“foreign business establishment”, in relation to a controlled foreign company, means –

(a)     a fixed place of business located in a country other than the Republic that is used or will continue to be used for the carrying on of the business of that controlled foreign company for a period of not less than one year, where-

(i)     that business is conducted through one or more offices, shops, factories, warehouses or other structures;

(ii)     that fixed place of business is suitably staffed with on-site managerial and operational employees of that controlled foreign company who conduct the primary operations of that business;

(iii)    that fixed place of business is suitably equipped for conducting the primary operations of that business;

(iv)    that fixed place of business has suitable facilities for conducting the primary operations of that business; and

(v)     that fixed place of business is located outside the Republic solely or mainly for a purpose other than the postponement or reduction of any tax imposed by any sphere of government in the Republic:

Provided that for the purposes of determining whether there is a fixed place of business as contemplated in this definition, a controlled foreign company may take into account the utilisation of structures as contemplated in subparagraph (i), employees as contemplated in subparagraph (ii), equipment as contemplated in subparagraph (iii), and facilities as contemplated in subparagraph (iv) of any other company-

(aa) if that other company is subject to tax in the country in which the fixed place of business of the controlled foreign company is located by virtue of residence, place of effective management or other criteria of a similar nature;

(bb)  if that other company forms part of the same group of companies as the controlled foreign company; and

(cc)  to the extent that the structures, employees, equipment and facilities are located in the same country as the fixed place of business of the controlled foreign company;

  

(b)     any place outside the Republic where prospecting or exploration operations for natural resources are carried on, or any place outside the Republic where mining or production operations of natural resources are carried on, where that controlled foreign company carries on those prospecting, exploration, mining or production operations;

  

(c)     a site outside the Republic for the construction or installation of buildings, bridges, roads, pipelines, heavy machinery or other projects of a comparable magnitude which lasts for a period of not less than six months, where that controlled foreign company carries on those construction or installation activities;

(d)     agricultural land in any country other than the Republic used for bona fide farming activities directly carried on by that controlled foreign company;

(e)     a vessel, vehicle, rolling stock or aircraft used for the purposes of transportation or fishing, or prospecting or exploration for natural resources, or mining or production of natural resources, where that vessel, vehicle, rolling stock or aircraft is used solely outside the Republic for such purposes and is operated directly by that controlled foreign company or by any other company that has the same country of residence as that controlled foreign company and that forms part of the same group of companies as that controlled foreign company;

(f)      a South African ship as defined in section 12Q engaged in international shipping as defined in that section; or

(g)     a ship engaged in international traffic used mainly outside the Republic;

“foreign company” means any-

 

(a)     cell or segregated account contemplated in the definition of “protected cell company”;

 

(b)     protected cell company to the extent that-

 

(i)      specified assets of that company are not segregated into structurally independent cells or segregated accounts as contemplated in paragraph (a) of the definition of ‘protected cell company’; or

 

(ii)     specified assets and liabilities of that company are not linked or attributed to cells or segregated accounts as contemplated in paragraph (b) of the definition of ‘protected cell company’; or

 

(c)     foreign company, as defined in section 1, other than a protected cell company;