AfricaFocus Bulletin
June 1, 2014 (140601)
(Reposted from sources cited below)
Editor’s Note
“In 2011, South Africa produced diamonds whose uncut, or rough, value
was $1.73 billion, or 12 percent of global production, according to
the most recent government data available. Yet from 2010 to 2011,
diamond-producing companies paid South Africa’s government just $11
million in mining royalties, according to the latest Tax Statistics
report, produced by the South African Treasury and the South African
Revenue Service.” – Khadija Sharife
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Last week AfricaFocus Bulletin featured a new report on tax evasion
through trade misinvoicing covering five African countries: Ghana,
Kenya, Mozambique, Tanzania, and Uganda. But systematic tax evasion
is also prominent in the continent’s most developed country, as
illustrated by this new report on South Africa’s diamond industry.
The diamond industry, which has been prominent in extracting wealth
from the continent for almost a century and a half, still has the
upper hand in dealing with the South African government. Ironically,
some of South Africa’s neighbors, such as Botswana and Namibia, have
negotiated better deals with the huge diamond company De Beers than
has the post-apartheid South African government.
This AfricaFocus Bulletin contains a short article describing the
results of research by Khadifa Sharife and Sarah Bracking, based on
government and industry documents and on extensive interviews. The
full report is available at
http://thestudyofvalue.org/category/developmentvalue/
For previous AfricaFocus Bulletins on tax evasion and related issues,
visit http://www.africafocus.org/debtexp.php
++++++++++++++++++++++end editor’s note+++++++++++++++++
Rough and Polished: South Africa Shortchanged on Diamond Trade
by Khadija Sharife
100 Reporters, May 16 2014
http://100r.org/2014/05/rough-and-polished
[The information on transfer pricing manipulation of diamonds comes
from a report by Sharife and Sarah Bracking published by the
Leverhulme Center for the Study of Value, University of Manchester,
and supported by a grant from Oxfam Great Britain. The report is
available at http://thestudyofvalue.org/category/developmentvalue/]
Johannesburg — At every step, from mine to ring finger, South
Africa’s diamond industry is benefitting from royalty and export tax
structures riddled with loopholes, shortchanging citizens of one of
the world’s premier sources of diamonds of tens of millions of
dollars a year in revenue.
In 2011, South Africa produced diamonds whose uncut, or rough, value
was $1.73 billion, or 12 percent of global production, according to
the most recent government data available. Yet from 2010 to 2011,
diamond-producing companies paid South Africa’s government just $11
million in mining royalties, according to the latest Tax Statistics
report, produced by the South African Treasury and the South African
Revenue Service.
A 100Reporters investigation of the diamond trade in South Africa has
found that companies here pay a royalty rate far lower than that of
other African states. Companies can also reduce or cancel out export
taxes if they offer locally mined diamonds to the state for purchase
— even if the South African government never buys the gems, often
due to formidably high prices. In an apparent conflict of interest,
De Beers Consolidated Mines Ltd., the dominant player until 2010,
‘donates’ paid staff to the State Diamond Trader, charged with
assessing diamonds offered by De Beers and other companies to the
State for purchase. Provided 10 percent of domestic diamonds are
offered, these companies may then receive export tax exemptions.
The main beneficiary of a system tilted in industry’s favor is De
Beers, the sprawling multinational cartel that account} for 35
percent of global rough diamond production, mainly from Africa. Until
recently, De Beers dominated the South African diamond industry. In
2011, De Beers accounted for $1.34 billion of South Africa’s
production, and it remains the country’s primary diamond importer and
exporter. The only other significant player, Petra Diamonds, with
whom De Beers controls 97 percent of the local diamond industry,
neither imports nor exports.
From 2005 to 2012, diamond exporters, primarily De Beers, appear to
have downplayed the market value of their rough diamond exports by $3
billion, according to an analysis of declarations in corporate
filings under the Kimberley Process Certification Scheme, the rough
diamond tracking system used to keep conflict gems off the world
market.
The same undervalued gems were then sold at market prices around the
world. Lynette Gould, head of media relations for De Beers, declined
to comment on the findings, or to address question} about the
valuation, sales and import and export volumes of diamonds from South
Africa. In an email, Gould wrote that the “values and volumes of De
Beers production is . . . proprietary.”
A Broken System
To ensure that the government gets its share of revenues from the
extraction of the country’s diamonds, the South African government
relies on a national agency, the Government Diamond Valuator
(G.D.V.), charged with determining the quality, and thus worth, of
diamonds. But highly-placed sources in the diamond industry said that
the G.D.V. seldom issues independent assessments of the country’s
diamonds, opting instead to echo the valuations that De Beers puts
forth in the company’s price lists.
“The gap between the industry’s presence in South Africa and its
contributions to the country’s coffers has its roots in how diamonds
are valued in South Africa and who controls the process,” said Claude
Nobels, a former government diamond valuator.
“We had a plan to create a system, under the Nelson Mandela
government, that would generate fair revenues for all parties
involved,” Nobels told 100Reporters. But to date, “the diamond mining
and trading industry has not truly benefitted South Africans. The
loss to the state is billions of dollars,” he said.
Calculating diamond revenue losses to the South African budget is
complicated by a dearth of data, particularly concerning how diamonds
are valued. Valuation, in turn, drives royalties and export taxes, as
well various forms of tae exemptions. For example, companies can
receive credits for importing diamonds to be cut and polished in
South Africa, which in turn may reduce or even cancel export taxes.
Until 2012, government reports on diamonds generally showed blank
spaces rather than reveal value and volume of local and export sales.
Reports for other commodities such as gold and platinum, however,
teemed with data. Martin Kohler, Deputy Director of Statistics for
the Department of Mineral Resources (D.M.R.), said the government
withholds diamond data to protect big producers, the largest among
them De Beers, unless the companies authorize the release of the
information.
“De Beers, who had a predominant share of the diamond market in the
past, authorised us to publish the aggregated production data only
(but not sales data),” Kohler said in an email. According to Kohler,
the recent sale of De Beers’} mines to other owners meant that, “the
predominant position of De Beers has been diluted, and we are able to
publish sales data with effect from January 2013 (but not before that
date).”
Kohler said such information was strictly confidential “where one
company has more than 75 percent market share, or where there are
less than three producers of a mineral, unless all such producers
have granted permission to publish the data.”
In November 2013, the company moved its sorting, valuing, and selling
center to Gaborone, Botswana from London. According to a
knowledgeable source, the South African government pressured De Beers
to shift sales activities to Africa, specifically South Africa. De
Beers caved in to the pressure but preferred Botswana as a partner.
The company signed a ten-year agreement relocating global production
sales to Gabarone. South Africa, wary of being seen as a domineering
neighbor, acquiesced, the source said.
To understand South Africa’s diamond industry and the system of
taxation that now governs it, it helps to look to the industry’s
origins, which are synonymous with De Beers. Historically, the
apartheid regime cultivated close relation} with South Africa’s
diamond industry. John Vorster, an apartheid-era prime minister, once
described corporate support from De Beers and other large companies
as “bricks in the walls of the regime’s continued existence. De Beers
was formed in 1888 by colonialist Cecil Rhodes and acquired by Ernest
Oppenheimer’s Anglo-American in the 1920s. By 1987, Anglo-American
PLC controlled over 60 percent of the wealth listed on the
Johannesburg Stock Exchange, through an estimated 80 listed entities.
Despite its dominant role in the global diamond trade, De Beers has a
history of running afoul of the law in important markets. In 2008,
the European Union forced De Beers to end decades of price fixing
with Russia’s Alrosa, another dominant diamond producer. At the time,
De Beers controlled 50 percent of global rough diamond production.
Meanwhile, for more than 60 years, De Beers was banned from directly
trading in the United States because of price fixing, despite the
fact that the U.S. accounts for half the world’s diamond jewelry
sales. In 2012, a settlement of $295 million was reached between the
U.S. government and Anglo-American, which currently owns 85 percent
of De Beers.
In South Africa, De Beers functioned in a protected niche even after
the end of apartheid. For instance, it paid no export taxes on
diamonds until 2007. According to Parliamentary documents, De Beers
extracted the advantage in x twist worthy of a B-movie: for years, it
held the government at bay by citing a smudged, unsigned document
generated under the apartheid regime, just prior to the first
democratic elections, that allegedly provided the company with an
export tax exemption for 13 years.
Further, extractive industries in South Africa, including diamonds,
did not pay royalties until 2010, with the adoption of the Mineral
and Petroleum Resource Royalty Act.
Royalties
According to the African Development Bank, South Africa was the “only
major mining country on the continent without a royalty on mining”
until the act’s passage. To address the gaps in the system, the act
mandated that companies pay royalties at rates ranging from 0.5 to 7
percent. Royalties, calculated against criteria such as gross sales
and the company’s net operating mining profits, are compensation to
the nation for the permanent loss of non-renewable resources. Yet in
crafting and applying the royalty rate, the diamond industry, rather
than the South African government, has had the upper hand.
Take the rate itself, for example. Botswana and Namibia, major
diamond-producing states, have royalty rates fixed at 10 percent. Yet
because of its sliding royalty scale, South Africa averages an annual
royalty rate of about 2 percent` which netted the government a total
of $57.5 million from 2010 to 2012. “The revenues from diamond
royalties are very low — just 1.1 percent of sales for 2011,” said
Mark Curtis, a U.K.-based development finance consultant for global
non-governmental organizations. “If diamond companies paid the mid-
royalty range of 3.5 percent, royalties would have amounted to $24.8
million more than the state actually received,” he said.
The explanatory draft of the act originally pegged royalties at 10
percent of the value of diamonds at the ‘mine-gate’ and at 8 percent
after processing. But the government reduced the rate following
pressure from the diamond industry. Created around a complex profit-
based system, royalties are considered a “cost” by business, and
depend on the value of minerals sold.
Clarity Lacking
Though diamonds are valued by their clarity, the same cannot be said
of South Africa’s diamond industry or its largest player, De Beers.
Unlike other South Africa diamond companies, De Beers does not allow
the government to publish key information about the value of the
diamonds it extracts. As a result, the state and the public cannot
verify the fairness of the royalty De Beers ultimately pays.
In addition, to determine the value of a diamond, DeBeers and other
companies use complex and closely-held pricing formulas, that they do
not permit the government to review. De Beers’s pricing formula
counts 12,000 categories.
Speaking on behalf of De Beers, Gould said, “I’m afraid the
information on pricing is proprietary and therefore confidential.”
According to one European valuator who worked closely with De Beers,
the company’s price book was not a single listing, but rather an
“elaborate system used to value diamonds for different purposes. By
manipulating various categories with price points, they can increase
or decrease the value of diamonds . . . These figures have nothing to
do with fair market prices.”
Other companies also maintain proprietary pricing systems. In an
email, the Government Diamond Valuator confirmed that it did not
“have access to the pricing policies of other diamond companies,” but
asserted that the Government Diamond Valuator assessed “each parcel
imported or exported to determine a value deemed to be fair market
value.”
However, highly placed sources in the diamond industry, including a
former government valuator, said the G.D.V. relies on random spot
checks, and verifies only the size of diamonds, not their quality.
One official close to the Department of Minerals and Resources
confirmed that mispricing of diamonds was easily possible due to what
was considered the “very subjective nature of pricing.
Export Taxes
In 2007, the South African government established an export tax of 5
percent on diamonds. But from 2009 to 2013` according to the latest
Tax Statistics report, it yielded only $21.9 million to the national
purse.
The state has pulled in little revenue due to exemptions built into
the 2007 Diamond Export Levy Act. The exemptions were created
ostensibly to encourage mining companies to make quality diamonds
available to domestic industry` before shipping abroad. Companies
that offer rough diamonds to local buyers for cutting and polishing,
or beneficiation, through a government mechanism called the State
Diamond Trader system can obtain breaks on export taxes. Large
companies like De Beers can get the exemption if they sell 40 percent
of their South African rough diamonds to buyers in South Africa, and
offer 10 percent to the State Diamond Trader.
The State Diamond Trader, however, often cannot afford to purchase
rough diamonds because the price is too high. The trader’s annual
reports disclose that purchasing diamonds for the local beneficiation
industry was difficult due to “unsustainable rises in prices at
producer level” and “limited rough supply. De Beers further provides
fully-paid staff to the trader to conduct diamond valuation,
according to reports of the State Diamond Trader, which describe the
presence of De Beers staff at the government agency as a “donation”.
In an email, De Beers said, “the arrangement between De Beers and the
S.D.T. is subject to confidentiality and information relating to this
arrangement cannot be provided without the S.D.T.’s consent.
Futhi Zikalala, C.E.O. of the State Diamond Trader, told 100Reporters
that each parcel was individually valued. “The process is legislated.
We do valuations for the 10 percent offered to the S.D.T. It takes
four or five days at a time, with 10 cycles a year.
Asked whether she would comment on the apparent conflict of interest
in the State Diamond Trader’s long-standing use of De Beers’s donated
staff, she responded, “Actually, no. I do not understand why you are
asking that question. A source close to the Department of Mineral
Resources said that use of De Beers’s staff was for practical
reasons: the S.D.T. was under-resourced and in need of diamond
experts.
In October 2013, the Minister of Minerals Resources, Susan Shabangu,
said that the State Diamond Trader system had failed and would
require an overhaul.
Transfer Pricing
Companies can also win export tax exemption if they import rough
diamonds for local beneficiation. The higher the value of the
imported gems, the greater the import credits a company can generate
to ultimately offset their export taxes, creating a system vulnerable
to price manipulation.
But the arrangement appears to have done little to nurture domestic
cutting and polishing industry. According to figures cited in a South
African parliamentary report (2013), South Africa currently hosts
just 300 polishers, down from 3,000 in 2008, when 140,000 carats,
maximum, were locally beneficiated.
The report cited diamond industry officials who stated that the local
cutting and polishing industry was “in distress. While the 2008
recession had impacted the global diamond industry everywhere,
beneficiation industries elsewhere including India, China and
neighboring Botswana — bounced back, even expanding training
facilities as well as cutting and polishing labor. In 2013, African
Romance, a medium-sized state-backed beneficiation diamond company,
was liquidated. Reasons cited included the absence of consistent
quality diamond supplies.
Until 2013, De Beers exported gems from its mines in Namibia,
Botswana and South Africa to London for valuation and then imported
them into South Africa for sale to select buyers called sightholders.
The sales values declared to sightholders are confidential, the
company said.
South Africa boasts curiously high import prices for diamonds. While
higher import values are said to correspond tq the quality of select
rough diamonds, South Africa’s import price appears significantly
more than the price of diamond} imported to other countries such as
Israel, arguably one of the world’s leading gem quality cutting and
polishing centers.
For example, South Africa’s average import prices, at $544 in 2009
and $773 in 2010, were significantly higher than Israel’s at $165 and
$156, respectively, according to certificates filed under the
Kimberley Process.
In 2007, South Africa’s import price hit a staggering $1,706 per
carat with a total import value of $2.1 billion. Yet only $670
million would be sold to De Beers’s pre-approved South Africa-based
purchasers, known as Diamond Tradinr Company (D.T.C.) sightholders.
Though these figures were published in a De Beers report, when asked
for annual D.T.C. local sales, Gould responded that the information
was proprietary.
According to a diamond specialist previously employed by the South
African government, who spoke on condition of anonymity, import and
exported diamonds were often “mispriced” by an average of 20 percent
or more.
The other countries with similarly high import averages were those
where De Beers also held a large presence, such as Namibia. “South
Africa’s import figures are improbable,” said a European Government
Diamond Valuator. “These prices are exceptionally high as an average
price.”
Most imported diamonds appear to be re-exported uncut and unpolished.
While imports make up relatively small volume, or carats, they
drastically increase the value of rough diamond exports. Subtracting
the values and volumes of imported diamonds shown on South Africa’s
K.P. certificates from corresponding exports, the actual price per
carat of rough diamonds being exported for the first time falls
dramatically.
When asked about the anomalies in reported trade figures for diamonds
under the Kimberley Process (K.P.) in South Africa, where De Beers is
a dominant player, Gould responded, “The primary purpose of the K.P.
process (or the issuing of the certificates at least) is for
Governments to certify the origin of diamonds, not to keep track of
the volume and value of diamonds imported or exported; that is the
function of the relevant Regulator and G.D.V.”
The Government Diamond Valuator
While the Government Diamond Valuator is responsible for
independently appraising gems and for monitoring the trade in
diamonds, it remains questionable whether the South African valuator
is able to provide an independent assessment. Such assessments are
critical for the South African government, and public, to secure
royalties anz export taxes that reflect the true worth of the
country’s diamond trade.
Former De Beers director Bertie Lincoln, in a rare quote under oath
to a South African court 17 years ago, describes the Government
Diamond Valuator as “an auditor. The value is the price which is in
the [De Beers] Price Book. So the government valuator has got no
input into the value of a diamond.”
The Government Diamond Valuator did not respond to follow-up
questions about the source of information informing the G.D.V.’s
Price Book, the size of the agency or office, the amount of time
available for valuation of imported and exported diamonds, and other
questions.
“The significant differences between the dollar-per-carat for South
African rough diamond imports and exports suggest possible price
manipulation for the purposes of aggressive tax avoidance,” said
public finance specialist, Ley Verwey. Companies like De Beers, he
stated, may indeed have a plausible explanation, in which case,
“diamond companies as well as the Government Diamond Valuator should
provide more transparent reporting to society on the factors that
determine such valuations.”
Verwey stated that the Government Diamond Valuator’s credibility “in
ensuring fair market value for diamond transactions is essential to
its success.”
But critics of South Africa’s current royalty and taxation system are
skeptical that the government will impose greater transparency on De
Beers and other major producers.
“Inevitably,” stated one former De Beers employee, “the company will
stonewall and the G.D.V. will run a mile” from transparency and
accountability in the diamond valuation system.
He added, “No one will want this brought into the open.”
*****************************************************
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