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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

Situation on the Bloemfontein Campus, and letter to parents
2016-02-28

Letter to parents from Prof Jonathan Jansen, Vice-Chancellor and Rector of the UFS 

 

Statement by Prof Jonathan Jansen, Vice-Chancellor and Rector of the University of the Free State (UFS) about the situation on the Bloemfontein Campus


1.    As all of you know, last night we witnessed a really tragic event at Xerox Shimla Park on the Bloemfontein Campus on the occasion of the Varsity Cup rugby match between NMMU (FNB Madibaz) and UFS (FNB Shimlas).
2.    The game started at 18:30 and about 17 minutes into the match, a group of protestors sitting on the north-eastern side of the stadium decided to invade the pitch and disrupt the game in progress.
3.    After a short while, some of the spectators also invaded the field, chasing and brutally beating those protestors whom they caught.
4.    As a university leadership we condemn in the strongest terms possible the vicious attack on the protestors. Nobody, repeat nobody, has the right to take the law into their own hands. While the protests were illegal and disruptive, it did not harm to the physical well-being of the spectators.
5.    The reaction from the group of spectators, however, not only opened old wounds, it trampled, literally and figuratively, on the dignity and humanity of other human beings. This we condemn in no uncertain terms, and no stone will be left unturned to find those who acted so violently on what should have been a beautiful occasion that also brought families and young children together to enjoy an evening of sport.
6.    I cannot over-emphasise our level of disgust and dismay at the behaviour of the spectators. It is NOT what the University of the Free State (UFS) is about and we are working around the clock to gather evidence on the basis of which we will pursue both charges and, in the case of students, also disciplinary action on campus.
7.    At the same time, the invasion of the pitch is also completely unacceptable and we will seek evidence on the basis of which we will act against those who decided to disrupt an official university event.
8.    Clashes between students occurred afterwards on campus and members of the Public Order Policing had to disperse some of them. The situation was stabilised in the early hours of the morning.
9.    Disruption continued this morning (23 February 2016) when students damaged some university buildings, a statue, and broke windows. Additional reinforcements from the South African Police Service were brought in to stabilise the campus. Additional security has also been deployed.


Broader picture
10.    We are very aware of the national crisis on university campuses and the instability currently underway. While the UFS has been largely peaceful, we have not been spared this turmoil, as last night’s events showed.
11.    We are also conscious of the fact that even as we speak, various political formations are vying for position inside the turmoil in this important election year. In fact, part of the difficulty of resolving competing demands is that they come from different political quarters, and change all the time.
12.    We are therefore learning from reliable sources that the Varsity Cup competition is, in fact, a target of national protests in front of a television audience.
13.    And we are aware of the fact that these protests are not only led by students but also by people from outside who have no association with the university. Just as the violent spectators involved on Monday night also included people from outside the university.

The demands

14.    My team has worked around the clock to try to meet the demands of contract workers demanding to be in-sourced. In fact, this weekend past, senior colleagues sat with worker leaders in the township to try to find ways of meeting their demands. We were hoping that such an agreement would be finalised by Monday afternoon (22 February 2016), but on the same Monday morning workers and students were arrested after moving onto Nelson Mandela Avenue, after which the South African Police Service (SAPS) took over as the matter became a public safety concern outside the hands of the university. Since then, it was difficult to return the workers to settle on a possible agreement.
15.    The fact is that the UFS has been in constant negotiation with contract workers to provide our colleagues with a decent wage and certain benefits. In fact, towards the end of last year we raised the minimum wage from R2 500 to R5 000. We were in fact hoping that the continued negotiations would improve that level of compensation even as we looked at a possible plan for insourcing in the future. We made it clear that if we could insource immediately, we would, but that the financial risk to the university was so great that it threatened the jobs of all our staff. Those negotiations were going well, until recently, when without notice the workers broke away and decided to protest on and around campus.
16.    While these negotiations were going on, the Student Representative Council (SRC) on Monday 22 February 2016 also decided to protest. While the vast majority of our 32 000 students were in classes and determined to get an education, a very small group led by the SRC President decided to protest; some invaded the UFS Sasol Library and the computer centre, and with the President eventually made their way to Xerox Shimla Park on which route they confronted the police, interrupted traffic and in fact injured some of our security staff as well as police officials.
17.    The university is definitely proceeding to collect evidence on these illegal and violent acts and will also act firmly against students involved in these protests.

Summary
18.    The events of Monday night represent a major setback for the transformation process at the UFS. While we have made major progress in recent years—from residence integration to a more inclusive language policy to a core curriculum to very successful ‘leadership for change’ interventions for student leaders—we still have a long way to go.
19.    One violent incident on a rugby field and we again see the long road ahead yet to be travelled. As I have often said before, you cannot deeply transform a century-old university and its community overnight. We acknowledge the progress but also the still long and difficult path ahead. We will not give up.
20.    We have 32 000 students on our campuses; the overwhelming majority of them are decent and committed to building bridges over old divides as we have seen over and over again. So many of our students, black and white, have become close and even intimate friends working hard to make this a better campus and ours a better community and country. Like all of us, they are gutted by what they saw on Monday, but the hundreds of messages I received from parents, students, and alumni this past 20 hours or so said one thing—keep on keeping on. And we will.

 

The Big Read: An assault on transformation (Times Live kolom deur Prof Jonathan Jansen: 25 Februarie 2016)

 

 

 


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