The draft Bill was originally introduced published on 28th October 2005 as Notice 1937 of 2005 in the Government Gazette.
The Bill is a comprehensive document designed to regulate the trade in stolen goods. The list of goods affected forms Schedule 1 appended to the Bill. In various forms of the bill this has included or includes :
Household & office equipment
Factory equipment and machinery
Photographic & optical equipment
Any controlled metal in any form (including copper, aluminium, lead, brass, bronze, gold, silver, almost any metal except steel and iron.
Motor vehicles, parts and accessories
As it stands now, clothing was removed at the request of the ANC member Ms Sotyu and books entered and retained at the request of the ANC member Ms van Wyk.
Thus the Bill will empower the police in their efforts to reduce organised crime in such areas as scrap and precious metals, mobile phones, vehicles, and other items targeted by professional criminals.
The Bill provides for every dealer to record in full detail the purchase and sale of every article that passes through his hands. In the case of books our examination of the Bill revealed the following steps that would be imposed upon the used book trade.
• Every dealer to register as a second-hand trader, in a process which may require finger-printing
• Registration is done via the National Commissioner of the South African Police Service. This license will be valid for 5 years. Such a certificate is not transferable upon the sale of a business. These certificates are to be displayed and to remain undamaged at all times. Loss or damage to the certificate needs to be reported immediately.
• Trading premises to be registered, and no stock to be removed there from to any other non-registered location. All storage areas, including garages, homes and warehouses, will require to be separately registered.
• Record full details and description of each and every book that they purchase (author, title, edition, publisher, date, binding, unique distinguishing features with the names, identity no., address, telephone number, signature, a catalogue number, date, price paid. Identity must be verified and the method of verification recorded. (E g. did you see a driver's license, a passport or a green ID book?)
• Record full details and description of each and every book that they sell with details of the identity of the purchaser as noted above, and in such a manner that any book can be identified back from purchaser to seller.
• Hold purchased stock in store for 7 days before resale. This "bonded" stock needs to be quarantined.
• Record all these details at date of purchase and sale.
• All this for any item purchased at more than R100.00
• Report suspicious sellers to the SAPS
• A recognised police official can inspect premises and registers at any point, however, it is required by the act that a minimum of one annual visit from a recognised police official take place in which records have to be examined. The recognised police officer is required to sign the register with rank and date etc.
• You may deal only in the class of goods that is stated on your certificate. For example if you deal in maps, prints and books - your certificate will have to state that you deal in Antiques / Valuables and Books. People dealing in related matter such as sporting collectibles, Boer war memorabilia etc. should be careful here and consult Schedule 1 of the Act.
• The Minister of Safety and Security may make regulations with regards to the code of conduct of a dealers association such as SABDA
• The Minister of Safety and Security may recommend a disciplinary code for a dealers association
• The Minister of Safety and Security may make regulations regarding the times during which dealers may acquire and dispose of second-hand goods.
• Accredited associations and charities are not exempt until the minister, by notice in the Gazette, grants accreditation. Accreditation, if possible, may take some time to achieve.
• The Act (2008) comes into being when the President proclaims it in the Gazette
SABDA were not aware of this Bill until the first week of May 2008 when certain events affecting book shops in Long Street brought this to their attention. Police had raided shops there on account of accusations that certain of them had purchased stolen books. The police extracted fines, forced shop owners to purchase second-hand dealer licences, all in contravention of the existing 1955 Act (which does not include books on its list of controlled goods). It is noted that the person alleging the theft declined to press charges with the accused. Therefore dealers were left out of pocket short on money and goods.
SABDA is an association of small independent used book dealers. We do not represent corporate South Africa, therefore the original publication of the bill passed unnoticed since none of us subscribe to the Gazette. Neither did government in any way seek to contact the organised book trade or to involve us in any consultation between the original publication date and May 2008 when we realised the full import of the Bill. Appended to the bill is a MEMORANDUM ON THE OBJECTS OF THE SECOND-HAND GOODS BILL, 2008, and Clause 3 lists bodies consulted. This lists a selection of major corporates, lawyers, Iskor, scrap-metal dealers, SAPS, Wesbank, and other persons that might be expected to employ legal staff to inspect the Gazette weekly to protect their employers interests.
At this stage the Bill had gone a long way and the final draft was with the National Council of Provinces (NCOP) Select Committee on Safety & Security for consideration. As a Section 76 Bill the Constitution required the approval of the NCOP. The Bill had been passed to the NCOP and was with them at the time of our initial involvement.
SABDA acknowledges that it would have been preferable to have approached the Portfolio Committee in the first place, but this knowledge was unknown at the time.
We approached the NCOP and subsequently submitted a 8-page document outlining our objections to the inclusion of books in the Bill. Briefly, our submission made the following points.
1. Books, generally speaking, have low commercial value and have not been the target of organised crime. They are more often than not stolen for personal use and not for profit, thus making tracing them slightly problematic. Stealing expensive books takes an enormous amount of specialist knowledge, hence few books are ever stolen in house robberies etc. The police have no statistics for stolen books.
2. The nature of books means that, generally speaking, they are produced in large quantities with few identifying features. The nature of book collecting, requires that books be kept as close to their original state as possible (you cannot melt a book, recast it and sell it on)
3. Small businesses form the bulk of our trade.
4. These small businesses are often run by few people where high volumes of low value goods are traded.
5. High priced items (R1000.00 +) form a very small part of our trade.
6. Our trade is important to pensioners and students in terms of making reading affordable. It is also important in terms of keeping cultural records alive and available.
7. We contribute towards employment, foreign-exchange and literacy.
8. The regulations of the new bill are unworkable to such small businesses. Similar legislation in other parts of the world has been unenforceable.
9. Because our trade is so small, we are already self-policing it.
10. SARS already requires some of these records to be kept.
11. The effects the bill will have on our trade and entry into it. Closure of businesses due to the administrative burden etc etc.
12. The effect that this will have on our society.
13. A request to remove books from the bill.
We subsequently on Friday 22nd August 2008 made an oral submission to the NCOP Select Committee at Parliament in Cape Town, and were twice further involved in answering questions from them. The Select Committee we found were appreciative of the difficulties that the provisions of the Bill would present to small dealers if enforced to the letter of the law. After due deliberation they recommended that books be excluded from Schedule 1 of the Bill. This position was upheld at a full session of the NCOP in Dewetsdorp.
At this stage we were cautiously optimistic. The Bill then had to be returned to the Portfolio Committee on Safety & Security of the National Assembly from whence it had been referred to the NCOP in the first place. We assumed that this would be a formality.
When we obtained the minutes of the Portfolio Committee meeting of 19th November 2008, we saw that ANC member Ms van Wyk had objected to the removal of books from the Schedule and since the NCOP did not agree to her overruling their amendment the matter was adjourned for the parliamentary recess and until a Mediation Committee could be convened.
At this stage we attempted to contact Ms van Wyk for a meeting at which we hoped to understand the reasons for her insistence on inclusion of books. A meeting could not be arranged with her before Christmas and so we let the matter ride requesting her to provide a date for her after the Christmas festivities. In the end with difficulty we succeeded in meeting with her on 3rd February 2009. We delegated two committee members resident in Cape Town to represent us.
At this meeting they were advised that the decision to include books had been taken, that it was irrevocable, and that we had better involve ourselves in the drawing up of the Regulations to the Act with the SAPS Legal Services. Our two members were presented with a fait accompli, despite the fact that at this stage we believed a Reconciliation meeting was still to be held between the Portfolio and Select Committees, and that further input from parties other than the ANC would be made. On this basis the two members reported back to the SABDA Committee that we had no option other than to work within the system. No opportunity to address the Portfolio Committee was offered.
A Mediation Meeting did in fact take place on the 9th of February 2009 to address the differences between the NCOP Select Committee and the NA Portfolio Committee. At this meeting Ms Van Wyk claimed to have an email from SABDA expressing satisfaction at the inclusion of books within the Bill. DA Member Diane Kohler-Barnard who was aware of SABDA’s position and opposed the inclusion of books, challenged her on the existence of this e-mail. This could not be produced and was never seen at the meeting. Books were included with a vote of 13 for and 2 against.
We note that confusion exists over SABDA's stance after this meeting. It is explicitly noted that at no time did we express our acceptance of what we had been told at this meeting as meeting our needs. Rather we were obliged to accept what had been presented as inevitable. We had no opportunity to present our position to the Portfolio Committee as a whole, we met only with Ms van Wyk, and with DA MP Diane Kohler-Barnard who put our views forward on our behalf.
On the 16th of February 2009, in subsequent correspondence with Ms Van Wyk one of our Committee members discussed the possible relevance of the Act to some events years previously where new books had been stolen from publishers and retailed by a notorious used book trader in Long Street. This was apparently taken as SABDA expressing satisfaction with the bill, and erroneously reported to the media as such by Ms Van Wyk.
The framing of the Regulations (a set of rules outlining exactly how the various provisions in the Act will or will not be applied to various sectors of those trades affected by the Act) we were advised, would ameliorate the wording of the Act for the used book trade since the police did not have the time to monitor the purchase and sale of every used book by the trade. Further, in terms of the Act, we could seek to become an Accredited Association which at the discretion of the Minister would exempt members from some provisions of the Act. Such accreditation would not be automatic, and would be subject to various controls over the operation and constitution of the association.
SABDA on behalf of its members has chosen to involve itself in the process of framing such Regulations as may be given, and will seek accreditation. With the Act apparently all but signed into law by the President we have no alternative and want to see Regulations that will not unduly burden the trade nor indeed the police that have to enforce them.
SABDA is not happy with the inclusion of books within an Act designed to combat the activities of organised crime in such areas as copper cable theft, cellphone theft, jewellery theft, etc. Our stance was, and is, that books have no place being under the jurisdiction of such a law with the provision of draconian penalties for non-compliance with administrative procedures out of all scale for the value of items commonly traded.
SABDA notes, with apprehension, the ongoing indiscriminate harassment of small book dealers, particularly in the Western Cape, by the SAPS. We are aware of dealers who have been forced to take out second-hand dealer licences, who have been issued with 'warnings' and demands to see the registers of purchases and sales made even before the law is enacted, promulgated, or signed into law by our President. Dealers with predominantly used paperback stock of low value are being hounded. If the police can get away with this sort of behavior now, our expectations of what may happen with or without supposedly charitable Regulations is dimmed, and we appeal to SAPS to stem the ardor of their staff in enforcing laws that are not yet on the statute book and in ways that we are repeatedly advised by both MPs and SAPS Legal Services are not the intent of the law.