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06 December 2024 Photo Supplied
Dr Hoitsimolimo Mutlokwa
Dr Hoitsimolimo Mutlokwa is a postdoctoral researcher at the Centre for Labour Law in the Department of Mercantile Law, UFS.

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

Media: Sunday Times
2006-05-20

Sunday Times, 4 June 2006

True leadership may mean admitting disunity
 

In this edited extract from the inaugural King Moshoeshoe Memorial Lecture at the University of the Free State, Professor Njabulo S Ndebele explores the leadership challenges facing South Africa

RECENT events have created a sense that we are undergoing a serious crisis of leadership in our new democracy. An increasing number of highly intelligent, sensitive and committed South Africans, across class, racial and cultural spectrums, confess to feeling uncertain and vulnerable as never before since 1994.

When indomitable optimists confess to having a sense of things unhinging, the misery of anxiety spreads. We have the sense that events are spiralling out of control and that no one among the leadership of the country seems to have a definitive handle on things.

There can be nothing more debilitating than a generalised and undefined sense of anxiety in the body politic. It breeds conspiracies and fear.

There is an impression that a very complex society has developed, in the last few years, a rather simple, centralised governance mechanism in the hope that delivery can be better and more quickly driven. The complexity of governance then gets located within a single structure of authority rather than in the devolved structures envisaged in the Constitution, which should interact with one another continuously, and in response to their specific settings, to achieve defined goals. Collapse in a single structure of authority, because there is no robust backup, can be catastrophic.

The autonomy of devolved structures presents itself as an impediment only when visionary cohesion collapses. Where such cohesion is strong, the impediment is only illusory, particularly when it encourages healthy competition, for example, among the provinces, or where a province develops a character that is not necessarily autonomous politically but rather distinctive and a special source of regional pride. Such competition brings vibrancy to the country. It does not necessarily challenge the centre.

Devolved autonomy is vital in the interests of sustainable governance. The failure of various structures to actualise their constitutionally defined roles should not be attributed to the failure of the prescribed governance mechanism. It is too early to say that what we have has not worked. The only viable corrective will be in our ability to be robust in identifying the problems and dealing with them concertedly.

We have never had social cohesion in South Africa — certainly not since the Natives’ Land Act of 1913. What we definitely have had over the decades is a mobilising vision. Could it be that the mobilising vision, mistaken for social cohesion, is cracking under the weight of the reality and extent of social reconstruction, and that the legitimate framework for debating these problems is collapsing? If that is so, are we witnessing a cumulative failure of leadership?

I am making a descriptive rather than an evaluative inquiry. I do not believe that there is any single entity to be blamed. It is simply that we may be a country in search of another line of approach. What will it be?

I would like to suggest two avenues of approach — an inclusive model and a counter-intuitive model of leadership.

In an inclusive approach, leadership is exercised not only by those who have been put in some position of power to steer an organisation or institution. Leadership is what all of us do when we express, sincerely, our deepest feelings and thoughts; when we do our work, whatever it is, with passion and integrity.

Counter-intuitive leadership lies in the ability of leaders to read a problematic situation, assess probable outcomes and then recognise that those outcomes will only compound the problem. Genuine leadership, in this sense, requires going against probability in seeking unexpected outcomes. That’s what happened when we avoided a civil war and ended up with an “unexpected” democracy.

Right now, we may very well hear desperate calls for unity, when the counter-intuitive imperative would be to acknowledge disunity. A declaration of unity where it manifestly does not appear to exist will fail to reassure.

Many within the “broad alliance” might have the view that the mobilising vision of old may have transformed into a strategy of executive steering with a disposition towards an expectation of compliance. No matter how compelling the reasons for that tendency, it may be seen as part of a cumulative process in which popular notions of democratic governance are apparently undermined and devalued; and where public uncertainty in the midst of seeming crisis induces fear which could freeze public thinking at a time when more voices ought to be heard.

Could it be that part of the problem is that we are unable to deal with the notion of opposition? We are horrified that any of us could be seen to have become “the opposition”. The word has been demonised. In reality, it is time we began to anticipate the arrival of a moment when there is no longer a single, overwhelmingly dominant political force as is currently the case. Such is the course of history. The measure of the maturity of the current political environment will be in how it can create conditions that anticipate that moment rather than seek to prevent it. We see here once more the essential creativity of the counter-intuitive imperative.

This is the formidable challenge of a popular post-apartheid political movement. Can it conceptually anticipate a future when it is no longer overwhelmingly in control, in the form in which it is currently, and resist, counter-intuitively, the temptation to prevent such an eventuality? Successfully resisting such an option would enable its current vision and its ultimate legacy to our country to manifest in different articulations, which then contend for social influence. In this way, the vision never really dies; it simply evolves into higher, more complex forms of itself. Consider the metaphor of flying ants replicating the ant community by establishing new ones.

We may certainly experience the meaning of comradeship differently, where we will now have “comrades on the other side”.

Any political movement that imagines itself as a perpetual entity should look at the compelling evidence of history. Few movements have survived those defining moments when they should have been more elastic, and that because they were not, did not live to see the next day.

I believe we may have reached a moment not fundamentally different from the sobering, yet uplifting and vision-making, nation-building realities that led to Kempton Park in the early ’90s. The difference between then and now is that the black majority is not facing white compatriots across the negotiating table. Rather, it is facing itself: perhaps really for the first time since 1994. Could we apply to ourselves the same degree of inventiveness and rigorous negotiation we displayed leading up to the adoption or our Constitution?

This is not a time for repeating old platitudes. It is the time, once more, for vision.

In the total scheme of things, the outcome could be as disastrous as it could be formative and uplifting, setting in place the conditions for a true renaissance that could be sustained for generations to come.

Ndebele is Vice-Chancellor of the University of Cape Town and author of the novel The Cry of Winnie Mandela

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