Marketing of Agricultural Products Amendment Act

14 November 1997 No. 1516.

14 November 1997 notified that the President has assented Act which is hereby published for general H i e r b y w o r d b e k e n d gemaak dat die President sy goedkeuring geheg het aan die onderstaande Wet wat hierby ter algemene inligting gepubliseer word:— No. 59 Of 1997: Marketing of Agricultural Products &lenci- ment Act. 1997 No. 59 van 1997: Wysigingswet op die Bemarking van Land- bouprodukte. 1997. 7 NO. 18429 GOVERNMENT GAZETTE. 14 NOVEMBER 1997 Act No. 59, 1997 MARKETING OF AGRICL’LTURAL PRODUCTS ANIENDMENT ACT, 1997 GENERAL EXPLANATORY NOTE: [ 1 Words in bold type in square brackets indicate omissions from existing enactments. Words underlined with a solid line indicate insertions in existing enactments. ACT To amend the Marketing of Agricultural Products Act, 1996, so as to amend, delete and insert certain definitions; to emphasise the legal personality of the Council; to provide anew for the staff matters of the Council; to provide anew for the financing of the Council; to provide for regulatory measures other than statutory measures: to provide anew for the determination of the maximum value of levies on a particular agricultural product; to redefine the Minister’s powers with regard to pools; to make certain textual alterations; to make fresh provision with regard to the property of control boards or similar bodies; and to provide for the furnishing of information to the Council; and to provide for matters connected therewith. (English text signed by the President. ) (Assented to 6 November 1997. ) B E IT ENACTED by the Parliament of the Republic of South Africa. as follows:— Amendment of section 1 of Act 47 of 1996

1. Section 1 of the Marketing of Agricultural Products Act, 1996 (hereinafter referred to as the principal Act), is hereby amended— - 5 (a) by the substitution for the definition of “agricultural product” of the following definition: “ ‘agricultural product’ means a [primary] product declared as an agricultural product in terms of subsection (2);”; (b) by the substitution for the definition of “parliamentary committees” of the 10 following definition: “ ‘parliamentary committees’ means the Select [or] @ Portfolio Committees of Parliament responsible for agricultural affairs;”; (c) by the insertion after the definition of “producer” of the following definition: “’ ‘regulato ry measure’ means any measure relating to the regulation of 15 the marketing of agricultural products;”; (d) by the deletion of the definition of “sell” ; 4 NO. 18429 GOVERNMENT GAZETTE, 14 NOVEMBER 1997 .Ict NO. 59.1997 MARKETING OF AGRICULTURAL PRODUCTS AMENDMENT ACT. 1997 (e) by the substitution for the definition of “statutory measure” of the following definition: “ ‘statuto~ measure’ means a levy contemplated in section 15, and a direction contemplated in sections 16, [17] 18 and 19:”; and (Y) by the deletion of the definition of “trust”. Substitution of section 3 of Act 47 of 1996

2. The following section is hereby substituted for section 3 of the principal Act: “Establishment of lNational Agricultural Marketing Council

3. There is hereby established a [council] juristic person to be known m the National Agricultural Marketing Council.”. Substitution of section 8 of Act 47 of 1996

3. The following section is hereby substituted for section 8 of the principal Act: 5 10 “Personnel of Council and conditions of service 8. (1) [(a)] Such officers or employees appointed in terms of the Public Service Act, 1994, as maybe necessary for the proper performance by the 15 Council of its functions, shall be designated for that purpose on a full-time basis by the Director-General after consultation with the Council. [(b) The personnel referred to in subsection (a) shall be under the control of the chairperson of the Council. (2) The CounciI may with the approval of the Director-General enter 20 into agreements with persons for the performance of specific duties or the provision of specific services. (3) The Minister shall be responsible for approving the budget for the Council after consultation with the Minister of Finance, and the expenses of the Council and committees of the Council shall be funded 25 by the Department from money appropriated for that purpose by Parliament or received from other sources approved by the Minister. (4) The chairperson of the Council shall ensure that proper books and financial records are kept by the Council, which books and records shall be audited by the Auditor-General.] 30 (2) Any officer or employee of the Department may be selected by the Council. in consultation with the Director-General. for transfer to the Council. and if the selection is accepted by such officer or employee, he or she shall. notwithstanding any provision to the contrary in the Pubhc Service Act. 1994 (Proclamation No. 103 of 1994). as from the fixed date or such later date as may be agreed upon between the Director-General and the Council, cease to be such an officer or employee and. without interruption of his or her service, become an employee of the Council. (3) Any person so transferred shall. with effect from the date of his or her transfer. be appointed by the Council on the conditions of service determined by it to a post in the Council which is similar to that which such person occupied in the Department immediately prior to such transfer: Provided that— (a) such person’s salary or salary scale shall not be reduced by such appointment; (b) such person shall retain all vacation and sick leave standing to his or her credit with the Department immediately preceding his or her transfer, including all monetary benefits attached thereto; (c) such person shall be compensated by the Council for any loss which he or she may incur as a result of such transfer in respect of unemployment benefit contributions, medical aid contributions or other expenditure on health care that is necessa~ so as not to place him or her in a less favorable position with regard to such expenditure than that which applied to him or her immediately prior to 35 40 45 50 6 ,~0, 18429 GOVERNMENT GAZETTE, 14 NOVEMBER 1997 Act No. 59, 1997 MARKETING OF AGRICULTLIRAL PRODUCTS AMENDMENT ACT, 1997 his or her transfer, as well as for any other loss arising from an! transfer from his or her present headquarters to new headquarters iI accordance with the procedure applicable to officers and employees o the Department; and (d) such person’s conditions of employment in respect of matters no specified in paragraphs (a) to (c) shall not be less favorable to him o her than those which applied to him or her immediately prior to tht transfer. (4) Any person transferred from the Department in terms of subsection (2) who immediately prior to such transfer was a member of tht Government Employees Pension Fund, shall notwithstanding any provisior to the contrary in any law or in the rules of that pension fund. upon suck transfer remain a member of that pension fund for all purposes and tht Council shall contribute to the said pension fund in respect of that person [c the same extent as an employer is required in terms of the laws on and tht rules of that pension fund to contribute to that pension fund in respect of ar employee who is a member of that fund, (5) For the purposes of the Income Tax Act. 1962 (Act ,No. 58 of 1962) no change of employer shall be deemed to have taken place when an officel or employee of the Department is transferred to the Council in terms oi subsection (2). and the position of such officer or employee in respect of the phasing in of tax levied on a benefit or advantage derived by reason ot employment or the holding of any office as contemplated in Schedule 7 [c the Income Tax Act. 1962. shall be deemed to remain unchanged. (6) Any disciplinary steps instituted or contemplated against any person transferred from the Department in terms of subsection (2) in respect of alleged misconduct committed prior to his or her transfer to the Council, shall be disposed of or instituted. as the case may be. in terms of the laws applicable to him or her immediately before such transfer. (7) At least one month before the fixed date. the Director-General shall in writing inform every officer and employee concerned either— (a) that he or she has been selected for transfer to the Council in terms of subsection (2), and of the post that will be occupied by him or her and the date on which the transfer is to take effect: or (b) that he or she is to remain with the Department and of the post which he or she will occupy, (8) Notwithstanding any provision to the contrary in the Public Service Act, 1994. any proposed action of which an officer or employee is notified in terms of subsection (7), shall be deemed to be an act which may form the subject of an appeal to the Minister in terms of the said Act. (9) Any such appeal shall be lodged within 14 days of receipt of such notification by the officer or employee, ( 10) Any employee of the Council shall be entitled to the ordinary severance conditions and benefits. excluding special voluntary severance conditions. not less favorable to him or her than those prescribed under the Public Service Act. 1994, in respect of a person to whom that Act applies and whose services are terminated. (11 ) The Council may enter into agreements with persons for the performance of specific duties or the pro~ision of specific services, and may employ persons to assist it in the performance of its functions. ( 12) The Council shall pay to its employees such remuneration. allowances, subsidies and other benefits as the Council may determine, in accordance with a system approved from time to time by the Minister, with the concurrence of the Minister of Finance. (13) For the purposes of this section, the term “fixed date” shall mean the date determined by the Minister by notice in the Ga:ette, ”. s No. 18-129 GOVERNMENT G/lZETTE. I -1 NOVEiMBER 1997 .Ict No. 59.1997 MARKETING OF ~GRICIJLTURAL PRODUCTS ~MEND,MENT /lCT. 1997 Insertion of section 8A in Act 47 of 1996

4. The following section is hereby inserted after section 8 of the principal ACt: “Financing of Council 8A. ( 1 ) The funds of the Council shall consist of monies appropriated by Parliament and interest earned on investments by the Council, (?) The council shall utilise its funds for defraying expenses in connection with the performance of its functions. (3) The Council— (a) (b) (L’) (d) shall in each financial year. at the time determined by the Minister, submit a budget of its estimated income and expenditure during the following financial year for approval by the Minister obtained with the concurrence of the Minister of Finance; may in any financial year, at any time submit supplementary budgetary inputs of its estimated expenditure for that financial year. to the JMinister for his or her approval in consultation with the Minister ot Finance; shall not incur any expenditure which exceeds the total ~mount approved under paragraphs (a) and (b): may with the approval of the ,Minister invest any surplus funds of the Council: Provided that any surplus at the end of a financial yeal- shall be carried over to the next financial year and form part of [he budget of the Council for that financial year. (4) (a) The chairperson of the Council shall be the accounting otlicer charged with the responsibility of accounting for all money received and the utilisation thereof. (b) The accounting officer shall cause such records of account to be kept as are necessary to represent fairly the state of affairs of the Council and to explain the transactions and financial position of the Council. (c) The accounting officer shall submit year-end financial statements to the Minister within four months after the end of each financial year. (5) The Auditor-General shall audit the books of accounts. accounting statements and annual financial statements of the Council and shall submit a copy of the report on the audit of the said statements to the Council. (6) The financial year of the Council shall be the period from 1 April in any year to 31 March in the succeeding year.”. Amendment of section 9 of Act 47 of 1996

5. Section 9 of the principal Act is hereby amended— (a) by the substitution in subsection (1) for paragraphs (u) and(e) of the following paragraphs. respectively: “(a) shall, when requested by the Minister. or of its own accord. investigate, in terms of section 11(2), the establishment, continua- tion, amendment or revocation of statutory measures and other regulatory measures affecting the marketing of agricultural prod- ucts, evaluating the desirability, necessity or efficiency and if necessary, proposing alternatives to the establishment. continua- tion, amendment or repeal of a statutory measure or other regulatory measure and report to and advise the Minister accordingly;”; “(e) may undertake investigations and advise the Minister regarding— (i) agricultural marketing policy and the application thereofi (ii) the co-ordination of agricultural marketing policy in relation to national economic, social and development policies and international trends and developments; [and] (iii) the possibilities for promoting the objectives mentioned in section X2); and (iv) the effect that~e marketing of products has on the objectives — mentioned in section 2(2!), ” ; and fb) by the deletion of paragraph (g). 35 40 45 50 55 10 No. 18429 GOVERNMENT G~ZETTE. 14 NOVEMBER 1997 .Act No. 59, 1997 MARKETING OF ,iGRICLrLTUR~L PRODLICTS ~MENDMENT ACT. 1997 Amendment of section 15 of Act 47 of 1996

6. Section 15 of the principal Act is hereby amended by the substitution in subsection (4) for paragraph (a) of the following paragraph: “(a) the amount of such levy, or the formula by which such a levy shall be calculated: Provided that the value of the levies on a particular agricultural product shall not exceed, in total. five percent of the guideline price for such agricultural product, which guideline price shall— (i) be based on an average price [realised minus the cost incurred up to] ~ its first point of sale during a preceding period not exceeding three years; and (ii) be detemnined by the Minister in consultation with the Council by notice in the Gazette;”. Amendment of section 17 of Act 47 of 1996

7. Section 17 of the principal Act is hereby amended by the substitution for subsections (1) and (2) of the following subsections. respectively: “(1 ) The Minister may, apart from any pooling arrangements that may be instituted in terms of section 16, [by notice in the Gazette direct] arrange that a pool [shall] be conducted by a particular body, at a particular location for the purchase and sale of a particular agricultural product or a class thereof and — publicise such arrangement by notice in the Gcz:ette. (2) A pool conducted in terms of subsection (1) shall be conducted on the basis that any person who sells to, buys from or participates in any way in such a pool, shall not be compelled to sell [exclusively] to or buy [exclusively] from such a pool.”. Amendment of section 19 of Act 47 of 1996

8. The following section is hereby substituted for section 19 of the principal Act: “Registration

19. The Minister may by notice in the Ga:erte, direct that any [producer of a particular] person mentioned with re,mrd to an agricultural product or class thereof [or any person who disposes of such an agricultural product or class thereof for a profit, or any person involved in the purchase, sale, processing or production of such agricultural products or a class thereofl to which the notice pertains and which such person has in his or her possession or under his or her control. shall be registered= specified in the notice.”. Amendment of section 20 of Act 47 of 1996

9. Section 20 of the principal Act is hereby amended by the substitution for subsection (1) of the following subsection: “(1 ) The Minister shall [annually] by notice in the Gazette and through the news media invite any group of persons which regards itself as a group that is directly affected by this Actor any market intervention in terms thereof and which complies with the criteria determined by the Council and set out in the said notice, to furnish the Council with full particulars regarding the reasons why it regards itself so to be affected or potentially tiected, its composition, its address and any other information that may be required.”. Amendment of section 21 of Act 47 of 1996

10. Section 21 of the principal Act is hereby amended by the substitution for subsection ( 1 ) of the following subsection: “(1 ) The Minister may [appoint] designate and authorise a person as an 5 10 15 Q() 25 30 35 40 45 12 No. I 8429 Act No. 59.1997 GOVERNMENT GAZETTE. 14 NOVEMBER 1997 MARKETING OF AGRICULTURAL PRODUCTS AMENDMENT ACT, 1997 inspector to [exercise the powers and] perform the [duties] functions referred to in subsection (3).”. Amendment of section 26 of Act 47 of 1996

11. Section 26 of the principal Act is hereby amended— (a) by the substitution for subsections (2) and (3) of the following subsections. respectively: ‘s(2) From the date of commencement of this Act any property, whether movable or immovable, and whether corporeal or incorporeal, owned, hired or in which any such control board or similar body established by or under a law mentioned in the Schedule has an interest. shall only be disposed of. alienated, let, hypothecated or otherwise dealt with [in order to discharge the scheme’s or body’s liabilities or] . with .LA .--.,.. ..1 -c l L.,. m a:..:.+-. n.- b..-... e’.....n> l A - b..... b *L. -------- ..C lllc +J~l UVLU WI lllc lv1llll>LC1 LUC L1 cIIDIC1 1 CU LU d L1 USL, L1lC ~Ul ~US~ U1 which is not inconsistent with this Act]. (3) On dissolution of any scheme in terms of the Marketing Act. 1968 (Act No. 59 of 1968), any surplus or shortfall of assets over liabilities of that scheme shall be dealt with in terms of the applicable scheme [and, failing any provision which prescribes how such surplus or shortfall is to be dealt with, the Minister shall determine how such surplus or shortfall is to be dealt with].”; and (b) by the addition of the following subsection: (4) Any remaining assets or liabilities. rights and obligations acquired or accrued in terms of such a scheme, which have not been dealt with in terms of subsection (3) shall be dealt with in terms of a liquidation process determined by the Minister by notice in the Gazerre, ”. Amendment of section 27 of Act 47 of 1996

12. Section 27 of the principal Act is hereby amended— (a) by the substitution in subsection (2) for paragraph (c) of the following paragraph: .’(c) the Minister may. [at the request ofl after consultation with a control board and [after consultation with] the parliamentary committees, subject to paragraph (a) and subsection (3), by notice in the Gazette amend or repeal any scheme, levy, prohibition. requirement. direction, determination. regulation or notice referred to in paragraph (u); “; and (b) by the addition to subsection (2) of the following paragraphs: “(d) the Minister may direct any control board to furnish the Council with such information pertaining to a scheme and its functions as the Council, the Minister or the parliamentary committees may require; (e) any person who is dissatisfied with a decision of a control board which affects his or her rights, may appeal against such decision to the Minister who may, after consultation with the Council. confirm, set aside or vary such decision or make such order in connection therewith as he or she may deem fit.”. ’40 45 Short title

13. This Act shall be called the Marketing of Agricultural Products Amendment Act. 1997.