IMPLEMENTATION OF THE SECOND-HAND GOODS ACT, 2009 (ACT NO. 6 OF 2009)

Transcription

1 1 IMPLEMENTATION OF THE SECOND-HAND GOODS ACT, 2009 (ACT NO. 6 OF 2009) 1. The purpose of this guide is to Describe the principal elements of the Act briefly; Describe the manner in which the transition from the dispensation under the Second-Hand Goods Act, 1955 (Act No. 23 of 1955) to the dispensation under the Second-Hand Goods Act, 2009 (Act No. 6 of 2009) 2009 Act will take place; 2. THE PRINCIPAL ELEMENTS OF THE ACT The objects of the Act are as follows: To regulate dealers and recyclers; To combat the trade in stolen goods; and To promote ethical standards in the second-hand goods trade. 2.1 These objects firstly require of dealers to comply with the provisions of the Act in respect of certificates of registration, the keeping of registers and other information required under the Act. For this purpose, the Act provide for routine inspections during which a Designated Second-Hand Goods Officer (the DSO) may inspect the premises and registers of second-hand goods dealers. 2.2 Routine inspections In terms of section 28 of the Act, the DSO of the station where the premises are situated may enter the premises of a registered dealer during business hours in

2 2 order to investigate compliance with the Act and check the following the certificate of registration relating to that premises; registers and records relating to the goods on the premises; any goods found in or on the premises; and an entry or absence of any entry in the registers. 2.3 The purpose of a routine inspection is not to investigate the legitimate dealer, but to ensure compliance. 2.4 Investigations In terms of section 29, a police member must obtain a warrant to enter and search premises and to seize items. The section also provides that premises may be sealed off for a period not exceeding seven days, to prevent the suspect from conducting business in contravention of the Act. Although the Act contains exceptions to this general rule, investigators must take note that premises may only be sealed off in terms of a warrant issued by a court. 2.5 Second-Hand Goods Dealers forums The SAPS, the community and registered dealers must form cooperation structures to ensure that the impunity with which thieves sell stolen property through criminal dealers, is addressed. For this purpose, all Station Commanders should ensure that the DSO at the station establish and maintain a forum where second-hand dealers are involved. Dealers from across the spectrum of the industry must be represented (especially where criminal activity may affect the crime trends in the area and type of business - e.g. scrap metal dealers, pawnbrokers, auctioneers and vehicle dealers). The purpose of the forum is to highlight issues of mutual interest and to allow dealers to provide

3 3 information and indicate where the Act is not complied with. 2.6 Accredited Associations Associations are accredited at national level only by FLASH. Through cooperation with accredited trade associations, the SAPS at national level will ensure that the organised industry set proper ethical and legal standards for their members. For this purpose, associations will monitor member dealers for compliance with association rules. Where these rules are effectively applied, the Minister of Police may exempt members from compliance with similar provisions in the Act. All such exemptions will be published in the Government Gazette and a dealer that is exempted must make the Gazette available on demand. If information regarding an association is required, the National FLASH office may be contacted. 3. IMPLEMENTATION 3.1 The Act, Regulations, forms and other documents are available electronically on the SAPS website ( where it may be downloaded when a dealer wants to apply for registration. 3.2 A dealer must submit an application for registration on the SAPS 601 at a police station for every premises in the station area where second-hand goods are traded or stored. The application is verified by the DSO and submitted to the Station Commander. 4. TRANSITION FROM THE 1955 ACT TO THE 2009 ACT 4.1 Section 43 of the Act provides as follows with regard to the transitional period: 43. (1) (a) Any person who, immediately before the commencement

4 4 of this Act, carried on business as a dealer must, within three months of the date of such commencement, apply for registration in terms of section 3. (b) If an application for registration has been lodged before the end of the period provided for in paragraph (a), the dealer concerned may continue carrying on the business in question, subject to subsections (2) and (3), until the application is decided. (2) A person contemplated in subsection (1) must enter into a transitional register all the second-hand goods or pawned goods, as the case may be, held by such person for such business purposes until his or her application in terms of section 4 is decided. (3) An entry referred to in subsection (2) must set out a full description of the second-hand goods in question, indicating the quantity and colour thereof, identification marks and any other distinguishing features thereon and, in the case of controlled metal, its description and weight and the value thereof as estimated by the dealer concerned. (4) A Designated Police Officer or a police official authorised by the Designated Police Officer must endorse the last entry in the transitional register and on each page thereof of every dealer that applies for registration in terms of subsection (1). 4.2 Under section 43(1)(b), all dealers have three months to apply for registration. In practice, a dealer therefore has until 30 July 2012 to apply for registration. When a dealer lodges a SAPS 601, the DSO will issue an applicant with the official acknowledgement of receipt - SAPS 601(c) - to verify that he or she applied and such dealer may then carry on dealing until his or her application has been decided. 4.3 Dealers who were issued with a certificate under of the 1955 Act valid for the period 1 January 2012 until December 2012 may carry on business until 31

5 5 December 2012 when the current certificate expires. The reason is, of course, that the 2009 Act cannot apply retrospectively to dispense with certificates issued before 30 April This effectively means that all provisions that were in operation before 30 April 2009, must be applied when dealing with dealers who have not applied for or received a certificate of registration under the 2009 Act. 4.5 As soon as a certificate is issued under the 2009 Act, the dealer (or recycler) concerned must carry on his or her business in accordance with the 2009 Act. If the application is refused, the applicant should be informed that he or she may appeal to the Minister. The appeals process is quite simple and there is no prescribed form. 4.6 The DSO should endorse the transitional registers held by a dealer in anticipation of the result of his or her application for a certificate of registration under section 43(4) as soon as the application is finalised. 4.7 For purposes of the period 1 May 2012 to 30 July 2012, dealers in second-hand goods must have a certificate issued under section 4 of the 1955 Act OR the SAPS 601(c) (Receipt of application) for registration under the 2009 Act; have records (registers) in which transactions are recorded; keep goods for a period of seven days. During this period the goods may not be disposed of or the form altered. After this period, a dealer may, of course, alter the form thereof (for example, where copper cable is granulated or burnt). 4.8 All relevant provisions of the 2009 Act that were in force on 10 December 2011, must still be applied. The most important are as follows:

6 6 Section 22(1): Section 22(1) deals with false information and stolen goods and provides as follows: 22. (1) If a dealer suspects, or on reasonable grounds should suspect, that (a) any name, address or document furnished to the dealer is false; (b) goods or goods for pawn, as the case may be, offered to such a dealer are stolen goods; or (c) the appearance or aspects of an item offered to such dealer has been tampered with or there was an attempt to alter the appearance or aspects thereof in order to conceal the identity of the item, such dealer must immediately report the matter to a police official on duty at the police station in whose area the dealer carries on business. o o The section obliges dealers to report suspicious transactions. This has the effect that unscrupulous dealers may be charged with an offence that carries a penalty of maximum 10 years imprisonment. It also carries a strong message that the market for stolen goods is being closed down. Section 22(1)(c) covers any item that was tampered with and could also include cable that was stripped or burnt when it can be proven that it was done to conceal the identity of such item. The definition of controlled metal : Controlled metal means any metal contemplated in Schedule 2. In Schedule 2 the following metals are listed: copper, aluminium, zinc,

7 7 chrome, lead, white metal, nickel, tungsten, tin, ferrovanadium, ferrosilicon, ferrochrome, brass, bronze, cobalt and precious metals as defined in the Precious Metals Act, 2005 (Act No. 27 of 2005), or any article consisting wholly or principally of any of those metals. Section 25(4)(b) and section 25(4)(c): Section 25(4)(b) and (c) criminalizes dealing in and possession of controlled (non-ferrous) metal (i.e. copper) of which the cover has been burnt. The section provides as follows: 25. (4) No person may (a) (b) acquire or dispose of any cable consisting of controlled metal of which the cover has been burnt, unless the seller thereof is able to provide a reasonable explanation for the burnt cover, and only after the matter has been reported to a police official in the manner contemplated in section 22(1)(a); or (c) be in possession of any cable consisting of controlled metal of which the cover has been burnt, unless such person is able to provide a reasonable explanation for the burnt cover. o This prohibition will not only assist the SAPS in the detection and prosecution of cable thieves, but act as a deterrent to persons who illegally deal in burnt cable, as a contravention may attract a possible maximum penalty of 10 years imprisonment. o The prohibition relates to cable only. Cable may be defined as conducting wire with insulation consisting of a cover of plastic or rubber. For example, armature windings found in motors such as washing machine or fridge motors do not have such insulation and possession of or trade in burnt motors do not fall under this section. o It is important to remember that there may be various reasons why

8 8 the cover of copper cable may have been burnt it is impossible to state all of those reasons in a circular, but members must exercise the necessary discretion. The main issue relating to burnt cable is the burning of industrial cable to conceal the fact that it is the property of an infrastructure stakeholder such as the parastatals, local governments or mines. o The section does not prohibit trade in burnt copper cable or the burning of copper cable as such it only requires that a valid reason must exist why the cover was burnt. Dealers and recyclers may burn copper cable subject to the seven day holding period in both Acts as well as other pollution, safety and waste related legislation such as the National Environmental Management: Air Quality Act, 2004 (Act No. 39 of 2004), the Occupational Health and Safety Act, 1993 (Act No. 85 of 1993), the National Health Act, 2003 (Act No. 61 of 2003) and municipal health and safety by-laws. o As the National Environmental Management: Air Quality Act, 2004 will be applied differently in each region, it is recommended that dealers contact the Department of Environmental Affairs: Directorate: Air Quality Management for assistance. The responsible person is Mr Mazwi Lushaba with telephone: , fax: and mlushaba@environment.gov.za to determine whether permits need to be issued. 4.8 The following issues are of importance: Section 22(1) and section 25(4) require that the person buying the burnt cable must make a report to the SAPS. Regulation 10 of the Regulations for Dealers and Recyclers, 2012 provides for the procedures to be followed in case of a report under section 22(1) or section 25(4). o The report must be noted in the Occurrence Book; and

9 9 o The follow number must be provided to the person making the report. Where a dealer makes a report in terms of section 22(1), criminality is involved and the Station Commander should ensure that reports are followed up in order to arrest such suspects. In cases where transactions relating to burnt cable are reported, the Station Commander should ensure that cases of suspicious transactions are followed up. 4.9 Under no circumstances will any member be allowed to clear any transaction or issue a clearance to a dealer regarding suspicious goods. It has come to our attention that dealers require SAPS members to tell them whether certain goods may be bought or sold and that SAPS members then go to the dealer s premises and clear the goods so that the transaction may proceed. This practice is unacceptable as members unwittingly assist criminals in disposing of stolen goods, especially as most members do not have the necessary technical knowledge and expertise to make a call on the declarations. Under section 22(1) of the Act, all dealers must ensure that they take precautions themselves in order not to engage in criminal activity. A dealer should, for example, interview the seller to establish whether the goods are stolen or not.