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The Middleman

It is, probably, an unusual suburban or city dweller who does not take for granted the fruit, vegetables, meat and even flowers awaiting purchase on shelves everywhere.

Yet, this fresh produce must find its way there, from the farms, nurseries and gardens scattered around the country. This is where the ‘fresh produce agent’ and ‘livestock agent’ play an important role, and the Agricultural Produce Agents Act 19921 is designed to set some controls over their activities.

An ‘agent’ is someone who performs a task, or activity for and on behalf of someone else, who is called the ‘principal’. The thing about an agent is that he simply renders a service, and the risk of profit, loss and liability remains with the principal.

For the purposes of the Act, ‘fresh produce’ means all things growing from or in the ground – plants, vegetables, flowers, fruit and herbs. ‘Livestock’ means cattle, sheep goats, pigs, horses, mules and donkeys – and, therefore, the meat and by-products that come from them.

A fund has been established by the Act, called the Fidelity Fund. This is to reimburse producers, for losses suffered as a result of theft or dishonest conduct by a fresh produce agent. The Fund gets income from, amongst other sources, annual levies paid by agents who must register before they can conduct business.

A. Certificate to act as an agent

  1. Unless you have a Fidelity Fund Certificate, it is a crime to perform any act as a fresh produce agent.2

  2. Unless you have a registration certificate,3 issued by the Agricultural Produce Agents Council,4 it is an offence to perform any act as a livestock agent.5

  3. It is a criminal offence to furnish any false or misleading information in the application for a certificate.6

  4. It is a crime to receive payment for the performance of an act as either type of agent (or an export agent) unless you are the holder of a valid certificate.7

  5. When a certificate has lapsed, it is an offence, directly or indirectly, to participate in, or be employed by any agency business – except with the Council’s written consent.8

  6. If the Council does give this consent, it is an offence not to comply with any of its conditions.9

  7. It is an offence to employ a person whose certificate has lapsed in such an agency business – except if the Council has given its consent, and then on conditions which must similarly be complied with.10

B. Accounts and accounting

  1. The entity conducting business as a fresh produce agent must open and maintain a trust account and it is an offence not to do so.11

  2. It is also an offence not to deposit into that trust account all proceeds of the sale of agricultural produce on behalf of the principal in question.12

  3. It is a crime not to inform the Council of such trust account, and of any changes in connection with the account.13

  4. If the produce is sold at a market, the market authority must pass on to the agent all proceeds, less its permitted remuneration. It is a criminal offence if it does not do so.14

  5. The market authority also commits an offence if it does not administer those sale proceeds separately from its other moneys and accounts.15

  6. The fresh produce agent must pay over the proceeds of a sale to his principal. If the principal has not claimed the proceeds within 200 days, the agent must transfer the amount in question to the Council (to form part of the Fidelity Fund) and it is an offence if the agent does not do so.16

  7. A fresh produce agent commits an offence if he does not keep separate accounting records in respect of his trust account and savings and interest bearing accounts and does not balance such accounts within 21 days after the end of each month.17

C. Inspectors

Inspectors designated by the Registrar have wide powers to enter and search premises, ask questions, make copies of documents, seize anything on the premises, etc. This is all to ensure compliance with the Act.

  1. It is, therefore, a criminal offence to:
    • refuse to answer, or to answer improperly, any enquiry or request for information;18
    • obstruct or hinder an inspector in the performance of his functions;19
    • give false or misleading information.20
  2. An inspector commits a crime if he discloses any information relating to the business or affairs of another person, obtained whilst performing his duties, except if he is legally required to make such disclosure.21

  3. Any person who is summonsed to be present at a tribunal hearing and fails to appear is guilty of an offence.22

  4. Any person called as a witness at a tribunal hearing who refuses to be sworn, or make an affirmation, or produce any document, or answer a question commits an offence.23
  1. As amended; the latest amendment was effected by Act 47 of 2003. 

  2. Section 29(1)(a) read with section 16(1)(a). 

  3. The Act is not clear as to the difference between this and a Fidelity Fund Certificate. 

  4. The Agricultural Produce Agents Council’s physical address is Benvista Office Park Unit 5, Edgar Road, Jansen Park, Boksburg. 

  5. Section 29(1)(a) read with section 16(1)(b). 

  6. Section 29(1)(e). 

  7. Section 29(1)(b) read with section 16(2). 

  8. Section 29(1)(a) read with section 16(11). 

  9. Section 29(1)(a) read with section 16(11) and (12). 

  10. Section 29(1)(a) read with section 16(12). 

  11. Section 29(1)(a) read with section 19(1)(a). 

  12. Section 29(1)(a) read with section 19(1). 

  13. Section 29(1)(b) read with section 19(3)(b). 

  14. Section 29(1)(a) read with section 19(8)(a). 

  15. Section 29(1)(b) read with section 19(8)(b). 

  16. Section 29(1)(a) read with section 20(2)(a). 

  17. Section 29(1)(b) read with section 19(3)(c). 

  18. Section 29(1)(a) read with section 27(a)(b)(i). 

  19. Section 29(1)(a) read with section 27(9)(a). 

  20. Section 27(9)(b)(ii). 

  21. Section 29(1)(a) read with section 28. 

  22. Section 29(1)(6a) read with section 25(9)(b)(i). 

  23. Section 29(1)(6A) read with section 25(9)(b)(ii).