Labelling of products from Israeli Occupied territories: submissions, Cooperatives Amendment Bill deliberations

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Trade, Industry and Competition

20 September 2012
Chairperson: Ms J Fubbs (ANC)
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Meeting Summary

Open Shuhada Street, the South African Zionist Federation (SAZF) and the South African Jewish Board of Deputies (SAJBD) made submissions to the Committee on Government Notice 379, of 10 May 2012, which had related to the labelling of goods. The background was that Ahava Dead Sea Cosmetics, which were labelled as made in Israel, were in fact manufactured in an Israeli settlement on the Occupied West Bank. Shahuda said that it was important that all consumers be properly informed of the source of goods, since many may wish to boycott those goods. There was general consensus that the Notice was perhaps badly-worded, but they were open to public submissions. Open Shahuda had wanted government to issue a clear statement forcing Israel to comply with labelling requirements and international law.

The SAZF noted that despite attempts to engage on the wording of the notice, the Minister had been adamant that the Notice must be issued, and suggested that it was inappropriate for a purely technical issues of labelling of goods to become a source of conflict between two minority communities. On 5 July 2012 SAFZ had made application to court for the Minister's notice to be reviewed and set aside. It submitted that if the Minister were to impose punitive measures it would cause harm to Israeli/South African relations. The SAZF further felt that the Notice would burden traders with an onus or burden of proof that was impermissible in law making, that the wording was vague, and that the Minister was assuming powers that he did not have. The SAZF and Jewish Board of Deputies wanted the Committee to prevail upon the Minister to re-think the issues.

Members sought clarity on what both parties were proposing as remedies, noted that the matter was sub judice, pointed out that this Committee was not directly concerned with international relations, other than from the trade standpoint, and suggested that litigation was not the best way to resolve this matter. The Department of Trade and Industry legal advisors commented that the Notice was not final and did not place any legal requirements on anyone at the moment.

The Sub-Committee dealing with the Cooperatives Amendment Bill noted that it still needed some time to complete its work, tabled the documentation received, and the Department's legal advisor took the Committee through the latest changes. Members noted the need to try to increase public understanding, particularly in the rural areas, about the Bill. Finally, Members reported briefly on other meetings they had attended or to which they were invited.

Meeting report

Product Labelling on goods from Israeli Occupied Territories: Submissions from public
Open Shuhada Streed
Mr Zachie Achmat, Volunteer, Open Shuhada Street, noted that Israel was the only country founded by the United Nations (UN), and described it as tantamount to a colony being granted in the Middle East. As a result of Israeli actions in the area, countless UN resolutions were issued and ignored. His submission would touch on the relevant components of international and South African law.

Mr Achmat said that it was very clear, from the Fourth Geneva Convention, the Hague Convention, and the UN Charter, that countries must live in peace, but where people were occupied by a foreign military force, no population transfer from the occupying country must be made. In 1967 Israel had attacked its neighbours and consequently the UN took a number of resolutions asking Israel to withdraw. Although an armistice or green line was established after the initial war, Israel had moved beyond this green line into Gaza and the West Bank. These actions amounted to enormous and gross violations of the UN resolutions and international law. There were currently as many as 120 unlawful settlements established in the West Bank. The Jordan Valley, the richest area within the West Bank, was 86% occupied by Israeli settlers. Israel controlled all the water resources in the area and sold the water back to the Palestinians at exorbitant prices. All products, including fruit and vegetables produced there, were labelled as a product of Israel, whether they were produced by Israelis or not.

Open Shuhada Street had written a letter to the Wellness Warehouse, an importer of Israeli goods, explaining the South African and international law requirements for labelling of products from the Israeli Occupied Territories. Ahava, an Israeli cosmetics company, manufactured skin care products made of mud and mineral-based compounds from the Dead Sea. The company's main manufacturing plant was in Mitzpe Shalem, an Israeli settlement located in the West Bank. Ahava products had caused controversy, as critics said this company was using natural resources of occupied Palestinian territory, yet the products were incorrectly labelled as made in Israel.

Shuhada had asked the Department of Trade and Industry (dti) to enforce the law. The response of the South African Zionist Federation (SAZF) had been to organise a march (as was its right), but had agreed that there were clear problems with the current notice. He acknowledged that sometimes submissions were poorly written by government, but these notices were open to public submissions, remedies could be issued twice, and some of the obvious technical errors in the notice were addressed.

Open Shuhada Street was calling for a very clear statement from the government forcing Israel to comply with international law. It submitted that it was the government’s job to enforce local laws and the international Rule of Law.

Ms Zenande Booi, Representative, Open Shuhada Street, observed that the most important constitutional right affected by this dispute was the right to freedom of expression. All information imparted and received needed to be accurate. The aim of the Consumer Protection Act (CPA) was to empower the consumer. Although unfair business practices were not the norm there was nonetheless a need to create a culture of activism amongst consumers. She noted that South Africa’s recognition of Israeli territory related to the 1967 borders, and any products coming from outside of those borders could not be recognised as coming from Israel. The Minister’s notice therefore gave effect to international and South African legal obligations.

Mr Stephen Robins, Representative, Open Shuhada Street, said that to him, as a Jewish South African citizen, this matter was important in a number of respects. It was important to recognise the diversity of views within the Jewish community, not only those espoused by SAZF and the South African Jewish Board of Deputies (SAJBD). He noted that the only way an individual could personally react to the issue was by deciding what to buy. Consumer rights thus become a way of expressing personal views in other areas of the world. He requested the right to be able to choose whether or not to buy products from this area of the world.

Mr Achmat said that Mr Robins would later submit a letter with signatures from a large number of Jewish South Africans supporting this action.

Mr X Mabasa (ANC) interjected to ask what Open Shuhada Street expected of the Committee on this issue.

Mr Achmat said the fact that the submissions were being made showed that Parliament and government were willing to listen. The matter was currently before the Court, so the Committee was not expected to issue a statement, as the matter was sub judice. Ideally, he hoped that products coming into South Africa would be properly labelled, so consumers could make an informed decision.

South African Zionist Federation submission
Mr Avrom Krengel, Chairman, South African Zionist Federation, said that Dr Rob Davies, Minister of Trade and Industry,  had addressed the Committee concerning General Notice 379, on 10 May 2012, noting his personal and intimate involvement on the matter. On 5 July 2012, SVD pharmaceuticals and SAZF had served notice to the Court requesting that the Minister’s notice be reviewed and set aside, pending further negotiation and rewording.

He noted that since the SAZF and SAJBD had been established in 1898, the Jewish community of South Africa had never previously litigated against any Minister of the South African government. Meetings and negotiations had always been conducted in an atmosphere of mutual respect, as the Jewish community was a key stakeholder on South African engagement in the Middle East.

Although both sides may differ over the Israeli-Palestinian conflict, it was emphasised that everyone had a common aim – namely, to see a peaceful resolution to the fighting, with the facilitation of a Palestinian state in Gaza and the West Bank. The South African government and people had a crucial role to play in the peace-making process. This had been accomplished by avoiding public sanctions, and always facilitating continuous negotiations. He submitted that the current punitive measures would cause serious damage to Israeli/South African relations and the South African government’s ability to resolve the fighting peacefully.

The SAZF felt that the South African Jewish community was deliberately excluded from any deliberations on the matter. It had encountered a hostile environment when it had approached the Minister, who expressed concern that the purely technical issue of labelling of goods was now a source of conflict between two minority communities within South Africa. The Notice issued by the Minister was badly worded, and in fact fatally flawed, because the Minister was assuming powers he did not have under the Consumer Protection Act.

In the application to the High Court, SAZF noted that the general Notice sought to burden traders with an onus or burden of proof that was impermissible in law making. The wording was vague and incomprehensible. This raised the consequence of what the consequence of discharging or failing to discharge the onus would be. Furthermore, there was no clarity on who was “a trader” under this Act.  The SAZF requested that the Committee should prevail upon the Minister to re-think how labelling occurred.

South African Jewish Board of Deputies submission
Ms Wendy Kahn, National Director, South African Jewish Board of Deputies, said that concerns over Government Notice 379 had led the SAJBD to appear before the committee today. Usually, SAJBD dealt specifically with South African issues, but because of the widespread threats perceived by the Jewish community, it had decided to take action on this matter. SAJBD nonetheless wanted to applauded the Department of Trade and Industry (dti) for providing full disclosure of labelling to South African consumers.

The full text of the submission can be found in the attached document.
Members sought clarity on what both parties were proposing as remedies and indicated that litigation was not the best way to resolve this matter as all parties involved were indeed South African and this was something that should not be forgotten.

Discussion
The Chairperson asked Mr Johan Strydom, Legal Advisor, Department of Trade and Industry, to give some contextual clarity on the Notice .

Advocate Strydom said that the Notice had become a part of a sensitive and delicate debate, and although he could not speak from the Ministerial perspective, he could give a legal opinion. He believed that in this case, there was in fact no onus or legal requirement being placed on any party, but that instead the Notice merely expressed a desire to issue, in the future, a finalised notice that would be legally binding. He was therefore surprised that court proceedings had already commenced, as there was still no final Notice and what it might eventually contain was a matter for speculation.

Ms C Dudley (ACDP) said that the Notice had been confirmed in a Cabinet meeting, and that this process was in fact going forward. She asked the SAZF if it had taken this matter to court not only because it was specific to Israel, and was perceived as a discriminatory action, but because it might also be relevant to all territories perceived as being occupied.

Mr G McIntosh (COPE) raised the issue of wording, remarking that as yet there was no final Notice and the current one remained only an intention. It obviously raised issues pertinent to trade, and from the Committee’s point of view, the sources of origin should be correctly identified. He understood this was an emotional issue for many people, and was aware of the underlying conflict. He asked the Open Shuhada Street delegation for more background behind the name of the organisation, and asked what labelling the organisation would like to see on products.

Ms S Van der Merwe (ANC) asked for clarification over the status of the court challenge.

Mr B Radebe (ANC) brought up the issue of mutual respect and respect for the law. He said that it was not a good precedent that this issue was now being litigated. South Africa would abide by international conventions, as the South African struggle had also been an international struggle.

Mr G Selau (ANC) said that in the European Union and United Kingdom, the name of the town or region was used on products, rather than simply stating “Produced in” with a country name. He asked what impact this would have, and whether the consumer would know if a product was from Israeli-occupied territories, or within the Israel 1967 boundaries, with the name of a town alone.

Mr N Gcwabasa (ANC) wondered what the expected outcome would be, if there had been extensive consultation on this issue.

Mr Achmat responded that SAZF had launched the court case on 5 July, but Open Shuhada Street had only heard of the matter two weeks ago. It may still join as a party. He noted that the date of 5 July had in fact been fully five days before the Notice was issued, and SAZF and SAJBD had made requests under the Promotion of Access to Information Act to gain knowledge of the document. However no dates have been set down regarding the Notice, and there had been no further responses from the dti or anyone else, nor had the final notice been issued, despite the lapse of a full year.

Mr Krengel said that the notice had in fact been taken to Cabinet and approved, as set out. One of the biggest problems was that the current Notice did not make it clear what had been decided. The SAZF wished to compel the Minister to withdraw the present wording, and enter into consultation with the litigants. The court case was embarked upon in order to undo the current wording and to draw the Minister into consultation. Litigation was an act of desperation and was seen as a measure of last resort, as the SAZF had exhausted all other avenues available to it. He agreed that ideally, SAZF did see the matter as one calling for a compromise.

The Chairperson said these submissions raised some substantive issues. The consultation period had been greatly exceeded. She noted that there was a strong sense of frustration on both sides, but called for tolerance, saying that litigation was not the best way forward.

Mr Achmat made reference to the Oslo 2 Peace Accords, which stated that the occupation of the Jordan Valley or indeed any other occupation must not include sending foreign citizens to live in the occupied territory. Israel, however, had divided the Jordan Valley into areas A,B, and C. Area A was under Palestinian control, area B under civilian control, and both areas B and C were under military law, despite the fact that UN resolution 242 required the withdrawal of Israeli forces from the occupied territories, and stated that the territorial integrity of Gaza and the West Bank must be maintained. International laws were also laws, treaties or conventions that the South African Parliament has passed such as the Geneva Conventions on war crimes, crimes against humanity and so forth. Mr Achmat reiterated that that any person in South Africa was required to accurately label products, and under section 24.5 of the Act, a producer or importer of any goods must apply the relevant trade description.

Mr Krengel countered this by remarking that this interpretation of the Act was not clear and not compelling, as it was referring to a generic type of good, and did not state what goods would qualify for preferential treatment. Furthermore, SAZF did not believe that the Minister had any power to take action on these issues. Complaints were supposed to be submitted under the Consumer Protection Act. It was not for the Minister to adjudicate on them, since they fell under the auspices of the National Consumer Protection Agency.

He added that the only example in the world where this differentiation of goods from Israel occurred was the European Union, and that specifically dealt with products under the EU-Israel Free Trade Agreement. This was not a directive that was being taken up by hundreds of countries. If the Minister was extending this type of labelling to all conflict regions in a uniform way, and if the legislation was amended to allow it to be legally enforceable, then the SAZF would not have a problem.

He added that there was no need for inflammatory language. He commented also that exhaustive and extensive entreaties were made to the Minister, which had had no impact at all on his actions.

Mr Krengel went on to say that Resolution 242 of the UN Security Council was the most commonly referred to resolution to end the Arab-Israeli conflict, resulting from the Six-Day War in 1967. Israel was actively cooperating and involving itself in the principles within the resolution. This included, firstly, the  w
ithdrawal of Israel armed forces from territories occupied in the recent conflict, and secondly, termination of all claims or states of belligerency, and respect for and acknowledgment of the sovereignty, territorial integrity and political independence of every State in the area. There should also be recognition of their right to live in peace within secure and recognised boundaries, free from threats or acts of force. Final borders would be delineated when peace was achieved, and when the recognition of both Israel and Palestine was achieved. This issue was fraught with historical facts contended by both sides, but surely South Africa could play a role to bring the conflict to an end.

Mr Radebe emphasised the need to focus, in this meeting, on trade issues, since this Committee did not deal with International Relations and Cooperation. He requested that all presenters should confine themselves to setting out, clearly, their requests to the Committee.

Ms Van der Merwe also requested that the minimum requirements from all submissions be clarified. She noted that everyone present was South African, not Palestinian or Israeli, and could no doubt assist in coming to a settlement.

The Chairperson said the Committee was faced with many international challenges, but reiterated that its mandate was to deal with trade and industry. Although she understood the Israeli/Palestinian context, this was in fact not the central issue. Many countries around the world looked up to South Africa as a country of great faith and tolerance, and she asked that everyone bear this in mind when negotiating on the issues. She asked that written input be sent through to the Committee.

Mr McDonald Netshitenzhe, Deputy Director General, Department of Trade and Industry, concluded that there was a need to consult with all of the relevant parties, whereafter the Minister and dti could come up with another Notice, which, once again, may not be final. He noted that several comments had been received on the initial Notice. This might lead to dti producing regulations or another legally binding document.

Cooperatives Amendment Bill: Further Committee Deliberations
Mr Mabasa, who was chairing the Sub-Committee dealing with the Cooperatives Amendment Bill, requested the Committee for more time, and suggested that the final deliberations on the Bill should be delayed until the next Committee meeting. He said that at the meeting of 20 September, it was suggested that the Committee could proceed with Document E3,  from clause 36. The Committee had Opinions 2, 3 and 4, from Adv Kathy Idensohn, and had also received additional submissions from the South African National Association of Cooperatives (SANACO), South African Federation of Burial Societies (SAFOBS) and National Cooperative Federation of South Africa , as well as the oversight report from Mpumalanga and KwaZulu Natal.

Mr Strydom said that Document E3 was an extension of the documents from past meetings. He reviewed, in exhaustive detail, both the minor and substantive changes of terminology (see attached document for all details).

The Chairperson praised the work of the sub-committee, and asked when it was expected that the final amendments would be presented.

Mr Mabasa said that after the Parliamentary recess, a final document should be available, in early October, but some clauses would remain under continuous debate.  In order to avoid duplication of arguments, Ms Idensohn would be included in the deliberations. The submissions were also being circulated to the full Committee, as they would be discussed at a later date by the subcommittee.

The Chairperson noted that the would be debated further after 9 October. She appealed to the Committee Secretary to be in touch with the radio stations, to ensure that this matter was brought up across the country in as many languages as possible, to allow for greater public comment and participation. The Committee had a particular obligation to keep all South Africans informed on this matter.

Mr Hill-Lewis noted he was more than happy to give radio interviews at rural stations. There was a need for the radio stations to be briefed in advance, so that not all the time allocated for the interview was spent on explaining what the Cooperatives Bill entailed. 

Reports from Members
Mr Hill-Lewis noted that he had attended the RMB Morgan Stanley Big Five Conference, where it had been emphasised that there was a need to look carefully at bargaining strategies employed at Marikana and elsewhere. Presenters at the conference were proud of the global spotlight occupied currently by South African companies, but it was a source of concern that there were severe problems with brick and mortar investment at home, which led local companies to look for foreign, instead of local investment opportunities.

Mr Radebe noted that he was invited by the Minister of Labour to attend a Jobs Summit and Fair in Bloemfontein. He said the issue of maritime industry was often overlooked. Many goods exported from South Africa were being carried in foreign ships, and this resulted in a huge loss of revenue for South African businesses. Even South Africa’s existing ships were not well maintained. This presented a clear opportunity for job creation.

The meeting was adjourned.

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