Seizure of Expired and Counterfeit Food Products - How Legal is This?

By Janusz Luterek of Hahn & Hahn SA (Pty) Ltd on 20 November 2023

Recently, raids on wholesalers, retailers, and spazas have been taking place countrywide in the hunt for "expired" foodstuffs, counterfeit foodstuffs, and otherwise non-compliant foodstuffs e.g. labelling issues. These raids are conducted by what appear to be cobbled-together task teams of EHP's, Consumer Protection officials (not sure what capacity), South African Police Services (apparently looking for illegal immigrants), and perhaps other unknown government officials.

During these raids, products are hastily identified as illegal and then immediately seized and destroyed, on location in some cases (I have seen video footage of a waste disposal truck reversing up to a wholesaler door and product being taken straight from the sales floor and disposed of into the truck where it is immediately crushed!)

Here is the problem: no one may simply enter a store and seize and destroy stock without a warrant or unless there is apprehension of disposal of the evidence or risk of immediate harm to the public. This is definitely not the case where the letter size on a label is wrong or a dry grocery item is being sold a few days after its Best Before date (WHICH IS LEGAL!!!!).

The Consumer Protection Act in Sections 103 to 105 makes it clear that a Warrant issued by a Judge or Magistrate is required before any product can be seized. Likewise, similar principles apply under the Criminal Procedure Act. There is also no procedure under the Foodstuffs, Cosmetics, and Disinfectants Act that would allow such action to be taken.

Regulation R328 grants EHP's powers to inspect, sample, and detain food pending the return of laboratory results, and ONLY if the laboratory results show the product to be unsafe or the EHP is satisfied that the foodstuff is unsound, or unwholesome or contaminated can the product be seized in terms of Reg 4 of R328 - NOTHING IN R328 ALLOWS SEIZURE OF POORLY LABELLED PRODUCTS!!

The officials are probably well-meaning (to the public of South Africa) but that does not excuse the illegality of what is being done and the losses the small businesses whose stock is being seized and forthwith destroyed without recourse suffer. These small business owners are sadly ignorant of their rights and do not have the funds to take on the "government" to claim compensation and interdict such future actions.

To complicate matters further, the EHP's are municipal employees and act in terms of municipal by-laws, the Consumer Protection officials may be Provincial but could be from the National Consumer Commission, and the SAPS are a national responsibility - so who does the small business owner sue, and where?

If this is happening in a small Eastern Cape town, would the small business owner have to get a High Court interdict and sue for damages in the High Court of the Eastern Cape?  That is an expensive exercise, but the same thing is happening in other municipalities and other provinces!!

For more information or advice, please contact the author:

Janusz Luterek