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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

Official opening ceremony of the UFS Qwaqwa Campus

2006-02-15

Official opening ceremony of the UFS Qwaqwa Campus
11th February 2006 – Multipurpose Hall

Opening Speech:
Prof. Peter A. Mbati
Campus Principal

Successfully rising to the challenges of incorporations and mergers – developing a vibrant and academically stimulating satellite campus of the University of the Free State.

Thank you Mr. Program Director and good morning ladies and gentlemen.

I wish to once again welcome all of you to the official opening ceremony of the University of the Free State QQ campus. Thank you for taking time to share with us an important date in our campus academic calendar. I bring you greetings from our Rector and Vice Chancellor Prof. Frederick Fourie.

During such occasions we try and reflect on important matters that have affected us as an institution in the preceding year, commit ourselves to specific objectives for the current year, while planning for the proceeding year.

Today I shall be talking on Successfully rising to the challenges of incorporations and mergers – developing a vibrant and academically stimulating satellite campus of the University of the Free State’.

SRC inauguration
I would like to congratulate the SRC President and the entire SRC leadership for being elected into important positions of student leadership and authority.

As a university we are proud of the quality of our student leadership on the Qwaqwa campus. I am confident that you young leaders will rise to the challenges of your office and discharge your duties with diligence and without fear or favour. That you will rise above your party affiliations and provide effective leadership to the entire student body on campus.

Leadership is complex and requires you to be objective, just and fair in your approach to the many challenges that you will encounter. You will be judged not by the populist decision that you take when confronted with difficult choices, but rather, on the wisdom that you exercise in reaching consensus in decision making processes.

The era when management and student leadership viewed each other with suspicion and as adversaries is long gone. Management, academic and administrative staff, parents and students must have common agendas in as far the quality growth and development of our university is concerned and to strive towards academic excellence. I leave the challenge to you students, and more so to the inaugurated student leaders to define your agenda in achieving this noble objective. I trust that you will make the right choices.

Brief history of incorporation
On the recommendations of the National Working Group of Higher Education, the Qwaqwa Campus of the then University of the North was incorporated into the University of the Free State on 1st January 2003. We suddenly had to move from a campus that was originally semi-autonomous and with its own culture developed over almost 20 years, into a campus that had to operate as a fully integrated campus of the UFS, a 100 year old institution with its distinct culture.

Following incorporation, we not only had to continue with our core business of teaching, learning, research and community service, but we also had to engage in other important aspects such as exploring the most appropriate models of governance for the campus, encouraging dialogue and interactions at all levels between personnel at the different campuses with a view to developing trust between colleagues. And with the added dimensions such as participation in the transformation task team we in effect are at the fore front of developing a new institutional culture at the UFS and a truly South African University.

UFS Strategic objectives
The strategic and transformation priorities of the University of the Free State for 2006 – 2008 as approved by the Executive Management at its retreat in January 2006 are:

Quality and Excellence
Equity, diversity and redress
Financial sustainability
Regional co-operation and engagement

Central to this priority is the integration of the Qwaqwa campus as a valuable constituent part of the UFS, and the strategic reconfiguration of the campus in order that the UFS can play a meaningful role in regional engagement and development.

National leadership

The five strategic objectives cannot be viewed in isolation and run simultaneously and in concert with each other.

The Question must therefore be what we on the QQ campus, staff and students, parents and our broader community are willing to do to achieve these strategic objectives. The reconfiguration and strategic planning of this campus, and therefore its success, must be a collaborative effort between colleagues at QQ and on the main campus. We must all be ready to work together, to plan together, to shoulder responsibilities together and sometimes, to share the pain and disappointments together.

The second question must therefore be: are we prepared to go that extra mile for our campus to ensure that we claim our rightful stake within the ranks of well respected academic institutions of higher learning in this country? At this point in its history this campus requires committed men and women from across the cultural spectrum who appreciate the challenges ahead of us and who are ready to give of their best and to constructively engage at all levels to make this dream a reality. Because this dream is possible and this dream will be realized!

Quality and Excellence (1st strategic objective)

As mentioned by the Rector in his speech at the official opening ceremony of the university on the main campus on Friday 3rd February, the university will in 2006 pay extra attention to Quality and Excellence. This is informed by the Higher Education Quality Committee’s (HEQC) institutional audit which is scheduled to take place this year. Our university as well as several other HEI’s will be subjected to this audit. This will call for a lot of hard work on your part in preparation for a successful audit and in this regard therefore I request for your cooperation.

As a further step in confirming our commitment to quality and excellence, we have simultaneously introduced on the QQ campus and the main campus workshops on performance management systems to a cohort group. This will be expanded in 2006 to a wider group of managers on the QQ campus to include among others all Program Heads and Subject Heads. PMS is an invaluable tool for fair, effective and efficient management of a very important resource on campus – the human resource. Benefits of PMS include among others:

Instilling and enriching a culture of performance management (quality assurance) as an integral part of the day to day functioning of staff at the campus
Improving staff performance through mentoring, development and training

Tri campus project
One of the more important projects that we as a university undertook in 2005 was the Tri Campus Project which was coordinated by the Free State Higher Education Consortium (FSHEC) through Niel Butcher and Associates consultants.

The Tri-Campus project focused on the strategic planning for higher education campuses in the Free State that have been incorporated with UFS and CUT during the reshaping of the South African higher education landscape. The Bloemfontein Vista campus and the Qwaqwa campus of the University of the North were incorporated with the UFS, and the Welkom Vista campus with the CUT.

The planning process involved a range of research and consultation activities during the course of 2005. This included:

Conducting situational analyses of the Qwaqwa campus during which staff and students were widely consulted;
Consulting with the campus and with a range of stakeholders in the sub-region
Review of the Free State Provincial Growth and Development Strategy and Integrated Development Plans (IDPs) of the regions and other research of relevance to the sub-regions, province and country.

An operational framework for the reconfiguration of the campus with a range of possible Program Qualification Mixes has been produced. In December 2005, the Rector, the Vice Rector Academic Planning Prof. Magda Fourie and I discussed this document with senior members of the DoE in Pretoria, and we will soon be meeting with the National Minister of Education Me Naledi Pandor for her guidance and to seek support in the further refinement of the document and subsequent implementation.

Recapitalization
This year a further R 6 M has been budgeted for recapitalization. In about two weeks time the third of phase of renovations on campus will commence and attention will be given to the administration building, the humanities and the outstanding work in the lecture hall complex. There- after the library, sciences and education buildings will follow. As you will recall a substantial portion of the R 8.4 million in 2005 was used to upgrade the student residences and the lecture hall complex.

I am certain that the renovations and upgrading of our infrastructure and physical facilities including landscaping will create an enabling environment for you to enjoy your work and studies on this campus.

Renovations come with some measure of inconveniences and I therefore wish to request for your patience and support during this period.

Closing remarks
There is a heightened spirit of optimism on what the future holds for this campus. This is evident when I talk to a large cross section of staff and students of this campus – and I therefore invite all of you to come and be partners with us on this journey of optimism and hope of what the future holds for the UFS – QQ campus.

Thank you and God bless!

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