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COMMITTEE ON SOCIAL SERVICES (NCOP)
22 August 2006
FOODSTUFFS, COSMETICS AND DISINFECTANTS AMENDMENT BILL: DEPARTMENT OF HEALTH BRIEFING
Chairperson: Ms JM Masilo (ANC, North West)
Documents handed out:
Foodstuffs, Cosmetics and Disinfectants Amendment Bill [B35F-2005] passed by Mediation Committee on 15 January 2007
Foodstuffs, Cosmetics and Disinfectants Amendment Bill [B35E-2005] amendments agreed to by
Mediation Committee 15 January 2007
Department of Health, Directorate: Food Control (please email email@example.com)
Foodstuffs, Cosmetics and Disinfectants Amendment Bill: Presentation
Foodstuffs, Cosmetics and Disinfectants Amendment Bill
The Committee was briefed on the Foodstuffs, Cosmetics and Disinfectants Amendment Bill by the Department of Health. The principal Act dated from 1972, and there was an urgent need to update the legislation. Areas targeted for amendments included the provisions for penalties, changes in the structure of national and local government and the requirements for secrecy. Several sections of the Health Act of 1977 had to be incorporated in the Foodstuffs, Cosmetics and Disinfectants Act.
Members questioned some of the presentation aspects in the Amendment Bill, particularly regarding the format of sections to be inserted. Questions were asked about the regulations regarding aquaculture and measures to combat disease being spread by imported animals. It was made clear that public hearings in the provinces would be needed before the Committee considered the Bill.
After introductions had been made, Mr M Sulliman (ANC, Northern Cape) noted that the Foodstuffs, Cosmetics and Disinfectants Amendment Bill was to be dealt with under Section 76 of the Constitution. However, not all the provinces were represented as two were missing.
The Chairperson noted that no apologies had been received from the missing permanent delegates. SMS reminders had been sent earlier. However, as more than six provinces were represented, the meeting could proceed. She invited Mr Andries Pretorius (Director: Food Control, Department of Health) to make a presentation on the Amendment Bill.
Department of Health presentation
Mr Pretorius said that the principal Act, the Foodstuffs, Cosmetics and Disinfectants Act (commonly referred to the Foodstuffs Act), had been passed in 1972. Changes were now needed. There were three reasons for the amendments. Firstly, it was necessary to bring the Act into line with the new dispensation. Secondly, certain provisions of the Health Act of 1977 regarding food safety needed to be incorporated into the Foodstuffs Act. Finally, it was necessary to update certain outdated provisions of the Act. Certain limited but urgent amendments were thus being proposed.
In early March the Amendment Bill had been considered by the Portfolio Committee on Health. Public hearings had been held and there had been detailed discussion. The Portfolio Committee had agreed on two minor changes to the Bill as presented. The Bill before the Select Committee, Bill B35B of 2005, was the full text of the amendments, and included the inputs made by the Portfolio Committee.
He then discussed the proposed amendments. At one stage it became apparent that there was some confusion in the Clause numbers in his presentation compared to the Clause numbers in the Bill itself. This error was clarified.
Firstly, the long title of the Act was to be amended. This would include a reference to exportation of foodstuffs, as this had not been included earlier.
Clause 1 of the Bill served to amend Section 1 of the Act. It would amend and add various definitions, in particular the terms ‘Environmental Health Officer’, ‘medical practitioner’, ‘export’, ‘mollusc’, ‘Provincial Department’ and ‘veterinarian’. These all referred to aspects of food control which had been included in the Health Act of 1977 but had not been included in the new Health Act of 2003.
Clause 2 was to amend Section 10 of the Foodstuffs Act. The Director General (DG) would be able to appoint persons not under his control as Inspectors.
Clause 3 would amend Section 13. This Section made provision for an accused person to ask for a new inspection of suspect goods on payment of a deposit. The original wording had increased the amount from R25 to R500, but the wording had been changed by the Portfolio Committee to “such sum as may be determined by the DG”.
Clause 4 would amend Section 15. This would transfer sections of the Health Act to the Foodstuffs Act, and pertained to the Minister’s ability to make regulations regarding premises, appliances and vehicles used in the processing of food. This Section also covered the destruction of diseased animals and unwholesome food. The Portfolio Committee had requested the insertion of the provisions to define the authority of veterinarians and medical practitioners, and they had added the wording “… destroyed in the prescribed manner”.
Clause 5 would insert a new Section 15 A, which would deal with mollusc and fish farming. This would be transferred from the Health Act.
Clause 6 would repeal Section 16. This Section dealt with the preservation of secrecy, but was no longer deemed necessary in the new age of transparent governance.
Clause 7 would amend Section 18, regarding penalties for offences. The amount of fines imposed would be left to the discretion of the court, as the amounts in the principal Act were no longer appropriate. The amounts would be left to the presiding magistrate to apply within the guidelines of the Magistrates Act.
Clause 8 would amend Section 25 to allow the DG to delegate powers regarding the control of imports at ports of entry. In terms of the new Health Act, provinces would now exercise control over import control.
Finally, Clause 9 would amend the long title of the Act to include the term ‘exportation’.
Mr Ramasala (Directorate Legal Services, Department of Health) explained the rationale behind the proposed amendments raised by the Portfolio Committee. Firstly, there was the increase of the deposit required to apply for a second inspection from R25 to R500. He thought that by making this open ended, there would be no need to further amend the Act to make provision for a higher amount as might be deemed necessary in the future. Instead, this should be left to the DG’s discretion. Regarding the powers of certain persons to destroy diseased animals or unwholesome foodstuffs, it had been felt that the wording might allow arbitrary actions by arbitrary persons, hence the need to stipulate who could order such actions and that they should be in a prescribed manner.
Mr Gideon Hoon (State Law Advisor) had no further comments.
The Chairperson opened the floor for questions and comments.
Ms F Mazibuko (ANC, Gauteng) noted that the proposals made by the National Assembly Committee had not been underlined to mark them as insertions. She also questioned the use of the letter (n) in the new sub-sections of Section 15 (these were marked nA to nO).
Mr Sulliman noted that Clause 7 removed the amounts of fines, but there was no change to the length of prison sentences. The judge would have discretion regarding the amount of the fine, but the sentence remained fixed.
Mr B Tolo (ANC, Mpumalanga) asked for the rationale behind the regulations on fish farming. He asked if a snail was considered as a mollusk. He asked why eating these creatures would be banned. He noted that the definition of a mollusk was not clear.
Mr D Hernete (ANC, Eastern Cape) raised the question of outbreaks of foot-and-mouth and other animal-borne diseases. He asked how imports could be banned if necessary.
Mr T Setona (ANC, Free State) asked for clarity on the DG’s powers to appoint inspectors from outside his area of control. He asked if this would be anybody who was not in the employ of the Department of Health, but if this would include other government employees by bodies such as municipalities and provincial government. He asked if this would be a new policy in control measures, or if it was just a modernisation in respect of existing law.
Mr Ramasala said that the vertical line in the margin of a long section of text indicated that it should all be considered as underlined. He took Ms Mazibuko’s point that the vertical line was not explained in the key to symbols used.
Mr Hoon explained that this was the way the printer operated. In the manuscript sent to the printer, the sections in question had been underlined.
The Chairperson said that mediation was needed regarding the printer’s errors. Members of the Committee would not be doing their work if they did not spot these things.
Mr Hoon said that the vertical line symbol had been used since 1994. The first line of a new section would be underlined, with a vertical line in the margin up to the final line, which would also be underlined.
The Chairperson said the provinces would pick up on these things.
Mr Ramasala said he would raise the issue with the printers. Perhaps the horizontal and vertical line symbology should be explained in the key.
Mr Hoon said that the Adjustment of Fines Act made provision for appropriate financial penalties. This was reviewed by the Minister of Justice from time to time. There was a monetary link to prison sentences, and at present the fine corresponding to a one-year sentence was R20 000. Therefore, a person with a first conviction under the Act would face a prison term not exceeding six months which would equate to a R10 000 fine. Obviously there would be a need to adjust fines annually.
Mr Pretorius spoke about the inclusion of the clause regarding mollusk and fish farming. It was not the intention to stop people from eating what they liked. The regulations were included as this was the more common situation at present. There was significant growth in the industry, and there were a number of coastal farms. The amended Act would provide an instrument for the Minster of Health to make regulations where necessary. This was thus an enabling clause. It would also apply to fresh water fishing enterprises. There were hygiene and safety aspects involved. Although he admitted to being a bit confused by the definition of a mollusk himself, he said that it should be clear to those involved in the business. A broad definition would allow control over new species involved in the industry.
Mr Tolo said that aquaculture was being encouraged.
Mr Pretorius said that the Minister of Health would take future decisions where marine creatures would be cultivated for human consumption. Such decisions and the resulting regulations would be taken only after consultation with other Departments.
Mr Pretorius said that control was needed against the spreading of disease. There was provision for a ban on exports from an animal health point of view. Countries importing animals from South Africa would have their own import controls. Within the country control was exercised by the Department of Agriculture under the Animal Disease Act. This made provision for permits and other control measures.
He said that Port Health Services were a provincial responsibility. The Foodstuffs Act controlled the importation of foodstuffs. Samples could be taken for checking, and consignments could be rejected if they were found to be unfit.
The Chairperson asked who would monitor the inspection process.
Mr Pretorius said that the new title for the inspectors would be Environmental Health Practitioners (EHP). They would fall under the provincial Health Departments. In terms of the existing Act, Section 10, any inspectors employed outside the municipal areas reported to the national Department of Health. Provinces now had responsibilities. There were two options. The DG could make national appointments, where the EHPs would be employed by the provinces. The DG could also delegate this responsibility to the provinces. The other option was that the municipalities could appoint inspectors if authorised by the Minister of Health. If the relevant province was not able to control a particular port of entry, then the DG could make direct appointments in the interim.
He said there were bodies which came into play from the industry, such as the Dairy Standards Agency. In this case the people involved might need authority, which could be provided at the DG’s discretion.
Mr Pretorius said that the policy reforms were limited but the amendments were needed urgently. Changes would be limited so that the principal Act could serve a purpose until such time as a possible new Bill was introduced. A new food control system was being considered, but this was a long-term process and was unlikely to be completed in less than five years.
He said that cosmetics were subject to existing regulations. Recently extensive regulations had been published regarding their labeling, advertising and composition.
Mr Ramasala said that provision was to be made for the control of exports.
Mr M Thetjeng (DA, Limpopo Province) referred to the provisions for medical examinations of persons handling foodstuffs, and asked if this would be mandatory.
Ms Mazibuko said she was confused by the small n’s in the numbering of Clause 4. On page 4, in the proposed amendment to Section 13, she asked why a deposit should be made rather than a payment. She wanted to know why this Act was under the auspices of the Department of Health and not with the Department of Agriculture. She also raised the issue of packaging, and wanted to know who was responsible for this. Manufacturers could produce products with false labels. The contents of the product should be as described on the label.
The Chairperson said that the SA Bureau for Standards (SABS) was responsible for regulations regarding packaging.
Mr Pretorius said that the existing definitions only included the national Minister. The amended Act would simplify matters for possible changes. The current Act did not include the provinces, which were now part of the National Health Council. The Minister would correspond with the respective MECs.
The regulation for the medical examination was contained in Clause 4, which would amend Section 15. This was not yet a regulation, but the provision would give the Minister an instrument for possible future changes. It was not needed at present, but was a guideline to the industry. This was in tune with the World Health Organisation viewpoint.
The question of the deposit was taken from the principal Act. His Department would prefer not to handle money, and he felt that a person applying for a second inspection should rather show proof of making a deposit.
He said that there was a need for food control to be in the same structure. The Departments of Health and Agriculture were looking at a new, rationalised food control system.
Mr Pretorius said that there were existing regulations to cover packaging and labeling. There were general hygiene regulations to cover premises and transportation, and hygienic packaging was a pre-requisite. The information on packaging was subject to extensive regulation, and manufacturers were to avoid fraudulent labeling. Municipalities were responsible for the enforcement of these regulations.
Mr Ramasala said that provision would be made for medical examinations, but these would only occur with the person’s consent. This would be in line with the Constitution. The President had deemed it fit for the Minister of Health to have authority over foodstuffs. This position might be reviewed if both departments thought it would be appropriate. The numbering of the new subsections for Section 15 was designed to avoid confusion when cross-references were made to the Act. The paragraphs in the Clause were numbered nA to nO, and would be inserted between the existing paragraphs n and o. The existing subsection o would therefore remain the final subsection, and this was the one which made provision for any other matters.
Mr Hoon said that it was not the intention to renumber the principal Act because of cross-references in other legislation. This numbering system was a technical way of solving the problem.
Mr Setona said that legislation was not the exclusive responsibility of Parliament. There was pressure from other centres of power. A delay in the passage of the legislation had to be within statutory limits.
The Chairperson said that a period of six weeks was needed for public hearings to be held.
Mr Thetjeng said that the critical stakeholders needed to be identified for the public hearings.
Ms Masilo said that Members needed to know by when they went to the provinces by the end of the week. It was up to provinces to decide on when public hearings would be held.
Mr Setona warned that the NCOP would be abdicating its responsibility. It should encourage provinces to conduct public hearings.
Mr Tolo emphasised this point, and reminded the Committee of recent Constitutional Court rulings on the failure of government to hold public hearings on contentious issues.
Ms J Vilakazi (IFP, KwaZulu-Natal) returned to the numbering of Clause 5 on page 4 of the Amendment Bill. She found the nA numbering style confusing, and said that this must be as simple as possible.
Mr Tolo said that Members would need copies of the principal Act when they went to the provinces. The Chairperson said that this would be done.
Mr Ramasala said that the Bill was needed urgently. Some of the content was taken from the old Health Act whereas major parts of the new Act were already in place. The process was still important, and public hearings were needed. This was especially true where engagement was needed between provinces and the public. In KwaZulu-Natal State Law Advisors were attached to the provincial legislature and could help with the process.
Ms Vilakazi said that the last time public hearings had been held in that province they were unable to find the State Law Advisors.
Mr Pretorius emphasised the urgency of the matter. Inspectors were currently not under the control of the national DG, but were employed by the provinces. The DG could therefore not exercise authority in terms of the current legislation, nor could the provincial DG’s. Inspectors could therefore not function legally at present. If a case went to court, they would have to explain to the court why they had not been properly appointed. Magistrates were almost forced to use the current amounts prescribed for fines. Offenders could flout the law, as these fines had no deterrent value at current rates. The secrecy section in the existing Act was unconstitutional.
The Chairperson complained about the uncontactability of Department of Health officials. During a recent operation in the Zeerust area it had been necessary to contact the Department. Calls to landline numbers went unanswered and the Department refused to provide cellular numbers.
The Chairperson thanked the delegation from the Department of Health for their presentation.
Ms Masilo invited the Members to comment on the minutes of meetings held on 20 and 21 June.
Mr Sulliman referred to the minutes of 20 June. It stated that turnaround times had increased from six weeks to four months. He thought the turnaround time should be immediate.
The Chairperson asked if all nine provinces were equipped to deal with this. She pointed out that there had been meetings on two successive days.
Ms N Madlala-Magubane (ANC, Gauteng) said that there was no programme available.
The Chairperson said that there should be a workshop for the Committee to come up with a programme. She did not know about the provincial week.
Ms Mazibuko said that the minutes should be a reflection of what was discussed.
Me Setona said that there had been an administrative problem with the circulation of the programme.
The Chairperson commented on the key issue. Staff did not have access to the Members’ offices, resulting in the offices not being cleaned and more importantly in the failure to deliver correspondence while Members were out of the office.
Mr Tolo said that the resolution on the workshop was not included in the minutes.
Mr Sulliman said that each Member should get a copy of the programme by Tuesday afternoon or Wednesday morning. The provincial week had been identified before the recess. Members should have a copy of the program to hand at all times. He asked how far the process was.
The Chairperson closed the issue of the workshop, and admitted that the minutes were inaccurate. The proposed international study tour for the Committee was on the House Chairperson’s forum agenda. She had briefed the House Chairperson, but there was no budget in this financial year for either the NCOP or the National Assembly (NA). The budget had been used mainly by the NA, and only one NCOP Committee had benefited. An application had been sent in as a follow-up for the proposed visit to Canada. This had been put off because of the general election in 2004 and the ensuing local government elections. Research had been done in 2001 and follow-up research had also been done. The proposed amount of R1 million was too much. An amount of over R50 000 per person was over budget.
The Committee had then proposed a visit to Sweden. Research had been done and submitted, but no funds were available. Discussions were being held between the Secretary, Presiding Officers and National Treasury. A request was on the table, even if it had to be held over until the following financial year. This Committee had first priority for an overseas trip as hiccups had been experienced since 2004.
Mr Setona said there was a need for understanding of the powers of the Members as elected officials. Members provided leadership, but there was nothing for them. Someone had misled the Committee. He asked if it was prudent for Parliament to operate in this way.
Mr Tolo said that each Committee should have a separate budget. At present it seemed as if there was a “first come first served” policy. During June Members of the Committee had visited the Democratic Republic of the Congo as part of the Joint Defence Committee while other Committees had visited Australia and other countries.
Mr Sulliman said that the concept of one pool for funding needed a political decision. Officials were doing things they were not supposed to do. Accountability was needed.
Ms Vilakazi said that the issue could not be left there. The Committee’s request had been defeated and priority was being given to the NA. Members of this Committee were working hard and some compensation was needed.
Ms Mazibuko said that the Auditor General’s report on Parliamentary spending indicated large amounts of unspent money being returned to Treasury. There was no budget for Committee work, but some Members seemed to be travelling continuously. Something was wrong, and these activities needed to be gone over with a fine tooth comb.
The Chairperson said that indications were that the proposed visit to Sweden would also not happen due to budgetary constraints. A constituency week would be held during the September recess. A programme would be drafted and the workshop was a priority. She said that the minutes of the meeting of 20 June were adopted. The minutes of 21 June were also adopted but with amendments.
The meeting was adjourned.
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