The South African Police Service provided a briefing on the Second-Hand Bill which replaces the 1955 Act. There had been two extensive consultative processes on the Bill in 2003 and 2005. The theft of copper was given particular emphasis.
Largely the Committee was satisfied with the legislation but concern was expressed about its effective implementation. In answer to a query about whether the Bill conflated dealers with citizens making a once-off sale, it was noted that the differentiation was made in the definition of dealer. The donation and selling of second-hand clothes was discussed. The lack of co-ordination between the Department of Trade and Industry and the SAPS about the export of vast quantities of copper from the Western Cape, was highlighted.
South African Police Services (SAPS) briefing on Second-Hand Goods Bill
Assistant Commissioner Philip Jacobs (Head Legal Support: Crime Operations Legal Division – SAPS) explained the reasons for the review of the 1955 Act. He detailed the background to the Bill which included stakeholder consultations on the Bill both in 2003 and 2005. He went through the clauses of the bill, explaining that a certificate of registration would be issue by the National Commissioner and would be valid for five years. This Bill made provision for a variation of conditions. Disqualifications included previous convictions, being under eighteen years or not being permanently resident in South Africa.
The Bill made provision for a degree of self-regulation. The functions of dealers’ associations included establishing categories of dealers according to goods and inspecting business premises of members. The records of dealers needed to include the identity and particulars about all acquisitions and disposal of goods. False information and suspicious transactions had to be reported to the police. It was a criminal offence if not reported. Conditions were stipulated on the type of records kept for motor vehicles and communication equipment. There was an obligation to register as a recycler. Provision was made for routine inspections during working hours for enforcement purposes. The Minister decided on appeals against decisions taken by the National Commissioner.
The Bill provided for a strong regulatory environment that impacted on all second-hand goods and dealers. It would address each market segment uniquely through regulations. Legitimate dealers would benefit from the Bill. Recylers of metal must be registered as such. No recycling equipment could be kept at premises that were not registered recyclers. He referred to the two news articles that highlighted the problem of copper cable theft. Eskom had indicated that the bill covered their concerns adequately.
Dr Jacobs highlighted that police could not monitor the application of the Bill constantly. This was where accredited associations came into the picture, to provide a measure of self regulation within a certain subsection of the industry. He referred to Chapter 3 of the Bill. Of importance was the obligation to be registered as a recycler, which was linked to controlled metals.
Dr Jacobs explained that the drafting of the bill occurred in 2003. The reason it had been completed only now was due to the lengthy consultation process with industry in order to ensure a comprehensive bill. He added that he was very interested to see industry’s response in light of their input.
Ms D Kohler-Barnard said that it was a spectacular improvement on the 1955 bill, the length of time taken to compose it was questionable, but she accepted the explanation provided. She asked if in the consultation process regional SAPS concerns endemic to specific provinces were covered. She asked who would check registration compliance. In terms of the Minister of Safety and Security deciding appeals, she questioned whether this was not rather the sphere of the courts.
Ass Comm Jacobs replied that they had sent the bill to legal officials in all provinces, to assure consideration of province-specific concerns. He added that in the Western Cape copper theft was an issue, whilst in Gauteng it was “chop-shops”. Legal officials had linked up with operational officers and that previously the issue had been the domain of Crime Prevention. He believed that a specific component would be set up nationally to co-ordinate the implementation of the Act and that it should be part of precinct policing. The registers served the purpose of allowing police to search for stolen goods. Ministerial appeals were not exempt from court appeals.
Ms P Nhlengethwa (ANC) asked about point 3 of the presentation whether termination of registration was affected if non-compliance occurred. She asked for further clarification about the trade in stolen goods that was flourishing.
Ms J Sosibo (ANC) asked whether people who sold second-hand clothes needed to apply and that if they were approved, how would they be monitored?
Director J van der Walt (Legal Services: Crime Operations – SAPS) replied that imported clothes were usually bought in bulk. This had been prohibited and that the reason second-hand clothes had been specifically mentioned in the Bill was to prevent any loop-holes. Local second-hand clothes were subject to the same registration process as any other second-hand goods dealer.
Mr O Monareng (ANC) stated that he did not see a definition of second-hand goods. He added that obviously exemptions were subject to supervision, but added that with regards to auctions there were no guarantees. He believed that the bill should have been completed before 2007. He questioned the issue of sentencing without the option of a fine.
Director van der Walt replied that public auctions were held in pursuance of a judgement of the court and that it was possible that stolen goods had been attached; he added that it was impossible to make provision for every instance.
Ass Comm Jacobs agreed with Mr Monareng on the issue of a sentence without fine and stated that they would review that. He explained that they had gone through a full consultative process and that the Bill had been completed and given to the Department in March 2007, sent to Cabinet in June 2007 and then reviewed by the State Law Advisors and only approved by them in December 2007.
Ms Nhlengethwa stated that there was legislation preventing the import of second-hand vehicles, but that hawkers were selling imported second-hand clothes and asked what was being done about this.
The Chairperson asked when a second-hand business was opened, whether an application should be made at a police station.
Dr Jacobs replied in the affirmative, but added that it was an issue that they might look at.
Mr Monareng asked for an explanation of the technicalities of the process and asked about the suffering of the economically disadvantaged.
Ms A Van Wyk (ANC) thought the order of the Bill was confusing and that a table of fines was needed. The Bill should be dealt with first, then accreditation in the accompanying documents. She asked whether the registry could move away from a written description and towards a digital photograph of the goods. The Bill did not make reference to the SAPS going to dealers and being proactive about potential illicit goods. She was worried about the statement that there would be no additional costs and added that surely a national register had cost implications. Likewise she was concerned about implementation, especially as the Bill did not specify inspections, the powers of SAPS officers and did not obligate the SAPS to act. A clear process for dealing with contraventions needed to be included. R19 million of copper had been exported from the Western Cape. Who had issued the export permit?
Dr Jacobs replied that in terms of application, the Police Service Act allowed the National Commissioner to delegate some of his powers. The order of the Bill could easily be changed; the current order was done in accordance with recommendations from the State Law Advisor. The inclusion of a table of fines would not be a problem.
In terms of proactive policing, he referred to the explosives, stolen goods and stolen vehicles databases already in existence and said that a link between these and the second-hand goods register would be made, in order to allow dealers to determine if the goods were illicit.
In terms of implementation, the inspection time period clause was valid and that they would look at it. In general there was an obligation on an officer to act when a crime was committed and that it was not necessary to repeat this in the Bill as it was covered in the Criminal Procedure Act.
He said that exports were regulated by the Department of Trade and Industry and agreed that warning bells should have gone off when a large amount of copper was exported from a region that did not produce copper.
Mr van der Walt explained that DTI dealt with imports/exports but one aspect of the bill made provision to extend powers to other inspectors and increase co-operation; furthermore, it gave powers to the Metro Police as well. A dealer database already existed and so costs would be negligible. It was agreed that the use of photographic description of goods was something that should be utilised and it was an example of a certain exemption that could be made in terms of the keeping of a register. He added that in the scrap metal industry some dealers took photographs of the goods and that in those cases exemption might be made.
Mr L Diale (ANC) asked that if he wanted to give a bundle of clothes to the community to help them, did he need to first report this before giving it to them. Registration would be a problem if the recipient decided to sell the clothes in order to purchase food or other necessities.
Dr Jacobs stated that the definition of a dealer covered this issue.
Ms Kohler-Barnard noted that in the instances of floods and other disasters, containers of second-hand clothes were sent as aid and stopped at the border. There had to be a way to ease the passage of donated goods for charitable purposes. She asked if the selling of books such as at church fetes, would be in contravention of the law. They should be careful of over-regulation.
Dr Jacobs replied that donated goods needed to be dealt with by the DTI.
Mr M Moatshe stated that the bill dealt specifically with buying and selling. He asked if provision had been made for the probable case of a house being sold by a non-South African with all assets included, some of which might be stolen and whether it would be checked beforehand.
The Chairperson added that it was not clear what happened to the property.
Dr Jacobs replied that sales of houses were classed as occasional sales and as such were not covered by the bill.
Ms N Daniels (ANC) asked if those who were accredited (in Chapter 3) could get away without being subject to the bill. She asked about household goods leaving the country based solely on affidavits from a police station.
Dr Jacobs replied that a group of dealers forming an association had to prove, based on their track record, that they should be exempted from some provisions. Exemption needed to be earned. He added that the Act still applied and exemption could be withdrawn. Normal provisions related to stolen goods applied to items taken across the border.
The Chairperson thanked the SAPS delegation and stated that they were satisfied with the provisions. She was aware that implementation was not part of the Bill. She suggested that dedicated personnel should be seconded for the enforcement of this Act, just as with firearms.
The meeting was adjourned.
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