Legislative Constraints and Opportunities 11 April 2019 FERTASA - - PowerPoint PPT Presentation

11 April 2019 FERTASA Congress By Theo Boshoff

Legislative Constraints and Opportunities

Title of presentation

For today

• Draft Fertilizer Bill v Feeds and Pet Food Bill
• Climate Change legislation
• Waste Exclusion Regulations
• Competition law amendments
• Protection of investment Bill
• Regional facility of the permanent court of arbitration

www.members.agbiz.co.za

Need for an enabling environment

Regulation a necessity for any modern economy

• Public safety;
• Product quality / consumer rights;
• Environmental health;
• Guard against unfair / corrupt business practices;
• Clear framework for dispute resolution;

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Draft Fertilizer Bill

• The registration and regulation of fertilizers

required for public safety;

• Currently regulated by Act 36 of 1947;
• Also regulates farm feeds, agricultural remedies

and stock remedies;

• DAFF in the process of migrating to dedicated

legislation;

• 1947 Act does not necessarily provide for modern,

administratively just procedures.

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Fertilizer Bill

Opportunities

• Fertilizer Advisory Committee;
• Advise Registrar on regulation and operational matters;
• Formal platform for consultation and liaison with industry.
• Administrative Justice guarantees;
• Right to make inputs and provide evidence to support applications;
• Entitled to reasons for decisions;
• review or appeal decisions.
• Access to records and information;
• Product traceability measure to be prescribed;
• Foreign supplier accreditation;
• Export certification & assistance;

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Fertilizer Bill

Challenges - Duplicate registration requirements:

• Fertilizer products
• Product safety and standard concerns well understood;
• Facilities;
• Public safety and standards covered by product registration;
• OHS, Environmental concerns, water use etc. already covered by

dedicated legislation and permitting requirements (LRA, OHSA, NEMBA, NEMQA etc.)

• Raw materials.
• Previous uncertainty regarding definition of ‘Fertilizer product’;
• Good to clarify definition but why register if it forms part of the end

product?

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Fertilizer Bill

Assignment of functions

• Assignment of some functions can improve efficiency (e.g. services), but

the wholesale assignment of any function under the Act fraught with risks;

• Precedent in many industries for assignees to
• Provide certain services;
• Inspect imported/exported goods;
• Conduct compliance audits; and
• Certify compliance with compulsory standards.
• Assignees do increate the costs of compliance, but where credible

companies are appointed it can shorten waiting periods and streamline businesses processes by sourcing-in additional capacity for Government.

• However there are certain regulatory functions that should not be
• utsourced.

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Fertilizer Bill

Challenges

• The consideration of licences & permits
• Fundamentally a public function;
• = Administrative action reviewable by law (PAJA) – lawful decision? Reasons?

Rational? Etc.

• The Registrar may be liable if decisions are reviewed, leaving DAFF very exposed.
• Levies
• Where services are rendered the ‘user-pays principle’ should apply, however it

should not be used to fund the Regulator’s core mandate;

• Compliance
• Non-compliance leads to compliance directives, administrative penalties & criminal

sanction;

• Justifiable to give search & seizure functions to a private company?
• Limitations on fundamental rights more appropriate for state entity v private;
• Conflicts of interest & perceptions of bias? – cannot be player and referee.

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Fertilizer Bill v Feeds & Pet Food Bill

Fertilizer Bill

• Broad range of

assignment;

• Possibility of core

functions being assigned to external companies;

Feeds and Pet Food

• Same assignment

provisions, but industry satisfied as to the functions that will be assigned;

• Promote self-regulating

system;

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Collaborative effort key – Public, Private Partnerships with credible industry bodies should be preferred over wholesale assignment of functions

Climate change mitigation

• Internationally determined

contribution under the Paris Agreement;

• 5 year transition period

before compulsory emission reporting commences for ammonia, lime and soda ash production kicks in;

• Carbon budgets & carbon

tax NB

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Climate change mitigation

• Environmental regulatory environment tightening

up however there is room for innovation and flexibility: NEMA Waste Act – Exclusion Regulations

• New regulations which enable companies to apply

for exemptions to a waste licence where industrial waste can be re-used;

• Current applications include the reuse of soda ash

from combustion for soil amelioration;

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Competition Law Amendments

• Competition Amendment Act & draft regulations

published in January: Prohibit:

• Abuse of ‘buyer power’;
• Imposing ‘unfair’ prices on smaller suppliers due to

inferior bargaining power.

• Price discrimination;
• Intention to prevent large companies from discounting

prices to the extent that SMMEs cannot compete;

• Discount for ‘bulk’ sale may come under spotlight.
• Drafts still subject to consultation and refinement.

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Investment security

Previous indications

• Bilateral Investment Treaties

lapsed without renewal; Protection of Investment Bill;

• Put SA policy imperatives ahead
• f international investment

confidence;

• Subject all investors to same

treatment and domestic courts –

• limit scope for international

arbitration.

Ramaphoria

• Jobs Summit, Investment

Summit, special envoys etc. Government Gazette 25 January 2019

• Agreement between SA

Government & Permeant Court

• f Arbitration (the Hague);
• Set-up regional ‘branch’ for

Africa in SA;

• U-turn on 2015 PPI Bill.

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Summary

It’s a Mixed-bag

• Sector-specific legal framework requires some work
• collaboration with DAFF to ensure equitable
• utcome;
• Environmental & commercial legislation tightening

up in-line with international trends;

• Can be strict, but must be fair;
• U-turn on investment policy;
• The President that has set us on a path of inclusive

growth and investment;

• Good signs, but still a lot of work to do.

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Thank you

theo@Agbiz.co.za www.Agbiz.co.za

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