DEPARTMENT: AGRICULTURE

SELECT COMMITTEE ON LAND AND ENVIRONMENTAL AFFAIRS

AGRICULTURAL PRODUCE AGENTS AMENDMENT BILL

30 September 2003

DEPARTMENT: AGRICULTURE

AD SECTION 1: Definitions

This section amends the definitions section of the main Act. Of

particular importance is the definitions of “fresh produce agent”

and “livestock agent”. These definitions are amended to

ensure that persons in the employ of principals are also

deemed to be agents for certain purposes of the Act, in order

that the disciplinary powers of the Council may also apply to

these persons, a former deficiency. At the request of exporters,

they are also now included under the ambit of the Act, although

they are only registered with a view to comply with a code of

conduct. In addition a definition of “deputy registrar” is added

to enable the establishment of such a position in the council.

DEPARTMENT: AGRICULTURE

AD SECTION 3: Constitution of council

This section amends the present constitution of the council

where specific organisations nominate members to one where

nominations are called for in the media.

In addition the Minister will designate two persons as his or her

representatives to the council.

DEPARTMENT: AGRICULTURE

AD SECTIONS 4,5,6 and 7:

Consequential amendments as a result of the amendment of

section 2 and 3.

In section 5 the Minister now designates the chairperson of the

council.

In addition the term of office of members are limited to two

consecutive terms unless the Minister determines otherwise.

DEPARTMENT: AGRICULTURE

AD SECTION 8: Registrar and staff

The appointment of the registrar, deputy registrar and staff is

regulated in this section. Other than in the present Act, a clear

distinction is drawn between policy-type functions of the Council

(i.e. policy, codes of conduct etc.) and the implementation thereof

(i.e. administration, bookkeeping and enforcement of the Act),

which now lie with the registrar. This is in line with the principles

underlying, inter alia, the new Public Finance Management Act and

sound governance principles.

DEPARTMENT: AGRICULTURE

AD SECTION 9: Objects of council

In this section the objectives of the council are clearly stipulated.

DEPARTMENT: AGRICULTURE

AD SECTIONS 10,11 and 12:

These sections are amended to enable the council to use surplus

monies in the fidelity fund for training purposes, research and to

enhance the occupation of an agent. Furthermore, the provision for

a fidelity fund for Livestock Agents are deleted as there is no

further need therefor. Export agents are not subject to fidelity fund

requirements either.

DEPARTMENT: AGRICULTURE

AD SECTIONS 13 and 14:

Section 13, which deals with fidelity fund claims, is amended to

ensure that persons who committed wrongdoings cannot benefit. In

addition, monies payable are ”capped” in that no interest is payable

or, in the case of produce, the average market price on the day the

loss occurred applies. Section 14, which deals with the procedure

to institute claims, is refined, for example by determining that

producers may be paid pro-rata if there is insufficient funds

available.

DEPARTMENT: AGRICULTURE

AD SECTION 15: Insurance contracts

This section is deleted as it is no longer applicable.

DEPARTMENT: AGRICULTURE

AD SECTION 16: Prohibition to act as agent under certain circumstances

This section requires that fresh produce salesman also have to

obtain fidelity fund certificates from the Council. However, they do

not have to lodge guarantees, and there is no barrier to entry, save

the normal requirements relating to honesty. In the case of

livestock and export agents, they only apply for registration

certificates as they do not belong to a fidelity fund.

Further amendments are made to the existing section to ensure

that no person may be involved with the business of fresh produce

agents unless he or she holds a fidelity or registration certificate.

DEPARTMENT: AGRICULTURE

AD SECTION 17: Security by agents

The section is substituted to give the council greater flexibility in

establishing appropriate guarantees. This is of particular importance

to ensure that the Council has sufficient flexibility to ensure that new

entrants are adequately accommodated while at the same time

balancing the interests of stakeholders.

DEPARTMENT: AGRICULTURE

AD SECTIONS 18 and 19: Accounts

The bookkeeping requirements and trust account in sections 18

and 19 are refined. Note that it does not apply to salesmen, but

only to their “principals”. Refinements include, for example, stock in

hand as part of the trust account and make it clear that a market

authority may not impound or use trust monies, even if they

administer such monies on behalf of agents.

DEPARTMENT: AGRICULTURE

AD SECTIONS 20 TO 23: Accounting practices

Consequential refinements to existing sections and further to

empower the council to make rules as to the regulation, control or

prohibition of any practice followed by agents.

DEPARTMENT: AGRICULTURE

AD SECTION 24: Inspection and Investigation

The procedure necessary to enhance inspection and investigation

by the council are amended in this section.

DEPARTMENT: AGRICULTURE

AD SECTION 25: Disciplinary Tribunal

Provision is made for the appointment of independent tribunals

whenever it is necessary to do so, thereby enhancing real and

perceived objectivity.

DEPARTMENT: AGRICULTURE

AD SECTION 26: Disciplinary powers of tribunal

Of importance here is that a disciplinary tribunal may now, in

addition to its other remedies, impose a fine Gazetted by the

Minister on an agent found guilty of misconduct. In practice the only

real sanction other than disqualification seems to be financial in

nature, and hopefully this will go a long way towards ensuring

compliance with codes of conduct.

DEPARTMENT: AGRICULTURE

AD SECTION 27: Entry and inspections

This section elaborates on the powers of inspectors appointed by

the council upon entry and searching premises.

DEPARTMENT: AGRICULTURE

AD SECTION 29: Offences and penalties

The penalty section for criminal offences is amended to delete the

references to fines. This is done to automatically adjust fines

relative to jail terms in terms of legislation administered by the

Department of Justice.

DEPARTMENT: AGRICULTURE

AD SECTION 30: Deficits in trust accounts

This section is amended to facilitate its operation in practice. Its

operations are limited to fresh produce agents.

DEPARTMENT: AGRICULTURE

TRANSITIONAL PROVISIONS:

For the sake of continuity, these sections ensure that --

a) the council in office on the date of enactment of the new act remains the council until a new council is appointed;

b) agents retain their certificates and are deemed to be registered until new fidelity or registration certificates are issued;

c) the Minister shall appoint additional members after the commencement of the Act.