SOUTH AFRICA
Reported in 2006, last reported in 2022
Pillar Intellectual Property Rights (IPRs) |
Sub-pillar Practical or legal restrictions related to the enforcement of patents
Complaints on enforcement of patents
Practical restrictions on patent enforcement have been recorded in the country, including a lack of transparency, lengthy proceedings, and non-deterrent sanctions. These include:
- Non-infringement opinions: The South African courts have emphasized the importance of obtaining a non-infringement opinion before pursuing patent litigation. Failure to obtain such an opinion may result in an award of costs against the patent owner.
- Limitations on the rights conferred by a patent: Under South African law, the rights conferred by a patent are limited by certain exceptions, such as fair dealing for research and private study.
- Requirement for specificity: South African courts require patent owners to be specific about the alleged infringing activities, including identifying the infringing products or processes.
- Invalidity challenges: Patents may be challenged on the grounds of invalidity, such as lack of novelty or inventiveness. This may result in the revocation of the patent.
- Non-infringement opinions: The South African courts have emphasized the importance of obtaining a non-infringement opinion before pursuing patent litigation. Failure to obtain such an opinion may result in an award of costs against the patent owner.
- Limitations on the rights conferred by a patent: Under South African law, the rights conferred by a patent are limited by certain exceptions, such as fair dealing for research and private study.
- Requirement for specificity: South African courts require patent owners to be specific about the alleged infringing activities, including identifying the infringing products or processes.
- Invalidity challenges: Patents may be challenged on the grounds of invalidity, such as lack of novelty or inventiveness. This may result in the revocation of the patent.
Coverage Horizontal
Sources
- https://www.gov.za/sites/default/files/gcis_document/201504/act-57-1978.pdf
- https://www.vonseidels.com/service/patents/
- https://www.kisch-ip.com/sites/default/files/2019-02/electronicip_manual_2019_02_07.pdf
- https://ustr.gov/sites/default/files/IssueAreas/IP/2022%20Special%20301%20Report.pdf
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SOUTH AFRICA
Since April 2009
Pillar Foreign Direct Investment (FDI) in sectors relevant to digital trade |
Sub-pillar Commercial presence requirement for digital services providers
Companies Act No. 71 of 2008
According to Art. 23.1 of the Companies Act, any external company, defined in the law as an entity incorporated outside the country conducting business within South Africa, must register with the Commission within 20 business days after it begins to conduct business in the country. Additionally, according to Art. 23.3 of the law, each company must maintain at least one office in the Republic and register the address of its office, or its principal office if it has more than one office. A company falls under the definition of "external company" when: holding a meeting or meetings of the shareholders or board of the foreign company, or otherwise conducting the internal affairs of the company; establishing or maintaining any bank or other financial accounts; establishing or maintaining offices or agencies for the transfer, exchange or registration of the foreign company’s own securities; creating or acquiring any debts, mortgages or security interests in any property; securing or collecting any debt, or enforcing any mortgage or security interest; acquiring any interest in any property; and entering into contracts of employment.
Coverage Horizontal
SOUTH AFRICA
Since April 2006
Since April 2021
Since April 2021
Pillar Foreign Direct Investment (FDI) in sectors relevant to digital trade |
Sub-pillar Nationality/residency requirement for directors or managers
Electronic Communications Act 36 of 2005
Digital Sound Broadcasting Services Regulation, 2021
Digital Sound Broadcasting Services Regulation, 2021
According to Art. 64,2 of the Electronic Communications Act, not more than 20% of the directors of a commercial broadcasting licensee may be foreigners. Additionally, according to Art.4 of the Digital Sound Broadcasting Services Regulation, existing sound broadcasting service licensees may simulcast their existing sound broadcasting programme(s) on analogue and digital platforms.
Coverage Broadcasting services online
SOUTH AFRICA
Since December 1998
Since February 2019
Since February 2019
Pillar Foreign Direct Investment (FDI) in sectors relevant to digital trade |
Sub-pillar Screening of investment and acquisitions
Competition Act No. 89 of 1998
Competition Amendment Act 18 of 2018
Competition Amendment Act 18 of 2018
It is reported that merger and acquisition-related FDI is scrutinized closely for its impact on jobs and local industry. Sections 13-14 of the Competition Act on 1998 set out the approval mechanism for mergers. In addition, Section 14 of the Competition Amendment Act of 2018 amends Section 18A of the Competition Act adding a screening in case the implementation of a merger involving a foreign acquiring firm may have an adverse effect on the national security interests of the Republic. National security interests are defined broadly, including critical infrastructure.
Coverage Horizontal
Sources
- https://www.gov.za/sites/default/files/gcis_document/201409/a89-98.pdf
- https://www.gov.za/documents/competition-amendment-act-18-2018-englishafrikaans-14-feb-2019-0000
- https://sim.oecd.org/Simulator.ashx?lang=En&ds=STRI&d1c=tc&d2c=zaf
- https://www.gov.za/documents/protection-investment-act-22-2015-15-dec-2015-0000
- https://ustr.gov/sites/default/files/2022%20National%20Trade%20Estimate%20Report%20on%20Foreign%20Trade%20Barriers.pdf
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SOUTH AFRICA
Since April 2006
Since April 2021
Since April 2021
Pillar Foreign Direct Investment (FDI) in sectors relevant to digital trade |
Sub-pillar Maximum foreign equity share
Electronic Communications Act 36 of 2005
Digital Sound Broadcasting Services Regulation, 2021
Digital Sound Broadcasting Services Regulation, 2021
According to the Art. 64.1 of the Electronic Communications Act, the State of South Africa has established limitations on foreign control of commercial broadcasting services. A foreigner may not, whether directly or indirectly, exercise control over a commercial broadcasting licensee or have a financial interest or an interest either in voting shares or paid-up capital in a commercial broadcasting licensee exceeding 20%. Additionally, according to Art. 4 of the Digital Sound Broadcasting Services Regulation, existing sound broadcasting service licensees may simulcast their existing sound broadcasting programme(s) on analogue and digital platforms.
Coverage Broadcasting services online
SOUTH AFRICA
N/A
Pillar Public procurement of ICT goods and online services |
Sub-pillar Signatory of the WTO Agreement on Government Procurement (GPA)
Lack of participation in the WTO Agreement on Government Procurement (GPA)
South Africa is not a party to the World Trade Organization (WTO) Agreement on Government Procurement (GPA) nor does it have observer status.
Coverage Horizontal
SOUTH AFRICA
Since February 2000
Since January 2004
Since April 2017
Since January 2004
Since April 2017
Pillar Public procurement of ICT goods and online services |
Sub-pillar Other limitations on foreign participation in public procurement
Preferential Procurement Policy Framework Act of 2000
Broad-Based Black Economic Empowerment (B-BBEE) Act of 2003
Preferential Procurement Regulations of 2017
Broad-Based Black Economic Empowerment (B-BBEE) Act of 2003
Preferential Procurement Regulations of 2017
Section 2 of the Preferential Procurement Policy Framework Act (PPPFA) of 2000 sets up a Framework for implementing preferential procurement policy in South Africa, which allows government entities to use a scoring system to evaluate tenders based on predetermined criteria. The PPPFA requires government entities to set criteria for evaluating tenders to protect and benefit "persons, or categories of persons, historically disadvantaged by unfair discrimination on the basis of race, gender or disability."
To enforce the PPPFA, the Broad-Based Black Economic Empowerment (B-BBEE) Act was passed in 2003. Under Section 10 of the Act, a certain percentage of government contracts must be awarded to black-owned businesses. However, the exact percentage is not specified in the agreement because it is formula-based. The Act uses a scorecard system to measure the level of black economic empowerment of companies. It requires that government institutions give preference to companies with higher B-BBEE scores when awarding contracts.
Furthermore, in 2017, the Minister of Finance enacted the more detailed Preferential Procurement Regulations of 2017. Unlike the PPPFA Act, the new regulations mention the prequalification criteria for preferential procurement (Section 4).
In addition, Sections 6-11 describe the procurement policy and criteria for specific categories of tenders, designated sectors, and their preference point system. Sections 6-7 establish a preference point system for acquiring goods or services, depending on the value of the tender.
To enforce the PPPFA, the Broad-Based Black Economic Empowerment (B-BBEE) Act was passed in 2003. Under Section 10 of the Act, a certain percentage of government contracts must be awarded to black-owned businesses. However, the exact percentage is not specified in the agreement because it is formula-based. The Act uses a scorecard system to measure the level of black economic empowerment of companies. It requires that government institutions give preference to companies with higher B-BBEE scores when awarding contracts.
Furthermore, in 2017, the Minister of Finance enacted the more detailed Preferential Procurement Regulations of 2017. Unlike the PPPFA Act, the new regulations mention the prequalification criteria for preferential procurement (Section 4).
In addition, Sections 6-11 describe the procurement policy and criteria for specific categories of tenders, designated sectors, and their preference point system. Sections 6-7 establish a preference point system for acquiring goods or services, depending on the value of the tender.
Coverage Horizontal
Sources
- https://www.gov.za/documents/preferential-procurement-policy-framework-act
- https://www.gov.za/sites/default/files/gcis_document/201409/a53-030.pdf
- https://www.gov.za/documents/preferential-procurement-policy-framework-act-regulations-20-jan-2017-0000
- https://sim.oecd.org/Simulator.ashx?lang=En&ds=STRI&d1c=cs&d2c=zaf
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SOUTH AFRICA
Since April 2017
Since March 2020
Since March 2020
Pillar Public procurement of ICT goods and online services |
Sub-pillar Other limitations on foreign participation in public procurement
Preferential Procurement Regulations of 2017
Practice Note on Local Content for Electronic and Information Technology Goods
Practice Note on Local Content for Electronic and Information Technology Goods
In accordance with Section 8 of the Preferential Procurement Regulations of 2017, Annex A of the Practice Note on Local Content for Electronic and Information Technology Goods issued by the Department of Trade and Industry defines guidelines on local content for electronic and information technology goods in public tenders. The note requires a certain percentage of the value of ICT products to be locally sourced. The local content requirement varies depending on the product and can range from 30% to 100%.
Coverage Electronic and information technology goods
Sources
- http://www.thedtic.gov.za/wp-content/uploads/the-dti-Local_Content.pdf
- http://ocpo.treasury.gov.za/Resource_Centre/Legislation/Implementation%20Guide-%20Preferential%20Procurement%20Regulations%202017%20%20March%202020%20V2%20Approved%20Final.pdf
- http://www.thedtic.gov.za/sectors-and-services-2/industrial-development/industrial-procurement/
- https://www.gov.za/documents/preferential-procurement-policy-framework-act-regulations-20-jan-2017-0000
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SOUTH AFRICA
Since August 2006
Pillar Public procurement of ICT goods and online services |
Sub-pillar Surrrender of patents, source code or trade secrets to win public tenders /Restrictions on technology standards for public tenders
Policy on Free and Open Source Software (FOSS) Use for South African Government
Section 2, named "The Policy" of the Policy on Free and Open Source Software (FOSS) Use for South African Government, published by the Department of Public Service & Administration, defines the country's policy and regulations on the use of open source software. It includes the following measures:
- The South African Government will implement FOSS unless proprietary software is demonstrated to be significantly superior. Whenever the advantages of FOSS and proprietary software are comparable, FOSS will be implemented when choosing a software solution for a new project. Whenever FOSS is not implemented, reasons must be provided to justify the implementation of proprietary software.
- The South African Government will migrate current proprietary software to FOSS whenever similar software exists.
- All new software developed for or by the South African Government will be based on open standards, adherent to FOSS principles, and licensed using a FOSS license where possible.
- The South African Government will implement FOSS unless proprietary software is demonstrated to be significantly superior. Whenever the advantages of FOSS and proprietary software are comparable, FOSS will be implemented when choosing a software solution for a new project. Whenever FOSS is not implemented, reasons must be provided to justify the implementation of proprietary software.
- The South African Government will migrate current proprietary software to FOSS whenever similar software exists.
- All new software developed for or by the South African Government will be based on open standards, adherent to FOSS principles, and licensed using a FOSS license where possible.
Coverage Software
SOUTH AFRICA
N/A
Pillar Tariffs and trade defence measures applied on ICT goods |
Sub-pillar Participation in the WTO Information Technology Agreement (ITA) and 2015 expansion (ITA II)
Lack of participation in the Information Technology Agreement (ITA) and in ITA Expansion Agreement (ITA II)
South Africa is not a signatory of the 1996 World Trade Organization (WTO) Information Technology Agreement (ITA) nor the 2015 expansion (ITA II).
Coverage ICT goods
SOUTH AFRICA
Since 2011, last amended in April 2014
Pillar Public procurement of ICT goods and online services |
Sub-pillar Exclusion from public procurement
Local Procurement Accord of 2011
According to Art. 10 of the Local Procurement Accord of 2011, the tendering procedure must be restricted to locally produced goods, services, or works in the case of designated sectors where local production and content are deemed “of critical importance.” As of April 2014, these designated sectors include set-top boxes for digital TV and telecom cables.
Coverage Set-top boxes for TV digital and telecom cables
SOUTH AFRICA
ITA signatory?
I
II
Pillar Tariffs and trade defence measures applied on ICT goods |
Sub-pillar Effective tariff rate to ICT goods (applied weighted average)
Effective tariff rate to ICT goods (applied weighted average)
2.42%
Coverage rate of zero-tariffs on ICT goods (%)
75.45%
Coverage: Digital goods
SIERRA LEONE
Since 2019
Pillar Online sales and transactions |
Sub-pillar Adoption of UNCITRAL Model Law on Electronic Commerce
UNCITRAL Model Law on Electronic Commerce
Sierra Leone has adopted national legislation based on or influenced by the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Electronic Commerce.
Coverage Horizontal
SIERRA LEONE
N/A
Pillar Online sales and transactions |
Sub-pillar Adoption of UNCITRAL Model Law on Electronic Signature
Lack of adoption of UNCITRAL Model Law on Electronic Signatures
Sierra Leone has not adopted national legislation based on or influenced by the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Electronic Signatures.
Coverage Horizontal
SIERRA LEONE
Since September 2020
Since January 2020
Since January 2020
Pillar Online sales and transactions |
Sub-pillar Framework for consumer protection applicable to online commerce
Consumer Protection Act, 2020 (No. 7)
Electronic Transactions Act, 2019 (No. 11)
Electronic Transactions Act, 2019 (No. 11)
The Consumer Protection Act, 2020 (No. 7) and the Electronic Transactions Act, 2019 (No. 11) provide a comprehensive framework for consumer protection that also applies to online transactions. Although online purchases are not explicitly mentioned in the Consumer Protection Act, the law seems to apply to the supply of all goods and services in trade or commerce in the country, according to Section 1 of the Act. On the other hand, Sections 13-21 of the Electronic Transaction Act specifically make provisions for consumer protection in electronic transactions.
Coverage Horizontal