assessment 2.4 B-BBEE 2.9 Generation Licence 2.5 Tax Law 2.10 Outlook to other African Countries 03 Contacts 27
28 Financing Foreign holding company finances South African subsidiary Transfer pricing: arm s length principle 28
29 Financing Governmental Incentives 29
30 Agenda 01 Rödl & Partner Legal Tips for Foreign and Local Investors in South Africa 2.1 Legal Entities 2.6 Financing 2.2 Labour Law 2.7 Building Plan Approval 2.3 Immigration Law 2.8 Environmental Impact Assessment 2.4 B-BBEE 2.9 Generation Licence 2.5 Tax Law 2.10 Outlook to other African Countries 03 Contacts 30
31 Building Plan Approval National Building Regulations and Building Standards Act 103 of 1977 Renewable energy plants or installations are buildings according to the Act Architectural building plan with engineer s endorsement to be approved by municipality Municipality regulations regarding PV roof top installations City of Cape Town: < 1.5 m perpendicular above the roof < 60 cm above the highest point of the roof 31
32 Building Plan Approval Before applying for a Building Plan Approval, the Land Rights must be secured 32
33 Agenda 01 Rödl & Partner Legal Tips for Foreign and Local Investors in South Africa 2.1 Legal Entities 2.6 Financing 2.2 Labour Law 2.7 Building Plan Approval 2.3 Immigration Law 2.8 Environmental Impact Assessment 2.4 B-BBEE 2.9 Generation Licence 2.5 Tax Law 2.10 Outlook to other African Countries 03 Contacts 33
34 Environmental Impact Assessment Sec 24 of the South African Constitution National Environmental Management Act 107 of 1998 (NEMA) Environmental Impact Assessment (EIA) ensures that environmental consequences of projects are identified and assessed before authorisation is given Environmental Authorisation issued by a competent authority 34
35 Environmental Impact Assessment No. R. 983 Environmental Impact Assessment Regulations Listing Notice 1 of 2014 No. R. 984 Environmental Impact Assessment Regulations Listing Notice 2 of 2014 The development of facilities or infrastructure for the generation of electricity from a renewable resource where- (i) the electricity output is more than 10 megawatts; or (ii) the output is 10 megawatts or less but the total extent of the facility covers an area in excess of 1 hectare excluding where such development of facilities or infrastructure is for photovoltaic installations and occurs within an urban area. 35
36 Environmental Impact Assessment Renewable Energy Development Zones 36
37 Agenda 01 Rödl & Partner Legal Tips for Foreign and Local Investors in South Africa 2.1 Legal Entities 2.6 Financing 2.2 Labour Law 2.7 Building Plan Approval 2.3 Immigration Law 2.8 Environmental Impact Assessment 2.4 B-BBEE 2.9 Generation Licence 2.5 Tax Law 2.10 Outlook to other African Countries 03 Contacts 37
38 Generation Licence Electricity Regulation Act No. 4 of 2006 Sec 8. (I) No person may, without a licence issued by the Regulator in accordance with this Actgeneration, transmission or distribution facility (a) operate any Schedule 2: Exemption from obligation to apply for and hold a licence 1. Any generation plant constructed and operated for demonstration purposes only and not connected to an inter connected power supply 2. Any generation plant constructed and operated for own use 3. Non-grid connected supply of electricity except for commercial use 38
39 Generation Licence Cape Town s SSEG guideline does not require generation licence 39
40 Agenda 01 Rödl & Partner Legal Tips for Foreign and Local Investors in South Africa 2.1 Legal Entities 2.6 Financing 2.2 Labour Law 2.7 Building Plan Approval 2.3 Immigration Law 2.8 Environmental Impact Assessment 2.4 B-BBEE 2.9 Generation Licence 2.5 Tax Law 2.10 Outlook to other African Countries 03 Contacts 40
41 Outlook to other African Countries Ghana Nigeria Kenya 41
42 Outlook to other African Countries Most of African energy markets are undergoing a renewable energy transition be aware 42
43 Agenda 01 Rödl & Partner Legal Tips for Foreign and Local Investors in South Africa 2.1 Legal Entities 2.6 Financing 2.2 Labour Law 2.7 Building Plan Approval 2.3 Immigration Law 2.8 Environmental Impact Assessment 2.4 B-BBBE 2.9 Generation Licence 2.5 Tax Law 2.10 Outlook to other African Countries 03 Contacts 43
44 Your Contacts Anna-Lena Becker Rödl & Partner Cape Town 7 Walter Sisulu Avenue 8001 Cape Town Telefon +27 (21) Fax +27 (11) anna-lena.becker@roedl.pro Ulrike Brückner Rödl & Partner Johannesburg 1 Eastgate Lane 2007 Bedfordview Telefon +27 (11) Fax +27 (11) ulrike.brueckner@roedl.pro Each and every person counts to the Castellers and to us. Human towers symbolise in a unique way the Rödl & Partner corporate culture. They personify our philosophy of solidarity, balance, courage and team spirit. They stand for the growth that is based on own resources, the growth which has made Rödl & Partner the company we are today. Força, Equilibri, Valor i Seny (strength, equilibrium, valour and common sense) is the Catalan motto of all Castellers, describing their fundamental values very accurately. It is to our liking and also reflects our mentality. Therefore Rödl & Partner embarked on a collaborative journey with the representatives of this long-standing tradition of human towers Castellers de Barcelona in May The association from Barcelona stands, among many other things, for this intangible cultural heritage. 44
45 Questions? 45
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