Temic related offences in SA

No other individual may in possession of, trade with or use Temik® for any purposes.

ALDICARB RELATED OFFENCES IN SOUTH AFRICA©

 LEGAL FRAMEWORK UNDER WHICH ALDICARB IS REGULATED AND TYPICAL MISDEMEANORS WITH ALDICARB

 Version 2012.1    March 2012

 Aldicarb in South Africa.

    1. Aldicarb is regulated as an agricultural remedy under the Fertilizers, Farm, Feeds, Agricultural Remedies and Stock Remedies Act, 1947 (Act Nr. 36 of 1947) and is only registered as one commercial product namely Temik® (registration number L0590) in South Africa by Bayer CropScience.
  1. It contains 15% aldicarb in the formulation that consists of 0.5 mm diameter black granules that may sometimes have a dark blue tinge. There is no dust present in the Temik® formulation and if a container is opened a faint, pungent odour is discernable.
  2. Temik® that was manufactured after November 2010 has a dark blue tinge, contains an extremely bitter repellent and causes immediate nausea if ingested. Temik® that was manufactured before November 2010 consists of dark grey to virtually black granules and also contains the extremely bitter repellent.
    1. Many unregistered aldicarb formulations are in circulation in South Africa. Some of these look like short extruded cylinders (like rifle propellant) while others are unevenly sized round granules that range from pale grey to black. The short extruded cylindrical formulation contains a lot of dust and has a very pungent odour. The round granular aldicarb formulations are mostly dust free without significant odours.
    1. Temik® and unregistered aldicarb formulations are illegally imported (smuggled) into the country by illegal immigrants and South African citizens. This happen mostly through the eastern and northern borders of Limpopo, Mpumalanga and Northwest. Smuggling (illegal importation) of both Temik® and unregistered aldicarb formulations is a contravention of section 16 (1) (a) of  Act Nr. 36 of 1947 (verbatim quote from the Act) as it is imported in unmarked containers without labels (in the case of Temik®) or as such aldicarb formulations are not registered in South Africa:

16  Import of fertilizers, farm feeds, agricultural remedies and stock remedies

(1) No person shall import any fertilizer, farm feed, agricultural remedy or stock remedy into the Republic unless-

(a) such fertilizer, farm feed, agricultural remedy or stock remedy is registered in terms of this Act, is of the composition and efficacy specified in for registration thereof, possesses all chemical, physical and other properties so specified and complies with the requirements prescribed in respect thereof and is packed in a sealed container which is marked or labeled in the prescribed manner with the prescribed particulars;

  1. Temik® may therefore be imported by the legal registration holders namely Bayer CropScience through approved harbours and other ports of entry.
  2. As Temik® is not available in any other African countries it can therefore not be imported by any other individual or institution into South Africa.
    1. Regulatory requirement applicable to Temik®:
  1. Temik® was exclusively imported by Bayer CropScience directly from the USA in pre-packed containers that are stacked on pallets. No other company or individual may import any aldicarb formulation into South Africa for local distribution and use.
  1. The Registrar of Act Nr. 36 of 1947 may issue written permission for the import of aldicarb or aldicarb formulations (refer to section 16 (2) of Act Nr. 36 of 1947):

(2) Notwithstanding the provisions of subsection (1) the registrar may, in his discretion and on such conditions as he may determine, in writing permit the import of any consignment of any fertilizer, farm feed, agricultural remedy or stock remedy which does not comply with the requirements referred to in subsection (1) (a).

The possibility of this happening is, however, highly unlikely in view of the serious situation with the misuse of aldicarb.

  1. The Registrar of Act Nr. 36 of 1947 issued special registration conditions in accordance with sections 3 (2) (a) and 3 (3) of Act Nr. 36 of 1947 to the registration holders of Temik® in order to reduce the availability thereof and to improve the control of Temik®:
  1. Only dealers/agents that are in possession of valid Temik® pest control operator’s licenses as issued by the Registrar of Act Nr. 36 of 1947 may trade with Temik®.
  2. Only bona fide farmers that have undergone training by Temik® pest control operators, whose names appear in the list of authorised persons and who have suitable lockable storage space (in accordance with the Hazardous Substance Act, 1973 (Act Nr. 15 of 1973)), may buy, possess and use Temik®.
  3. This is a verbatim quote from the Temik® label:

TEMIK AS A RESTRICTED USE PESTICIDE

ONLY PERSONS REGISTERED AS AUTHORISED PEST CONTROL OPERATORS (ALDICARB APPLICATION) IN TERMS OF ACT NO. 36 OF 1947 MAY ACT AS DEALER AGENTS OR DISTRIBUTOR AGENTS FOR TEMIK.

APPLICATION OF TEMIK MUST OCCUR UNDER THE SUPERVISION OF A  PERSON WHO HAS ATTENDED THE TEMIK STEWARDSHIP COURSE, PASSED THE EXAMINATION AND WHOSE NAME HAS BEEN INCLUDED IN A LIST MAINTAINED FOR THIS PURPOSE BY THE REGISTRAR, ACT NO. 36 OF 1947.

THE AUTHORISED PEST CONTROL OPERATOR (ALDICARB APPLICATION) MUST ENSURE COMPLIANCE WITH ALL CONDITIONS OF THE REGISTRATION IN TERMS OF ACT NO. 36 OF 1947 AS WELL AS THE REQUIREMENTS OF THE HAZARDOUS SUBSTANCES ACT, ACT NO. 15 OF 1973.

  1. Temik® may only be kept, bought, sold, transported, used and disposed of in the original container that bears the original label. It is a 20 kg cardboard container in which the Temik® is sealed in a foil bag. Each 20 kg container has a unique bar code by which it can be traced and its movements be monitored.
  1. Temik® may not be kept, bought, sold, transported, used or disposed of (refer to Regulation Nr. 181 van 7 February 2003), unless it is used for trial purposes, or authorised by the Registrar or applied as instructed by the label (verbatim quote from the regulation):

PROHIBITION OF THE SALE, ACQUISITION, DISPOSAL OR USE OF AGRICULTURAL REMEDIES AND STOCK REMEDIES

The sale, acquisition, disposal or use of an agricultural remedy or a stock remedy, other than in the container and with the label as approved by the Registrar is hereby prohibited except

(a) When being applied as indicated on the approved label,

(b) for the purposes of conducting trials, and

(c) if prior approval is obtained from the Registrar

  1. Temik® may only be imported through prescribed (approved) harbours or ports of entry according to section 16 (3) of Act Nr. 36 of 1947 (verbatim quote from the Act):

(3) Fertilizers, farm feeds, agricultural remedies or stock remedies imported shall-

(a) only be imported through a prescribed port or place;

  1. The Registrar of Act Nr. 36 of 1947 prescribes which harbours or ports of entry are approved for the import of Temik®.
    1. Regulatory requirements applicable to other aldicarb formulations.
  1. No aldicarb formulations other than Temik® may be kept (possessed), bought, sold, offered by, advertised by, bartered with, transported, used or disposed of by any individual or institution as there are no registrations for other aldicarb formulations in South Africa. Refer to section 7 (1) (a) of Act Nr. 36 of van 1947 (verbatim quote from the Act):

7 Sale of fertilizers, farm feeds, agricultural remedies and stock remedies

(1) No person shall sell any fertilizer, farm feed, agricultural remedy or stock remedy unless-

(a) it is registered under this Act under the name or mark under which it is so sold:

  1. Note that the term sell or sold in terms of the definitions of the act section 1) means the following (full quote from the Act): agree to sell, or to offer, advertise, keep, expose, transmit, convey, deliver or manufacture for sale or to exchange or to dispose of to any person in any manner for any consideration whatever, or to transmit,

convey or deliver in pursuance of a sale, exchange or disposal as aforesaid; and ‘sale’ has a corresponding meaning

  1. Irrespective of being in a labelled container (foreign label) or not it remains illegal to be in possession an unregistered product for any purposes whatsoever.
  2. Take note that counterfeit labels and containers are manufactured illegally and fraudulently in South Africa. There is a possibility that aldicarb formulations may be packaged in counterfeit containers with counterfeit labels for illegal trade and use in South Africa.
  1. No aldicarb formulations other than Temik® may be imported into South Africa unless it is authorised in writing by the Registrar of Act Nr. 36 of 1947. Refer to section 16 (1) (a) and (2) of Act Nr. 46 of 1947 (verbatim quote from the Act):

16  Import of fertilizers, farm feeds, agricultural remedies and stock remedies

(1) No person shall import any fertilizer, farm feed, agricultural remedy or stock remedy into the Republic unless-

(a) such fertilizer, farm feed, agricultural remedy or stock remedy is registered in terms of this Act,

(2) Notwithstanding the provisions of subsection (1) the registrar may, in his discretion and on such conditions as he may determine, in writing permit the import of any consignment of any fertilizer, farm feed, agricultural remedy or stock remedy which does not comply with the requirements referred to in subsection (1) (a).

  1. Agricultural remedies may only be bought, sold and used for those purposes and in those manners as indicated on their labels. Note that the term sell or sold includes a range of activities as described in paragraph 1 e i 1. It is therefore stated unambiguously in Regulation 1716 of 26 July 1991 that the use of agricultural remedies for purposes and in manners other than those indicated on the labels, is a punishable offense (verbatim quote from the regulation):

Prohibition of the acquisition, disposal, sale or use of agricultural remedies or stock remedies except in accordance with certain conditions.

I, André Isak van Niekerk, Minister of Agriculture, acting under section 7bis of the Fertilizers, Farm Feeds, Agricultural Remedies and Stock Remedies Act, 1947 (Act No. 36 of 1947), hereby prohibit the acquisition, disposal, sale or use of an agricultural remedy or stock remedy for a purpose or in a manner other than that specified on the label on a container thereof or on such container.

  1. aldicarb related offences in South Africa.
    1. Illegal import (smuggling) of Temik® and other aldicarb formulation.
  1. Any individual or institution that imports unregistered aldicarb formulations through the borders of South Africa contravenes section 16 (1) (a) of Act Nr. 36 of 1947.
  2. Any individual or institution that imports Temik® into South Africa and fails to do so through the approved harbours or ports of entry contravenes section 16 (3) (a) of Act Nr. 36 of 1947.
    1. Illegal possession of Temik® and other aldicarb formulations.
  1. Any individual who is in possession of Temik® in and who is not in possession of a valid Temik® pest control operators licence or who is not a bona fide farmer who has undergone the required Temik® training and who is listed in the list of approved persons contravenes Regulation Nr. 1716 of Act Nr. 36 of 1947.
  1. Any individual that has in his possession Temik® in any containers other than the original containers with the original labels or who conveys, disposes of, acquires, sells or uses such Temik® contravenes Regulation Nr. 181 of Act Nr. 36 of 1947, irrespective of whether –
  1. such an individual is in possession of a valid Temik® pest control operators license; or
  2. such an individual is a bona fide farmer who has undergone the required Temik® training and is listed in the list of approved persons.
  1. such an individual is in possession of a valid Temik® pest control operators license; or
  2. such an individual is a bona fide farmer who has undergone the required Temik® training and is listed in the list of approved persons.
  1. Any individual that repackages Temik® in any containers other than the original containers with the original labels contravenes section 7 (1) (b) and (c) as well as Regulation Nr. 181 of Act No. 36 of 1947, irrespective of whether –
  1. such an individual is in possession of a valid Temik® pest control operators license; and
  2. such an individual is a bona fide farmer who has undergone the required Temik® training and is listed in the list of approved persons.
    1. Illegal buying or acquisition of, and selling or disposal (giving away) of Temik® or any other aldicarb formulations.
  1. Any individual that buys or acquires Temik® and who is not in possession of a valid Temik® pest control operators license or who is not a bona fide farmer who has undergone the required Temik® training and is listed in the list of approved persons, contravenes Regulation Nr. 1716 of Act Nr. 36 of 1947.
  2. Any individual that sells or disposes of Temik® and who is not in possession of a valid Temik® pest control operators license, contravenes Regulation Nr. 1716 of Act Nr. 36 of 1947.
  1. Bona fide farmers that have undergone the Temik® training, have suitable storage space for the product and are listed in the list of approved persons may acquire, buy, possess and use Temik® but may not resell or dispose of Temik® unless they are registered as Temik® pest control operators.
  1. Any individual that buys, acquires, conveys, sells or disposes of unregistered aldicarb formulation contravenes section 7 (1) (a) of Act Nr. 36 of 1947.
    1. Illegal use (application) of Temik® or any other aldicarb formulations.
  1. Any individual that uses Temik® who is not in possession of a valid Temik® pest control operators license or is not a bona fide farmer that has undergone the required Temik® training and is listed in the list of approved persons contravenes, Regulation Nr. 1716 of Act Nr. 36 of 1947.
  2. Poisoning of guard dogs or any other companion animals including livestock with Temik® or any other aldicarb formulation is a contravention of Regulation Nr. 1716 of Act Nr. 36 of 1947 as well as section 2 (1) (d) and (n) of the Animal Protection Act, 1962 (Act Nr. 71 of 1962).
  1. Poisoning of rodents with Temik® or any other aldicarb formulation is a contravention of Regulation Nr. 1716 of Act Nr. 36 of 1947, irrespective of the fact that rodents may be classified as pest animals.
  2. Poisoning of human beings with Temik® or any other aldicarb formulation is a contravention of Regulation Nr. 1716 of Act Nr. 36 of 1947 and is also subject to the penalty clauses of the Criminal Procedure Act, 1977 (Act Nr. 51 of 1977).
  3. The use of Temik® in an attempt to control a pest or plague on specific crops other than that specified on the Temik® label is a contravention of Regulation Nr. 1716 of Act Nr. 36 of 1947.
  1. The intention (future purpose) to acquire, buy, convey, sell or dispose of Temik® for any purposes other than those indicated on the label thereof, is a contravention of Regulation Nr. 1716 of Act nr. 36 of 1947.
  2. The intention (future purpose) to acquire, buy, convey, sell or dispose of any aldicarb formulation other than Temik®, is a contravention of section 7 (1) (a) of Act Nr. 36 of 1947.
    1. Illegal recommendation, promotion and advertising of Temik® or any other aldicarb formulations.
  1. The oral, telephonic, written, electronic (as per electronic mail, website, short message service or any other cellular telephone communication), televised broadcasting (as per television) or radio broadcasting (as per radio programme or radio interview) recommendation, promotion and advertising for the use of Temik® for any purpose or in any manner other that specified in the label thereof, is a contravention of Regulation Nr. 1716 of Act Nr. of 1947 irrespective of the person or institution who does so.
  2. The oral, telephonic, written, electronic (as per electronic mail, website, short message service or any other cellular telephone communication), televised broadcasting (as per television) or radio broadcasting (as per radio programme or radio interview) recommendation, promotion and advertising for the use of any aldicarb formulation other than Temik® for any purpose whatsoever, is a contravention of section 7 (1) (a) Nr. of 1947 irrespective of the person or institution who does so.

Investigation protocols for aldicarb related offences in South Africa.

 Should an investigation officer suspect that a crime has been committed with an aldicarb formulation or that there is criminal intent with aldicarb, the following protocol should be followed:

  1. Confiscate all the aldicarb formulation in the possession of the perpetrator. Mark each container with recognisable descriptions as should be done with the normal handling of crime evidence.
  2. Take a sworn statement from the perpetrator in which he must declare where the aldicarb formulation was obtained from.
  1. Submit a representative sample of the aldicarb formulation to the SAPS Forensic Unit for toxicological analysis and conformation of the chemical contents of the sample.
  2. Formulate a charge sheet in which the perpetrator is charged under all possible sections and regulations of all relevant acts mentioned in this documents.

 If any animals or people are poisoned the investigation officer must contact the Griffon Poison Information Centre immediately for assistance with the emergency treatment protocols for poisoned patients or animals.

  1. If large quantities of aldicarb formulation are found during the course of the investigation the full extent of the cache should be determined to draw up the charge sheet. Contact the Griffon Poison Information Centre to arrange for the collection and destruction of such large quantities of aldicarb formulation.
  2. If an individual who is a registered Temik® pest control operator or a bona fide who has undergone the required Temik® training and is listed in the list of approved persons be the individual who committed the suspected offense the case should be reported to Bayer CropScience’s Stewardship Manager Dirk Uys on 011-921-5206 and dirk.uys@bayercropscience.com.
  1. Take precautions to protect investigation officers and any other person from direct dermal contact with aldicarb formulations and inhalation of dust or fumes.

 Any products that are suspected to be aldicarb formulations must be handled with gloves.

 If members of the public report the poisoning of dogs sworn statements must be taken from the plaintiffs as well as from veterinarians if such clinical experts performed post mortems on animal carcasses or treated such poisoned animals. 

  1. Samples should be taken from the animals’ stomachs, baits that were found and any containers with aldicarb formulations. These samples must be submitted to the SAPS Forensic Unit for toxicological analysis and confirmation of the chemical contents of such samples.

 Should investigating officers have any further queries they are encouraged to contact the Griffon Poison Information Centre for advice at any time. Poisoned baits laced with aldicarb formulation

 GRIFFON POISON INFORMATION CENTRE (24 HOUR POISONING EMERGENCY HELPLINE) 082 446 8946

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