Agricultural Produce Agents Amendment Act

1 Words in bold type existing enactments. in square brackets indicate omissions from Words underlined with a solid existing enactments. line indicate insertions in (English text signed by the President.) (Assented to 28 January 2004.) ACT To amend the Agricultural Produce Agents definitions and to insert others; to change the constitution of the council; to apply certain provisions to fresh produce agents only: to make certain textual alterations; to provide for the extension regulating powers of the council: and to provide for transitional matters; and to provide for matters connected therewith. of the jurisdiction of the council, to enhance the Act, 1992, so as to alter certain B E IT ENACTED by the Parliament of the Republic follows:- of South Africa. as Amendment of section 1 of Act 12 of 1992

1. Section 1 of the Agricultural Produce Agents Act. 1992 (hereinafter referred to as the principal Act). is hereb!, amended- 5 ( n J by the substitution for the definition of “agent” of the following definition: “ ‘agent‘ means a person who, for the acquisition of gain on his &r own account or in a partnership, in any manner holds himself or herself out as a person who. [or] &r - she. on the instructions of or on behalf of any other person, purchases or 10 sells agricultural negotiates in undertakes or offers to canvass a purchaser canvasses or therefor[, but excluding- (a) a control board as defined in section connection therewith or or seller directly or indirectly advertises that he 1 of the Marketing Act, produce or 1968 (Act No. 59 of 1968), which in terms of a scheme likewise 15 defined, purchases and sells an agricultural product to which such scheme relates; paragraph in (b) a person who, in the course of his agency, purchases and sells of a control board the agricultural product concerned on behalf referred (a); and (c) a local authority as defined in section 84(l)(n of the Provincial to 20 Government Act, 1961 (Act No. 32 of 1961), which sells an agricultural product entrusted to an agent as defined above, on behalf of that agent at an auction];”; ( b ) by the substitution for the definition of “agricultural product” of the following 25 definition: “ ‘agricultural product’ means an article specified in Schedule 1 or any article added section;”; thereto under subsection Part A or B of (2) of this 4 N C I . 25971 GAZETTE. GOVERNMENT

4 FEHKUAKY 2001 Act No. 47.2003 AGRICULTURAL PRODUCE AGENTS AMENDMENT ACT. 200.1 ( c i by the deletion of the definition of “building society”: (dl by the insertion after the definition of “close corporation“ of the following 5 1 0 IS 30 35 3 0 definition: .’ ’consumer‘ means a consumer of an agricultural product:“: ( e ) by the insertion after the definition of “council” of the following definitions: ” ‘court’ means a court of the provincial or local division-of the High Court of South Africa havingjurisdiction or a judge of any such court and for purposes of section 27(5) also includes a magistrate as defined in the Mapistrates’ Courts Act, 1944 (Act No. 32 of 1944); ’department‘ means the Department ,oovernment:“; ‘deputy registrar‘ means the deputy registrar of the Agricultural Produce Aeents Council appointed in terms of section 8; of Agriculture in the national If) by the inseriion after the definition of “deDosit-taking institution’’ of the - following definition: ‘ * ’export agent‘ means an agent acting as agricultural product specified in Part A of Schedule 1 intended for export;“ : such with rezard to an! (g) by the substitution for the definition of “fresh produce agent“ of the folloa4ng definition: ” ’fresh produce agent‘ means an agent acting as such with regard to an!’ agricultural product specified in Pan A of Schedule 1 on the basis that the risk of protit or loss at all times remains with the principal. and- ( a ) for the purposes of section 3(l)(a), includes any director of a company. trustee of a trust or a member of a close corporation who acts as a fresh produce agent as aforesaid; / h i for the purposes of sections 12(5), 13(3)fh), l3(3)(cl. IX3Ydl. 133). 11(5)(rr), 16(6)(f), 16(6A), 22, 23. 24. 95. 26. 37 and 30. includes- ( i ) any director of a company. or a member of a close corporation or a trustee of a trust who acts as a fresh produce agent as aforesaid: and (ii) any person who is employed by a fresh produce agent and who acts as a fresh produce aient as aforesaid for the-employer:”: ( h ) by the substitution for the definition of “fund“ of the following definition: .‘ ’fund’ [. in relation to- ( a ) fresh produce agents,] means the [fidelity fund] Fresh Produce c A,gents Fidelity Fund referred to in section 12(2): [(b) livestock agents, means the fidelity fund referred to in section 12 (3);l“: ( i ) by the substitution for the definition of “livestock agent” of the following definition: t o an!. ” ’livestock agent’ means an agent acting as such with regard agricultural product specified in Part B of Schedule 1. and for purposes of section 3( 1 )ib) includes any director of a company, trustee of a trust or a member of a close corporation which acts as aforesaid:”: as a livestock agent ( j ) by the deletion of the definition of “officer”; ( k ) by the substitution for the definition of “registrar” of the following definition: registrar of the Agricultural Produce Agents .’ ‘registrar‘ means the of the Council appointed application of the provisions of this Act, includes the deputy registrar:“: ( I ) by the insertion of the following definition after the definition of ”registrar“: * ’ ’registration certificate’ means a registration certificate issued by the council in terms of section 16;”. in terms of section 8, and for purposes Act No. 17. 2003 AGRICULTURAL PRODUCE AGENTS AMENDMENT ACT. 200.; Substitution of section 3 of Act 12 of 1992

2. The following section is hereby substituted for section 3 of the principal Act: "Constitution of council 3. the council as members of ( 1 ) The Minister shall appoint for a maximum period of three years- ( a ) two persons who in his or her opinion represent producers agricultural products set out in Part A of Schedule 1 : ( 0 ) two persons who in his or her opinion represent producers agricultural products set out in Part B of Schedule 1: three persons who in his or her opinion represent fresh produce agents: (c) ( d ) three persons who in his or her opinion represent livestock a, "eIlt3: ( e ) three persons who in his or her opinion represent export agent$: (fi (g) two persons who in his or her opinion represent consumers: and ( / I ) one person representing the Department. two persons designated by him or her; of the of the ( 2 ) The registrar and deputy registrar shall e.1- qficio be ntembers o f the council. (3) A member may not serve more than two consecuti\.e terms unless the Minister i \ of the opinion that the appointment for a further term nil1 be beneficial to the council. (4) Whenever members or a member of the council has to bc appointed in terms of subsection ( 1 ), the Minister shall call for nominations of suitable persons in the national media. ( 5 ) ( ( 1 ) If a member of a council ceases to hold office for any reason a11d \'acates office. the Minister may appoint a person in his or her place f o r the unexpired part of the term of office of the vacating member. ( h ) If. upon the expiration of the term of ofiice of the member\ o f the council. the Minister has not yet appointed new member\ to takc their place. the existing members shall continue in office until new metnberz have been appointed to replace them. (6) A member of the council other than the registrar. deputy registrar and a member referred to in subsection (1)(11) shall be paid such rt'mllntmtion or allowances from the funds of the council. as the council ma! determine. ( 7 ) No person may be appointed as a member of the council. \vho-- / a ) is not a South African citizen resident is an unrehabilitated insolvent t h l insolvent estate has not certified that the insolvent is ;I person to serve as a member of the council; in respect of whom the trustee of the t i t and proper in South Africa: f c ) has failed or is unable to comply in full with a judgment or order. including an order as to costs, given against him or her by a court of law in civil proceedings; ( d l has been convicted of an offence involving an element ot'dishonrst! o r has been sentenced for another offence to a period of imprisonment: l e ) is of unsound mind; or ( f ) has contravened section 7 of the Promotion of Equality and Pre\ention of Unfair Discrimination Act, 2000 (Act No. 6 of 2000). and i t l i a ~ been so determined by an equality court.". Substitution of section 4 of Act 12 of 1992

3. The following section is hereby substituted for section 4 of the principal Act- "Vacating of office by members of council 5 0

4. A member of the council shall vacate his or her office if- ( a ) he or she becomes subject to any disqualification referred to in section I 8 No. 35971 GOVERNMENT G.AZETTE. 4 I’EHRL:.AKl’ 2004 .Act No. 47,2003 AGRICULTURAL PRODUCE AGENTS AMENDMENT ACT. 200.2 ( b ) he or she has been absent from more than two consecutive meetings of the council without the leave of the council: (c) he or she resigns as a member of the council and has notified the registrar in writing of his or her resignation: ( d ) he or she is no longer fit to serve on the council: or ( e ) in the case of the registrar, he or she is no longer employed by the 5 council.”. Substitution of section 5 of Act 12 of 1992

4. The following section is hereby substituted for section S of the principal Act: “Chairperson of council 1 0 5. ( 1) The Minister shall designate a chairperson for the council from the members contemplated in section 3( 1). 1 (2) When the chairperson is absent or is unable to perform his or her duties. the members of the council shall from among their number elect a person to act as chairperson until the chairperson is able to resume his or her duties or until a new chairperson is designated by the Minister. of office as chairperson has expired through effluxion of time shall be eligible for re-election to that office: Provided that no person shall serve as chairperson for more than six consecutive years.“. (3) A person whose term Substitution of section 6 of Act 12 of 1992 90

5. The folloLving section is hereby substituted for section 6 of the principal Act: “Meetings and decisions of council 6. ( 1 ) The council shall meet at such times and places as the chairperson may from time to time determine. ( 2 ) The chairperson of the council may at any time convene an of the council to be held at a time and place extraordinary meeting determined by him or her and shall. upon a written request signed by not less than three members of the council. convene an extraordinary meeting thereof to be held within two weeks after the date of receipt of such request. at a time and place determined by him or her. (3) The person presiding at a meeting of the council shall determine the procedure at that meeting. (4) ( a ) The quorum for a meeting of the council shall be a majority of all its members. (6) The decision of a majority of the members of the council present at a meeting thereof shall constitute a decision of the council. ( c ) In the event of an equality of votes on any matter the person presiding at the meeting shall have a casting vote in addition to his or her deliberative vote. ( 5 ) No decision taken by the council or act performed under the authority of the council shall be invalid by reason only of a casual vacancy on the council or of the fact that any person not entitled to sit as a member of the council sat as such a member at the time the decision was taken or the act was authorized, if the decision was taken or the act was authorized by the majority of the members of the council who were present at the time and entitled to sit as members of the council.”. Amendment of section 7 of Act 12 of 1992

6. Section 7 of the principal Act is hereby amended by- (0) the substitution in subsection (1) for paragraphs (a) and ( b ) of the following respectively: paragraphs, so .\rt No. 47.2003 AGRIClILTLiRAL PRODUCE AGENTS AMENDMEST .ACT. 2 0 0 ; " ( a ) There shall be [two] three executive coninlittees of the cwncil which shall deal with matters relating to the occupations ot'esport agent. fresh produce agent and livestock agent. respecti\,ely. ( b ) The executive committees shall consist of the ~nember\ o f the council referred to in paragraphs [(b)(i) and (c). and paragraphs ( h H i i 1 and (d), respectively, of section 3(1).] (c) to ( r j of section i( 1 ). respectively.": and 5 ( h i the deletion in subsection (1) of paragraph (d). Substitution of section 8 of Act 12 of 1992

7. The following section is hereby substituted for section 8 of the principal Act: 1 0 "Registrar and deputy registrar 8. ( 1 ) The work incidental to the performance of the functions o i the council and its committees shall be performed by the registrar and cicput! registrar. who shall be appointed by the council in conaultntion \\it11 the Minister. ( 2 ) The registrar- ( a ) may delegate or assign to a person appointed or designated by him o r her any power or duty conferred or imposed upon him or her h! o r under this Act: (0) is accountable to the council and responsible for- (i) (ii) (iii) the implementation of policy. rules and the codes of conduct determined by the council in accordance \sith this Act: of the council. the day-to-day administrative functioning including the registration of agents with the council. thrl keeping of records of account. inspections and inyestigations into the affairs of agents and the institution and conducting of disciplinary or other proceedings against agents: and reporting to the council on his or her acti\itie\ i n t e r m o f subparagraphs (i) and (ii); ( c ) shall be appointed on such terms and conditions as the council ma! decide.'' . Substitution of section 9 of Act 12 of 1992

8. The following section is hereby substituted for section 9 of the principal Act: "Objects of council

9. The ob.jects of the council shall be to regulate the occupation\ o f f r e h 35 produce. export and livestock agents and to maintain and enhance the status and dignity of those occupations and the integrity of person? practising those occupations.". Amendment of section 10 of Act 12 of 1992

9. Section 10 of the principal Act is hereby amended by the substitution f o r 40 paragraphs ( a ) , ( b ) and (c) of the following paragraphs. respectively: " ( 0 ) to [perform any functions in connection with agents entrusted to the I b ) council by this Act or any other law] formulate policy; to [gather information in connection with agents and persons applying for the issue of fidelity fund certificates] establish rules and codes of conduct: 35 ( c ) to hire, purchase or otherwise acquire such movable or immovable property in movable or immovable property as the council may deem such interest necessary for the effective performance of its functions. and to let. encumber. sell or otherwise dispose of property so purchased or acquired: and". Act No. 47.2003 AGRICULTURAL PRODUCE AGENTS AMENDMENT ACT. 2007 Amendment of section 11 of Act 12 of 1992

10. Section 1 I of the principal Act is hereby amended- ( [ I ) by the substitution in subsection (1) for paragraph ( h ) of the thllowing paragraph: " ( b ) all other [money] moneys which may accrue to the council from any other source."; ( b ) by the addition of the following subsections after subsection ( 2 ) : "(2A) The council may, sub-ject to such terms and conditions as it ma!' deem fit- ( a ) make grants with regard to- (i) research in fields of activity relevant to the business of agents in general; (iij the maintenance and promotion of the standard of conduct of agents in general; (iii) the maintenance and promotion of the training standards o f agents in general; (bl pay an honorarium or remuneration to any person or institution for services with the object of enhancing the standard of conduct of agents in general. rendered at the request of the council: and (c) utilize such amount as it may determine for the purpows of- (i) advertising and promoting the services and facilities offered b! agents in general; or (ii) promoting public awareness in respect of matters relating to the purchase of agricultural products referred to i n Part A or B of Schedule 1. (2B) The council may at any time revoke any grant referred to in subsection ( 3 ) ( ~ ) . " ; (cl by the substitution for subsection ( 5 ) of the following subsection: " ( 5 ) The financial year of the council shall end [in each year upon the date determined by the council from time to time] on 31 March in each year and the council shall report annually on its acti\.ities to the Minister."; ((1) by the insertion after subsection ( 5 ) of the following subsection: "(5A) The council shall, at least three months prior to the start of its financial year. provide to the Minister business plan of the forthcoming financial year containing at least- (ai the budget of the council for that forthcoming year: 10) particulars about any training. promotional or other acti\.ities that for his or her information a 35 the council plans to undertake during that year; f c ) such other particulars as the Minister may request.": and ( e ) by the substitution for subsection (10) of the following subsection: "(IO) The functions of the council in terms of this section may be performed separately in respect of fresh produce ae oents. export ayents and livestock agents.". Substitution of section 12 of Act 12 of 1992

11. The following section is hereby substituted for section 12 of the principal Act: "Establishment and control of fidelity [funds] __ fund 12. ( 1 ) There [are] is hereby established [two funds] a fund to be known ProduceAgents Fidelity Fund [and the Livestock Agents as the Fresh Fidelity Fund, respectively]. ( 2 ) The [Fresh Produce Agents Fidelity Fund] - fund shall consist of- ( a ) money in the fidelity guarantee fund established under section 27 of Sales Act, 1975 (Act No. 12 of the Agricultural Produce Agency 1975); -15 50 ( b ) each amount which is immediately prior to the commencement ofthis 55 section payable paragraph (a), and is paid on or after such date of commencement; to or on the account of the fund referred to in Act No. 47.2003 AGRICULTURAL PRODUCE AGENTS AMENDMENT .ACT 200.; (c) money paid to or on account of the [said] fund in term5 oi subvxtioll (4) by fresh produce agents; ( d l money recovered by or on behalf of the [said] fund in terms o f this Act; [(e) money received by the said fund by virtue insurance referred to in section 15;] of a contract of' . [(f)]@) income derived from the investment of money in the Isaid] fund: and [(g)]U any other money accruing to the [said] fund from an!. other source. [(3) The Livestock Agents Fidelity fund shall consist of- ( a ) money paid to or on account of the said fund in terms of subsection (4) by livestock agents; (b) money recovered by o r on behalf of the said fund in terms of this Act; (c) money received by the said fund by virtue of a contract of insurance referred to in section 15; (d) income derived from the investment of money in the said fund: and any other money accruing to the said fund from any other source.] (e) [(4)] (3) ( a ) Each fresh produce agent other than a person emplo!r.d b! such an agent [who is the holder of a fidelity fund certificate] shall annually before or on a date determined by the council [for this purpose.1 pay to the council for the account of the [applicable] fund an m o u n 1 calculated on such basis or in such manner as the council ma!. dt.tr.rn1ine. tb! A determination by the council in terms of paragraph f ( 1 I h h a l l he made with due regard to the purpose for which the fund [concerned] h a \ been established. as and future obligations o f ' [that] the fund. \vel1 as the present assets [(5)]-w ( u ) Subject to the provisions of this Act. [The funds are] fund is established to [compensate persons provisions of this Act] reimburse producers for [monetary] suffered by them as a result of [the failure ofl- ( i ) [commission agents as defined in section in accordance with the losstt\ 1 of the Agricultural Produce Agency Sales Act, 1975, who were members of the tidelit! guarantee fund referred to in subsection to the commencement provisions of the said Act and the regulations made thereunder: of an\' monr! o r and] theft. committed by a fresh produce agent. a.w-icultural produce entrusted by or on behalf of the producers thereot to him or her as a fresh produce agent: and ( 2 ) ( a ) of this section prior the of this section, to complj. w i t h (ii) [agents who are in possession of valid fidelity fund certificates. to comply with the provisions dishonest conduct by a fresh produce agent in so far as such conduct relates to agricultural produce. of this Act and the rules] [(b) Compensation in terms of paragraph (a) shall- (i) only be payable from the fund referred to in subsection ( 2 ) if it relates to an agricultural product specified in Part A of Schedule 1: and (ii) only be payable from the fund referred to in subsection (3) if it relates to an agricultural product specified in Part B of Schedule 1.1 [(c)] (b) Notwithstanding the provisions of paragraph ( a ) . the Minister may, if he orshe is of the opinion that the balance of [a particular] the fund is sufficient to meet the obligations contemplated in that paragraph. approve that such portion of the income referred to in [subsections] subsection (2)[(n](g) [and 3(d)l as may be determined by him or her. be made available to the council for utilization as contemplated in section 1 I ( ? ) . [(6)] (5) The [funds] fund shall be controlled and administered by the council in accordance with the provisions of this Act. [(7) The council shall open separate accounts with a deposit-taking institution or building society in which the money in the funds is to be kept.] Act No. 47,2003 AGRICULTURAL PRODUCE AGENTS AMENDMENT XCT. 100.; [(S)] (6) The council may invest any money required for immediate use at a deposit-taking institution. in the [funds] fund not [(9)] (7J The financial year of the [funds] fund shall terminate on such date in each year as the council may determine. [(lo)] (8) No provision of any law relating to insurance shall apply in respect of the [funds] fund. [(ll)] (9J The provisions of section 11 (6), (7), (8) and ( 9 ) shall r r l m r i . 7 rmttardis apply to the [funds] - fund.”. Substitution of section 13 of Act 12 of 1992

12. The following section is hereby substituted for section 13 of the principal Act: “Payments out of [funds] fund 13. ( 1) Subject to the provisions of this Act, the [applicable] fund shall be utilized for- ( a ) all claims against the fund referred to in section 1 1 and paid by the council or allowed or established against the fund [concerned]: (b/ [compensation,] in the discretion of the council. a contribution towards expenses incurred by [to] a claimant for [expenses incurred in respect of proof ofl establishing his e claim: legal and accounting costs incurred in, from, the investigation and defence of a claim made against the fund: [(d) premiums in respect of contracts of insurance entered into by the and other expense5 arising (c) council in terms of section 15;] (e) the costs incidental to the control and administration of the fund. including allowances and remuneration paid for this purpose to members of the council and a committee of the council. the re,’ w t r x and the persons referred to in section 8(2): and Ifi other payments required or permitted to be made out of the fund i n terms of this Act. (2) Notwithstanding anything to the contrary in any other Act. [The] the council may in its discretion pay an amount out of the [applicable] fund a 5 interest on the amount of any ljudgment obtained against the fund or of any] claim admitted against the fund [admitted]: Provided thx- ( a ) the interest shall not run from a date earlier than the date on \\ hich the claim [concerned] was lodged in writing with the council i n terms of subsection (3)(a)(i); and ( b ) the rate of interest shall not exceed the prevailing rate of interest l ( 2 ) of the Prescribed Rate of Interest Act. prescribed under section 1975 (Act No. 55 of 1975). (3) Notwithstanding [the provisions of subsection (U.1 un) other provision, no person shall have any claim against [a] f a ) unless the claimant- funci- (i) has lodged it in writing with the council wzithin six months after he & became aware of the loss [concerned]. or by the exercise of reasonable care could have become a\vare thereof: and (ii) has within three months after having been requested thereto in writing by the council, furnished the council with such proof of that loss as the council may reasonably require: and (6) if the claimant[- (i)] [(ii) (iii) is a partner, manager, representative, agent. employee or member of the [family] household of the fresh produce agent whose [omission or alleged omission] conduct referred to in section 12(5) has caused the loss [concerned]: in the case of an agent who is a company or co-operative, is a director of that company or co-operative; in the case of an agent who is a close corporation, is a member of that close corporation.] .Act No. 47.,2003 AGRICULTURAL PRODUCE AGENTSAMENDMEST,~CT. 200.; (c, if the loss occurred as a result of the conduct. referred t o ill W ~ I I O I I 1 12(5), of a fresh produce agent whose fidelity has been guaranteed h! any person, either in general or in respect of the particular transactton. ~ to the extent to which the transaction is covered by the guarantee: a n d (d) if the loss occurred as a result of the conduct. referred to i n section 12(5), of a fresh produce agent after such claimant received ;I \\ rittcn j him or her against the notification from the registrar warning employment or continued employment of such fresh product. q c n t . j ( I ) A claim for reimbursement contemplated in section 12(5) shall t w ~ to a fresh produce Llgent. to the j 1 0 limited. in the case of money entrusted amount actually handed over, without interest. and. to the a\.erage market alur o f agricultural produce, such produce on the date when written demand wah first made for i i h i I delivery, or if there is no average market value, the fair market \.slut. a \ a t 1 that date, to an amount equal i n the caw o f , interest.". IS 5 without Substitution of section 14 of Act 12 of 1992

13. The following section is hereby substituted for section 14 of the principal Act: "Claims against [funds] fund and actions against council 14. ( I ) A claim for the reimbursement from [a] the fund of ;I monerar! - loss that arose under the circumstances set out in section 12(5 i shall. subjsct 2 0 to the provisions of section 13(3). be lodged with the council. ( 2 ) If the council admits such a claim. a payment shall be made to the 1 i : not be more than the claimant [concerned] in accordance with the provisions of section 1 .:( Provided that the amount of such payment shall difference between the amount of the loss suffered b! [concerned]. and the amount or value of all money5 or other benetit\ received or entitled to be received by that claimant. whether gratuitousl> o r otherwise, from any other source. the claimmt 23 in the court within whose jurisdiction ( 3 ) If the council rejects a claim. an action in respect of that claim ma! be instituted against the council thc. [cause of the claim arose,] principal place of business of the council i \ situated [provided]= f n l if the claimant has [, in the opinion of the council.] exhausted A 1 I t . y i remedies against the fresh produce agent in respect of \vhom the claim a r o s e s r ( h J with leave of the council, before all legal remedies against the \aid agent have been exhausted. (4) In any action against the council [in respect of a fund,] a l l defence\ i n rehpect o f to the fresh produce agent which would have been available whom the claim arose. shall be available to the council. .30 7 - .? 3 4 ) ( 5 ) When the council settles in full or in part any claim under t h i \ Act- (01 there shall pass to the council, to the extent of such settlement. a 1 1 thc rights and remedies of the claimant in respect of such claim against the fresh produce agent [concerned or any other person] 01. i f applicable. in the case of the death, insolvent). or other legal 45 incapacity of such fresh produce agent [or other person]. again5t the estate of the said fresh produce agent [or other person]: and ( b ) the council may use any security furnished by or on behalf of [an] 2 fresh produce agent in terms of section 17, to reimburse the fund [concerned] for the amount for which the claim settled. [concerned] \\'a\ 50 (6) ( a ) The council may in its discretion decide on the order in \~.hich claims admitted by the council or awarded by the court shall be paid o u t of the [applicable] fund. 30 No. 25971 GOVERNMENT GAZETTE. -I F t H K l AI<)' 20114 Act No. 47., 2003 AGRICULTURAL PRODUCE AGENTS AMENDMENT ACT. 200: (b) If. at any time the amount to the credit of [a] & fund is insufficient to pay all such claims, the council [shall pay those claims proportionally to the amount available in the fund concerned at that time.] ma! determine the order in which claims in terms of subsection ( I ) shall be settled, and may, if the revenue of the fund is not sufficient t o settle all claims in full, settle any claim in whole or in part. ( c ) Without limiting the discretion of the council it shall. in applying the fund towards such settlement of claims. consider- (i) the relative degrees of hardship suffered or likely to be suffered by the various claimants should their claims against the fund not be settled in whole or in part: (ii) subject to subparagraph (i), the full settlement of claims not exceeding the amount prescribed by the Minister by notice in the Gazrrtr. except in special circumstances, before claims for amounts exceeding such amounts are settled to a greater extent than such prescribed amounts: (iii) in equal circumstances, the priority of claimants according to the dates when the claims were admitted by the council. as the case may be. [(c)](dl A proportional payment under paragraph ( b ) shall be deemed to be full and final payment in respect of the claim -[concerned]." of Repeal of section 15 of Act 12 1992 , I O 15 20

14. Section 15 of the principal Act is hereby repealed. Substitution of section 16 of Act 12 of 1992

15. The following section is hereby substituted for section 16 of the principal Act: "Prohibition on acting as agent under certain circumstances 16. (1) ( a ) Subject to the provisions of subsection (2). no person shall 75 perform any act as [an] a fresh produce agent unless he or she is the holder to him or her and to e\.er!' of a [valid] fidelity fund certificate issued employee contemplated in the definition of 'fresh produce agent' i n section I 1 and. if such person is- (i) a company. (ii) a close corporation, to every member of that corporation: or I (iii) a trust, to every trustee of that trust, who acts as an agent on behalf of that company, close corporation or trust 1 contemplated in the definition of 'fresh produce agent' in section 1 . to every director of that company: .3 0 ( 6 ) [The provisions of paragraph (a) shall, in the case of a 35 partnership, apply to each member of that partnership] Subject to the provisions of subsection (2), no person shall perform any act as an export agent or a livestock agent unless a registration certificate has been issued to him or her. (2) No [person] agent shall receive remuneration for the performance of 40 an act as an agent. unless- ( a ) in the case of a fresh produce agent. the act has been performed by the holder of a [valid] fidelity fund certificate which has not been suspended; or ( b ) [the council has under subsection (3) exempted such person from 45 complying with the provisions of subsection (l)] in the case of an export or livestock agent, the act has been performed by the holder of a registration certificate. (3) [(a) The council may on application grant written exemption from the provisions of subsection (1) to a person- (i) who only occasionally acts as an agent; and 50 Act NO. 47.2003 AGRICULTURAL PRODUCE AGENTS AMENDJIEXT ,ACT'. 7003 (ii) whose scope of business as an agent, in the opinion of the council does not justify the issue of a fidelity fund certificate. (b) Such exemption shall be granted subject to such conditions as the council may in each case determine. ( a ) Every prospective fresh produce agent shall. within thc prexmhcd period and in the prescribed manner, apply to the council for a titielit! tunc1 the securit!. certificate, and such application referred to in section 17( 1) and the application fee determinc.cl b> thc council. shall be accompanied b!. ( c ) If the council, such application shall be accolnp;unit.tl h! (hl Every prospective export agent and livestock agent sI1;dI. within the prescribed period and in the prescribed manner. apply to the council for ;I registration certificate, and the application fee determined by the council. i 1 ret'erred to i n ~ subsection (1) or ( 2 ) and the security (where applicable) and applicarion fee referred to in those subsections, is satisfied that the applicanr ic n o t disqualified in terms of subsection (6) from being issued \+ i t h ;I tidclit! f u n d ~ in the prescribed form i w 1 e 10 or registration certificate, the council shall the applicant a fidelity fund certificate or a reyistration cel-titicare. a\ thc ~ case may be. of an)' application upon receipt ((1) Any document purporting to be a tidelity fund certiticatc' o r registration certificate which has been issued contrary to the p r o \ ision> at' this Act shall be null and void and shall on demand be returned to the ~ council. 5 I O IS 2 0 3 0 (4) An application for a fidelity fund certificate shall be made i n the manner determined by the council, and shall be accompanied by the applicable amount determined by the council for this purpose.] [(5) After consideration of any such application the council of subsection (6). issue to the ;tpplicant subject to the proyisions fidelity fund certificate in the form determined by the council.] registration certificate. as the who] any person- (6) [The council may refuse to issue a] No fidelity fund certiticatc. 0' case ma!. be. shall be isued to [;I person ( a ) * has at any time by reason of improper conduct been d i \ n ~ i \ ~ c d shall. a from a position of trust: ( 0 ) who has at any time been convicted of an offence i n \ O I L in2 ;t11 clcmcnr of dishonesty: ( c J who is of unsound mind; [(d) has at any time been convicted of the Agricultural Produce Agency Sales Act, 1975 (Act No. 12 o f 1975). and whose registration as a commission agent as defined i n the said Act, was as a result thereof cancelled in terms of section 6 of that Act;] of a contrayention (e) who has, after an investigation in terms of section 111. been found guilty of improper conduct[, if the council has as a result thereof kithdrawn the fidelity fund certificate previously issued t o the person concerned]; (f, is an unrehabilitated insolvent in respect of whom the trustee of not certified that the insol\'ent is tit the insolvent estate has i r n d to assume a position of trust and to be issued wit11 ;I proper person fidelity fund certificate or registration certificate, as the case rn;l>. be: [or1 ( 8 ) in the case of a company [or co-operative]. close corporation or other juristic person, which is being wound-up. whether pro\isionall> or otherwise, or is derepistered, as the case may be: [has a director or employee, and in the case of a close corporation, has a member or employee, who is subject to a disqualification set out in paragraph (a), @), (c), (4, (e) o r 0.1 ( h ) who has failed to discharge all his or her liabilities to the council: (i) who has failed to comply with any lawful requirement of the council: ( j ) in the case of a fresh produce agent, who has failed to comply with the 10 5 0 provisions of section 19( l ) ( a ) ; I 6o Act No. 47,2003 AGRICULTURAL PRODUCE AGENTS AMENDMENT ACT. 2003 ( k ) in the case of a fresh produce agent, who carries on or intends to cam) which is on business as a identical or confusingly similar to a trade name of a fresh produce agent- fresh produce agent under a trade name (i) already issued with a (ii) whose fidelity fund certificate: or fidelity fund certificate is suspended or has lapsed or 5 been withdrawn in terms of this Act; ( I ) in the case of an export agent, who carries on or intends to carry on business as a livestock agent under a trade name which is identical or similar to a trade name of a livestock agent- I O (i) already issued with a registration certificate: registration certificate (ii) whose been withdrawn in terms of this Act: or is suspended or has lapsed or if in respect of any person who is subject to an!' Provided 'that disqualification referred to in this subsection. the council with due regard to all the relevant considerations, the issue of a fidelity fund certificate or registration certificate, as the case may be, to such person will be in the interest of justice, the council may issue, on such conditions as the council may determine, a fidelity fund certificate or registration certificate. as the case may be, to such person when he or she applies therefor. is satisfied that. 15 3 0 (6A) ( a ) The council may issue a fidelity fund certificate or registration certificate to any person who is acting or intending to act as a fresh produce agent or livestock agent and such a certificate shall certificate issued on application by such a person. (b) The issuing of a fidelity fund certificate be deemed to be a or registration Certificate 25 under paragraph (a) shall not exempt the person from any prosecution for not complying with or contravening any provision of this Act or the rules prior to the issuing of such a certificate. [(7) Any person to whom a fidelity fund certificate has been issued in terms of subsection (5) shall, when requested thereto by the council, 30 pay to the council within the period determined by the council the amount determined by the council.] [(S) (a) Subject to the provisions of paragraph (b), each person who immediately prior to the commencement of this section was a member of the fidelity guarantee fund established under section 27 of the 35 Agricultural Produce Agency Sales Act, 1975 (Act No. 12 of 1975), shall be deemed to be the holder of a fidelity fund certificate issued by the council in terms of this Act. (b) The validity of a fidelity fund certificate referred to in paragraph (a) shall lapse 90 days after the date of commencement of this section 10 unless the holder thereof has on or before such date paid to the council the applicable amount determined by the council for this purpose.] (9) Each agent who is the holder of a fidelity fund or reyistration certificate shall- (a) annually [on or before] before or on a date determined by the council. 15 pay to the council maintenance of such certificate; ( 6 ) forthwith notify the council in wnting- the amount determined by the council for the (i) of any change of his or her business or postal address; (ii) (iii) (iv) if the partnership of which he or she is a partner, dissolves: if he or she becomes a member of a partnership; if, in the case of a company[, co-operative] or close corporation, a change in the directorship of that company [or co-operative] or the membership of that close corporation has occurred; [and] (v) if, in the case of a trust, a change in the trustees of that trust has SO 5 s occurred; if he or she has ceased to act as an agent; and (vi) Act No. 17.2003 AGRICUI~TURAL PRODUCE AGENTS AMENDMENT 4C-I. 2001 ~~~ ~~~ [(v)](vii) of any further particulars requested by the council as a re5ult 01’ a notice in terms of the preceding subparqraphs. (10) ( a ) A fidelity fund or registration certificate issued to ;In agent shall automatically lapse when he or she becomes disqualified as conten1platc.d in subsection (6) or if the agent ceases to act as an agent. [(b) The council may withdraw the fidelity fund certificate of an agent if- (i) he is found guilty of improper conduct under section 26; (ii) he fails to pay the amount referred to in subsection (9)(a) within three months after the date of a written request therefor by the registrar, addressed to his last known postal address, as entered in the records of the council; (iii) he fails to furnish the registrar with his business address and postal ,address within three months after the date request therefor by the registrar, addressed to his said postal address; of a written (iv) he fails to comply with the provisions of section 18(2) or 19( l).] ( 0 ) If a fidelity fund certificate which lapsed in terms of subparapaph f L / i had been issued to a company, close corporation or trust. then the fidttlit!, fund certificate of- (i 1 every director. member, or trustee : and (ii) every employee, as contemplated in the definition of ‘fresh produce agent‘ in section 1 shnll : likewise lapse. > I O IS 2 0 (c) If a fidelity fund or registration certificate so lapses or i i [so 25 withdrawn] suspended, the registrar shall-- - (i) by means of a written notice addressed to the said business and postal address of the agent [concerned]. notify him or her thereot; [and] in the case of a fresh produce agent who conducts his or her busines\ at a fresh produce market, by means of a written notice addressed t o the person in charge of that market. notify him or her thereof: and (ii) .X) - (iii) cause particulars thereof to be published in [an Afrikaans and an English newspaper] a newspaper in at least two official lanyuyes. one of which should be English, circulating in the district in which the said agent‘s last known business address, as entered i n the record\ 01’ i the council, is situated. ( d ) [A] The agent or any person who is in possession of or has under h i \ or her control a fidelity fund or registration certificate which has lapsed [or has been withdrawn] under paragraph ( a ) [or (b), as the case may be]. shall return the certificate to the registrar within 30 days after the [notice 40 referred to in paragraph paragraph (c)(iii). of publication referred (c)] last date tc i n ( e ) A fidelity fund or registration certificate which has lapsed [or has been withdrawn under this subsection], shall be void with effect from the. date of such [lapse lapsing. withdrawal] or I S (1 1) No person whose fidelity fund or registration certificate has lapsed. in the management of any business may directly or indirectly participate carried on by an agent in his or her capacity as such. or participate in the carrying on of such business, or be employed, directly or indirectly. in an> capacity in such business, except with the written consent of the council and 50 subject to such conditions as the council may determine from time to time. (12) No agent shall directly or indirectly in any capacit), whatsoeier to in subsection ( I I ) , or allow or permit such in the employ a person referred person directly management or the carrying on of his or her business as an agent. except 55 with the written consent of the council, and subject council may impose.”. or indirectly to participate to such conditions as the in any capacity 28 No. 25971 GAZETTE. GOVERNMENT 4 FEBRUAR)’ 2004 Act No. 47,2003 AGRICULTURAL PRODUCE AGENTS AMENDMENT ACT, 2003 Substitution of section 17 of Act 12 of 1992

16. The following section is hereby substituted for section 17 of the principal Act: “Security by agents 17. (1) [The council may require that an agent who is the holder of a fidelity fund certificate shall furnish to the council within the period determined by the council such security as the council may determine,] Every fresh produce agent who is responsible to open and keep a trust account in terms of section 19( 1), shall before a fidelity fund certificate is issued to him or her furnish the council with security in such amount and in council, for use by the council [as such form as contemplated in section 14(5)(b), in respect of] to meet any claim arising [from an act or omission by that agent,-and which has occurred within two years after the fidelity fund certificate was issued to him.] in terms of section 1 2 0 ) or to defray the costs or part of the costs of an inspection in terms of section 24 where such fresh produce and investigation held agent has been disciplined in terms of section 26( 1). is acceptable to the - - (2) [Such] The security referred to in subsection (1) shall be returned to the fresh produce agent [concerned] within six months after the lapse of the fidelity fund certificate of that fresh produce agent, [period referred to in subsection (1) has expired,] unless an [inquiry] inspection and investiga- 20 tion under section 24 [into] of an act or omission or alleged act or omission of the fresh produce agent [concerned] is being held before such expiration. and may to time be altered. increased or decreased by the c o u a . ” . until it has been so returned from time Substitution of section 18 of Act 12 of 1992 25

17. The following section is hereby substituted for section 18 of the principal Act: ”Account 18. ( 1 ) Every fresh produce agent contemplated in paragraph ( N ) of the definition of ‘fresh produce agent’ in section 1 [who is the holder of a fidelity fund certificate] shall in respect of his or her activities as such. keep. at a place approved by the council, [in one of the official languages] full and correct accounting records of- ( u ) all money received, kept or expended by him -, including money deposited in a trust account referred to in section 19( l ) ( r r ) or invested in a savings or interest-bearing account referred to in section 19(3)(cr): 30 35 ( h ) all his or her assets and liabilities; [and] (c) all his financial transactions[.]:& (d) all agricultural produce received, kept. sold and lawfully destroyed. (2) ( a ) Such fresh produce agent shall cause the said accounting records expense by an auditor within four months after the to be audited at his e final date of every financial year of the fresh produce agent, which final date shall not be amended by him or her without the prior written approval of the council. r ( h ) Notwithstanding the provisions of subsection (2)(a), the council may, on good cause shown, at any time order any fresh produce agent by notice in writing to submit to the council within a period stated in such notice, but not less than 30 days, an audited statement fully setting out the state of affairs in respect of the matters referred to in subsection (1). (c) The court may, on good cause shown upon application by the council or any other competent person, operating in any way his or her trust, savings or other prohibit any fresh produce agent from interest-bearing 40 45 50 ~ ~~ Act No. 17,2003 AGRICULTURAL PRODUCE AGENTS AMENDMENT ACT. 200.; account referred to in section 19(3)(a) and may appoint a u l w r o r D o r ~ i s to control and administer such trust, savings or other interest-bearin, accotmt. with such rights, duties and powers as the court may deem fit. (3) [An] A fresh produce agent [referred to in subsection ( l ) ] shall retain the accounting records to be kept in terms of this section. for a period of at least three years after the last entry in respect of any transaction [was] made therein, at the applicable place referred to in subsection ( I ) , together with the vouchers, receipts and relating to those accounting records. other documents 5 (4) If the business of such fresh produce agent reason whatsoever. the fresh produce agent shall- ( a ) balance the accounting records referred to in subsection ( I ) within 2 1 days. or such other period as the council may determine. of the date on which he or she performed his or her last activity as [an] a fresh produce agent. and thereupon have them audited as contemplated in 15 subsection ( 2 ) O within three months of the said date: [and] is terminated for any I O (b) forthwith notify the council in writing of the place at which such accounting records and the vouchers, receipts and other documents referred to in subsection (3) which relate to those records are retained as contemplated in that subsection[.]@ 20 ( c ) wind-up his or her trust, savings or other interest-bearing account i n the the prescribed manner and pay out i n the prescribed manner amount standing to the credit of any entitled to it. to the persons such account (5) ( u ) If such fresh produce agent fails or is in the opinion of the council 15 likely to fail to comply with the provisions of subsection (4). the council may designate any person to comply with those provisions on behalf o f the fresh produce agen; [concerned]: (0) When the council designates a person under paragraph ((11. the expenditure incurred in connection with-the performance of the functions 30 [concerned] shall be recoverable from cerned].“. the fresh produce agent [con- Substitution of section 19 of Act 12 of 1992

18. The following section is hereby substituted for section 19 of the principal Act: accounts “Trust 19. ( 1 ) Subject to the provisions of subsection (2). each fresh product agent [who is the holder of a fidelity fund certificate] other than a11 employee contemplated in the definition of ‘fresh produce agent‘ in section - 1 shall- ( a ) open and keep a trust account at a deposit-taking institution: ( b ) forthwith deposit therein the proceeds of the sale of agricultural and produce sold by him orher on the instructions of or on behalf of hic her principal. (2)[(a)] Only one trust account shall be kept in respect of the business of [an] a fresh produce agent [who] which is a partnership. 35 1 0 45 [(b) The Minister may on the recommendation of the council and by notice in the Gazette suspend the operation of the provisions of this section and of section 20, or such portions thereof as he may determine, in relation to a particular category of agent if he is satisfied that the said provisions or any portion thereof has an unnecessarily restrictive effect on the disposal of the proceeds of the sale of agricultural produce by such category of agent. SO (i) only be valid in respect (c) A suspension in terms of paragraph (b) shall- of an agent concerned who has furnished the council with such fulfil any security as the council may determine, to obligation that may arise towards any person in respect of the proceeds of the sale of agricultural produce by that agent; and of the category 55 32 No. 25971 GAZETTE. GOVERNMENT 1 FEHRI'AIIY 2004 Act No. 47,2003 AGRICULTURAL PRODUCE AGENTS AMENDMENT ACT. 2003 (ii) be subject to such conditions and requirements as the Minister may on the recommendation by council deter- mine and set out in the said notice.] ( 3 ) [An] A fresh produce agent [referred to in subsection (l)]- ( a ) may invest any amount paid into as contemplated in section view to payment is not immediately required for any particular purpose, in a separate savings or other any deposit-taking institution; interest-bearing account opened by him or her with his trust account with a 20 and which (b) shall forthwith after opening a trust account or any other account referred to in paragraph (a), or if any change occurs in connection with any such account, notify the council thereof in the manner determined by the council; 5 I O ( c ) shall keep separate accounting records referred to in section 18 in respect of his or her shall accounts referred to balance such accounting records within 21 days after the end of each month. trust account and savings or interest-bearing 15 in paragraph ( a ) of this subsection. and (4) Any agricultural produce received by a fresh produce agent shall. until it is sold or lawfully destroyed, be deemed to form part of his of her 20 trust account. OJ [(4) An] A fresh produce agent shall cause the auditor referred to in section 18 ( 2 ) , [shall] immediately after having [completing] completed an audit contemplated in that section[,] @transmit to the council a report in the form determined by the council regarding his or her findings. and a copy thereof to the fresh produce agent [concerned]. [(S)] (6) ( a ) An amount deposited or to be deposited in terms of subsection( 1) ( b ) in the trust account of [an] fresh produce a, oent- 35 (i) shall not be liable to be attached or subjected to any form of execution under a judgment or order of a court of law except 30 such an order issued in pursuance of a claim by the principal [concerned]; and (ii) shall not form part of the assets of that fresh produce agent or. if he or she is a natural person and has died. or has become insolvent, of his or her deceased or insolvent estate. 3s (b) The provisions of paragraph (a) shall not apply to the remainder of the amount [concerned] after the principal of the fresh produce agent [concerned] has been paid as contemplated in section 20 ( 1 ). (7) The court may upon application by the council suspend a fresh produce agent from conducting business if- (a) he or she fails to comply with the provisions of subsection ( I ) within a time specified by the council in a written request addressed to his or her business address or postal address; or ( b ) it comes to the attention of the council that the total of the balances shown on the trust account in the accounting records of that fresh produce agent exceed the total amount of the funds in his or her banlung account. (8) (a) Any market authority which receives the proceeds from the sale of agricultural produce shall receive such proceeds for and on behalf of the fresh produce agent who sold such produce and that market authority must forthwith hand over such proceeds less to which it is lawfully entitled for services rendered in respect of such sale to that fresh produce agent for depositing in his or her trust account. the remuneration (b) Any proceeds from the sale of agricultural produce paid to a market authority for the benefit of a fresh produce agent shall be administered separately from any other moneys os accounts held or operated by such market authority and such proceeds shall not form part of the assets and liabilities of that market authority: Provided that the market authority shall be entitled to recover for to in para- graph (a).". itself the remuneration referred Act No. 47,2003 AGRICULTURAL PRODUCE AGENTS AMENI)MENT ACT. 200.; Substitution of section 20 of Act 12 of 1992

19. The following section is hereby substituted for section 20 of the principal Act: product. “[Payments] Payment from trust [accounts] account 20. (1) [AnIA fresh produce agent [who is the holder of a fidelity fund principal from his orher trust account the certificate] shall pay to his proceeds of the sale of an agricultural product [sold on the instruction or on behalf of such principal] after he _- or she has deducted from such [as an agent] and the othcl. proceeds his reasonable expenses incurred by him &her in connection \4 i t h the sale o f ‘ that agricultural or her agreed remuneration (2)Ya) If the amount to be paid by [an] a fresh produce agent t o his principal in terms of subsection ( 1 ) has not been claimed b!- the principal [concerned] within [180] 3 days after the sale [concerned]. that fresh amount [concerned] from hi\ o r her trust produce agent shall pay the account to the council, and furnish the council with the particulars required in the rules in connection therewith. ( 0 ) Money so paid to the council shall be dealt with i n the mulner set out in section 2 1. ( 3 ) Any withdrawal from a trust account for the purposes o f ;I payncnt o r deduction referred to in subsection ( l ) , the withdrawal of interest earned 011 to i n wction 15U.3 a trust account or an interest-bearing account referred ) In). and [a] 3 payment to the council in terms of subsection ( 3 ) o f t h i . section. shall be made at the time and in the manner set out i n the rules. ( 3 ) No withdrawals other than those specified in subsection ( 3 ) shall be 5 1 0 IS 20 made from a trust account or a savings or interest-bearing account ret’er-red 3 to in section 19(3)(n): Provided that an)’ fees accounts] charped by the institution at which they are kept shall be [deemed to form part of the remuneration referred to in subsection (1 of this section] debited against the business account of the f r c s h produce agent [concerned].”. [deducted from such - 3 I Amendment of section 22 of Act 12 of 1992

20. Section 72 of the principal Act is hereby amended- ( a ) by the substitution in subsection (1) for the words preceding paragraph f t r ) . of the following words: “The council may. in respect of fresh produce agents [who are the ii holders of fidelity fund certificates] make rules as to--“: ( h ) by the addition to subsection (1) of the following paragraphs: *‘(;I the regulation. control agents; or prohibition of any practice follo\ved b! i ( j ) the period within and the manner in which application shall be made ~ 40 for a fidelity fund or registration certificate. as the case may be; f k ) the form of a fidelity fund and registration certificate: ( I ) the manner in which any account referred to in section 1 X(-t)(c,) shall be wound-up and the amount standing to the credit of such account shall be paid out; and ( m ) the manner in which proceedings at a disciplinary hearing plated in section 25 shall be conducted.”. contem- 1 i ! 45 Substitution of section 23 of Act 12 of 1992

21. The following section is hereby substituted for section 23 of the principal Act: “Improper conduct 5 0 23. [An] A fresh produce agent [who is the holder of a fidelity fund certificate] shall be guilty of improper conduct if- Act No. 47,2003 AGRICULTURAL PRODUCE AGENTS AMEND,MENT .ACT. 7003 (ai he or she contravenes or fails to comply with any provision o f t h i 4 ,Act or the rules [or of the code of conduct referred to in section 22 ( 1 (g)l; ibi he or she is convicted of an offence involving an element ot or dishonesty; 7 ici with due regard to his or her occupation. he or she has through an!' other act or omission [in himself or herself unprofessionally, improperly or disgracefully.". the opinion of the council] conducted Substitution of section 24 of Act 12 of 1992

22. The following section is hereby substituted for section 24 of the principal Act: 1 0 "[Inquiry by council] Inspection and investigation 24. (1) The council may, either of its own accord or as ;I result o f il complaint, charge or allegation lodged with it. institute an [inquiry] inspection and investigation into the conduct of [an] a fresh produce agent [who is the holder of a fidelity fund certificate,], or person i n the emplo!, of such fresh produce agent, or into [an act or omission or alleged act or omission of such agent in the practising of his occupation, or into] a contravention [or alleged contravention] of this Act or the ru1e.s b\, such fresh produce agent or-employee. 15 ( 1 A) An inspection and investigation referred to in subsection ( 1 shall be conducted in accordance with the urovisions of section 27(4). ( 1B) On receipt of the results of an inspection and inveTtiption referred to in subsection (1) the council may decide to charge the fresh produce agent or employee concerned with a contravention of this Act o r the 1.~11e.s. and shall, on so deciding- la1 summons the fresh produce agent or employee on not less than -30 da! s notice to appear before a disciplinary tribunal contemplated i n hection 25 on the date and at the time and place specified in such sumn1on\. to answer to the charges set out in writing in a charge sheet attached t o such summons; 1 0 1 ) order such fresh produce agent or employee to produce at such hcaring any book or other document specified in the summons nkich the said fresh produce agent or employee has in his or her posses\ion or custody or under his or her control or which is suspected to he i n h i 4 or her possession or custody or under his or her control and nshich Ius ;I bearing on the matter. ( IC) A summons referred to in subsection (1B). shall be- ( a ) as nearly as possible in the form specified in the rules: 0 7 1 signed by the registrar or his or her duly authorized representari\.e: and by delivering or fc) served on produce agent or employee tendering it at the business address of the fresh produce a, "ent o r employee or by sending it by prepaid registered post to the posul address referred to in section 16(9). or to the address last hnou.n to the council. the fresh ( 3 ) If such conduct[, act, omission] or contra\.ention [or alleged act, omission or contravention] forms or is [in the opinion of the council] likely to form the subject of criminal or civil proceedings i n ;I court of Ia\v. the council may postpone the [inquiry] issuing of a summons u n t i l such uroceedings have been determined. c ((3) The acquittal or the conviction of an agent or person by a court SO of law upon a criminal charge shall not be a bar to an inquiry in respect of him in terms of this section, even would, if proved, constitute the offence set forth in the criminal charge on which he was SO acquitted or convicted, or any other offence which he might have been convicted at his trial on the said criminal charge.]". if the facts being inquired into of 55 Act No. 17,2003 AGRICULTURAL PRODUCE AGENTS AMENDMENT ACT. 20(l; Substitution of section 25 of Act 12 of 1992

23. The following section is hereby substituted for section 25 of the principal Act: “Disciplinary tribunal 25. (1) A disciplinary tribunal may be convened for the purpose o f ;I disciplinary hearing whenever it becomes necessary to do \o i n term5 o f section 24. (2) A disciplinary tribunal shall consist of a maximum of three member.. who shall be appointed by the council on account of- ( a ) their independence from the affairs of’ the council. the oftice of the registrar and the agent or person investigated: ( b ) their kn,owledge of the law; ( c ) their knowledge of the conducting of the business of agents in general: Id) experience in the resolution of disputes: and (e) any other knowledge or experience which render5 them suitable for. appointment as members of a disciplinary tribunal. (3) At least two members of a disciplinary tribunal shall f o r ;~n 1 upon any charge in terms of this Act or the rules. uninterrupted period of at least five years have practised as advocates or attorneys or occupied the post of magistrate. or have been in\.ol\.ed i n the tuition of law or have rendered service5 as legal ad\.isers o r legal consultants. (5) The registrar may appoint a ccxpetent person to exercise the poner\ (4) A disciplinary tribunal shall have the power to inquire into and decide I ~ I with rules made for this purpose: Provided that- ( a ) such rules shall be in accordance with the requirements of this Act m t l (6) A disciplinary tribunal shall conduct its proceeding5 in accordance and perfom1 the duties of a prosecutor. 1 I the Constitution: and ~ 1 I (0) the onus of proof shall be the same as in criminal procerdingh. (7) If a vacancy occurs on a disciplinary tribunal after commenced with a hearing, the hearing may be proceeded least two members of the tribunal, but if only two serving members rcmain they may take any decision referred onl! h! unanimous vote. that tribunal ha\ with before to in section 26( I (8) The prosecutor may for the purposes of such hearing- ( a ) subpoena any person to give evidence who is able to furnish information relevant to the hearing. or who the prosecutor has reawn to believe has in his or her possession or custody or under h i 5 or h r l r to the wbject o f thc control any book. document or record relating in the inquiry, to appear on a date and at a time and place specified subpoena to be examined or to produce such book. document 01’ record, and the prosecutor may retain for examination an!’ book. document or record so produced: and ( b ) through the person presiding at the hearing. administer 311 oath to. or at the inquir!. and accept an affirmation from, any person present examine him or her or cause him or her to be e x m i n r d b! the prosecutor and instruct him or her to produce any book. document or record in his possession or custody or under his or her control. (9) ( a ) A subpoena referred to in subsection (8) shall as far as possible be as prescribed in the rules, shall be signed by the prosecutor and shall be served in the same manner as a subpoena issued by a magistrate‘s court i n civil proceedings. ( b ) No person- (i) having been duly summoned to be present at the hearing. shall without lawful excuse fail so to appear; or (ii) having been called as a witness at a hearing, shall Mithout la\$ful excuse refuse to be sworn or to make an affirmation. or to produce any book or other document or to answer any question which he or she may be required to produce or answer. Act NO. 47.2003 AGRICULTURAL PRODUCE AGENTS AMENDMENT ACT. 200.; ( c j The registrar shall pay a witness called and present at a hearing such ~ fees as the council may from time to time determine generall). or in an! particular case. (10) The law relating to privilege, as applicable to a uitnesh called t o give evidence or to produce a book, document or record in a c i d trial before a rnuraris tmtrarldiJ in relation to the examination of or the production of any book, document or record by an! person called in terms of this section. court of law, shall apply ~ I ~ (1 1) An agent or person in respect of whom the hearing is instituted i n to be present at the hearing. to be terms of this section shall be entitled assisted or represented by another person, and- ( a ) to be heard; (b) to call witnesses; (cj to cross-examine any person called as a witness in support of the charge; and (dl to have access to all documents produced in evidence or relevant to the hearing and which are available. (12) The registrar shall keep or cause to be kept a record of the proceedings at the hearing. I (13) Any person who, having been duly sworn an affirmation, tenders false evidence at the hearing held under this section. knowing such evidence to be false, shall be puilty of an offence and liablc on conviction to the penalties which may lawfully be imposed for the offence of perjury. or having made (14) The disciplinary tribunal may, if it 1s of a view that an a, w n t o r employee of such agent has committed an offence, submit a certified cop! of the record of the proceedings at any hearing held in terms of section 21 to the office of the National Director of Public Prosecutions ha\,in_e jurisdiction in the matter.”. Substitution of section 26 of Act 12 of 1992

24. The following section is hereby substituted for section 26 of the principal Act: “Disciplinary powers of tribunal conduct, 26. (1) If [the council] a disciplinary tribunal. after [an inquiry] 2 hearing under section [24] 25, finds an agent - or employee of such agent guilty of improper ( a ) reprimand or caution him -her; ( b ) impose conditions the agent [concerned] or employee of such agent may. for a specitied period. practise his or her occupation; [or] [the council] may- and restrictions subject to which io 33 (bA) impose on such agent or employee a fine not exceeding such amount 10 as may be prescribed by the Minister by notice in the Grr:ctre: f b B ) suspend that agent from conducting his or her business or from actiny for such period as that tribunal may as an agent on such conditions and determine; and (cj withdraw the fidelity fund or registration certificate issued [or deemed 15 to have been issued] to that agent and-- (i) (ii) (iii) (iv) if such agent is a company, to every director of such company: if he or she is a director of a company which is an agent. to such company; if he or she in partnership acts as an agent. to every partner in such partnership; if such agent contemplated in the definition ‘livestock agent’, as the case may be, of that corporation; is a close corporation. to every member of ‘fresh produce agent‘ or 50 Act No. 47,2003 AGRICULTURAL PRODUCE AGENTS ,UZEUDMEN3 .ACT. 2011 (v) (vi) (vii) if he or she is a member of a close corpor;Ition \\ 111c~h i\ ; m agent, to such corporation: if such agent is a trust, to e \ w y trustee o f such trwt: 0 1 ' if he or she is a trustee of a trust which is an aFent. t o \LICII i INI\!. ( 3 ) The [council] disciplinary tribunal may [postpone the taking 01' its decision under subsection (l), or] suspend the execution o f i t \ clecision taken under subsection (l)(bA), (bB) or (c). for such period n o t e\cc.t.ding three years and subject to such further conditions as [the council] ma! i n each case determine. 5 (3) l a ) A fine imposed under subsection ( 1 )([?A) shall h a \ t. the elYec1 o f and may be executed as if it were a civil judgment in f a ~ o u r o t thc. Lw~11cil. IO ibi The registrar shall [- ( u ) i n f o r w a n agent who is so found guilty, in writing ofthe decision of the council and of the grounds on which it is based: (b) except where the execution of a decision has been suspended under subsection (2),] publish the of the a y u o r - employee of such agent [so] found guilty i n t e r m o f sulwction ( I ) . particulars of his conviction and the penalty impcwd upon h i m or her, by notice in the Guzette. name and address I5 [(?I (a) If at the end of the period for which the taking of a decision 3 0 has been postponed under subsection the agent has observed all the relevant conditions, the registrar shall inform the agent concerned that the council will not take a decision under subsection (I). (b) If the execution of a decision has been suspended (21, the council is satisfied that untlcr 35 subsection (2) and the council is satisfied that the agent concerned has of suspen- observed all the relevant conditions throughout the period sion, the registrar shall inform such agent that such decision w i l l n o t be executed.] ( 5 ) If an agent or employee of such agent fails t o compl! ( 3 ) . the [council] regi\tI-x shall \\,it11 ~ r n ! 30 conditions determined under subsection [take a decision under subsection (l), or cause the decision taken unclcr a u s e the decision rAen untlcbr subsection (l)(c) to be executed,] subsection ( 1 )(bA) or ibB) to be executed unless the said agent o r en1plo! CY of such agent satisfies the [council] registrar that the non-c.onli'1l~lnc.i. \ \ it11 3 5 such conditions was due to circumstances beyond his or her control. [(6) A decision taken under this section by a committee authorized thereto in terms of section 7 shall only come into effect after it has hecn confirmed by the council.] (6) In addition to any of the sanctions referred to in suhsecrian ( I ). ( h c . 40 t h c c o s t 4 1 disciplinary tribunal may I incurred by the council in connection with such hearing ! ( a , such costs shall be calculated in accordance with the High C o t ~ r t raritf I 1 order that agent or employee to IXI! and- applicable to civil litigation: and ( 0 ) for the purpose of assessing such costs. the registrar ot the High Court ~ 45 having jurisdiction shall be empowered to tax such costs. I ( 7 ) Without derogating from the generdity of any sucll 0rdc.r tor tllc ! i payment of costs, such costs shall include-- ~ the costs of recording, transcribing and preparing copieh o f an!. record: the costs incurred by the council in respect ofthe prosecutor and the accountant or other persons appointed to inspect and i n \ rzligate the books of account and an! other agent or his or her employee's to the agent o r his o r her documents or records or things relating employee's business operation or former business operation: and the costs of procuring the attendance of witnesses and their witness fees. including those of the complainant. Act No. 47,2003 AGRICULTURAL PRODUCE AGENTS AMEVDMENT .ACT. 200.? (8) The order contemplated in subsection (7) for the pa!'ment ot' c o s t s incurred by the council in connection with an inspection and in\ estigalion shall have the effect of and may be executed as if it were ;I ci\ i I jud, ' T l l l c ' l l t in favour of the council. (9) ( u ) The disciplinary tribunal may, nphenever a tine has been imposetll on an agent as contemplated in subsection (I)(bA). order that any portion o f ' that fine, but not exceeding 80% thereof, be applied towards the payment of' compensation to any person who suffered a pecuniary loss as a result o f the conduct of the agent or employee in question. ( b ) The registrar shall, on receipt of the fine imposed on the agent i n question, make the payment contemplated in paragraph ( t r ) . (c) This subsection shall not preclude any person from pursuing an!' ci\,il remedy against the agent or employee contemplated in paragraph ( c ~ I Provided that if an award is made by a court in favour of a person \vho has received payment from the council as contemplated in paragraph ( h i . the court shall take the payment into account in making such a\\.ard.". : Substitution of section 27 of Act 12 of 1992

25. The following section is hereby substituted for jection 17 of the principal Act: "Entry and inspections 27. (1) The reFistrar may designate a suitable person (hereinafter refer~.ed to as an inspector) to exercise and perform periodic regulatory inspection. and investigations at the business premises of any agent nith a \ it\\ t o determining whether the provisions of sections 18. 19. 20 and 2 1 ; ~ n d thc rules pertaining thereto have been complied with. and for that purpohc ;m inspector shall be entitled to enter such business premises and to esercisc any of the powers referred to and in accordance with subsection (4) i n w t a l as they relate to the aforesaid sections and rules. I ( 2 ) An inspector shall be furnished with a Certificate of appoinmc.nt signed by or on behalf of the council in u hich it is stated that he or she i s an inspector appointed in terms of this Act. ! (3) An inspector shall, when performing any function5 i n term\ of' t h i s Act. have his or her certificate of appointment in his or her possr5sion. (4) In order to obtain any information required by the registrar in rclation to a complaint, charge or allegation lodged. an inspector ma!- he designated who may, subject to this section, enter any premises on or i n which an! book, document or other object connected with such investigation is o r - i 5 suspected to be, and may- ( a ) inspect or search those premises, and there make such investigation5 or inquiries as may be necessary for the purpose of obtaining an! such information; ( b ) examine any object found on or in the premises which ha5 or r n i $ ~ t have a bearing on the investigation i n question and request from the owner or person in charge of the premises or from any person i n \vho\cl possession or charge that object is, information regarding that object: ( c i make copies of or extracts from any book or document found on o r i n the premises which has or might have a bearing on the in\wtigation i n question. and request from any person who is suspected of ha\,ing the necessary information an explanation of any entry therein: (dl seize, against the issue of a receipt. anything on or in the premises which has or might have a bearing on the investigation i n question. if the inspector needs to retain it for further examination or for safe custody. 'I (5) Unless the owner or person in charge of the premises has consented thereto in writing an inspector shall enter premises and exercise any pom'er contemplated in subsection (4) only under a search warrant. which ma! night; Act No. 47,2003 AGRICULTURAL PRODUCE AGENTS AMENDMEST 'ACT. 200.; only be issued by the court if it appears to that court from intorrnatioll given to the court on oath or solemn affirmation that there are r w \ o I l a h l c , I , grounds to suspect- that a contravention of this Act or the rules has taken place o r i \ taking ' ( a j place; and , I (6) that a book, document or other object which may afford e\ idence r l t i such contravention on is or in those premises. (6) A search warrant contemplated in subsection ( 5 ) sh, 'I I1 - ( a ) authorize an inspector mentioned in the warrant to enter the premihc\ i i for the purpose of exercisinz an! po\\er identified in the warrant contemplated in subsection (4); (6) be executed by day, unless the court authorizes the execution tht.reol during the 1 ( c j be of force until it is executed or cancelled by the court. or ;I period ot 1 one month from the day of its issue expires. whichever occurs tirst. (7) An inspector referred to in subsection ( I ) or an inspector esecutins ;I I such execution. upon 1 search warrant under demand by any person whose rights may be affected- ( a ) show that person his or her certificate of appointment: ( 1 7 ) hand to that person a copy of the warrant if he or <he i s acting i n ttirnl\ I 2 0 subsection (6) shall. before , 15 I . I ( ' of subsection ( 5 ) . (8) A person from whose possession or charge a book or document h ; 1 \ been taken under this section shall, as Ions as the book or document i \ i n the I possession or charge of the inspector or of the council. be : ~ l l o \ \ . e d 011 i request to make copies thereof or 10 taAe extracts therefrotn reasonable time at his or her own expense and under the super\.ision ofthat ~ inspector or a person in the service of the council. ~ at an! , 25 ~ I , ~ I I (9) A person guilty be shall of an offence if- he o r she obstructs o r hinders an inspector in the performunce ot t h t inspector's functions in terms of this section; after an inquiry having been made of him or her under \ubsec.tiorl ( 4 ) f a ) or after having been requested for information or an esplanaliorl under subsection (4)(b) or (c)- (ii) gives an answer or information or an explanation \vhich I \ t ' a l w (i) he or she refuses to answer. or to answer fully and satisfactoril! to the best of his of her kno~vledge and belief. such inquit-! 01. request for information: or - or misleading, knowing it to be false or misleading. ( I O ) Any person from whom informatiotl or an explanation ha\ hcen requested in terms of this section shall not be entitled to refuse to u l \ \ w 1 . any question or to produce any book, document or object on the pround t h a t he or she would thereby be exposed to a criminal or disciplinary chargc: Pro\,ided that, to the extent that such answer. book. document or articlr. does expose the person to a disciplinary or criminal charge. 110 e\ idcncc admissible in any disciplinary or criminal procec.cling. thereof shall be against that person except where the person stands trial on ;I ch:1rgc contemplated in subsection (9)(6). (11) An inspector who is not in the full-time service of the State shall be appointed on such conditions and at such renluneration as the council ma! determine.". Amendment of section 29 of Act 12 of 1992

26. Section 29 of the principal Act is hereby amended by the substitution tal- wbsections ( I ) and ( 2 ) of the following subsections respectively: "( 1 ) Any person who- ( a ) contravenes or fails to comply with a provision of section [ 12(4)(0),] 35 (6) contravenes or fails to comply with a provision of section 16(2). [(7). (9)fb) or (1O)fd)l, ( W a ) or (7)(d), 18 or 19(3)(6) or (c) or 19(5): Act No. 47,2003 AGRICULTURAL PRODUCE AGENTS AMENDMENT ACT. 200.; [ ( c ) contravenes or fails to comply with a requirement under section 17(1) or a condition or requirement under section 19 (2) fc); in the exercise hinders or obstructs an inspector of' his powers or the performance of his duties under section 27: without valid excuse refuses or fails to answer t o the best o f 5 his ability any question which an inspector in the exercise of his powers or the performance of his duties under the said section has put to him; refuses o r fails to comply to the best of his ability with any requirement made by an inspector in the exercise of' his said powers or the performance of his duties under the section; o r wilfully furnishes to an inspector any information which false or misleading;] is 1 0 (bAl contravenes or fails to comply with the provisions of section 75(9): IS (e) in any application information or makes a statement which is false or misleuding. this Act. knowingl! in terms of furnisheh shall be guilty of an offence. ( 2 ) Any person who is convicted of an offence- ( a i mentioned in subsection (1) fu)[,(c) or (d) (i), ( 3 ) or (iii),] shall be 2 0 liable- (i) on a first conviction, to a fine [not exceeding R8 0001 or t o imprisonment for a period not exceeding two years or to both [that] a fine and [that] such imprisonment: (ii) on 75 a second or subsequentconviction. [whether of the same offence or any other offence mentioned in this paragraph.] to a fine [not exceeding R16 0001 or to imprisonment for ;I period not exceeding four years or to both [the] a tine and [the] such imprisonment; (b) mentioned in subsection (l)(b), [(d)(iv) or (e)], shall be liable t o ;I tint, 30 [not exceeding R4 0001 or to imprisonment for a period not escceding one year or to both [that] a fine and [that] such imprisotment& ( c ) mentioned in subsection (l)(bA). shall b a b l e to ;I tine o r t o imprisonment not exceeding three months or to both a tine and such imprisonment.". 7 - -1 3 - Amendment of section 30 of Act 12 of 1992

27. Section 30 of the principal Act is hereby amended- ( a i by the substitution for subsection (1) of the fc~llowing subsection: "(1) Whenever any fresh produce agent or his or her manayr. representative, agent. employee or [family] member of his or her household 10 owing to the appropriation of money in tht. trust account of that agent. ix convicted of an offence involving fraud c r dishonesty. and it has been proved that the amount standing to the credit of that trust account is insufficient for the payment of all amounts payable from it in terms of section 20, the court [concerned] shall at the request of the prosecutor IS made on behalf of the council, inquire into and determine the amount of the deficit in the trust account and order q e n t to pay an amount equal to the amount so determineii to the council. and any such order shall have all the effects of and may be executed as if it were a c i \ d judgment in favour of the council."; and the fresh produce S 0 (hl by the deletion of subsection (3). Amendment of section 31 Act 12 of 1992

28. Section 31 is hereby amended by the deletion of subsection (2). Repeal of section 32 of Act 12 of 1992

29. Section 32 of the principal Act is hereby repealed insertion of section 35A in Act 12 of 1992

30. The following section is hereby inserted in the principal Act. after \eelion 35: "Transitional provisions > to the date of commencement 35A. (1) Every fresh produce agent who was the holder o f ;I tidelit\ f d u certificate immediately prior o t ' thc Agricultural Produce Agents Amendment Act. 2003. shall \\ i t h i n the p t l - i o d , determined by the council by notice in the Go:efre apply on h i \ or her o u 11 ~ behalf and on behalf of every person u.ho acts as an agent on h i \ o r I1r.r ~ IO behalf as contemplated in subparagraph (i) of paragraph ( 0 1 o t t h e definition of 'fresh produce agent' in section 1, for a hdelity fund certitilxtc. :In0 4 l a l l furnish the council with the information that the council ma! dctcmlinc relating to himself or herself persons. such and n ~ ( 2 ) Notwithstanding subsection ( I ) , each person who immediatel! pr-iol- I5 of the Agricultural Pl-oduce .Afent\ , to the date of commencement Amendment Act, 2003- IrrJ was the holder of a fidelity fund certificate contemplated i n t h a t ~ subsection. shall- (i) (ii) in the case of a fresh produce agent. be deemed to he the 1 1 o l d ~ ~ ~ - 70 of a fidelity fund certificate issued i n term$ o f ' 111;11 w e t i o n . ~ Provided that such certificate shall lapse if a ne\\ certiticatc i \ not issued to the agent within the period specified i n sLlh\cctIon ~ (1): in the case of a livestock agent. be deemed t o hc t l w holder 01. a registration certificate: , 25 ~ IhJ carried on business as an export agent. shall be deenled to he t11c holder of a registration certificate. ( 3 ) The provisions of subsection ( 2 ) shall not reliew an! peI-\on \\.llo ;ICY\ ~ or professes to act as- f o J a fresh produce agent and who is not i n possession o f ;I tidclit!, t u n d ' 30 certificate at the commencement date of the Agricultural Proclu~~c Agents Amendment Act, 2003. to apply t o the council for ;I fund certificate and to furnish the council with such inform:ltion ;I\ may determine: tidelit\ ~ i t ~ ~ i .:j 1 6 1 a livestock agent and who certificate at the Commencement date of that Act. t o ;1pp1! council for a registration certificate and to furnish the council \\,it11 ~ 1 is not in possession of ;I wyi\tratiun ~ t o the such it may determine information as i ( c i an export agent and who is not carqing on business ;I\ wch at the ~ 40 1 commencement date of that Act. to apply t o the council f o r ;I registration certificate and to furnish the council n,ith such information ' as it may determine. (1) Members of the council in office immediatel!. prior commencement of the Agricultural Produce Agents Amendment Act. 200.;. 1 45 shall remain in office until the termination of their term of oflice: Pro\ idtxl ~ that the Minister shall appoint such additional members to the council ;I\ may be required from time to time.". t o the ~ Short title

31. This Act is called the Agricultural Produce Agents Amendment Act. 2003. 50