Agricultural Produce Agents Act, 1992 (Act No. 12 of 1992)RulesRules in respect of Export Agents, 2017Part I : Definitions and Application of Rules |
1. Definitions
| (1) | In these rules, any word or expression to which a meaning has been assigned in the Act, unless the context otherwise indicates, shall have that meaning and the following words shall have the following meanings— |
has the meaning set out in the Auditing Profession Act, 2005 (Act 26 of 2005)
"bank"
means a bank registered as such in terms of the Banks Act, 1990 (Act No. 94 of 1990), referred to in the Act as a "deposit taking institution";
"conflict of interest"
includes any situation in which an export agent or an employee has an actual or potential interest that may, in rendering a service to a principal—
| (a) | influence the objective performance of his obligations to that principal; or |
| (b) | prevent an export agent or employee from rendering an unbiased and fair service to that principal, or from acting in the best interests of that principal including, but not limited to— |
| (i) | a financial interest; |
| (ii) | an ownership interest; |
| (iii) | any relationship with a third party; |
provided however that the purchase of fresh produce by an export agent from his principal for his own consumption for an amount not exceeding R 500. 00 (five hundred Rand) per week, per person and at a market related price shall not be deemed to be a conflict of interest.
means the country to which a principal's fresh produce is shipped;
"customer foreign currency account"
is a transactional bank account denominated in currencies other than South African Rand currency and maintained by a bank in South Africa
"employee"
means a person who is employed by an export agent and who conducts activities specifically relating to the export of fresh produce including, but not limited to, employees engaged in procurement of fresh produce from producers or suppliers and who enter into negotiations or discussions with buyers and/or importers but excluding employees who attend to administration;
"financial interest"
means a direct interest of a financial, monetary or economic nature, or to which a monetary value may be attributed, other than an immaterial financial interest;
"fresh produce"
means any of the following products intended for export and any by-product derived from such product, where such product or by-product requires storage in refrigerators or is required to be transported under cold storage conditions; namely—
| (a) | vegetables; |
| (b) | fruit; |
| (c) | flowers; |
| (d) | frozen fruit or vegetables; |
| (e) | culinary herbs; |
| (f) | ornamental plants; |
| (g) | pot plants, |
and any other product which the council may, by notice in the Gazette, declare to be a perishable product;
"immaterial financial interest"
means any financial interest with a determinable monetary value, the aggregate of which does not exceed R20 000 (twenty thousand Rand) in any calendar year from the same third party in that calendar year received by—
| (a) | an export agent; or |
| (b) | an employee for his direct or indirect benefit; |
| (c) | an export agent, who for his benefit or that of some or all of his employees, |
aggregates the immaterial financial interest paid to his employees;
"interrelated"
when used in respect of three or more persons, means persons who are related to one another in a linked series of relationships, such that two of the persons are related in the manner contemplated in subrule (4), and one of them is related to the third in any such manner, and so forth in an unbroken series;
includes—
| (a) | a foreign company; and |
| (b) | a trust, irrespective of whether or not it was established within or outside the Republic; |
"market management"
means the person or management body in whom the general management and control of a fresh produce market is seated;
means—
| (a) | any equity or proprietary interest, owned by an export agent or an employee (as the case may be), other than equity or a proprietary interest held as an approved nominee on behalf of another person; and |
| (b) | includes any dividend, profit share or similar benefit derived from that equity or ownership interest; |
"PPECB"
means the Perishable Products Export Control Board established in terms of the Perishable Products Export Control Act 9 of 1983;
"public regulation"
means any national, provincial or local government legislation or subordinate legislation, or any license, permit, directive or similar authorisation issued by a regulatory authority or pursuant to any statutory authority;
when used in respect of two persons, means persons who are connected to one another in any manner contemplated in sub-rule (5) below;
"shipped" or "ship"
means the transportation of fresh produce by land, air or sea to a country or territory other than the Republic of South Africa;
means the Agricultural Produce Agents Act, 1992 (Act No, 12 of 1992);
"third party"
means any person, other than the principal concerned, who in terms of an agreement or arrangement with an export agent or an employee or a person related to an export agent or an employee, provides a financial interest to an export agent or any of its employees or to any person related to an export agent or an employee, whether such financial interest relates to a specific transaction or to the occupation of the export agent in general;
includes communication by telefax or any appropriate electronic medium that is accurately and readily reducible to written or printed form; and 'written' has a corresponding meaning.
| (2) | When, in these Rules a particular number of "business days" is provided for between the happening of one event and another, the number of days must be calculated by— |
| (a) | excluding the day on which the first such event occurs; |
| (b) | including the day on or by which the second event is to occur; and |
| (c) | excluding any public holiday, Saturday or Sunday that fails on or between the days contemplated in paragraphs (a) and (b), respectively. |
(3)
| (a) | These Rules must be construed— |
| (i) | in conjunction with the provisions of the Act and in a manner conducive to the promotion and achievement of the objectives of the Act; and |
| (ii) | as being in addition to any other law not inconsistent with these provisions and not as replacing any such law, |
| (b) | in the case of any inconsistency or conflict between a provision of these Rules and a provision of any other law specifically regulating conduct pertaining to the rendering of services by export agents in respect of fresh produce, the provisions of that other law, unless inconsistent or in conflict with the Rules, shall prevail. |
| (4) | The provisions of these Rules apply, unless stated otherwise herein or otherwise by law, to all export agents and employees, irrespective of the nature of their remuneration. |
| (5) | For all purposes of these Rules— |
| (a) | an individual is related to another individual if they— |
| (i) | are married, or live together in a relationship similar to a marriage; or |
| (ii) | are separated by no more than two degrees of natural or adopted consanguinity or affinity; |
| (b) | an individual is related to a juristic person if the individual directly or indirectly controls the juristic person, as determined In accordance with sub-rule (6); and |
| (c) | a juristic person is related to another juristic person if— |
| (i) | either of them directly or indirectly controls the other, or the business of the other, as determined in accordance with sub-rule (6); |
| (ii) | either is a subsidiary of the other; or |
| (iii) | a person directly or indirectly controls each of them, or the business of each of them, as determined in accordance with sub-rule (6). |
| (6) | For the purpose of sub-rule (6), a person controls a juristic person, or its business, if— |
| (a) | in the case of a juristic person that is a company— |
| (i) | that juristic person is a subsidiary of the first person, as determined in accordance with section 3(1)(a) of the Companies Act, 2008; or |
| (ii) | the first person together with any related or interrelated person, is— |
| (aa) | directly or indirectly able to exercise or control the exercise of a majority of the voting rights associated with securities of that company, whether pursuant to a shareholder agreement or otherwise; or |
| (bb) | has the right to appoint or elect, or control the appointment or election of, the directors of that company who control a majority of the votes at a meeting of the board of that company; |
| (b) | in the case of a juristic person that is a close corporation, that first person owns the majority of the members' interests, or controls directly, or has the right to control, the majority of members' votes in the close corporation; |
| (c) | in the case of a juristic person that is a trust, that first person has the ability to control the majority of the votes of the trustees or to appoint the majority of the trustees, or to appoint or change the majority of the beneficiaries of the trust; or |
| (d) | that first person has the ability to materially influence the policy of the juristic person in a manner comparable to a person who, in ordinary commercial practice, would be able to exercise an element of control referred to in paragraph (a), (b) or (c). |
| (7) | For all purposes of these Rules, the male gender shall include the female and neuter genders and vice versa. |
| 2 | APPLICATION OF RULES |
| (1) | An export agent shall not be entitled to sell the fresh produce of his principal in the Republic of South Africa unless he has complied with the provisions of section 16 of the Act, to the extent that they apply to the occupation of fresh produce agents. |