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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

Financial and registration information for UFS students (including international students)

2017-02-22

Update: 7 February 2017

The management of the University of the Free State (UFS)
is aware of a misleading post on social media this
past weekend.

The correct facts are:

1) In December 2016, the UFS received information of a
total allocation of R189 239 000 from the National Student
Financial Aid Scheme (NSFAS) for 2017.

2) NSFAS provisionally funded 453 first-time entering
students in January 2017.

3) During 2016, 3 868 students received NSFAS funding.
Should these students qualify according to the academic
requirements of NSFAS, they will qualify to receive the
same funding again in 2017. In the meantime, due to the
current backlog at NSFAS, the UFS assisted 2 573 of
these students who qualify for funding academically.
This will enable the students to register for 2017 while
waiting for NSFAS to make the necessary allocations.
Information as on 6 February 2017 indicated that 2 330
of these students already made use of the opportunity
and have registered for 2017.

4) On 6 February 2017, the UFS received communication
from NSFAS regarding an additional amount of
R66 513 252 which is available for first-time
entering students. Approximately 875 students
will benefit from this allocation. Financial Aid will soon
finalise this process and successful students will be
notified of the allocations.

5) The UFS is in the process of resolving the
classification of the quintile schools so that more
students could be assisted.

The above-mentioned is not final and will change
on a daily basis.

There is an understandable and shared concern among students of the University of the Free State (UFS) around the cost of higher education. This has been a topic of discussion not only on national level, but it has also been a priority for the university’s senior leadership in discussions with student leaders.

The following are ways in which students receive assistance to register for the 2017 academic year:

1. Students receiving assistance from the National Student Financial Aid Scheme (NSFAS)

1.1   Senior students

1.   Senior students who received NSFAS assistance in 2016.
a.   This group of students will receive a NSFAS allocation in 2017, subject to the following terms and conditions:
i.   If they satisfied the 50% module pass requirement for the 2016 academic year.
ii.   If they satisfied the n+2 completion requirement.

b.   Students who conform to these requirements can register as from 31 January 2017.
c.   These students’ placement in residences can also be confirmed.
d.   These students will receive an allocation for books and meals subject to the prioritisation as prescribed by NSFAS.

2.   Senior students who received confirmation of a NSFAS allocation in 2017 with outstanding debt of not more than R20 000.
a.   These students must please visit the Student Finance desk in the different registration venues to make acceptable arrangements for payment of the outstanding monies.
b.   Acceptable arrangements refer to the payment of 50% of these outstanding monies by 30 June 2017 and the remainder by 31 October 2017.
c.   These students will be allowed to continue with their registration after the above process has been complied with.
d.   These students’ placement in residences can also be confirmed.
e.   These students will receive an allocation for books and meals subject to the prioritisation as prescribed by NSFAS.

3.   Senior students who applied for NSFAS assistance in 2017 for the first time or applied previously, but did not meet the qualifying criteria, may only register with the assistance of a NSFAS allocation once confirmed by NSFAS. In the absence thereof, these students may only register after payment of the required prepayments for full registration, or they may register provisionally.

1.2   First-time entering students
The university’s Department of Finance is dealing with this group collectively based on the confirmed financial assistance by NSFAS for the group as a whole.

1.   First-time entering students to whom an allocation have been confirmed by NSFAS will receive an allocation and will be able to continue with their registration. Their placement in residences can also be confirmed. They will receive an allocation for books and meals subject to the prioritisation as prescribed by NSFAS.

2.   First-time entering students who applied at NSFAS before the cut-off dates and matriculated at schools in the quintile 1 to 3 categories will be allowed to register on providing proof of submission of their application. Their placement in residences can also be confirmed. They will receive an allocation for books and meals subject to the prioritisation as prescribed by NSFAS. Confirmation of the students who matriculated at schools in the quintiles 1 to 3 (as per the data collected with the assistance of the university’s ICT Services) will serve as sufficient evidence of the NSFAS allocation still to be made to them.

3.   First-time entering students who can provide proof that the family income is dependent on a grant from the South African Social Security Agency (SASSA) has also been confirmed to receive a NSFAS allocation. Their placement in residences can also be confirmed. They will receive an allocation for books and meals subject to the prioritisation as prescribed by NSFAS.

4.   Please note that the above process only caters for applicants who applied in time and who are admitted in programmes for 2017.

1.3 NSFAS prescriptions towards the allocation of funds

NSFAS determined a priority order that must be used to distribute the NSFAS allocation. The priority order is as follows:

1.   Tuition fees
2.   Books
3.   Accommodation
4.   Meals
5.   Travel

The amount awarded must be allocated according to the above priority order until it is depleted. It thus means that all tuition fees must first be paid before an allocation may be made for books, accommodation, meals, and travel.

NSFAS also prescribes that no allowance may be paid until the student has signed his or her contract. Due to the backlog with allocations to students by NSFAS, contracts for these allocations are also not made available yet.

The UFS is fully aware of the predicament the above circumstances create for students with regard to the allocations for books and meals. To assist students as a transitional arrangement, the university took it upon itself to advance an amount of R750 for meals to all registered NSFAS recipients. This advancement will be paid by the students’ NSFAS allocation after they have signed the contract. All other payments, as per the priority order, can unfortunately only be made after students signed the NSFAS contracts. Signing of contracts will be done electronically.

The advance for meals has been available since Monday 6 February 2017. Students are reminded that they must be registered before the amount of R750 may be advanced. Students should visit the Financial Aid Offices for enquiries.

Students are requested to support the effort of the UFS by availing themselves to sign contracts as soon as it becomes available.

Students should also note that all universities were informed this week of the backlogs that has developed at NSFAS in the processing of financial aid applications made by first-time entering students and returning students. NSFAS is giving urgent attention to the matter. The UFS is monitoring the progress closely and will communicate with the affected students, if necessary.

2. Senior students with outstanding debt who do not receive NSFAS funding

Students may register provisionally, subject to the following terms and conditions approved by the UFS Council on 2 December 2016.

1.   Students must be South African citizens. (International students may not register provisionally because of the Immigration Act.)
2.   Students must have been previously registered at the UFS.
3.   Students must be enrolled for full-time studies and must attend lectures on one of the three campuses (open-learning students, e-learning students, and students registered with Varsity College do not qualify for provisional registration).
4.   Outstanding balances on an applicant’s tuition fees account for 2016 must be less than R20 000.

The minimum pre-payment to register provisionally in 2017 is:
R1 900 for non-residential students; and
R6 750 for residential students.

3. Department of Higher Education Fees Adjustment Grant for 2017

The Department of Higher Education and Training will pay the fee increase capped at 8% for all qualifying registered students with a gross combined family income of up to R600 000 per annum in 2017. This is a grant and will not have to be repaid by qualifying students. The grant will only cover tuition fees and accommodation provided by universities. Students who are recipients of bursaries and scholarships that cover their full cost of study will have to pay the percentage fee adjustment.

The following students qualify:

1.   Only South African citizens and citizens with permanent South African residence studying towards an undergraduate or postgraduate qualification in 2017.
2.   The applicant and direct family (mother, father, spouse or legal guardians) must have a GROSS combined family income of R600 000 or less per annum before tax deductions.

The following students will not have to apply for the grant as they will automatically be considered:

1.   Applicants who applied for NSFAS funding.
2.   All students who attended quintile 1, 2, and 3 schools in Grade 12.

All other students will have to apply for the fee adjustment grant. The application form is available on www.ufs.ac.za. Incomplete applications will not be considered. More information can be obtained from the Financial Aid Office.

Students who are unsuccessful in their application may appeal within 14 days of the outcome of the decision by completing an appeal form which will also be available on the university's website at http://www.ufs.ac.za/kovsielife/unlisted-pages/bursaries/financial-aid.

The closing date for applications is 15 February 2017.

4. International students

The prepayments for 2017 as approved by the UFS Council on 2 December 2016 are:
1.   Non-resident students: R28 160
2.   Resident students: R43 160

The following concessions were made to assist international students to meet the financial requirements for 2017 as approved by the UFS Council on 2 December 2016:

1.   Students who are unable to pay the full amount must visit Student Finance in registration venues.
2.   All outstanding monies of the previous year must be paid in full.

3.   The prepayment amount for 2017 will be calculated for each student based on the following:
a.   A minimum payment of R12 820 for non-resident students and R22 725 for resident students is payable before registration can be considered.
b.   A quotation will be prepared based on the academic advice for 2017.
c.   A payment agreement for the balance of the pre-payment or the first semester’s fees is signed by the student.
d.   This amount is payable not later than 31 March 2017.
e.   The registration of these students are subject to the on-time payment of the agreed amounts.
The current position of the Department of Home Affairs is that all students who have pending applications should be allowed to register on condition that they produce their study visas by 31 March 2017 (Refer to the Minister’s Dispensation Immigration Directive 26 of 2016).

International students may apply for an emergency travel document at their respective Embassies/Consulates, as this will allow for cross-border travelling and will give the student an opportunity to register on site.

Students should bring or email a copy of their receipts as proof that they have applied for their study visa and a certified copy of their passport (issued by the South African Embassy or Consulate), confirmation of their medical aid (a SA medical aid registered under the SA Medical Schemes Act 131 of 1998). Students will have up until 31 March to submit their study visas to Mrs Niemann at the Office for International Affairs, located in the Mabaleng A Building on the Bloemfontein Campus; email: niemannaja@ufs.ac.za. Failure of which will result in deregistration of students.

Zimbabwe: Because Zimbabwe no longer issues emergency travel documents, students from Zimbabwe must email a certified copy of their passport and receipt (issued by the South African Embassy or Consulate), and confirmation letter of the medical aid to Ms Jeanne Niemann from the Office for International Affairs on the following email address: niemannaja@ufs.ac.za. In doing so, students will be able to register online provided that their finances and their admission requirements are in order.

International students should note that the blanket concession was only for final-year students that could not complete their studies due to exams being written at the beginning of the next academic year. If a student returned home in December 2016, this concession expired and the student had to re-apply for a study visa or apply for a visitor’s visa. The relaxed requirements will apply only to final-year students who were not meant to return and continue studies in 2017.

Please see the following explanation of the Blanket Concession:

CLARIFICATION – BLANKET STUDY VISA EXTENSION TO 31 MARCH 2017

Circular 31 of 2016 has reference.

The International Education Association of South Africa (IEASA) has brought to our attention that there may be some confusion regarding the blanket administrative extension to 31 March 2017 of study visas with an expiry date of or prior to 31 December 2016 granted by the Department of Home Affairs in Immigration Directive No. 25 of 2016.

The Department of Home Affairs has confirmed that the Directive does not serve as a replacement visa for students travelling home in December 2016. This Directive serves as an extension of current visas for students who need to complete their academic programmes in 2017. The DHA has advised that should any final-year students be travelling to their home countries in December 2016, they would need to return in January 2017 with a visitor’s visa.

5. Enquiries

Bloemfontein and South Campuses:

Undergraduate and honours students: +27 51 401 3003 / 2806 / 9090 / 9670 / 2817 / 9669

Postgraduate students (Master’s and Doctoral): +27 51 401 9537

Refunds: +27 51 401 7050

Student cards (meals and books): +27 51 401 2799 / 3337

Collections: +27 51 401 3643 / 3448; Fax: +27 51 401 3579

Email: tuitionfees@ufs.ac.za

Qwaqwa Campus:

Client Services: +27 58 718 5024 / 5119 / 5262

Student cards (meals and books): +27 58 718 5026

Cashiers: 058 718 5028; Fax: +27 58 718 5118

Email: nchapiem@qwa.ufs.ac.za

International Office:

+27 51 401 3219

Released by:
Lacea Loader (Director: Communication and Brand Management)
Telephone: +27 51 401 2584 | +27 83 645 2454
Email: news@ufs.ac.za | loaderl@ufs.ac.za
Fax: +27 51 444 6393

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