The recent tragic deaths of children who consumed unsafe food, reportedly brought from unregulated spaza shops, caused community outrage – emphasising the need for change in the informal food retail sector. Some media houses report that since September this year about 890 food-borne illness cases have been recorded in the nine provinces.
Immediate action to address this issue saw Pres. Cyril Ramaphosa mandating the registration of spaza shops within 21 working days. Though most have welcomed and praised the president’s decisive action, some are blaming these incidents on government and, more so, foreign-run spaza shops.
Enforcing by-laws and registering all spaza shops will make it easier to shut down unregistered businesses and prosecute those selling expired or fake goods.
The country has all the laws in place to police, act against perpetrators, and also prevent such tragic incidents. These laws include the South African Regulation R638 of 2018 for Food Premises, the South African Regulation R146 of 2010 for food labelling, the South African Consumer Protection Act 68 of 2008 (CPA), and municipal by-laws.
However, the problem is much deeper than this, considering the growing animosity towards foreign-owned spaza shops, believed to be taking away business opportunities from local citizens.
The SA Regulation R638 of 2018 for food premises outlines the required hygiene standards and food safety practices that businesses, including spaza shops, must set up. Environmental health practitioners (EHP) can enforce these regulations by conducting inspections and providing guidance to shop owners. In a situation where practitioners discover fake or expired foodstuffs on shelves, they must confiscate and destroyed such.
In terms of provision 15, a person who violates these regulations will be guilty of an offence and liable to a penalty in terms of section 18 (1) of the Foodstuffs, Cosmetics and Disinfectants Act (Act 54 of 1972).
First-time offenders are fined an amount of R400 or face six months’ imprisonment, and second-time offenders are fined R800 or given a 12-month prison sentence. Third-time offenders are fined R2 000 and imprisonment for a period not exceeding 24 months. The court can also order both a fine and prison term.
The SA Regulation R146 of 2010 for Food Labelling governs the proper labelling of food products to ensure consumers have proper information (contents and expiry dates) on the product they intend to buy. However, the expiry dates are not prescribed by law. Manufacturers determine what is appropriate in terms of an expiry date. This is bound to encourage manipulation of expiry dates, putting consumers’ health at risk. Further to this, the regulations do not mention anything about penalties for offenders. It is presumed that businesses that breach this act are charged in terms of section 18(1) of the Foodstuffs, Cosmetics and Disinfectants Act (Act 54 of 1972).
The CPA provides protection measures for consumers that include the right to safe and quality goods. Consumers have a right to return harmful products and issue complaints about such products. Complaints can be sent to the Provisional Consumer Authorities (PCA) or the National Consumer Commission (NCC). The selling of fake and expired food falls under the category of “unconscionable conduct”, “misleading” or “deceptive” practices. The NCT presides over such cases.
A person convicted of such an offence may be liable to a fine or imprisonment for a period not exceeding 12 months, or both a fine and imprisonment. The NCT may impose fines not exceeding 10% of the violator’s annual turnover in a financial year.
Most spaza shops obtain their goods from wholesalers who are off the hook from prosecution. The media appears to show only one side of the problem (the spaza shop), but not the wholesaler.
The NCC is not using its powers effectively in terms of section 73 to refer matters to the NPA of wholesalers who sell expired foods.
The NCT may also issue a compliance notice should a wholesaler be found to have been selling expired or fake foods. If the conduct continues or the wholesaler does not cooperate, the matter can be referred to the NPA in terms of Section 100.
Municipalities such as Mangaung have by-laws relating to spaza shops, but there appears to be a shortage of health inspectors to prevent the selling of fake and expired food in such shops. Necessary financial resources must be available to ensure that municipalities can carry out their mandate effectively in supporting provincial consumer authorities towards curbing the problem of expired and fake foods.
A Draconian approach is needed to mitigate the surge in the sale of expired and fake foods. The Foodstuffs, Cosmetics and Disinfectants Act (Act 54 of 1972) is rather outdated regarding the present spike in the number of fake and expired foods for sale. The CPA gives powers to the NCC and NCT to report business practices to the NPA that are either harmful or prejudicial to consumers. These powers must be used effectively. Secondly, the fines are too low to deter individuals from repeating the offence.
A register of offenders is needed for manufacturers, wholesalers, and shops that sell expired or fake foods. Such a register must be published in the government gazette for easy access by the public.
This will avoid the situation where consumers take it upon themselves to go on social media and raise awareness of products people should not buy.
- Dr Hoitsimolimo Mutlokwa is a postdoctoral researcher at the Centre for Labour Law in the Department of Mercantile Law at the the University of the Free State (UFS).
