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Produce Standards

It is a lamentable fact that a large percentage of our best quality produce is exported. It’s a question of economics, of course, with farmers generating more rand for selling peaches to consumers in the United Kingdom than in the Republic.

All agricultural produce must be ‘graded’ according to various characteristics relevant to the particular item – size, mass, number, colour, appearance, purity, and even chemical, physical or microbiological composition. The Agricultural Products Standards Act 1990 provides for the necessary controls in this regard – for the sale, import, and export of certain agricultural produce, whether of vegetable or animal origin.

The Act is administered by the Minister of Agriculture, Forestry and Fisheries, who designates an officer in the Department as ‘Executive Officer’ to perform the functions, tasks and duties envisaged by the Act.

Over the years, the Minister has issued, literally, dozens and dozens of regulations relating to the standards, grading, packing, marking, sale, export and import of just about anything and everything you might find in your pantry, fridge or on your table. When is an egg ‘large’ and not ‘jumbo’; when is ‘lamb’ not ‘mutton’, and so on. It is possible that any given prohibition is criminalised, and in which case the particular Regulation needs to be consulted. What follows concerns the prohibitions in this Act.

A. The Executive Officer’s powers

  1. The Executive Officer1 has extensive powers of entry, search, seizure, sampling, and so forth. This is to ensure compliance with the regulations on processing, packing, preparation, classification, grading, and so on (hereinafter ‘production’). Any person who hinders or obstructs him in the performance of his duties commits an offence.2

  2. Any person who refuses or fails to comply with a directive from the Executive Officer to classify, grade, pack or mark any quantity of a product in accordance with the prescribed requirements commits an offence.3

  3. If the Executive Officer asks you for information, or an explanation concerning production, it is an offence if you:
    • refuse to do so;
    • fail to do so to the best of you ability;
    • furnish an explanation, or information which is false or misleading.4

  4. If you tamper with any sample taken by the Executive Officer, or with its seal or identification you commit a criminal offence.5

  5. If any product, material, substance or any other article, including any book or document, is seized by the Executive Officer you may not sell it, or remove it or tamper with it – or with its seal or identification mark. It is a crime if you do.6

  6. It is an offence to falsely pretend to be the Executive Officer or any other officer in the Department or any person authorised to perform duties in terms of the Act.7

  7. If the Executive Officer (or any person performing functions in terms of the Act) acquires information relating to the business or affairs of any person, he commits an offence by disclosing that information – except if required to do so by law.8

B. Produce naming and descriptions

  1. It is a criminal offence9 to use any name or any other indication, in any manner, in connection with the sale of produce which is likely to give a false or misleading impression about its:10
    • nature
    • substance
    • quality
    • identity
    • class
    • grade
    • origin
    • properties
    • manner or place of production.

  2. If the Minister has prohibited the use of certain geographical, or other names and terms in connection with the sale or export of produce, it is an offence to contravene or fail to comply with the prohibition – including such conditions as it may embody.11

  3. No person may use any of the prescribed distinctive marks (or anything likely to create the impression that it is a distinctive mark) unless authorised by the Executive Officer. It is an offence to do otherwise.12

C. Prescribed fees

  1. The Executive Officer can charge you fees in respect of duties and functions he carries out to ensure your compliance with certain of the prohibitions in the Act. It is an offence if you refuse or fail to pay the fees.13

  2. Fees are also payable when you apply for approval to export produce, or sell any imported produce. If you refuse or fail to pay the fees at the prescribed time, it is an offence.14

  3. The same applies when you request approval to use an official ‘distinctive mark’ in respect of your produce.15 Fees are prescribed for such an application, and it is a criminal offence to fail or refuse to pay them.16

D. Permits and authorisations

  1. It is an offence to alter any permit, authorisation, approval, consent, certificate or other document issued in terms of the Act.17

  2. If you are required to be in possession of any such permit (etc.), you must also display it, and it is an offence not to do so.18

  3. It is an offence to forge (or cause to be forged) any document issued in terms of the Act.19

  4. The export of produce may be approved by the Executive Officer subject to certain terms and conditions. It is an offence to contravene or fail to comply with any such condition.20

  5. The import of produce may also be made subject to conditions; it may not even be removed from the port of entry unless and until the conditions are met. It is a crime to contravene or fail to comply with such a condition.21

  6. Any approval, authorisation or consent in terms of the Act can be granted subject to conditions. It is a crime to contravene or fail to comply with the prohibition.22

  1. Or his delegate. ↩

  2. Section 11(1)(d). ↩

  3. Section 11(1)(d) read with Section 3A(1)(b). ↩

  4. Section 11(1)(e). ↩

  5. Section 11(1)(f). ↩

  6. Section 11(1)(g). ↩

  7. Section 11(1)(h). ↩

  8. Section 11(1)(a) read with section 9. ↩

  9. It is also likely to constitute passing-off at common law. ↩

  10. Section 11 (1)(a) read with section 6. ↩

  11. Section 11(1)(a) read with section 6A. ↩

  12. Section 11 (1)(a) read with section 5(2)(c). ↩

  13. Section 11(1)(b) read with section 3(1A)(b)(i); 3A(4); section 4(2)(b); section 4A(3); section 5(3); section 10(2). ↩

  14. Section 11(1)(b) read with section 4A(3). ↩

  15. Distinctive marks can be prescribed for use in relation to the sale of produce, or export thereof, or the management control system or class, grade or production method of the produce, as the case may be. ↩

  16. Section 11(1)(b) read with section 5(3). ↩

  17. Section 11(1)(1). ↩

  18. Section 11(1)(j). ↩

  19. Section 11(1)(k). ↩

  20. Section 11(1)(c) read with section 4(3)(a)(i). ↩

  21. Section 11(1)(c) read with section 4A(1)(b). ↩

  22. Section 11(1)(c) read with section 16(3)(a). ↩

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