DEPARTMENT: AGRICULTURE SELECT COMMITTEE ON LAND AND ENVIRONMENTAL AFFAIRS AGRICULTURAL PRODUCE AGENTS AMENDMENT BILL 30 September 2003

DEPARTMENT: AGRICULTURE AD SECTION 1: Definitions This section amends the definitions section of the main Act. Of particular importance is the definitions of “fresh produce agent” and “livestock agent”. These definitions are amended to ensure that persons in the employ of principals are also deemed to be agents for certain purposes of the Act, in order that the disciplinary powers of the Council may also apply to these persons, a former deficiency. At the request of exporters, they are also now included under the ambit of the Act, although they are only registered with a view to comply with a code of conduct. In addition a definition of “deputy registrar” is added to enable the establishment of such a position in the council.

DEPARTMENT: AGRICULTURE AD SECTION 3: Constitution of council This section amends the present constitution of the council where specific organisations nominate members to one where nominations are called for in the media. In addition the Minister will designate two persons as his or her representatives to the council.

DEPARTMENT: AGRICULTURE AD SECTIONS 4,5,6 and 7: Consequential amendments as a result of the amendment of section 2 and 3. In section 5 the Minister now designates the chairperson of the council. In addition the term of office of members are limited to two consecutive terms unless the Minister determines otherwise.

DEPARTMENT: AGRICULTURE AD SECTION 8: Registrar and staff The appointment of the registrar, deputy registrar and staff is regulated in this section. Other than in the present Act, a clear distinction is drawn between policy-type functions of the Council (i.e. policy, codes of conduct etc.) and the implementation thereof (i.e. administration, bookkeeping and enforcement of the Act), which now lie with the registrar. This is in line with the principles underlying, inter alia, the new Public Finance Management Act and sound governance principles.

DEPARTMENT: AGRICULTURE AD SECTION 9: Objects of council In this section the objectives of the council are clearly stipulated.

DEPARTMENT: AGRICULTURE AD SECTIONS 10,11 and 12: These sections are amended to enable the council to use surplus monies in the fidelity fund for training purposes, research and to enhance the occupation of an agent. Furthermore, the provision for a fidelity fund for Livestock Agents are deleted as there is no further need therefor. Export agents are not subject to fidelity fund requirements either.

DEPARTMENT: AGRICULTURE AD SECTIONS 13 and 14: Section 13, which deals with fidelity fund claims, is amended to ensure that persons who committed wrongdoings cannot benefit. In addition, monies payable are ”capped” in that no interest is payable or, in the case of produce, the average market price on the day the loss occurred applies. Section 14, which deals with the procedure to institute claims, is refined, for example by determining that producers may be paid pro-rata if there is insufficient funds available.

DEPARTMENT: AGRICULTURE AD SECTION 15: Insurance contracts This section is deleted as it is no longer applicable.

DEPARTMENT: AGRICULTURE AD SECTION 16: Prohibition to act as agent under certain circumstances This section requires that fresh produce salesman also have to obtain fidelity fund certificates from the Council. However, they do not have to lodge guarantees, and there is no barrier to entry, save the normal requirements relating to honesty. In the case of livestock and export agents, they only apply for registration certificates as they do not belong to a fidelity fund. Further amendments are made to the existing section to ensure that no person may be involved with the business of fresh produce agents unless he or she holds a fidelity or registration certificate.

DEPARTMENT: AGRICULTURE AD SECTION 17: Security by agents The section is substituted to give the council greater flexibility in establishing appropriate guarantees. This is of particular importance to ensure that the Council has sufficient flexibility to ensure that new entrants are adequately accommodated while at the same time balancing the interests of stakeholders.

DEPARTMENT: AGRICULTURE AD SECTIONS 18 and 19: Accounts The bookkeeping requirements and trust account in sections 18 and 19 are refined. Note that it does not apply to salesmen, but only to their “principals”. Refinements include, for example, stock in hand as part of the trust account and make it clear that a market authority may not impound or use trust monies, even if they administer such monies on behalf of agents.

DEPARTMENT: AGRICULTURE AD SECTIONS 20 TO 23: Accounting practices Consequential refinements to existing sections and further to empower the council to make rules as to the regulation, control or prohibition of any practice followed by agents.

DEPARTMENT: AGRICULTURE AD SECTION 24: Inspection and Investigation The procedure necessary to enhance inspection and investigation by the council are amended in this section.

DEPARTMENT: AGRICULTURE AD SECTION 25: Disciplinary Tribunal Provision is made for the appointment of independent tribunals whenever it is necessary to do so, thereby enhancing real and perceived objectivity.

DEPARTMENT: AGRICULTURE AD SECTION 26: Disciplinary powers of tribunal Of importance here is that a disciplinary tribunal may now, in addition to its other remedies, impose a fine Gazetted by the Minister on an agent found guilty of misconduct. In practice the only real sanction other than disqualification seems to be financial in nature, and hopefully this will go a long way towards ensuring compliance with codes of conduct.

DEPARTMENT: AGRICULTURE AD SECTION 27: Entry and inspections This section elaborates on the powers of inspectors appointed by the council upon entry and searching premises.

DEPARTMENT: AGRICULTURE AD SECTION 29: Offences and penalties The penalty section for criminal offences is amended to delete the references to fines. This is done to automatically adjust fines relative to jail terms in terms of legislation administered by the Department of Justice.

DEPARTMENT: AGRICULTURE AD SECTION 30: Deficits in trust accounts This section is amended to facilitate its operation in practice. Its operations are limited to fresh produce agents.

DEPARTMENT: AGRICULTURE TRANSITIONAL PROVISIONS: For the sake of continuity, these sections ensure that -- a)the council in office on the date of enactment of the new act remains the council until a new council is appointed; b)agents retain their certificates and are deemed to be registered until new fidelity or registration certificates are issued; c)the Minister shall appoint additional members after the commencement of the Act.