Agricultural Produce Agents Amendment Act

Link to law: http://www.gov.za/documents/agricultural-produce-agents-amendment-act
Published: 2004-02-04

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Agricultural Produce Agents Amendment Act [No. 47 of 2003]


Government Gazette
REPUBLIC OF SOUTH AFRICA

Vol. 464 Cape Town 4 February 2004 No. 25971
THE PRESIDENCY No. 111 4 February 2004
It is hereby notified that the President has assented to the following Act, which is hereby published for general information:–
No. 47 of 2003: Agricultural Produce Agents Amendment Act, 2003.

1 N o . 1597 I GOVERNMENT GAZETTE.4 FEBRL~,4RI’2004
Art No. 37,2003 AGRICULTURAL PRODUCE AGENTS AMENDMENT ACT. ZOO3
GENERAL EXPLANATORY NOTE:
[ 1 Words in bold type in square brackets indicate omissions from existing enactments. Words underlined with asolid line indicate insertions in existing enactments.
(English text signed by the President.) (Assented to 28 January 2004.)
ACT To amend the Agricultural Produce Agents Act, 1992, so as to alter certain definitions and to insert others; to change the constitution of the council; to apply certain provisions to fresh produce agents only: to make certain textual alterations; to provide for the extension of the jurisdiction of the council, to enhance the regulating powers of the council: and to provide for transitional matters; and to provide for matters connected therewith.
B E IT ENACTED by the Parliament of the Republic of South Africa. as follows:- Amendment of section 1 of Act 12 of 1992
1. Section 1 of the Agricultural Produce Agents Act. 1992 (hereinafter referred to as the principal Act). is hereb!, amended- 5
( n J by the substitution for the definition of “agent” of the following definition: “ ‘agent‘ means a person who, for the acquisition of gain on his &r own account or in a partnership, in any manner holds himself or herself out as a person who. [or] &r directly or indirectly advertises that he - she. on the instructions of or on behalf of any other person, purchases or 10 sells agricultural produce or negotiates in connection therewith or canvasses or undertakes or offers to canvass a purchaser or seller therefor[, but excluding- (a) a control board as defined in section 1 of the Marketing Act,
1968 (Act No. 59 of 1968), which in terms of a scheme likewise 15 defined, purchases and sells an agricultural product to which such scheme relates;
(b) a person who, in the course of his agency, purchases and sells the agricultural product concerned on behalf of a control board referred to in paragraph (a); and 20
(c) a local authority as defined in section 84(l)(n of the Provincial Government Act, 1961 (Act No. 32 of 1961), which sells an agricultural product entrusted to an agent as defined above, on behalf of that agent at an auction];”;
(b) by the substitution for the definition of “agricultural product” of the following 25 definition:
“ ‘agricultural product’ means an article specified in Part A or B of Schedule 1 or any article added thereto under subsection (2) of this section;”;
4 NCI . 25971 GOVERNMENT GAZETTE. 4 FEHKUAKY 2001
Act No. 47.2003 AGRICULTURAL PRODUCE AGENTS AMENDMENT ACT. 200.1
( c i by the deletion of the definition of “building society”: (dl by the insertion after the definition of “close corporation“ of the following
definition: .’ ’consumer‘ means a consumer of an agricultural product:“:
( e ) by the insertion after the definition of “council” of the following definitions: 5 ” ‘court’ means a court of the provincial or local division-of the High Court of South Africa havingjurisdiction or a judge of any such court and for purposes of section 27(5) also includes a magistrate as defined in the Mapistrates’ Courts Act, 1944 (Act No. 32 of 1944); ’department‘ means the Department of Agriculture in the national ,oovernment:“; ‘deputy registrar‘ means the deputy registrar of the Agricultural Produce Aeents Council appointed in terms of section 8;
I f ) by the inseriion after the definition of “deDosit-taking institution’’ of the
1 0
following definition: -
IS ‘ * ’export agent‘ means an agent acting as such with rezard to an! agricultural product specified in Part A of Schedule 1 intended for export;“ :
(g) by the substitution for the definition of “fresh produce agent“ of the folloa4ng
” ’fresh produce agent‘ means an agent acting as such with regard to an!’ agricultural product specified in Pan A of Schedule 1 on the basis that the risk of protit or loss at all times remains with the principal. and- ( a ) for the purposes of section 3(l)(a), includes any director of a
company. trustee of a trust or a member of a close corporation who acts as a fresh produce agent as aforesaid;
/ h i for the purposes of sections 12(5), 13(3)fh), l3(3)(cl. IX3Ydl. 133). 11(5 ) ( r r ) , 16(6)(f), 16(6A), 22, 23. 24. 95. 26. 37 and 30. includes-
( i ) any director of a company. or a member of a close corporation or a trustee of a trust who acts as a fresh produce agent as aforesaid: and
(ii) any person who is employed by a fresh produce agent and who
definition:
acts as a fresh produce aient as aforesaid for the-employer:”: ( h ) by the substitution for the definition of “fund“ of the following definition: c
.‘ ’fund’ [. in relation to- (a) fresh produce agents,] means the [fidelity fund] Fresh Produce
[(b) livestock agents, means the fidelity fund referred to in section 12
( i ) by the substitution for the definition of “livestock agent” of the following
” ’livestock agent’ means an agent acting as such with regard t o an!. agricultural product specified in Part B of Schedule 1. and for purposes of section 3( 1 )ib) includes any director of a company, trustee of a trust or a member of a close corporation which acts as a livestock agent as aforesaid:”:
A,gents Fidelity Fund referred to in section 12(2):
(3);l“:
definition:
( j ) by the deletion of the definition of “officer”; ( k ) by the substitution for the definition of “registrar” of the following definition:
.’ ‘registrar‘ means the registrar of the Agricultural Produce Agents Council appointed in terms of section 8, and for purposes of the application of the provisions of this Act, includes the deputy registrar:“:
( I ) by the insertion of the following definition after the definition of ”registrar“: * ’ ’registration certificate’ means a registration certificate issued by the council in terms of section 16;”.
30
35
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Act No. 17. 2003 AGRICULTURAL PRODUCE AGENTS AMENDMENT ACT. 200.;
Substitution of section 3 of Act 12 of 1992
2. The following section is hereby substituted for section 3 of the principal Act:
"Constitution of council
3. (1 ) The Minister shall appoint as members of the council for a maximum period of three years- ( a ) two persons who in his or her opinion represent producers of the
( 0 ) two persons who in his or her opinion represent producers of the
(c) three persons who in his or her opinion represent fresh produce agents: ( d ) three persons who in his or her opinion represent livestock a, "eIlt3: (e ) three persons who in his or her opinion represent export agent$: ( f i two persons designated by him or her; (g) two persons who in his or her opinion represent consumers: and ( / I ) one person representing the Department.
( 2 ) The registrar and deputy registrar shall e.1- qficio be ntembers o f the council.
(3) A member may not serve more than two consecuti\.e terms unless the Minister i \ of the opinion that the appointment for a further term nil1 be beneficial to the council.
(4) Whenever members or a member of the council has to bc appointed in terms of subsection ( 1 ), the Minister shall call for nominations of suitable persons in the national media.
( 5 ) ( ( 1 ) I f a member of a council ceases to hold office for any reason a11d \'acates office. the Minister may appoint a person in his or her place f o r the unexpired part of the term of office of the vacating member.
(h ) If. upon the expiration of the term of ofiice of the member\ o f the council. the Minister has not yet appointed new member\ to takc their place. the existing members shall continue in office until new metnberz have been appointed to replace them.
(6) A member of the council other than the registrar. deputy registrar and a member referred to in subsection ( 1 ) ( 1 1 ) shall be paid such rt'mllntmtion or allowances from the funds of the council. as the council ma! determine.
( 7 ) No person may be appointed as a member of the council. \vho-- / a ) is not a South African citizen resident in South Africa: t h l is an unrehabilitated insolvent in respect of whom the trustee of the
insolvent estate has not certified that the insolvent is ;I t i t and proper person to serve as a member of the council;
f c ) has failed or is unable to comply in full with a judgment or order. including an order as to costs, given against him or her by a court of law in civil proceedings;
(d l has been convicted of an offence involving an element ot'dishonrst! o r has been sentenced for another offence to a period of imprisonment:
l e ) is of unsound mind; or (f) has contravened section 7 of the Promotion of Equality and Pre\ention
of Unfair Discrimination Act, 2000 (Act No. 6 of 2000). and i t l i a ~ been so determined by an equality court.".
agricultural products set out in Part A of Schedule 1 :
agricultural products set out in Part B of Schedule 1:
Substitution of section 4 of Act 12 of 1992
3. The following section is hereby substituted for section 4 of the principal Act-
"Vacating of office by members of council 5 0
4. A member of the council shall vacate his or her office if- (a ) he or she becomes subject to any disqualification referred to in section I
8 No. 35971 GOVERNMENT G.AZETTE. 4 I’EHRL:.AKl’ 2004
.Act No. 47,2003 AGRICULTURAL PRODUCE AGENTS AMENDMENT ACT. 200.2
(b) he or she has been absent from more than two consecutive meetings of
(c) he or she resigns as a member of the council and has notified the
( d ) he or she is no longer fit to serve on the council: or ( e ) in the case of the registrar, he or she is no longer employed by the
the council without the leave of the council:
registrar in writing of his or her resignation:
council.”.
Substitution of section 5 of Act 12 of 1992
4. The following section is hereby substituted for section S of the principal Act:
“Chairperson of council
5. ( 1) The Minister shall designate a chairperson for the council from the members contemplated in section 3( 1).
(2) When the chairperson is absent or is unable to perform his or her duties. the members of the council shall from among their number elect a person to act as chairperson until the chairperson is able to resume his or her duties or until a new chairperson is designated by the Minister.
(3) A person whose term of office as chairperson has expired through effluxion of time shall be eligible for re-election to that office: Provided that no person shall serve as chairperson for more than six consecutive years.“.
Substitution of section 6 of Act 12 of 1992
5. The folloLving section is hereby substituted for section 6 of the principal Act:
“Meetings and decisions of council
5
1 0
1
90
6. ( 1 ) The council shall meet at such times and places as the chairperson may from time to time determine.
( 2 ) The chairperson of the council may at any time convene an extraordinary meeting of the council to be held at a time and place determined by him or her and shall. upon a written request signed by not less than three members of the council. convene an extraordinary meeting thereof to be held within two weeks after the date of receipt of such request. at a time and place determined by him or her.
(3) The person presiding at a meeting of the council shall determine the procedure at that meeting.
(4) (a) The quorum for a meeting of the council shall be a majority of all its members.
(6) The decision of a majority of the members of the council present at a meeting thereof shall constitute a decision of the council.
( c ) In the event of an equality of votes on any matter the person presiding at the meeting shall have a casting vote in addition to his or her deliberative vote.
( 5 ) No decision taken by the council or act performed under the authority of the council shall be invalid by reason only of a casual vacancy on the council or of the fact that any person not entitled to sit as a member of the council sat as such a member at the time the decision was taken or the act was authorized, if the decision was taken or the act was authorized by the majority of the members of the council who were present at the time and entitled to sit as members of the council.”.
Amendment of section 7 of Act 12 of 1992
6. Section 7 of the principal Act is hereby amended by- (0) the substitution in subsection (1) for paragraphs (a) and (b) of the following
paragraphs, respectively: so
.\rt No. 47.2003 AGRIClILTLiRAL PRODUCE AGENTS AMENDMEST .ACT. 2 0 0 ;
" ( a ) There shall be [two] three executive coninlittees of the cwncil which shall deal with matters relating to the occupations ot'esport agent. fresh produce agent and livestock agent. respecti\,ely.
(b ) The executive committees shall consist of the ~nember\ o f the council referred to in paragraphs [(b)(i) and (c). and paragraphs ( h H i i 1 5 and (d), respectively, of section 3(1).] (c) to ( r j of section i( 1 ). respectively.": and
( h i the deletion in subsection (1) of paragraph (d).
Substitution of section 8 of Act 12 of 1992
7. The following section is hereby substituted for section 8 of the principal Act: 1 0
"Registrar and deputy registrar
8. (1 ) The work incidental to the performance of the functions o i the council and its committees shall be performed by the registrar and cicput! registrar. who shall be appointed by the council in conaultntion \\it11 the Minister.
(a ) may delegate or assign to a person appointed or designated by him o r her any power or duty conferred or imposed upon him or her h! o r under this Act:
( 2 ) The registrar-
(0) is accountable to the council and responsible for- (i) the implementation of policy. rules and the codes of conduct
determined by the council in accordance \sith this Act: ( i i ) the day-to-day administrative functioning of the council.
including the registration of agents with the council. t h r l keeping of records of account. inspections and inyestigations into the affairs of agents and the institution and conducting of disciplinary or other proceedings against agents: and
(iii) reporting to the council on his or her acti\itie\ i n t e r m o f subparagraphs ( i ) and (i i ) ;
( c ) shall be appointed on such terms and conditions as the council ma! decide.'' .
Substitution of section 9 of Act 12 of 1992
8. The following section is hereby substituted for section 9 of the principal Act:
"Objects of council
9. The ob.jects of the council shall be to regulate the occupation\ o f f r e h 35 produce. export and livestock agents and to maintain and enhance the status and dignity of those occupations and the integrity of person? practising those occupations.".
Amendment of section 10 of Act 12 of 1992
9. Section 10 of the principal Act is hereby amended by the substitution f o r 40
" ( 0 ) to [perform any functions in connection with agents entrusted to the
I b ) to [gather information in connection with agents and persons applying for
( c ) to hire, purchase or otherwise acquire such movable or immovable property
paragraphs (a), (b) and (c) of the following paragraphs. respectively:
council by this Act or any other law] formulate policy;
the issue of fidelity fund certificates] establish rules and codes of conduct: 35
such interest in movable or immovable property as the council may deem necessary for the effective performance of its functions. and to let. encumber. sell or otherwise dispose of property so purchased or acquired: and".
Act No. 47.2003 AGRICULTURAL PRODUCE AGENTS AMENDMENT ACT. 2007
Amendment of section 11 of Act 12 of 1992
10. Section 1 I of the principal Act is hereby amended- ( [ I ) by the substitution in subsection (1) for paragraph ( h ) of the thllowing
" (b ) all other [money] moneys which may accrue to the council from paragraph:
any other source."; ( b ) by the addition of the following subsections after subsection ( 2 ) :
"(2A) The council may, sub-ject to such terms and conditions as i t ma!' deem fit- (a) make grants with regard to-
(i) research in fields of activity relevant to the business of agents
(iij the maintenance and promotion of the standard of conduct of
(iii) the maintenance and promotion of the training standards o f
(bl pay an honorarium or remuneration to any person or institution for services with the object of enhancing the standard of conduct of agents in general. rendered at the request of the council: and
in general;
agents in general;
agents in general;
(c) utilize such amount as it may determine for the purpows of- (i) advertising and promoting the services and facilities offered b!
agents in general; or (ii) promoting public awareness in respect of matters relating to
the purchase of agricultural products referred to i n Part A or B of Schedule 1.
(2B) The council may at any time revoke any grant referred to in subsection (3 ) (~ ) . " ;
(cl by the substitution for subsection ( 5 ) of the following subsection: " ( 5 ) The financial year of the council shall end [in each year upon the
date determined by the council from time to time] on 31 March in each year and the council shall report annually on its acti\.ities to the Minister.";
((1) by the insertion after subsection ( 5 ) of the following subsection: "(5A) The council shall, at least three months prior to the start of its
financial year. provide to the Minister for his or her information a 35 business plan of the forthcoming financial year containing at least- (ai the budget of the council for that forthcoming year: 10) particulars about any training. promotional or other acti\.ities that
the council plans to undertake during that year; f c ) such other particulars as the Minister may request.": and
( e ) by the substitution for subsection (10) of the following subsection: "(IO) The functions of the council in terms of this section may be
performed separately in respect of fresh produce ae oents. export ayents and livestock agents.".
Substitution of section 12 of Act 12 f 1992 -15
11. The following section is hereby substituted for section 12 of the principal Act:
"Establishment and control of fidelity [funds] __ fund
12. ( 1 ) There [are] is hereby established [two funds] a fund to be known as the Fresh ProduceAgents Fidelity Fund [and the Livestock Agents Fidelity Fund, respectively]. 50
( 2 ) The [Fresh Produce Agents Fidelity Fund] - fund shall consist of- ( a ) money in the fidelity guarantee fund established under section 27 of
the Agricultural Produce Agency Sales Act, 1975 (Act No. 12 of 1975);
(b) each amount which is immediately prior to the commencement ofthis 55 section payable to or on the account of the fund referred to in paragraph (a), and is paid on or after such date of commencement;
Act No. 47.2003 AGRICULTURAL PRODUCE AGENTS AMENDMENT .ACT 200.;
(c) money paid to or on account of the [said] fund i n term5 oi subvxtioll
(d l money recovered by or on behalf of the [said] fund in terms o f this
[(e) money received by the said fund by virtue of a contract of'
[(f)]@) income derived from the investment of money in the Isaid] fund:
[(g)]U any other money accruing to the [said] fund from an!. other source.
(a) money paid to or on account of the said fund in terms of subsection
(b) money recovered by o r on behalf of the said fund in terms of this
(c) money received by the said fund by virtue of a contract of
(d) income derived from the investment of money in the said fund:
(e) any other money accruing to the said fund from any other source.] [(4)] (3) ( a ) Each fresh produce agent other than a person emplo!r.d b!
such an agent [who is the holder of a fidelity fund certificate] shall annually before or on a date determined by the council [for this purpose.1 pay to the council for the account of the [applicable] fund an m o u n 1 calculated on such basis or in such manner as the council ma!. dt.tr.rn1ine.
tb! A determination by the council in terms of paragraph f ( 1 I h h a l l he made with due regard to the purpose for which the fund [concerned] ha\ been established. as \vel1 as the present assets and future obligations o f ' [that] the fund.
[(5)]-w (u ) Subject to the provisions of this Act. [The funds are] fund is established to [compensate persons in accordance with the provisions of this Act] reimburse producers for [monetary] losstt\ suffered by them as a result of [the failure ofl- ( i ) [commission agents as defined in section 1 of the Agricultural
Produce Agency Sales Act, 1975, who were members of the tidelit! guarantee fund referred to in subsection (2) (a) of this section prior to the commencement of this ection, to complj. w i t h the provisions of the said Act and the regulations made thereunder: and] theft. committed by a fresh produce agent. of an\' monr! o r a.w-icultural produce entrusted by or on behalf of the producers thereot to him or her as a fresh produce agent: and
( i i ) [agents who are in possession of valid fidelity fund certificates. to comply with the provisions of this Act and the rules] dishonest conduct by a fresh produce agent in so far as such conduct relates to agricultural produce.
(4) by fresh produce agents;
Act;
insurance referred to in section 15;]
and
[(3) The Livestock Agents Fidelity fund shall consist of-
(4) by livestock agents;
Act;
insurance referred to in section 15;
and
[(b) Compensation in terms of paragraph (a) shall- (i) only be payable from the fund referred to in subsection (2 ) if it
relates to an agricultural product specified in Part A of Schedule 1: and
(i i) only be payable from the fund referred to in subsection (3) if it relates to an agricultural product specified in Part B of Schedule 1.1
[(c)] (b) Notwithstanding the provisions of paragraph ( a ) . the Minister may, if he orshe is of the opinion that the balance of [a particular] the fund is sufficient to meet the obligations contemplated in that paragraph. approve that such portion of the income referred to in [subsections] subsection (2)[(n](g) [and 3(d)l as may be determined by him or her. be made available to the council for utilization as contemplated in section 1 I ( ? ) .
[(6)] (5) The [funds] fund shall be controlled and administered by the council in accordance with the provisions of this Act.
[(7) The council shall open separate accounts with a deposit-taking institution or building society in which the money in the funds is to be kept.]
.
Act No. 47,2003 AGRICULTURAL PRODUCE AGENTS AMENDMENT XCT. 100.;
[(S)] (6) The council may invest any money in the [funds] fund not [(9)] (7J The financial year of the [funds] fund shall terminate on such [(lo)] (8) No provision of any law relating to insurance shall apply in
[(ll)] (9J The provisions of section 11 (6), (7), (8) and (9) shall r r l m r i . 7
required for immediate use at a deposit-taking institution.
date in each year as the council may determine.
respect of the [funds] fund.
rmttardis apply to the [funds] - fund.”.
Substitution of section 13 of Act 12 of 1992
12. The following section is hereby substituted for section 13 of the principal Act:
“Payments out of [funds] fund 13. ( 1) Subject to the provisions of this Act, the [applicable] fund shall
be utilized for- (a ) all claims against the fund referred to in section 1 1 and paid by the
council or allowed or established against the fund [concerned]: (b/ [compensation,] in the discretion of the council. a contribution
towards expenses incurred by [to] a claimant for [expenses incurred in respect of proof ofl establishing his e claim:
(c) legal and accounting costs incurred in, and other expense5 arising from, the investigation and defence of a claim made against the fund:
[(d) premiums in respect of contracts of insurance entered into by the council in terms of section 15;]
(e) the costs incidental to the control and administration of the fund. including allowances and remuneration paid for this purpose to members of the council and a committee of the council. the re,’ w t r x and the persons referred to in section 8(2): and
Ifi other payments required or permitted to be made out of the fund i n terms of this Act.
(2) Notwithstanding anything to the contrary in any other Act. [The] the council may in its discretion pay an amount out of the [applicable] fund a5 interest on the amount of any ljudgment obtained against the fund or of any] claim admitted against the fund [admitted]: Provided thx- (a) the interest shall not run from a date earlier than the date on \\ hich the
claim [concerned] was lodged in writing with the council i n terms of subsection (3)(a)(i); and
(b) the rate of interest shall not exceed the prevailing rate of interest prescribed under section l (2) of the Prescribed Rate of Interest Act. 1975 (Act No. 55 of 1975).
(3) Notwithstanding [the provisions of subsection (U.1 un) other provision, no person shall have any claim against [a] funci- f a ) unless the claimant-
( i ) has lodged it in writing with the council wzithin six months after he & became aware of the loss [concerned]. or by the exercise of reasonable care could have become a\vare thereof: and
(ii) has within three months after having been requested thereto in writing by the council, furnished the council with such proof of that loss as the council may reasonably require: and
(6) if the claimant[- (i)] is a partner, manager, representative, agent. employee or
member of the [family] household of the fresh produce agent whose [omission or alleged omission] conduct referred to in section 12(5) has caused the loss [concerned]:
[(ii) in the case of an agent who is a company or co-operative, is a director of that company or co-operative;
(iii) in the case of an agent who is a close corporation, is a member of that close corporation.]
.Act No. 47.,2003 AGRICULTURAL PRODUCE AGENTSAMENDMEST,~CT. 200.;
(c, if the loss occurred as a result of the conduct. referred t o ill W ~ I I O I I 12(5), of a fresh produce agent whose fidelity has been guaranteed h! 1 any person, either in general or in respect of the particular transactton. ~ to the extent to which the transaction is covered by the guarantee: a n d
(d) if the loss occurred as a result of the conduct. referred to i n section 5 12(5), of a fresh produce agent after such claimant received ;I \\ rittcn j notification from the registrar warning him or her against the employment or continued employment of such fresh product. q c n t . j
(I) A claim for reimbursement contemplated in section 12(5) shall t w ~ limited. in the case of money entrusted to a fresh produce Llgent. to the j 1 0 amount actually handed over, without interest. and. i n the caw o f , agricultural produce, to an amount equal to the a\.erage market alur o f such produce on the date when written demand wah first made for i i h i I delivery, or if there is no average market value, the fair market \.slut. a\ at 1 that date, without interest.". IS
Substitution of section 14 of Act 12 of 1992
13. The following section is hereby substituted for section 14 of the principal Act:
"Claims against [funds] fund and actions against council 14. ( I ) A claim for the reimbursement from [a] the fund of ;I monerar!
loss that arose under the circumstances set out in section 12(5 i shall. subjsct 20 to the provisions of section 13(3). be lodged with the council.
( 2 ) If the council admits such a claim. a payment shall be made to the claimant [concerned] in accordance with the provisions of section 1 .:( 1 i : Provided that the amount of such payment shall not be more than the difference between the amount of the loss suffered b! the claimmt 23 [concerned]. and the amount or value of all money5 or other benetit\ received or entitled to be received by that claimant. whether gratuitousl> o r otherwise, from any other source.
( 3 ) If the council rejects a claim. an action in respect of that claim ma! be instituted against the council in the court within whose jurisdiction thc . .30 [cause of the claim arose,] principal place of business of the council i \ situated [provided]= fn l if the claimant has [, in the opinion of the council.] exhausted A 1 I t . y i
remedies against the fresh produce agent in respect of \vhom the claim a r o s e s r .? 3
( h J with leave of the council, before all legal remedies against the \a id agent have been exhausted.
(4) In any action against the council [in respect of a fund,] a l l defence\ which would have been available to the fresh produce agent i n rehpect o f whom the claim arose. shall be available to the council. 4 )
( 5 ) When the council settles in full or in part any claim under t h i \ Act- ( 0 1 there shall pass to the council, to the extent of such settlement. a 1 1 thc
rights and remedies of the claimant in respect of such claim against the fresh produce agent [concerned or any other person] 01. i f applicable. in the case of the death, insolvent). or other legal 45 incapacity of such fresh produce agent [or other person]. again5t the estate of the said fresh produce agent [or other person]: and
(b ) the council may use any security furnished by or on behalf of [an] 2 fresh produce agent in terms of section 17, to reimburse the fund [concerned] for the amount for which the claim [concerned] \\'a\ 50 settled.
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7 -
(6) ( a ) The council may in its discretion decide on the order in \~.hich claims admitted by the council or awarded by the court shall be paid o u t of the [applicable] fund.
30 No. 25971 GOVERNMENT GAZ TTE. -I FtHKl AI at' this Act shall be null and void and shall on demand be returned to the ~
(hl Every prospective export agent and livestock agent sI1;dI. within the I O
council. (4) An application for a fidelity fund certificate shall be made i n the
manner determined by the council, and shall be accompanied by the applicable amount determined by the council for this purpose.]
[(5) After consideration of any such application the council shall. subject to the proyisions of subsection (6). issue to the ;tpplicant a fidelity fund certificate in the form determined by the council.]
(6) [The council may refuse to issue a] No fidelity fund certiticatc. 0' registration certificate. as the case ma!. be. shall be isued to [;I person who] any person- ( a ) * has at any time by reason of improper conduct been d i \ n ~ i \ ~ c d
from a position of trust:
of dishonesty: ( 0 ) who has at any time been convicted of an offence i n \ O I L in2 ;t11 clcmcnr
( c J who is of unsound mind; [(d) has at any time been convicted of a contrayention of the
Agricultural Produce Agency Sales Act, 1975 (Act No. 12 of 1975). and whose registration as a commission agent as defined i n the said Act, was as a result thereof cancelled in terms of section 6 of that Act;]
(e) who has, after an investigation in terms of section 111. been found guilty of improper conduct[, if the council has as a result thereof kithdrawn the fidelity fund certificate previously issued t o the person concerned];
(f, is an unrehabilitated insolvent in respect of whom the trustee of the insolvent estate has not certified that the insol\'ent is tit i rnd proper person to assume a position of trust and to be issued wit11 ;I fidelity fund certificate or registration certificate, as the case rn;l>. be: [or1
(8 ) in the case of a company [or co-operative]. close corporation or other juristic person, which is being wound-up. whether pro\isionall> or otherwise, or is derepistered, as the case may be: [has a director or employee, and in the case of a close corporation, has a member or employee, who is subject to a disqualification set out in paragraph (a), @), (c), (4, (e) o r 0.1
( h ) who has failed to discharge all his or her liabilities to the council: (i) who has failed to comply with any lawful requirement of the council: ( j ) in the case of a fresh produce agent, who has failed to comply with the
provisions of section 19( l ) (a) ;
3 0
10
5 0
I 6o
Act No. 47,2003 AGRICULTURAL PRODUCE AGENTS AMENDMENT ACT. 2003
( k ) in the case of a fresh produce agent, who carries on or intends to cam) on business as a fresh produce agent under a trade name which is identical or confusingly similar to a trade name of a fresh produce agent-
(i) already issued with a fidelity fund certificate: or (ii) whose fidelity fund certificate is suspended or has lapsed or
5
( I ) in the case of an export agent, who carries on or intends to carry on business as a livestock agent under a trade name which is identical or similar to a trade name of a livestock agent- I O
been withdrawn in terms of this Act;
(i) already issued with a registration certificate: or (ii) whose registration certificate is suspended or has lapsed or
Provided 'that if in respect of any person who is subject to an!' disqualification referred to in this subsection. the council is satisfied that. 15 with due regard to all the relevant considerations, the issue of a fidelity fund certificate or registration certificate, as the case may be, to such person will be in the interest of justice, the council may issue, on such conditions as the council may determine, a fidelity fund certificate or registration certificate. as the case may be, to such person when he or she applies therefor. 3 0
(6A) (a) The council may issue a fidelity fund certificate or registration certificate to any person who is acting or intending to act as a fresh produce agent or livestock agent and such a certificate shall be deemed to be a certificate issued on application by such a person.
under paragraph (a) shall not exempt the person from any prosecution for not complying with or contravening any provision of this Act or the rules prior to the issuing of such a certificate.
[(7) Any person to whom a fidelity fund certificate has been issued in terms of subsection (5) shall, when requested thereto by the council, 30 pay to the council within the period determined by the council the amount determined by the council.] [(S) (a) Subject to the provisions of paragraph (b), each person who
immediately prior to the commencement of this section was a member of the fidelity guarantee fund established under section 27 of the 35 Agricultural Produce Agency Sales Act, 1975 (Act No. 12 of 1975), shall be deemed to be the holder of a fidelity fund certificate issued by the council in terms of this Act.
(b) The validity of a fidelity fund certificate referred to in paragraph (a) shall lapse 90 days after the date of commencement of this section 10 unless the holder thereof has on or before such date paid to the council the applicable amount determined by the council for this purpose.]
(9) Each agent who is the holder of a fidelity fund or reyistration certificate shall- (a) annually [on or before] before or on a date determined by the council. 15
pay to the council the amount determined by the council for the maintenance of such certificate;
been withdrawn in terms of this Act:
(b) The issuing of a fidelity fund certificate or registration Certificate 25
( 6 ) forthwith notify the council in wnting- (i) of any change of his or her business or postal address;
(ii) if the partnership of which he or she is a partner, dissolves: SO (iii) if he or she becomes a member of a partnership; (iv) if, in the case of a company[, co-operative] or close
corporation, a change in the directorship of that company [or co-operative] or the membership of that close corporation has occurred; [and] 5s
(v) if, in the case of a trust, a change in the trustees of that trust has occurred;
(vi) if he or she has ceased to act as an agent; and
Act No. 17.2003 AGRICUI~TURAL PRODUCE AGENTS AMENDMENT 4C-I. 2001 ~~~ ~~~
[(v)](vii) of any further particulars requested by the council as a re5ult 01’
(10) (a) A fidelity fund or registration certificate issued to ;In agent shall automatically lapse when he or she becomes disqualified as conten1platc.d in subsection (6) or if the agent ceases to act as an agent. >
[(b) The council may withdraw the fidelity fund certificate of an agent if- ( i ) he is found guilty of improper conduct under section 26;
(ii) he fails to pay the amount referred to in subsection (9)(a) within three months after the date of a written request therefor by the I O registrar, addressed to his last known postal address, as entered in the records of the council;
(iii) he fails to furnish the registrar with his business address and postal ,address within three months after the date of a written request therefor by the registrar, addressed to his said postal IS address;
a notice in terms of the preceding subparqraphs.
(iv) he fails to comply with the provisions of section 18(2) or 19( l).] (0) If a fidelity fund certificate which lapsed in terms of subparapaph f L / i
had been issued to a company, close corporation or trust. then the fidttlit!, fund certificate of- 2 0 ( i 1 every director. member, or trustee : and
( i i ) every employee, as contemplated in the definition of ‘fresh produce agent‘ in section 1 shnll : likewise lapse.
withdrawn] suspended, the registrar shall-- - ( i ) by means of a written notice addressed to the said business and postal
( i i ) in the case of a fresh produce agent who conducts his or her busines\
(c) If a fidelity fund or registration certificate so lapses or i i [so 25
address of the agent [concerned]. notify him or her thereot; [and]
at a fresh produce market, by means of a written notice addressed t o .X) the person in charge of that market. notify him or her thereof: and
English newspaper] a newspaper in at least two official lanyuyes. one of which should be English, circulating i n the district in which the said agent‘s last known business address, as entered i n the record\ 01’ i the council, is situated.
- (iii) cause particulars thereof to be published in [an Afrikaans and an
(d) [A] The agent or any person who is i n possession of or has under h i \ or her control a fidelity fund or registration certificate which has lapsed [or has been withdrawn] under paragraph (a) [or (b), as the case may be]. shall return the certificate to the registrar within 30 days after the [notice 40 referred to in paragraph (c)] last date of publication referred tc i n paragraph (c)(iii).
( e ) A fidelity fund or registration certificate which has lapsed [or has been withdrawn under this subsection], shall be void with effect from the. date of such [lapse or withdrawal] lapsing. I S
(1 1) No person whose fidelity fund or registration certificate has lapsed. may directly or indirectly participate in the management of any business carried on by an agent in his or her capacity as such. or participate in the carrying on of such business, or be employed, directly or indirectly. in an> capacity in such business, except with the written consent of the council and 50 subject to such conditions as the council may determine from time to time.
(12) No agent shall directly or indirectly in any capacit), whatsoeier employ a person referred to in subsection ( I I ) , or allow or permit such person directly or indirectly to participate in any capacity in the management or the carrying on of his or her business as an agent. except 55 with the written consent of the council, and subject to such conditions as the council may impose.”.
28 No. 25971 GOVERNMENT GAZETTE. 4 FEBRUAR)’ 2004
Act No. 47,2003 AGRICULTURAL PRODUCE AGENTS AMENDMENT ACT, 2003
Substitution of section 17 of Act 12 of 1992
16. The following section is hereby substituted for section 17 of the principal Act:
“Security by agents
17. (1) [The council may require that an agent who is the holder of a fidelity fund certificate shall furnish to the council within the period determined by the council such security as the council may determine,] Every fresh produce agent who is responsible to open and keep a trust account in terms of section 19( 1), shall before a fidelity fund certificate is issued to him or her furnish the council with security in such amount and in such form as is acceptable to the council, for use by the council [as contemplated in section 14(5)(b), in respect of] to meet any claim arising [from an act or omission by that agent,-and which has occurred within two years after the fidelity fund certificate was issued to him.] in terms of section 1 2 0 ) or to defray the costs or part of the costs of an inspection and investigation held in terms of section 24 where such fresh produce agent has been disciplined in terms of section 26( 1).
(2) [Such] The security referred to in subsection (1) shall be returned to the fresh produce agent [concerned] within six months after the lapse of the fidelity fund certificate of that fresh produce agent, [period referred to in
- -
subsection (1) has expired,] unless an [inquiry] inspection and investiga- 20 tion under section 24 [into] of an act or omission or alleged act or omission of the fresh produce agent [concerned] is being held before such expiration. and may until it has been so returned from time to time be altered. increased or decreased by the c o u a . ” .
Substitution of section 18 of Act 12 of 1992
17. The following section is hereby substituted for section 18 of the principal Act:
”Account
18. ( 1 ) Every fresh produce agent contemplated in paragraph ( N ) of the definition of ‘fresh produce agent’ in section 1 [who is the holder of a fidelity fund certificate] shall in respect of his or her activities as such. keep. at a place approved by the council, [in one of the official languages] ful l and correct accounting records of- (u ) all money received, kept or expended by him -, including money
deposited in a trust account referred to in section 19( l ) ( r r ) or invested in a savings or interest-bearing account referred to in section 19(3)(cr):
(h) all his or her assets and liabilities; [and] (c) all his financial transactions[.]:& (d) all agricultural produce received, kept. sold and lawfully destroyed.
(2) (a ) Such fresh produce agent shall cause the said accounting records to be audited at his e r expense by an auditor within four months after the final date of every financial year of the fresh produce agent, which final date shall not be amended by him or her without the prior written approval of the council.
( h ) Notwithstanding the provisions of subsection (2)(a), the council may, on good cause shown, at any time order any fresh produce agent by notice in writing to submit to the council within a period stated in such notice, but not less than 30 days, an audited statement fully setting out the state of affairs in respect of the matters referred to in subsection (1).
(c) The court may, on good cause shown upon application by the council or any other competent person, prohibit any fresh produce agent from operating in any way his or her trust, savings or other interest-bearing
25
30
35
40
45
50
~ ~~
Act No. 17,2003 AGRICULTURAL PRODUCE AGENTS AMENDMENT ACT. 200.;
account referred to in section 19(3)(a) and may appoint a u l w r o r D o r ~ i s to control and administer such trust, savings or other interest-bearin, accotmt. with such rights, duties and powers as the court may deem fit.
(3) [An] A fresh produce agent [referred to in subsection ( l ) ] shall retain the accounting records to be kept in terms of this section. for a period 5 of at least three years after the last entry in respect of any transaction [was] made therein, at the applicable place referred to in subsection ( I ) , together with the vouchers, receipts and other documents relating to those accounting records.
reason whatsoever. the fresh produce agent shall- (a) balance the accounting records referred to in subsection ( I ) within 2 1
days. or such other period as the council may determine. of the date on which he or she performed his or her last activity as [an] a fresh produce agent. and thereupon have them audited as contemplated in 15 subsection ( 2 ) O within three months of the said date: [and]
(b) forthwith notify the council in writing of the place at which such accounting records and the vouchers, receipts and other documents referred to in subsection (3) which relate to those records are retained as contemplated in that subsection[.]@ 20
(c) wind-up his or her trust, savings or other interest-bearing account i n the prescribed manner and pay out i n the prescribed manner the amount standing to the credit of any such account to the persons entitled to it.
(4) If the business of such fresh produce agent is terminated for any I O
(5) (u) I f such fresh produce agent fails or is in the opinion of the council 15 likely to fail to comply with the provisions of subsection (4). the council may designate any person to comply with those provisions on behalf o f the fresh produce agen; [concerned]: (0) When the council designates a person under paragraph ( (11 . the
expenditure incurred in connection with-the performance of the functions 30 [concerned] shall be recoverable from the fresh produce agent [con- cerned].“.
Substitution of section 19 of Act 12 of 1992
18. The following section is hereby substituted for section 19 of the principal Act:
“Trust accounts 35
19. ( 1 ) Subject to the provisions of subsection (2). each fresh product agent [who is the holder of a fidelity fund certificate] other than a11 employee contemplated in the definition of ‘fresh produce agent‘ i n section - 1 shall- (a) open and keep a trust account at a deposit-taking institution: and 1 0 (b) forthwith deposit herein the proceeds of the sale of agricultural
produce sold by him orher on the instructions of or on behalf of h i c her principal.
(2)[(a)] Only one trust account shall be kept in respect of the business of [an] a fresh produce agent [who] which s a partnership. 45
[(b) The Minister may on the recommendation of the council and by notice in the Gazette suspend the operation of the provisions of this section and of section 20, or such portions thereof as he may determine, in relation to a particular category f agent if he is satisfied that the said provisions or any portion thereof has an unnecessarily restrictive effect SO on the disposal of the proceeds of the sale of agricultural produce by such category of agent.
(c) A suspension in terms of paragraph (b) shall- (i) only be valid in respect of an agent of the category
concerned who has furnished the council with such 55 security as the council may determine, to fulfil any obligation that may arise towards any person in respect of the proceeds of the sale of agricultural produce by that agent; and
32 No. 25971 GOVERNMENT GAZETTE. 1 FEHRI'AIIY 2004
Act No. 47,2003 AGRICULTURAL PRODUCE AGENTS AMENDMENT ACT. 2003
(ii) be subject to such conditions and requirements as the Minister may on the recommendation by council deter- mine and set out in the said notice.]
(3 ) [An] A fresh produce agent [referred to in subsection (l)]- (a) may invest any amount paid into his trust account with a view 5
to payment as contemplated in section 20 and which is not immediately required for any particular purpose, in a separate savings or other interest-bearing account opened by him or her with any deposit-taking institution;
(b) shall forthwith after opening a trust account or any other account I O referred to in paragraph (a), or if any change occurs in connection with any such account, notify the council thereof in the manner determined by the council;
(c ) shall keep separate accounting records referred to in section 18 in respect of his or her trust account and savings or interest-bearing 15 accounts referred to in paragraph (a ) of this subsection. and shall balance such accounting records within 21 days after the end of each month.
(4) Any agricultural produce received by a fresh produce agent shall. until it is sold or lawfully destroyed, be deemed to form part of his of her 20 trust account. OJ [(4) An] A fresh produce agent shall cause the auditor referred to in
section 18 (2 ) , [shall] immediately after having [completing] completed an audit contemplated in that section[,] @transmit to the council a report in the form determined by the council regarding his or her findings. and a copy 35 thereof to the fresh produce agent [concerned].
[(S)] (6) (a) An amount deposited or to be deposited in terms of subsection( 1) (b) in the trust account of [an] fresh produce a, oent-
(i) shall not be liable to be attached or subjected to any form of execution under a judgment or order of a court of law except 30 such an order issued in pursuance of a claim by the principal [concerned]; and
(ii) shall not form part of the assets of that fresh produce agent or. if he or she is a natural person and has died. or has become insolvent, of his or her deceased or insolvent estate. 3s
(b) The provisions of paragraph (a) shall not apply to the remainder of the amount [concerned] after the principal of the fresh produce agent [concerned] has been paid as contemplated in section 20 ( 1 ).
(7) The court may upon application by the council suspend a fresh produce agent from conducting business if- (a) he or she fails to comply with the provisions of subsection ( I ) within
a time specified by the council in a written request addressed to his or her business address or postal address; or
(b) it comes to the attention of the council that the total of the balances shown on the trust account in the accounting records of that fresh produce agent exceed the total amount of the funds in his or her banlung account.
(8) (a) Any market authority which receives the proceeds from the sale of agricultural produce shall receive such proceeds for and on behalf of the fresh produce agent who sold such produce and that market authority must forthwith hand over such proceeds less the remuneration to which it is lawfully entitled for services rendered in respect of such sale to that fresh produce agent for depositing in his or her trust account.
(b) Any proceeds from the sale of agricultural produce paid to a market authority for the benefit of a fresh produce agent shall be administered separately from any other moneys os accounts held or operated by such market authority and such proceeds shall not form part of the assets and liabilities of that market authority: Provided that the market authority shall be entitled to recover for itself the remuneration referred to in para- graph (a).".
Act No. 47,2003 AGRICULTURAL PRODUCE AGENTS AMENI)MENT ACT. 200.;
Substitution of section 20 of Act 12 of 1992
19. The following section is hereby substituted for section 20 of the principal Act:
“[Payments] Payment from trust [accounts] account
20. (1) [AnIA fresh produce agent [who is the holder of a fidelity fund certificate] shall pay to his principal from his orher trust account the 5 proceeds of the sale of an agricultural product [sold on the instruction or on behalf of such principal] after he _- or she has deducted from such proceeds his or her agreed remuneration [as an agent] and the othcl. reasonable expenses incurred by him &her in connection \4 i t h the sale o f ‘ that agricultural product. 1 0
(2)Ya) If the amount to be paid by [an] a fresh produce agent t o his principal in terms of subsection ( 1 ) has not been claimed b!- the principal [concerned] within [180] 3 days after the sale [concerned]. that fresh produce agent shall pay the amount [concerned] from hi \ o r her trust account to the council, and furnish the council with the particulars required IS in the rules in connection therewith.
( 0 ) Money so paid to the council shall be dealt with i n the mulner set out in section 2 1 .
( 3 ) Any withdrawal from a trust account for the purposes o f ;I payncnt o r deduction referred to in subsection ( l ) , the withdrawal of interest earned 011 20 a trust account or an interest-bearing account referred to i n wction 15U.3 ) In). and [a] 3 payment to the council in terms of subsection (3 ) o f t h i . section. shall be made at the time and i n the manner set out i n the rules.
( 3 ) No withdrawals other than those specified in subsection ( 3 ) shall be made from a trust account or a savings or interest-bearing account ret’er-red 3 to in section 19(3)(n): Provided that an)’ fees [deducted from such accounts] charped by the institution at which they are kept shall be [deemed to form part of the remuneration referred to in subsection (1 of this section] debited against the business account of the f rcsh produce agent [concerned].”. - 3 I
Amendment of section 22 of Act 12 of 1992
20. Section 72 of the principal Act is hereby amended- ( a ) by the substitution in subsection (1) for the words preceding paragraph f t r ) . of
the following words: “The council may. in respect of fresh produce agents [who are the ii
holders of fidelity fund certificates] make rules as to--“: (h) by the addition to subsection (1) of the following paragraphs:
* ‘ ( ; I the regulation. control or prohibition of any practice follo\ved b! agents; i
( j ) the period within and the manner in which application shall be made ~ 40 for a fidelity fund or registration certificate. as the case may be;
f k ) the form of a fidelity fund and registration certificate: ( I ) the manner in which any account referred to in section 1 X( - t ) (c , ) shall
be wound-up and the amount standing to the credit of such account shall be paid out; and ! 45 plated in section 25 shall be conducted.”.
i
( m ) the manner in which proceedings at a disciplinary hearing contem- 1
Substitution of section 23 of Act 12 of 1992
21. The following section is hereby substituted for section 23 of the principal Act:
“Improper conduct 5 0
23. [An] A fresh produce agent [who is the holder of a fidelity fund certificate] shall be guilty of improper conduct if-
Act No. 47,2003 AGRICULTURAL PRODUCE AGENTS AMEND,MENT .ACT. 7003
(ai he or she contravenes or fails to comply with any provision o f t h i 4 ,Act or the rules [or of the code of conduct referred to in section 22 ( 1 (g)l;
ibi he or she is convicted of an offence involving an element ot dishonesty; or 7
ic i with due regard to his or her occupation. he or she has through an!' other act or omission [in the opinion of the council] conducted himself or herself unprofessionally, improperly or disgracefully.".
Substitution of section 24 of Act 12 of 1992
22. The following section is hereby substituted for section 24 of the principal Act: 1 0
"[Inquiry by council] Inspection and investigation
24. (1) The council may, either of its own accord or as ;I result o f il complaint, charge or allegation lodged with it. institute an [inquiry] inspection and investigation into the conduct of [an] a fresh produce agent [who is the holder of a fidelity fund certificate,], or person i n the emplo!, 15 of such fresh produce agent, or into [an act or omission or alleged act or omission of such agent in the practising of his occupation, or into] a contravention [or alleged contravention] of this Act or the ru1e.s b\, such fresh produce agent or-employee.
conducted in accordance with the urovisions of section 27(4). ( 1 A) An inspection and investigation referred to in subsection ( 1 shall be
1 ( 1B) On receipt of the results of an inspection and inveTtiption referred
to in subsection (1) the council may decide to charge the fresh produce agent or employee concerned with a contravention of this Act o r the 1.~11e.s. and shall, on so deciding- la1 summons the fresh produce agent or employee on not less than -30 da! s
notice to appear before a disciplinary tribunal contemplated i n hection 25 on the date and at the time and place specified in such sumn1on\. to answer to the charges set out in writing in a charge sheet attached t o such summons;
0 1 ) order such fresh produce agent or employee to produce at such hcaring any book or other document specified in the summons nkich the said fresh produce agent or employee has in his or her posses\ion or custody or under his or her control or which is suspected to he i n h i 4 or her possession or custody or under his or her control and nshich Ius ;I bearing on the matter.
( IC) A summons referred to in subsection (1B). shall be- ( a ) as nearly as possible in the form specified in the rules: 0 7 1 signed by the registrar or his or her duly authorized representari\.e: and fc) served on the fresh produce agent or employee by delivering or
tendering it at the business address of the fresh produce a, "ent o r employee or by sending it by prepaid registered post to the posul address referred to in section 16(9). or to the address last hnou.n to the council.
( 3 ) If such conduct[, act, omission] or contra\.ention [or alleged act, omission or contravention] forms or is [in the opinion of the council] likely to form the subject of criminal or civil proceedings i n ;I court of Ia\v. the council may postpone the [inquiry] issuing of a summons u n t i l such uroceedings have been determined. c
((3) The acquittal or the conviction of an agent or person by a court SO of law upon a criminal charge shall not be a bar to an inquiry in respect of him in terms of this section, even if the facts being inquired into would, if proved, constitute the offence set forth in the criminal charge on which he was SO acquitted or convicted, or any other offence of which he might have been convicted at his trial on the said criminal 55 charge.]".
Act No. 17,2003 AGRICULTURAL PRODUCE AGENTS AMENDMENT ACT. 20(l;
Substitution of section 25 of Act 12 of 1992
23. The following section is hereby substituted for section 25 of the principal Act:
“Disciplinary tribunal
25. (1) A disciplinary tribunal may be convened for the purpose o f ;I disciplinary hearing whenever it becomes necessary to do \o i n term5 o f section 24.
(2) A disciplinary tribunal shall consist of a maximum of three member.. who shall be appointed by the council on account of- ( a ) their independence from the affairs of’ the council. the oftice of the
registrar and the agent or person investigated: (b) their kn,owledge of the law; ( c ) their knowledge of the conducting of the business of agents in general: Id) experience in the resolution of disputes: and (e) any other knowledge or experience which render5 them suitable for.
appointment as members of a disciplinary tribunal. (3) At least two members of a disciplinary tribunal shall f o r ;~n 1
uninterrupted period of at least five years have practised as advocates or attorneys or occupied the post of magistrate. or have been in\.ol\.ed i n the tuition of law or have rendered service5 as legal ad\.isers o r legal consultants.
1
(4) A disciplinary tribunal shall have the power to inquire into and decide I upon any charge in terms of this Act or the rules.
(5) The registrar may appoint a ccxpetent person to exercise the poner\ and perfom1 the duties of a prosecutor.
(6) A disciplinary tribunal shall conduct its proceeding5 in accordance with rules made for this purpose: Provided that- ( a ) such rules shall be in accordance with the requirements of this Act m t l
(0) the onus of proof shall be the same as in criminal procerdingh. (7) If a vacancy occurs on a disciplinary tribunal after that tribunal ha\
commenced with a hearing, the hearing may be proceeded with before least two members of the tribunal, but if only two serving members rcmain
~
they may take any decision referred to in section 26( I onl! h! 1 unanimous vote.
(8) The prosecutor may for the purposes of such hearing- I ( a ) subpoena any person to give evidence who is able to furnish
information relevant to the hearing. or who the prosecutor has reawn to believe has in his or her possession or custody or under hi5 or hr l r control any book. document or record relating to the wbject o f thc inquiry, to appear on a date and at a time and place specified in the subpoena to be examined or to produce such book. document 01’ record, and the prosecutor may retain for examination an!’ book. document or record so produced: and
(b) through the person presiding at the hearing. administer 311 oath to. or accept an affirmation from, any person present at the inquir!. and examine him or her or cause him or her to be exminrd b! the prosecutor and instruct him or her to produce any book. document or record in his possession or custody or under his or her control.
(9) ( a ) A subpoena referred to in subsection (8) shall as far as possible be as prescribed in the rules, shall be signed by the prosecutor and shall be served in the same manner as a subpoena issued by a magistrate‘s court i n civil proceedings.
(i) having been duly summoned to be present at the hearing. shall without lawful excuse fail so to appear; or
(ii) having been called as a witness at a hearing, shall Mithout la\$ful excuse refuse to be sworn or to make an affirmation. or to produce any book or other document or to answer any question which he or she may be required to produce or answer.
I
~
I the Constitution: and
(b) No person-
Act NO. 47.2003 AGRICULTURAL PRODUCE AGENTS AMENDMENT ACT. 200.;
( c j The registrar shall pay a witness called and present at a hearing such ~ fees as the council may from time to time determine generall). or in an! ~ particular case.
(10) The law relating to privilege, as applicable to a uitnesh called t o ~
give evidence or to produce a book, document or record in a c i d trial before a court of law, shall apply rnuraris tmtrarldiJ i n relation to the examination of or the production of any book, document or record by an! person called in terms of this section.
(1 1) An agent or person in respect of whom the hearing is instituted i n terms of this section shall be entitled to be present at the hearing. to be assisted or represented by another person, and- ( a ) to be heard; (b) to call witnesses; (c j to cross-examine any person called as a witness in support of the
charge; and (d l to have access to all documents produced in evidence or relevant to the
hearing and which are available.
I
(12) The registrar shall keep or cause to be kept a record of the proceedings at the hearing.
I (13) Any person who, having been duly sworn or having made an
affirmation, tenders false evidence at the hearing held under this section. knowing such evidence to be false, shall be puilty of an offence and liablc on conviction to the penalties which may lawfully be imposed for the offence of perjury.
(14) The disciplinary tribunal may, if it 1s of a view that an a, w n t o r employee of such agent has committed an offence, submit a certified cop! of the record of the proceedings at any hearing held in terms of section 21 to the office of the National Director of Public Prosecutions ha\,in_e jurisdiction in the matter.”.
Substitution of section 26 of Act 12 of 1992 io
24. The following section is hereby substituted for section 26 of the principal Act:
“Disciplinary powers of tribunal
26. (1) If [the council] a disciplinary tribunal. after [an inquiry] 2 hearing under section [24] 25, finds an agent - or employee of such agent guilty of improper conduct, [the council] may- 33 ( a ) reprimand or caution him -her; (b) impose conditions and restrictions subject to which the agent
[concerned] or employee of such agent may. for a specitied period. practise his or her occupation; [or]
(bA) impose on such agent or employee a fine not exceeding such amount 10 as may be prescribed by the Minister by notice in the Grr:ctre:
f bB) suspend that agent from conducting his or her business or from actiny as an agent on such conditions and for such period as that tribunal may determine; and
(cj withdraw the fidelity fund or registration certificate issued [or deemed 15 to have been issued] to that agent and--
( i ) if such agent is a company, to every director of such company: (ii) if he or she is a director of a company which is an agent. to
such company; (iii) if he or she in partnership acts as an agent. to every partner in
such partnership; 50
(iv) if such agent is a close corporation. to every member contemplated in the definition of ‘fresh produce agent‘ or ‘livestock agent’, as the case may be, of that corporation;
Act No. 47,2003 AGRICULTURAL PRODUCE AGENTS ,UZEUDMEN3 .ACT. 2011
(v ) if he or she is a member of a close corpor;Ition \\ 111c~h i \ ; m
(vi) if such agent is a trust, to e \wy trustee o f such trwt: 0 1 ' i (vii) if he or she is a trustee of a trust which is an aFent. t o \ L I C I I INI\! .
(3 ) The [council] disciplinary tribunal may [postpone the taking 01' its 5 decision under subsection (l), or] suspend the execution o f i t \ clecision taken under subsection (l)(bA), (bB) or (c). for such period n o t e\cc.t.ding three years and subject to such further conditions as [the council] ma! i n each case determine.
and may be executed as if it were a civil judgment in f a ~ o u r o t thc. Lw~11cil.
( u ) i n f o r w a n agent who is o found guilty, in writing ofthe decision of the council and of the grounds on which it is based:
(b) except where the execution of a decision has been suspended under I5 subsection (2),] publish the name and address of the a y u o r employee of such agent [so] found guilty i n t e r m o f sulwction ( I ) . particulars of his conviction and the penalty impcwd upon h i m or her, by notice in the Guzette.
agent, to such corporation:
(3) l a ) A fine imposed under subsection ( 1 )([?A) shall ha\ t. the elYec1 o f IO
ibi The registrar shall [-
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[(?I (a) If at the end of the period for which the taking of a decision 3 0 has been postponed under subsection (21, the council is satisfied that the agent has observed all the relevant conditions, the registrar shall inform the agent concerned that the council will not take a decision under subsection (I).
subsection (2) and the council is satisfied that the agent concerned has observed all the relevant conditions throughout the period of suspen- sion, the registrar shall inform such agent that such decision w i l l n o t be executed.]
conditions determined under subsection ( 3 ) . the [council] regi\tI-x shall [take a decision under subsection (l), or cause the decision taken unclcr subsection (l)(c) to be xecuted,] a u s e the decision rAen untlcbr subsection ( 1 )(bA) or ibB) to be executed unless the said agent o r en1plo! CY of such agent satisfies the [council] registrar that the non-c.onli'1l~lnc.i. \ \ it11 3 5 such conditions was due to circumstances beyond his or her control.
[(6) A decision taken under this section by a committee authorized thereto in terms of section 7 shall only come into effect after i t has hecn confirmed by the council.]
disciplinary tribunal may order that agent or employee to IXI! t h c cos t4 1 incurred by the council in connection with such hearing and- I ( a , such costs shall be calculated in accordance with the High Co t~r t raritf I
applicable to civil litigation: and (0) for the purpose of assessing such costs. the registrar ot the High Court ~ 45
having jurisdiction shall be empowered to tax such costs . ~ ( 7 ) Without derogating from the generdity of any sucll 0rdc.r tor tllc ! I
payment of costs, such costs shall include-- i
(b) If the xecution of a decision has been suspended untlcr 35
( 5 ) If an agent or employee of such agent fails t o compl! \\,it11 ~ r n ! 30
(6) In addition to any of the sanctions referred to in suhsecrian ( I ). (hc . 40
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the costs of recording, transcribing and preparing copieh o f an!. record: the costs incurred by the council in respect ofthe prosecutor and the accountant or other persons appointed to inspect and i n \ rzligate the agent or his or her employee's books of account and an! other documents or records or things relating to the agent o r his o r her employee's business operation or former business operation: and the costs of procuring the attendance of witnesses and their witness fees. including those of the complainant.
Act No. 47,2003 AGRICULTURAL PRODUCE AGENTS AMEVDMENT .ACT. 200.?
(8) The order contemplated in subsection (7) for the pa!'ment o t ' c o s t s incurred by the council in connection with an inspection and in \ estigalion shall have the effect of and may be executed as if it were ;I ci\ i I jud, ' T l l l c ' l l t in favour of the council.
(9) ( u ) The disciplinary tribunal may, nphenever a tine has been imposetll on an agent as contemplated in subsection (I)(bA). order that any portion of' that fine, but not exceeding 80% thereof, be applied towards the payment of' compensation to any person who suffered a pecuniary loss as a result o f the conduct of the agent or employee in question.
( b ) The registrar shall, on receipt of the fine imposed on the agent i n question, make the payment contemplated in paragraph ( t r ) .
(c) This subsection shall not preclude any person from pursuing an!' ci\,il remedy against the agent or employee contemplated in paragraph ( c ~ I : Provided that if an award is made by a court in favour of a person \vho has received payment from the council as contemplated in paragraph ( h i . the court shall take the payment into account in making such a\\.ard.".
Substitution of section 27 of Act 12 of 1992
25. The following section is hereby substituted for jection 17 of the principal Act:
"Entry and inspections
27. (1) The reFistrar may designate a suitable person (hereinafter refer~.ed to as an inspector) to exercise and perform periodic regulatory inspection. and investigations at the business premises of any agent nith a \ it\\ t o determining whether the provisions of sections 18. 19. 20 and 2 1 ;~nd thc rules pertaining thereto have been complied with. and for that purpohc ;m inspector shall be entitled to enter such business premises and to esercisc any of the powers referred to and in accordance with subsection (4) i n w t a l as they relate to the aforesaid sections and rules.
( 2 ) An inspector shall be furnished with a Certificate of appoinmc.nt signed by or on behalf of the council in u hich i t is stated that he or she is an inspector appointed in terms of this Act.
(3) An inspector shall, when performing any function5 i n term\ of' this Act. have his or her certificate of appointment in his or her possr5sion.
(4) In order to obtain any information required by the registrar in rclation to a complaint, charge or allegation lodged. an inspector ma!- he designated who may, subject to this section, enter any premises on or i n which an! book, document or other object connected with such investigation is o r - i 5 suspected to be, and may- ( a ) inspect or search those premises, and there make such investigation5
or inquiries as may be necessary for the purpose of obtaining an! such information;
(b ) examine any object found on or in the premises which ha5 or r n i $ ~ t have a bearing on the investigation i n question and request from the owner or person in charge of the premises or from any person i n \vho\cl possession or charge that object is, information regarding that object:
(c i make copies of or extracts from any book or document found on o r i n the premises which has or might have a bearing on the in\wtigation i n question. and request from any person who is suspected of ha\,ing the necessary information an explanation of any entry therein:
(dl seize, against the issue of a receipt. anything on or in the premises which has or might have a bearing on the investigation i n question. i f the inspector needs to retain it for further examination or for safe custody.
(5) Unless the owner or person in charge of the premises has consented thereto in writing an inspector shall enter premises and exercise any pom'er contemplated in subsection (4) only under a search warrant. which ma!
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Act No. 47,2003 AGRICULTURAL PRODUCE AGENTS AMENDMEST 'ACT. 200.;
only be issued by the court if it appears to that court from intorrnatioll given to the court on oath or solemn affirmation that there are r w \ o I l a h l c , grounds to suspect- (a j that a contravention of this Act or the rules has taken place o r i \ taking '
place; and , I (6) that a book, document or other object which may afford e\ idence r l t i
such contravention is o or in those premises. ~ I
( a ) authorize an inspector mentioned in the warrant to enter the premihc\ i i
I , I .
(6) A search warrant contemplated in subsection ( 5 ) sh, 'I I1 -
identified in the warrant for the purpose of exercisinz an! po\ \er contemplated in subsection (4); , I ( '
(6) be executed by day, unless the court authorizes the execution tht.reol during the night; 1
(c j be of force until it is executed or cancelled by the court. or ;I period ot 1 one month from the day of its issue expires. whichever occurs tirst. , 15
(7) An inspector referred to in subsection ( I ) or an inspector esecutins ;I search warrant under subsection (6) shall. before such execution. upon 1 demand by any person whose rights may be affected- ( a ) show that person his or her certificate of appointment: ( 1 7 ) hand to that person a copy of the warrant if he or
35A. (1) Every fresh produce agent who was the holder o f ;I t idel i t \ f u n d certificate immediately prior to the date of commencement o t ' thc Agricultural Produce Agents Amendment Act. 2003. shall \\ i t h i n the p t l - i o d , determined by the council by notice in the Go:efre apply on h i \ or her ou 11 ~ behalf and on behalf of every person u.ho acts as an agent on h i \ o r I1r.r ~ IO behalf as contemplated in subparagraph ( i ) of paragraph ( 0 1 o t t h e definition of 'fresh produce agent' in section 1, for a hdelity fund certitilxtc. :In0 4 l a l l furnish the council with the information that the council ma! dctcmlinc relating to himself or herself and such persons. ~
to the date of commencement of the Agricultural Pl-oduce .Afent\ , Amendment Act, 2003- IrrJ was the holder of a fidelity fund certificate contemplated i n t h a t ~
( 2 ) Notwithstanding subsection ( I ) , each person who immediatel! pr-iol- I5
subsection. shall- ( i ) in the case of a fresh produce agent. be deemed to he the 1 1 o l d ~ ~ ~ - 70
of a fidelity fund certificate issued i n term$ o f ' 111;11 w e t i o n . ~ Provided that such certificate shall lapse if a ne\\ certiticatc i \ ~ not issued to the agent within the period specified i n sLlh\cctIon ~ (1):
a registration certificate: (ii) in the case of a livestock agent. be deemed t o hc t l w holder 01. , 25
IhJ carried on business as an export agent. shall be deenled to he t11c holder of a registration certificate.
( 3 ) The provisions of subsection ( 2 ) shall not reliew an! peI-\on \\.llo ;ICY\ ~ or professes to act as- ' 30 f o J a fresh produce agent and who is not i n possession o f ;I tidclit!, t u n d
certificate at the commencement date of the Agricultural Proclu~~c ~ Agents Amendment Act, 2003. to apply t o the council for ;I tidelit\ ~ fund certificate and to furnish the council with such inform:ltion ;I\ i t ~ may determine: i .:j
1 6 1 a livestock agent and who is not in possession of ;I wyi\tratiun ~ certificate at the Commencement date of that Act. t o ; 1 p p 1 ! t o the council for a registration certificate and to furnish the council \\,it11 ~ 1 such information as it may determine i
(c i an export agent and who is not carqing on business ;I\ wch at the ~ 40 commencement date of that Act. to apply t o the council f o r ;I 1 registration certificate and to furnish the council n,ith such information ' as it may determine.
(1) Members of the council in office immediatel!. prior t o the ~ commencement of the Agricultural Produce Agents Amendment Act. 200.;. 1 45 shall remain in office until the termination of their term of oflice: Pro\ idtxl ~ that the Minister shall appoint such additional members to the council ;I\ may be required from time to time.".
Short title
31. This Act is called the Agricultural Produce Agents Amendment Act. 2003. 50