South Africa: A Vast Potential For Investment

Last Updated: 20 September 2012
Article by Gail A. Bassett

It is widely acknowledged that, following the Arab Spring, the need for infrastructure investment in North Africa is of paramount importance, with commentators earmarking the power and renewable energy sectors as key growth areas. The main hurdle new governments in this region will have to overcome is defining what is economically achievable in light of the infrastructure redevelopment needs in such countries, especially where political risk is a concern for international companies and financial institutions considering investing in North Africa.

Acknowledging the well documented challenges which North Africa faces, how are other countries in Africa, in particular those situated in East Africa, faring in the current climate? In energy terms, East Africa has historically been viewed as somewhat insignificant, although recent discoveries of oil in Kenya and gas fields offshore Tanzania and Mozambique mean this label is no longer applicable. While there are a number of unique obstacles for sponsors and financial institutions to navigate, East Africa Kenya, Tanzania, and Mozambique in particular holds much promise for future growth and cannot be ignored by potential investors in light of these natural resource discoveries and the fact that many areas are yet to be explored.

For a number of years, India and China have increasingly looked to Africa in order to obtain mineral and resource deposits to fuel their growing economies. Obtaining these resources is not an easy task. Finding resource deposits is, of course, the first challenge, but once located, there are additional hurdles to overcome, including problems with infrastructure and power generation which can hinder progress in bringing the minerals or resources to market. The demand for electricity exceeds supply in many African countries and accordingly new power generation capacity is top of the agenda for many countries going forward.

PPP Model

One way in which power generation capacity can be increased is via private investment by experienced international companies in the electricity sector. The first question any government needs to answer is what level of private sector involvement do they wish to see, since this will ultimately influence the model they adopt. This often becomes a discussion between the merits of direct procurement versus the Public-Private Partnership (PPP) model as a form of public procurement.

Direct procurement can be expensive as the government will need access to a sufficient pool of capital in order to be able to pay for the entire project. It is often not a viable option for the government to reconcile all of the competing demands on the public purse. PPPs are frequently used as a means to accomplish national infrastructure delivery in these instances. By using project finance, a government can develop its country's economy and infrastructure at limited cost, thereby reducing up-front public expenditure. Governmental resources can then be channelled elsewhere. Often times, technical expertise related to these projects is imported from overseas, resulting in a "technology or knowledge transfer" to the domestic workforce as local employees are trained in new skills by people with a wealth of industry experience in their particular field.

PPPs can often enhance services more efficiently than a country's public sector would otherwise be able to do. However, they will only be able to succeed and thrive in a country if there is a comprehensive legal and regulatory framework in place, as well as stability and commitment from the government. This is vital if delays in project delivery are to be avoided. The historic lack of stability in East African countries means that PPPs are still in their infancy in this region, but, as discussed below, this situation is changing and international investors are now closely watching regional developments. It is also crucial that the PPP tendering processes are clear and are adhered to. Ultimately, the PPP project needs to be properly structured as private sector participants and financiers will not be interested if the structure is not achievable. For many countries, the solution lies in the government's ability to integrate PPP within a broader investment budgeting strategy, in which capital investment in projects where PPP could be better value for money becomes a priority.

This article focuses on Kenya, Tanzania, and Mozambique, as they have each demonstrated a commitment to PPP through enacting, or plans to enact, PPP legislation. Kenya and Tanzania have also outlined long-term national development plans identifying specific projects which will need to be undertaken to ensure their visions become a reality.

Kenya

Kenya recognizes that it needs to improve its transport and social infrastructure and has identified PPP as a means of achieving this objective. It released a Kenya Vision 2030 plan (Vision 2030)1 in 2007 for national development, in which development of a policy on PPPs was called out. Vision 2030 identifies a pipeline of flagship projects, including the dredging of Mombasa Port and the development of Lamu Port and the New Transport Corridor Development to Southern Sudan and Ethiopia (LAPSSET). Also planned is the energy generation of 23,000 MW which will comprise numerous projects ranging from geothermal power plants and coal fired plants to wind and solar plants and will mobilize private sector capital for the generation of electricity. A new PPP law was approved by the Kenyan cabinet in December 2011 and it is hoped that this will become law by the end of 2012.

The need to improve transport links in particular has become all the more apparent following the financial close of the Mombasa- Kampala Rail Link (Kenya-Uganda Railway) in 2011. Transport prices in East Africa are among some of the highest in the world due to the dependence on trucks and the poor condition of the roads. It is estimated that only eight percent of goods are currently transported by rail. Renovation of the 2,350km rail track from Mombasa Port in Kenya to Kampala in Uganda is key, as this rail line is regarded as critical infrastructure that will herald much needed economic regeneration in both countries, encouraging cross-border trade and investment. Financing for the project was provided by a number of multilaterals and development finance institutions, as well as one commercial lender, with the International Financial Corporation (IFC) playing a key role in ensuring the project reached financial completion. Brazilian rail company, America Latina Logistics, served as technical adviser on the project. This successful execution of a project involving international companies with the wealth of experience in their particular fields will play a key role in upgrading East Africa's infrastructure needs and, possibly, provide additional comfort to potential investors keeping an eye on the region. Some important and encouraging developments are described below.

In August 2012, Infrastructure Journal reported that the EU has approved a finance package of US$39.5 million to support new transport infrastructure in Kenya as part of the Tenth European Development Fund (EDF). The Tenth EDF covers the period from 2008-2013 and these funds form part of the â,¬400 million which the EU has set aside for Kenya during this period. This grant will be utilized to finance new transport infrastructure, including the improvement of rural roads, with the aim of facilitating Kenyan exports and contributing to job creation. Under the EU Rural Roads Rehabilitation Project the target is the construction of 4,000km of roads and maintenance across an area of 38,000 square kilometers in Kenya, with 11,000 jobs expected to be created over five years. In addition, the EU will finance the â,¬12.1 million "Standards and Market Access Programme" to increase the volume, diversity, and competitiveness of Kenyan exports. This project aims to improve the country's food safety standards and regulations for Kenyan plant and animal-based products.

On the energy side, financial close on the 300MW Lake Turkana wind project (comprising 365 wind turbines in the Lake Turkana region) is expected to be achieved in the next few months. The developer, Lake Turkana Wind Power, signed a 20-year Power Purchase Agreement with Kenya Power in 2010 and the project is understood to be the largest single private investment in Kenya's history. The first phase of the project is said to include the construction of over 200km of roads to transport the relevant materials from Mombasa to Turkana. The Kenyan government has reportedly agreed to provide a letter of comfort in order to facilitate the financing.

In March 2012, Tullow Oil reported that it had struck oil at the Ngamia-1 exploration well in Kenya, the first oil discovery ever in the country and a significant and exciting breakthrough which further highlights the growing role East Africa will play in the supply of energy resources.

Although it is early days for project finance in Kenya, this country is definitely one to watch given the pipeline of projects identified in Vision 2030. The Kenyan market will truly begin to flourish once the new PPP legislation is enacted (and any conflicts or overlaps with existing laws are addressed), the procurement process is developed and the various roles played by Kenyan agencies in the PPP process are clarified. The development of the domestic finance market in Nairobi will also be important if investors are to be able to raise some of the financing locally in Kenya. The private sector will only enter into PPPs once the environment is conducive.

Tanzania

Tanzania is striving to reduce poverty by 2025, modernize agriculture and develop its economy as outlined in its Tanzania National Development Vision 2025 (Vision 2025). The three principal objectives of Vision 2025 comprise: achieving quality and good life for all; good governance and the rule of law; and building a strong and resilient economy that can effectively withstand global competition. The Tanzanian government recognizes that PPP is a way of achieving these ambitions and established a PPP law in 2010. The 2010 PPP Act set up a coordination unit to examine and assess all planned PPP projects and affiliated matters. One project which has been proposed is the US$5.3 billion East Africa Rail project linking Dares Salaam port in Tanzania to Burundi and Rwanda. In March 2012, Canarail was awarded a contract to carry out a study on the second phase of the East African Rail project to determine the best PPP model. The study is being funded by the AfDB and the Rwanda Transport Development Agency, which represents the transport ministries of Rwanda, Burundi, and Tanzania. It is expected that the study will be completed in 2013.

Additionally, the World Bank has established a Transport Sector Support Project (TSSP) for Tanzania, whose mission is to improve the condition of the national paved road network, to lower transport cost on selected roads and to expand the capacity of selected regional airports. Infrastructure Journal reported in May 2012 that, according to reports in the local press, the African Development Fund (the concessional window of the World Bank) had invested US$140 million in the Road Sector Support Project II. The US$212.78 million Road Sector Support Project II aims to improve the road network in Tanzania to reduce maintenance costs, increase mobility and provide cities and towns affected by the plan with greater access to bigger markets and social services. It is to be implemented in the cities of Dodoma, Manyara, and Ruvuma and is due to be completed in 2017. The project will also save money by reducing vehicle operating and travel costs. The remaining funding is reported to have come from Japan International Cooperation Agency (US$62.14 million) and the Government of Tanzania (US$10.64 million). It was also reported in June 2012 that Tanzania Ports Authority was seeking consultants for a feasibility study for the development of a dry port at Kisarawe North with bids to be submitted by the end of June 2012. The project is part of TSSP and the aim of the study is to propose a model which delivers the best value for money and is in line with Tanzania Ports Authority's time frame.

Although Tanzania is still in its infancy with regard to PPP structures, it has demonstrated the right approach. It is investing time in preparing the relevant feasibility studies with comprehensive analysis and understanding of the impact that a given project will have on the government, instead of rushing and failing to conduct adequate due diligence. The potential is there for Tanzania to develop into an interesting market and the on-going support of multilateral and development finance institutions will be vital in securing commercial lender and sponsor involvement in projects going forward.

Mozambique

Recent natural gas discoveries by Eni at Mamba North East 1 (50km offshore of Mozambique) and Mamba North East 2 and by Andarko Petroleum at Offshore Area 1, Rovuma Basin, have put the country firmly on the energy supply map since liquefied natural gas (LNG) is much sought after by the growing Asian markets. The energy outlook for Mozambique is positive with additional areas (and potential further gas reserves) still to be explored and commentators have remarked that Mozambique is likely to become the energy hub for the South African region particularly given the plans to build an LNG terminal. The north of Mozambique and south of Tanzania will finally be opened up to much-needed investment.

Aggreko and Shanduka Group are building a US$250 million, 107MW gas-fired power plant at Ressano Garcia, 90km northwest of Maputo (on the Mozambique-South Africa border) to supply South Africa and Mozambique. The plant will use gas from Mozambique's Temane gas field and represents the first time a private company will provide cross-border power to two utilities in southern Africa. It is understood that the project includes a major sub-station and 1.5km of 275kV transmission line and is backed by a power purchase agreement awarded to the Aggreko-Shanduka joint venture by Eskom in South Africa and Electricidade de Moçambique (EDM) in Mozambique. The output is intended to cover outages from the two countries' coal-fired plants and will be split between the two utilities with Eskom utilizing 92MW and EDM 15MW.

More power infrastructure is also in the works. In August 2012, Infrastructure Journal reported that Mozambique plans to construct three gas-fired power plants by 2014, powered by natural gas sourced from Mozambique's onshore reserves. Two of the plants are to be built in the Ressano Garcia region near South Africa and the other in Chokwe in the South of Mozambique with tenders expected to be released later this year. The power supplied by these plants will be utilized by the Mozambique population and exported to adjacent countries which are suffering from power shortages.

PPP law no. 15/2011 came into force in August 2011 and established guidelines for the process of contracting, implementation, and supervision of PPPs, large scale projects (LSPs), and business concessions (BCs). The law's aims are twofold: to encourage greater private partner participation on PPPs, LSPs, and BCs, and to bring greater quality and effectiveness to the manner in which resources and other national assets are exploited. The area in which a project is situated will determine which government entity has authority over that sector and financial authority will be exercised by the government entity which supervises that financial sector.

Contracting of a PPP may take the form of a tender with pre-qualification or a two stage tender. The law also deals with risk allocation and identifies the parties best placed to manage specific risks.

In order for PPPs to flourish in Mozambique, inflation rates need to be controlled, political stability must be achieved and an adequate legal and regulatory framework needs to be in place. By enacting PPP law no. 15/2011, Mozambique is striving to ensure that it develops sound laws and regulations to encourage growth and investment.

Where Will the Revenue Come from to Fund Projects? Oil, gas, and mining projects provide important revenues for governments which can then be utilized for investment in other projects, such as social infrastructure and transport networks. Awards of mining contract concessions may include obligations to build or upgrade existing roads and provide housing in local villages near to the mine.

There have been substantial increases in recent years in the amount of revenues which governments are trying to capture from mining contracts executed with the private sector by raising taxes on mining companies including windfall taxes in respect of "super profits" in addition to royalties, with such actions dubbed "resource nationalism." Bloomberg reported in June 2012 that the South African Chamber of Mines had rejected proposals being considered by the African National Congress (ANC) to extract more revenue from the industry through a windfall tax and other levies (the ANC is expected to make a final decision on new mining policies in late 2012). The Youth League had lobbied the ANC to pursue a policy of nationalizing the mines so as to give the black majority a bigger stake in the country's mineral wealth.

The 2010 ANC commissioned study called for a 50 percent resources rent tax on all mining operations which is triggered once companies earn returns in excess of about 15 percent annually.

The study was rejected by the South African Chamber of Mines on the basis that it would significantly increase the industry's existing tax burden and have a detrimental impact on the sustainability of some mining companies. Other potential issues stemming from the adoption of such a policy include litigation from foreign investors and a withdrawal of foreign investment.

There is a fine line to be tread, if governments increase the taxes to such a level in the short-term they will reap the immediate rewards but in the longer term the mining companies will fail to invest in the future, as it will be too expensive to do so, and they will instead move operations to other countries with more favorable legislative regimes. Revenues earned during boom periods are typically used by mining companies to sustain existing operations or to finance new ventures. Mining companies are a soft target for governments looking to increase their revenues since Africa has the natural resources which the growing economies need to drive them forwards and the mining companies are not, given the long-term nature of their investments, in a position to be able to quickly move operations elsewhere although some are now diversifying into other geographical locations and other minerals.

Financing and Other Challenges Facing Countries Embarking on PPPs

With the economic slowdown in the West many companies are looking to other growth markets and East Africa can be an attractive option. As noted above, several East African countries are considering the PPP model to facilitate their national infrastructure requirements but what challenges lie ahead for Sponsors looking to do business in this part of the world? As with many initial forays into PPP, the early pathfinder projects are likely to take a bit longer to reach completion while each of the parties involved familiarizes itself with what is required. Changes in the local laws may even be required to deal with issues which arise. Once these early projects have closed investor confidence will increase with the foundations laid for a projects pipeline.

Instructing a knowledgeable local law firm will be of paramount importance in addition to obtaining any tax structuring advice and a consideration of any applicable bilateral investment treaties to which the host country is party. Where a project is being carried out pursuant to a procurement process it is crucial that the sponsor complies with the relevant laws and determines if the public bodies and partners with whom it is dealing are also in compliance. If such parties are not in compliance, the project may be open to challenge, the contract award could be annulled and allegations of corruption could arise. An understanding of the local environmental laws will also be necessary as multilaterals and development finance institutions each have their own internal requirements which will need to be reflected in the finance documentation on a project. Accordingly, any project company will need to clearly understand the relevant environmental laws which will apply to it and the project. The implementation of anticorruption practices in respect of the project company's business will also be required.

In some countries a sponsor may look to enter into a joint venture with a local partner and in some jurisdictions this may even be a requirement of local law. Satisfactory due diligence is very important so as to avoid any unwelcome surprises down the line. Although the local partner may be well connected, business practices will likely differ and may give rise to compliance risks in the sponsor's home jurisdiction such as pursuant to the Bribery Act in England or the Foreign Corrupt Practices Act in the United States.

Other issues will also need to be considered. If the project involves international lenders they may, for political risk reasons, request that the project revenues be transferred offshore (or be paid directly into secured offshore accounts to the extent possible).

Local laws may prohibit such transfers of funds (or funds in excess of a certain threshold) and consent may need to be obtained from the regulator. The lenders may require foreign exchange hedging transactions to be implemented. The laws on taking security may be unsophisticated and not contemplate syndicated transactions. For example, if a project reaches financial close and the security is entered into and the relevant registration fees in respect of the security are paid (this is often a percentage of the amount secured) and syndication takes place a few months later the security may have to be amended to include the new lenders as secured parties and the project company may have to pay the registration fees again. These are just some of the issues which we have encountered in the past when advising on Africa based projects.

Should the governments in East Africa forge ahead with project finance, the sponsors involved on such projects will likely find that raising the requisite money from international financial institutions proves to be a challenge. International lenders may be unfamiliar with these countries and following the global financial crisis, higher liquidity costs and the recent crisis in the Eurozone, many have less capital available than before and are more cautious in their approach. The involvement of multilaterals and development finance institutions on a project, such as the IFC or the AfDB, can allay some of these fears and assist in getting commercial lenders across the line. Some international financial institutions finance East African projects from their Dubai offices and have identified this market as a key growth area for them.

Although institutions such as AfDB will not require separate political risk insurance, this will be a major concern for commercial lenders. However, political risk insurance can be procured from a multilateral agency such as the Multilateral Investment Guarantee Agency (MIGA), a member of the World Bank group. MIGA was established in 1988 and they focus on insuring investments which involve complex deals in infrastructure and extractive industries, particularly ones which include project finance and environmental and social considerations. MIGA only supports investments that are developmentally sound and meet high social and environmental standards. They apply a comprehensive set of social and environmental performance standards to all projects and the parties, be they lenders or sponsors, need to ensure compliance with these standards. Risks which a MIGA guarantee may insure include: war, terrorism and civil disturbance; breach of contract (in respect of losses following from a breach or repudiation by the government contractual counterparty); expropriation (in the event that the government, for example, expropriates, requisitions, confiscates or seizes the land on which the project is situated thereby preventing the project company from being able to complete the project); and currency inconvertibility or transfer restrictions (the project company may, due to the government's actions, be unable to transfer money outside of the country or be unable to convert the local currency into foreign exchange). Any guarantee will only cover specific risks and accordingly the trigger for payment under the guarantee will be a breach of one of these covered risks under the finance documents. It is therefore important when structuring your project that the facility agreement or common terms agreement (this will be the core document for the financing) includes breaches of these covered risks as events of default.

Although lenders will likely expect some tangible commitment from the government, governments are typically very reluctant to provide sovereign guarantees for projects as these would be treated as â€Üon balance sheet'. It may be the case that sovereign guarantees are provided for the early projects to obtain market confidence but this is unlikely to be repeated in later deals once the market is established. A compromise may be the provision of a letter of comfort by a country's ministry of finance and this, although not constituting a government guarantee, may provide the lenders with sufficient comfort.

If Japanese and Korean Sponsors are involved on projects in East Africa they will likely bring long-term ECA financing to a project which is an attractive proposition as it is often cheaper than commercial bank debt. Unlike commercial banks, ECAs will accept political risk with some providing political risk insurance. As ECAs fund themselves differently to commercial lenders, they do not face the same exposure to market liquidity.

Final Thoughts

The discovery of natural resources coupled with the pressing need for infrastructure and the development of adequate legal and regulatory frameworks means that East Africa will, in the long term, be a key growth area for project financiers. When deciding if they wish to participate in these emerging markets, project sponsors and international commercial lenders will need to weigh up the risks and concerns and while initial pathfinder projects will likely take a little longer to reach financial close, those sponsors and commercial lenders who take up the challenge will, in light of gained experience, put themselves in a strong position for future projects in that country. Although it is difficult to predict the speed with which this market will develop, this region is definitely "one to watch" and will certainly prove to be an interesting journey for those involved in the early projects.

Footnotes

1 http://www.vision2030.go.ke/index.php

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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