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Legal opinion on South Africa’s laws dealing with food crimes

06 December 2024 Photo Supplied

Opinion article by Dr Hoitsimolimo Mutlokwa, Postdoctoral Researcher: Centre for Labour Law in the Department of Mercantile Law, University of the Free State.

There has been a spike in the number of children either getting sick or dying from eating snacks bought in spaza shops. It is known that consumption of fake food poses a danger to one’s health. Such foods contain toxic chemicals and ingredients that may not be safe for human consumption. Below, I analyse the regulations and legislation in place to regulate and penalise businesses that sell food products not fit for human consumption.

The recent deaths of dozens of children who consumed unsafe food sold in unregulated spaza shops shocked the nation and caused outrage, emphasising the need for change in the informal food retail sector. Some media reported that since the beginning of September this year, a total of 890 incidents of food-borne illnesses have been reported across all provinces. These events demand immediate action, with President Cyril Ramaphosa mandating all spaza shops to register within 21 working days.

Though most have welcomed and praised the president’s decisive action, some are blaming the government and more so, foreign-run spaza shops. The country has the all the laws in place to not only police and act against perpetrators, but to also prevent tragic incidents like these. These laws include the South African Regulation R638 of 2018 for Food Premises, South African Regulation R146 of 2010 for Food Labelling, the South African Consumer Protection Act 68 of 2008 (CPA), and municipal by-laws. These laws just need to be enforced. With all spaza shops enforced to be registered, it will make it much easier to shut down shops that are not registered and prosecute those who might be selling foods that have either expired or are fake. However, the problem is much deeper than this, considering the growing animosity towards foreign-owned spaza shops taking away business opportunities from local citizens.

South African Regulation R638 of 2018 for Food Premises

This regulation outlines the required hygiene standards and food safety practices that businesses, including spaza shops, must set up. Environmental Health Practitioners (EHP) can enforce these regulations by conducting inspections and providing guidance to shop owners. In a situation where fake or expired foodstuffs are found on shelves, they must be removed and confiscated by the EHP to be destroyed. In terms of provision 15, a person who violates these regulations will be guilty of an offence and liable to a penalty in terms of section 18(1) of the Foodstuffs, Cosmetics and Disinfectants Act (Act 54 of 1972). First-time offenders are fined an amount of R400, or six months’ imprisonment or both a fine and imprisonment. Second-time offenders are fined R800, or 12-month prison sentence or both a fine and imprisonment. Third-time offenders are fined R2 000 and imprisonment for a period not exceeding 24 months or a fine and imprisonment.

South African Regulation R146 of 2010 for Food Labelling

These regulations govern the proper labelling of food products to ensure consumers have proper information on the product they intend to buy. Information on the label relates to contents and expiry dates. However, this regulation is problematic in the sense that expiry dates are not prescribed by law. Manufacturers determine what is appropriate in terms of an expiry date. This is bound to encourage manipulation of expiry dates, putting consumers’ health at risk. The regulations do not mention anything about penalties for offenders. It is presumed that businesses that breach this act are charged in terms of section 18(1) of the Foodstuffs, Cosmetics and Disinfectants Act (Act 54 of 1972).

The South African Consumer Protection Act 68 of 2008 (CPA)

The CPA provides protection measures for consumers that include the right to safe and quality goods. Consumers have a right to return harmful products and issue complaints about such products. Complaints can be sent to the Provisional Consumer Authorities (PCA) or the National Consumer Commission (NCC). Selling of fake or expired food falls under the category of “unconscionable conduct”, “misleading” or “deceptive” practices. The NCT presides over such cases. A person convicted of such an offence may be liable to a fine or imprisonment for a period not exceeding 12 months or both a fine and imprisonment. The NCT may impose administrative fines not exceeding 10% of the violator's annual turnover in a financial year.

Most spaza shops obtain their goods from wholesalers who are off the hook from prosecution. The media appear to show only one side of the problem, the spaza shop, but not the wholesaler.

The NCC is not using its powers effectively in terms of section 73 to refer matters to the NPA of wholesalers who sell expired foods.

The NCT may also issue a compliance notice should a wholesaler be found to have been selling expired or fake foods. If the conduct continues or the wholesaler does not cooperate, the matter can be referred to the NPA in terms of Section 100.

Municipal by-laws

Municipalities such as Mangaung have by-laws relating to spaza shops but there appear not to be enough health inspectors to conduct the necessary inspections to ensure fake or expired food are not sold in such shops. Necessary financial resources must be available to ensure that municipalities can carry out their mandate effectively in supporting provincial consumer authorities, the NCC, NCT and NPA towards curbing the problem of expired and fake foods.

Conclusion

A Draconian approach is needed to mitigate the surge in the sale of expired and fake foods. The Foodstuffs, Cosmetics and Disinfectants Act (Act 54 of 1972) is rather outdated regarding the present spike in the number of fake and expired foods for sale. The CPA gives powers to the NCC and NCT to report business practices to the NPA that are either harmful or prejudicial to consumers. These powers must be used effectively. Secondly, the fines imposed are too lenient. R400 or even R2 000 are too low to deter individuals from repeating the offence.

A register of offenders is needed for manufacturers, wholesalers and shops that sell expired or fake foods. To make this effective, all individuals convicted by the NPA must be listed in this offenders’ register. Such a register must be published in the government gazette for easy access by the public. This will be a deterrent to the sale of expired or fake foods or foods allegedly containing poison.

This will avoid the situation where consumers take it upon themselves to go on social media and raise awareness of products people should not buy. For instance, recently, a video went viral of a person warning people not to buy certain 1.25l Coca-Cola bottles because the serial numbers displayed on the bottle were not consistent with other serial numbers.

News Archive

During 2011: Achievements at the UFS

2011-12-01

Sarah Shannon

Dr Alex Amtaika, Department of Political Science

During a conference at Khon Kaen University in Thailand, Dr Alexius Amtaika from our Department of Political Science was elected as Executive Director and Convener of the International Committee of Scholars of Local Government. This honour was bestowed upon Dr Alexius during the first International Conference on Local Government at Khon Kaen University.

Sarah Shannon

We all have heard stories about inspirational people, who defy the odds, fight circumstance every day and never give up. Sarah Shannon has cerebral palsy but has never stopped dreaming and achieving them.

Sarah is also a competitive swimmer, and is currently ranked seventh in the world in her class of disabilities.

She is currently completing her postgraduate certificate in Education, Foundation Phrase, through Unisa. She is also studying Sociology at our university.

DW Bester and Sannah Mokone, Rhodes Scholars

Of the four open Rhodes Scholarships available to students from all universities in Southern Africa, two of our students won these prestigious scholarships. DW Bester, B.Sc. Hons. Actuarial Science student, and Sannah Mokone, BPub-cum laude student, joined Oxford University in the United Kingdom in September 2011 to further their studies.

The Rhodes Scholarships, arguably one of the most prestigious scholarships in the world, were founded in 1903 in the will of Cecil John Rhodes and cover the full costs of study at Oxford University.

While academic excellence is a pre-condition for consideration for the Rhodes Scholarship, these scholarships are unique in that Rhodes Scholars are outstanding young students who excel academically, but very importantly, demonstrate leadership, are committed to making a difference in the world, and have the energy to fulfill their ambitions.

Dr Derik Coetzee, Department of Sport and Exercise Sciences

When you suddenly receive a call during a World Cup year and requested to come and assist in leading the Springboks, then you have to know, you have something to offer. This is what happened to Dr Derik Coetzee from our Department of Exercise and Sports Sciences. This year he once again became involved in the Springbok rugby team, after he had been die Bokke’s conditioning trainer from 2004 to 2007.

His primary task as conditioning head was to help in seeing to it that the Springboks reached their best level of play – psychologically, physically an emotionally. Amongst others, his duties included the optimisation of the players’ muscle and explosive power, speed, anaerobic ability and technical skills.

Jefferson J Dirks-Korkee en Mart Kotzé

Jefferson J Dirks-Korkee, from Willowmore in the Eastern Cape, and Mart Kotzé from Bloemfontein, recently made history by being the first students from our Department of Drama and Theatre Arts featuring in an Afrikaans South African film Skoonheid, the first ever to be shown at the Cannes Film Festival.

The movie won the Queer Palm Award at the 2011 Cannes International Film Festival, where Robert de Niro was the chairperson of the panel of judges.

Prof. Muriel Meiring, Department of Haematology and Cell Biology

Prof. Muriel Meiring, Specialist Scientist in our Department of Haematology and Cell Biology, is responsible for establishing the Specialised Haemostasis Laboratory at our university and the Universitas Hospital’s National Health Laboratory Service. She established this centre as a reference centre for Von Willebrand disease, a genetic bleeding disorder, in South Africa. This laboratory is internationally recognised for their research and as a reference laboratory.

Prof. Meiring develops and tests antithrombotic (anti-clotting) agents and her long list of publications, research awards and congress presentations has earned her a nomination for the Department of Science and Technology’s Distinguished Woman Scientist Award. She was one of two scientists of the National Health Laboratory Services (NHLS) to receive the award – Prof. Meiring being the only woman from our university.

Medical facilities from all over the country make use of her and her team’s expertise when testing for blood disorders and she hopes to expand the centre even further.

Melinda Jonker

Melinda Jonker, one of our third-year financial economic students, won the overall national competition of the prestigious Traders Trophy competition at the Johannesburg Stock Exchange (JSE).

The competition, sponsored by Nedbank Capital and Oxyor in Amsterdam, requires participants to trade actual JSE-listed shares against one another on a simulated platform. The winner is determined not only by the highest profit, but also by the technique used throughout the trading session.

Christopher Diab, also a student from our Department of Economics, won the regional UFS competition.

ASSAf members

Seven of our academic colleagues have been elected as members of the Academy for Science of South Africa (ASSAf). They are Proff. Hendrik Swart, Physics; André Roodt, Chemistry; Zakkie Pretorius, Plant Sciences; Max Finkelstein, Mathematics; James du Preez, Microbial, Biochemical and Food Biotechnology; Maryke Labuschagne, Plant Breeding; and Neil Roos from our Postgraduate School.

Due main objective of the Academy is to promote and apply scientific thought in the service of the society, in order to determine the quality and scope of the role that the Academy can plays in the country’s life and progress, and eventually apply it

Other colleagues who are currently members of ASSAf include Proff. Jonathan Jansen, Vice-Chancellor and Rector; Johan Henning, Dean: Faculty of Law; and Frans Swanepoel, Senior Director: Research Development.

Samantha Renda-Dollman

Samantha Renda-Dollman, a BSc (Zoology) student on our Qwaqwa Campus, has obtained 19 distinctions out of the 22 modules she has written since 2009.

Her hard work earned Samantha the prestigious Dux Student award of our 2011 Annual Student Affairs Excellence Awards, held at our Qwaqwa Campus. This makes her the best overall academic performer of the entire student body on this campus.

Jaco Griessel

Jaco Griessel, an Honours student at our Odeion School for Music, received a prestigious Mandela Rhodes bursary for 2012 to study towards his Master’s degree next year.

Jaco, who is currently busy with his BMus Honours degree, is a performer par excellence, with many achievements to his name. In 2010, he received the Fanie Beetge Prize for the best undergraduate student in Systematic Music Studies. A year before, he received the same prize as best undergraduate student in Historic Music Studies. He shall continue his Master’s degree with Music Composition as field of specialisation at our university in 2012.

Prof. Helena van Zyl, UFS School of Management

Prof. Helena van Zyl, Director of the UFS Business School, was elected as President of the South African Association of Business Schools (SABSA). Since the beginning of 2010 she has been acting as president. Prof. Van Zyl is the first woman to occupy this position and also the first woman who is currently heading a business school in South Africa. She will serve SABSA as the president for the next two years.

Prof. Zakkie Pretorius, Department of Plant Sciences

Research by Prof. Zakkie Pretorius from our Department of Plant Sciences, has become part of Phase II of a mayor global project to combat deadly strains of a wheat pathogen that poses a threat to global food security.

Prof. Pretorius focuses on the identification of resistance in wheat to the stem rust disease and will assist breeders and geneticists in the accurate phenotyping of international breeding lines and mapping populations. In addition, Prof. Pretorius will support scientists from Africa with critical skills development through training programmes.

The Ug99 strain was discovered in Kenya in 1998, but are now also threatening major wheat-growing areas of Southern and Eastern Africa, the Central Asian Republics, the Caucasus, the Indian subcontinent, South America, Australia and North America.

Prof. Danie Strauss, research fellow in the Faculty of Humanities

Prof. Danie Strauss, a research fellow in our Faculty of the Humanities, won the Dooyeweerd Prize from the Board of the Association for Reformational Philosophies in Amsterdam. Prof. Strauss, former Dean of our Faculty of the Humanities and head of our Department of Philosophy, won the prize for his book Philosophy: Discipline of the Disciplines. The prize is awarded for work in the field of systematic philosophy.

Nida Jooste and Ryan Lamb, Abe Bailey Travel Bursary holders

Nida Jooste and Ryan Lamb are two of the proud recipients of Abe Bailey Travel Bursaries. Both students are academic achievers, but also excel in other fields. This is what set them apart from the rest of the applicants for the bursaries.

Ryan (23), a Medical Physics Honours student at our Faculty of Health Sciences, received the Senate’s Medal for the best Bachelor’s Degree student at the UFS. He was one of 100 students at the Brightest Young Minds Summit this year and was one of the 2008 delegates to the World Youth Forum, hosted by the International Association for Poetry and Solidarity in Italy.

Nida (21) is a very familiar face on our Bloemfontein Campus, as she served as the Deputy Chairperson of our Interim Student Council in 2011.

Loerie Award for Tarran Jacobs, Elizabeth Forson and Mafohlela Mahlatsi

The creativity of a group of students from our university was rewarded with a bronze Loerie Award after they won an internal competition. Tarran Jacobs, Elizabeth Forson and Mafohlela Mahlatsi, all third-year Marketing Communication students, won the award for an advertisement they designed for Cansa.

Each year, the third-year Marketing Communication students of our Department of Communication Science have the opportunity to flex their creative muscles in the Copy-writing class. The challenge is to design two advertisements for any charity organisation by applying the knowledge they gained from the subject in a practical way. The top three groups are then entered for the Loerie and Pendoring awards – two of the most prestigious awards in the South African advertising industry.

The top three groups designed advertisements for Cansa, the South African Blood Service and Crime Line.

Hendrik Kruger and Anke Malan walk away with awards at Pfizer UKZN Young Health Scientists Research Symposium

Two students in our Faculty of Health Sciences won awards at a Pfizer UKZN Young Health Scientists Research Symposium.

Hendrik Kruger, a medical student, represented his group, which won the clinical category with the paper “Injury patterns of occupants surviving motor vehicle accidents in the Free State”. This presentation was based on a study which is the first of its kind in South Africa.

The group with Anke Malan from our Department of Nutrition and Dietetics as presenter received the prize in the community-based category with the presentation ’Knowledge, practices and perceptions of undergraduate students at the UFS regarding the risk factors of osteoporoses’. Anke’s team was also nominated as the overall winner of the symposium. Presentations were delivered in three categories, namely clinical, community-based and laboratory research.

Prof. Louis Scott, Department of Plant Sciences

Prof. Louis Scott from our Department of Plant Sciences was formally rewarded the Fellowship of Royal Society of South Africa (RSSA).

Prof. Scott is an internationally recognised Palinologist at our university and a B-rated scientist.

Fellows of the RSSA are considered to be part of a very elite group of South African scientists who have achieved international acknowledgment.

Prof. Aldo Stroebel, International Academic Programmes in the Office of the Vice-Chancellor

Prof. Aldo Stroebel has been elected as a Founding Member of the South African Young Academy of Science (SAYAS).

He is Associate Professor in our Centre for Sustainable Agriculture, Rural Development and Extension, as well as the Director of International Academic Programmes in the Office of the Vice-Chancellor.

The Young Academy has as its objectives to represent young scientists in advising the government on science and technology policy and human resource development. In addition, they will prepare the SAYAS to join the Global Young Academy (GYA) to engage with high-level international bodies, including the World Economic Forum.

Prof. Lodewyk Kock, Department of Microbial, Biochemical and Food Biotechnology

Prof. Lodewyk Kock was a sought-after keynote speaker at various conferences and seminars around the globe on our nanotechnology breakthrough research.

He delivered keynote lectures at international conferences of repute in the USA, China and Greece. In the USA he delivered a the keynote address at the Conference & Exhibition on Pharmaceutical Regulatory Affairs (Pharma-2011), held in Baltimore, and was a keynote speaker at the 2nd World Congress on Biotechnology in Philadelphia. He was also invited to present various lectures abroad.

He posted two video lectures in e-conference format on his research on the web page of the journal Translational Biomedicine. He was also invited by the International Society of Translational Medicine (ISTM) to head their “Molecular Imaging” Division.

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