SELECT COMMITTEE ON LAND AND ENVIRONMENTAL AFFAIRS

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SELECT COMMITTEE ON LAND AND ENVIRONMENTAL AFFAIRS
30 September 2003

• AGRICULTURAL PRODUCE AGENTS AMENDMENT BILL

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AD SECTION 1 Definitions

• This section amends the definitions section of
  the main Act. Of
• particular importance is the definitions of
  fresh produce agent
• and livestock agent. These definitions are
  amended to
• ensure that persons in the employ of principals
  are also
• deemed to be agents for certain purposes of the
  Act, in order
• that the disciplinary powers of the Council may
  also apply to
• these persons, a former deficiency. At the
  request of exporters,
• they are also now included under the ambit of the
  Act, although
• they are only registered with a view to comply
  with a code of
• conduct. In addition a definition of deputy
  registrar is added
• to enable the establishment of such a position in
  the council.

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AD SECTION 3 Constitution of council
This section amends the present constitution of
the council where specific organisations
nominate members to one where nominations are
called for in the media. In addition the
Minister will designate two persons as his or her
representatives to the council.
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AD SECTIONS 4,5,6 and 7
Consequential amendments as a result of the
amendment of section 2 and 3. In section 5 the
Minister now designates the chairperson of the
council. In addition the term of office of
members are limited to two consecutive terms
unless the Minister determines otherwise.
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AD SECTION 8 Registrar and staff
The appointment of the registrar, deputy
registrar and staff is regulated in this
section. Other than in the present Act, a
clear distinction is drawn between policy-type
functions of the Council (i.e. policy, codes of
conduct etc.) and the implementation
thereof (i.e. administration, bookkeeping and
enforcement of the Act), which now lie with the
registrar. This is in line with the
principles underlying, inter alia, the new Public
Finance Management Act and sound governance
principles.
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AD SECTION 9 Objects of council
In this section the objectives of the council
are clearly stipulated.
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AD SECTIONS 10,11 and 12
These sections are amended to enable the council
to use surplus monies in the fidelity fund for
training purposes, research and to enhance the
occupation of an agent. Furthermore, the
provision for a fidelity fund for Livestock
Agents are deleted as there is no further need
therefor. Export agents are not subject to
fidelity fund requirements either.
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AD SECTIONS 13 and 14
Section 13, which deals with fidelity fund
claims, is amended to ensure that persons who
committed wrongdoings cannot benefit.
In addition, monies payable are capped in that
no interest is payable or, in the case of
produce, the average market price on the day
the loss occurred applies. Section 14, which
deals with the procedure to institute claims, is
refined, for example by determining
that producers may be paid pro-rata if there is
insufficient funds available.
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AD SECTION 15 Insurance contracts
This section is deleted as it is no longer
applicable.
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AD SECTION 16 Prohibition to act as agent under
certain circumstances
This section requires that fresh produce salesman
also have to obtain fidelity fund certificates
from the Council. However, they do not have to
lodge guarantees, and there is no barrier to
entry, save the normal requirements relating to
honesty. In the case of livestock and export
agents, they only apply for registration certifica
tes as they do not belong to a fidelity
fund. Further amendments are made to the
existing section to ensure that no person may be
involved with the business of fresh
produce agents unless he or she holds a fidelity
or registration certificate.
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AD SECTION 17 Security by agents
The section is substituted to give the council
greater flexibility in establishing appropriate
guarantees. This is of particular importance to
ensure that the Council has sufficient
flexibility to ensure that new entrants are
adequately accommodated while at the same
time balancing the interests of stakeholders.
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AD SECTIONS 18 and 19 Accounts
The bookkeeping requirements and trust account in
sections 18 and 19 are refined. Note that it
does not apply to salesmen, but only to their
principals. Refinements include, for example,
stock in hand as part of the trust account and
make it clear that a market authority may not
impound or use trust monies, even if
they administer such monies on behalf of agents.
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AD SECTIONS 20 TO 23 Accounting practices
Consequential refinements to existing sections
and further to empower the council to make rules
as to the regulation, control or prohibition of
any practice followed by agents.
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AD SECTION 24 Inspection and Investigation
The procedure necessary to enhance inspection and
investigation by the council are amended in this
section.
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AD SECTION 25 Disciplinary Tribunal
Provision is made for the appointment of
independent tribunals whenever it is necessary to
do so, thereby enhancing real and perceived
objectivity.
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AD SECTION 26 Disciplinary powers of tribunal
Of importance here is that a disciplinary
tribunal may now, in addition to its other
remedies, impose a fine Gazetted by the Minister
on an agent found guilty of misconduct. In
practice the only real sanction other than
disqualification seems to be financial in nature,
and hopefully this will go a long way towards
ensuring compliance with codes of conduct.
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AD SECTION 27 Entry and inspections
This section elaborates on the powers of
inspectors appointed by the council upon entry
and searching premises.
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AD SECTION 29 Offences and penalties
The penalty section for criminal offences is
amended to delete the references to fines. This
is done to automatically adjust fines relative to
jail terms in terms of legislation administered
by the Department of Justice.
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AD SECTION 30 Deficits in trust accounts
This section is amended to facilitate its
operation in practice. Its operations are
limited to fresh produce agents.
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TRANSITIONAL PROVISIONS
For the sake of continuity, these sections ensure
that -- a) the council in office on the date of
enactment of the new act remains the council
until a new council is appointed b) agents
retain their certificates and are deemed to be
registered until new fidelity or registration
certificates are issued c) the Minister shall
appoint additional members after the commencement
of the Act.