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Compulsory Specifications

The most expensive guitar ever sold went for US$2,7 million. It had mother-of-pearl inlays, the standard Fender Stratocaster type, on its fretboard but that is not why the unprecedented price was achieved. That was because it bore the signatures of some pretty heavyweight guitar legends,1 and was auctioned off in 2004 to raise funds for the victims of the 2004 Indonesian Tsunami disaster.2

Mother-of-Pearl (technically, nacre3) has adorned all sorts of jewellery, furniture and instruments for hundreds of years. It comes from Abalone, more commonly known in South Africa as Perlemoen and which, believe it or not, is a sea snail. The flesh – rather, the snail’s foot muscle, actually – is, of course, a prized delicacy. There are records of the San and Khoi-Khoi fishing for perlemoen more than 125 000 years ago.4 It is now illegal to take perlemoen out of South African waters.

And that is how we get to the National Regulator for Compulsory Specifications Act 2008.5 This is because it is not illegal to farm cultured abalone, and this Act sets specifications for their harvesting, preparation, packing, conveyance and quality.6 The poor little snails are not alone in having compulsory specifications, however – there are regulations for almost everything ranging from cars to canned crustacea.7

The Act falls under the auspices of the Minister of Trade and Industry, but for all intents and purposes is administered by the National Regulator.8 What he does is declare compulsory specifications, where they are needed (in all probability, in order to protect us from ourselves9). Most frequently, he declares the SANS10 for the particular product, commodity or service as a compulsory specification.11 Once that happens, the Act applies.

A. Effect of declaration

  1. It is a crime to import, sell or supply a commodity, product or service to which a compulsory specification applies, except in accordance with that specification.12

  2. No person may import, sell or supply a commodity, product or service to which a compulsory specification applies unless it complies with, or has been manufactured in accordance with, the compulsory specification, or both.13

  3. In addition, if any labelling or marking has been prescribed, these must be applied to the commodity, product or service. It is an offence not to do this.14

  4. If you import, sell or supply a commodity, product or service to which a compulsory specification applies, you must keep, or supply to the National Regulator such records as may be prescribed, and pay such fees as may be prescribed. It is an offence if you do not.15

B. Inspectors and samples

  1. In order to monitor and enforce compliance with the Act, inspectors16 are given wide powers of entry, seizure, search and interrogation. If you are questioned by an inspector conducting one such investigation, you may be charged with a criminal offence if you do not answer each question truthfully and to the best of your ability.17

  2. In addition, the National Regulator can require you to submit samples, to comply with the specified sampling requirements of the particular compulsory specification, and to give such information as may be required about the product and its manufacture, or the service in question. If you don’t, it is a criminal offence.18

  3. It is also an offence if you are in charge of premises an inspector wants to search or examine and you fail to cooperate and furnish assistance to him at all reasonable times.19

  4. Should you, being in charge of the premises, fail to appear before an inspector for questioning having been required to do so, it is also an offence.20

  5. Similarly, it is a crime to:
    • make any relevant statement to an inspector which is false in any material respect, knowing it to be false;21
    • refuse or fail to answer to the best of your knowledge any relevant question which an inspector put to you;22
    • refuse or fail to comply, to the best of your ability, with any lawful requirement, demand or order of an inspector; or23
    • hinder or obstruct an inspector in the exercise of his powers.24
  6. It is a criminal offence to hold yourself out, falsely, to be an inspector for the purposes of the Act.25

  7. An inspector may not disclose any information he obtained in the performance of his functions, except as is required lawfully, and himself commits an offence if he does so.26

  8. If the CEO of the National Regulator suspects that a commodity or product, or a consignment or batch of a commodity or product does not conform to, or has not been manufactured in accordance with, the applicable compulsory specification, he may issue a directive to ensure that the person, in whose possession or control it is, keeps it in his premises as specified in the directive, and does not tamper with, or dispose of, it. It is a crime if you have received such a directive and fail to comply with it.27
  1. Eric Clapton, Keith Richards, Mick Jagger, Ronnie Wood, Brian May, David Glimour, Jimmy Page, Jeff Beck, Mark Knopfler, Pete Townshend, Tony Yommi, Angus Young, Malcolm Young, Sting, Richie Blackmore, Bryan Adams, Liam Gallagher, and Paul McCartney. 

  2. Wikipedia — ‘Reach Out to Asia Strat’. See also www.proguitarshop.com – ‘10 Most Expensive Guitars’. 

  3. See Wikipedia – ‘Nacre’ https://en.wikipedia.org/wiki/Nacre

  4. www.aquarium.co.za — ‘Abalone’. 

  5. As amended; the latest amendment was effected by Act 9 of 2014. 

  6. See the Regulations promulgated in Government Gazette Notice R450, published on 15 June 2012 under Government Gazette 35436. 

  7. The Regulations cover, inter alia, lighters; respirators; child restraints for use in motor vehicles; plastic carrier bags; electric cables; the manufacture, production, processing and treatment of canned fish and canned meat; non-pressure paraffin stoves and heaters; cement; electrical and electronic apparatus; lamp control gear; personal flotation aids; preservative treatment of timber; certain motor vehicles; break lining assemblies; manually operated switches; plugs and sockets; starters for fluorescent tubes; appliance couplers; flexible cords for electronic appliances; safety footwear; reflective number plates; incandescent lamps; hot water storage tanks; safety glass; coal burning stoves; protective helmets for motorcyclists; frozen fish; and frozen crustacea. 

  8. Established in terms of section 3 of the Act. 

  9. Indeed, one purpose of the Act is to provide ‘a legal framework for the administration and maintenance of compulsory specifications in the interests of public safety and health or for environmental protection…’ See section 2 of the Act. 

  10. South African National Standards approved by the SABS in accordance with the Standards Act 2008. 

  11. See Section 13(1) of the Act. 

  12. Section 14(1) read with Section 34(1)(a). 

  13. Section 14(1) read with Section 34(2)(a). 

  14. Section 34(2)(b). 

  15. Section 34(3). 

  16. Appointed from the ranks of suitably qualified employees of the National Regulator – See Section 16(1). 

  17. Section 19(2) read with Section 34(1)a. 

  18. Section 20(1) read with Section 34(1)a. 

  19. Section 18(2) read with Section 34(1)d. 

  20. Section 18(2) read with Section 34(1)e. 

  21. Section 34(1)(i). 

  22. Section 34(1)(i). 

  23. Section 34(1)(k). 

  24. Section 34(1)(l). 

  25. Section 18(2) read with Section 34(1)(h). 

  26. Section 18(2) read with Section 34(1)(g). 

  27. Section 15(1) read with Section 34(1)(b).