10 years II – The Big South African Pool Cleaner Export Ban Explanation (sort of)

Remember this post – where I suggested that the penalties for the seemingly innocuous crime of exporting a pool cleaner (or bits thereof) from the Republic of South Africa seemed rather harsh? (Not as harsh as those proposed for the proposed Severe Weather Warning Law,  at least in financial terms, but still pretty nasty.)

In terms of the section 2 of the Import and Export Control Act of 1989 (Act 45 of 1983), it is illegal to export Automatic Pool Cleaners and parts thereof. Section 4 of the Act provides that anyone convicted of exporting Automatic Pool Cleaners and parts thereof may be sentenced to a 10 (ten) year term of imprisonment and a fine of R40 000 (forty thousand rand).

Well, a lawyer read that post and she kindly did some background reading for us in a lawyer library place. I can’t make this bit sound particularly exciting I’m afraid, because it actually isn’t, but it is interesting and it is provided as a public service for Lisl who commented on the original about taking a small shark to Scotland.

Herewith a legal take on that warning on the box (which begins with the word “so”, but hey, you can’t have everything):

So, first off, the Act is wrongly cited – it is Act 45 of 1963, not 1983, which somehow makes a little more sense.

Secondly, the (ancient) Act does provide for the R40K or ten years’ imprisonment or both, but it’s a general section. In other words, it’s a section covering import and export generally – it doesn’t mention the specific goods which it covers. The Act itself does not mention the specific goods it covers, they will have been decided by the Minister:

“(1) The Minister may, whenever he deems it necessary or expedient in the public interest, by notice in the Gazette prescribe that no goods of a specified class or kind or no goods other than goods of a specified class or kind-

(a) shall be imported into the Republic; or

(b) shall be imported into the Republic, except under the authority of and in accordance with the conditions stated in a permit issued by him or by a person authorized by him; or

(c) shall be exported from the Republic; or

(d) shall be exported from the Republic, except under the authority of and in accordance with the conditions stated in a permit issued by him or by a person authorized by him.”

So the penalties would have been intended for export and import contraventions of a far more serious nature. Quite how the Automatic Pool cleaners got onto the list, I have no idea, but at least we know that the penalties were not instituted with pool cleaners in mind.

Act 45 of 1963 has been repealed in its entirety. I have absolutely no idea what Act is being referred to by ‘Import and Export Control Act of 1989’ – I can find no such act (not to mention, it’s nonsensical to refer to a 1989 Act and then cite, wrongly, a 1983 Act in brackets straight after it). The 1963 Act was repealed by a 2002 Act which is long and complicated, and sadly I don’t have the time to see whether pool cleaners make an appearance in terms of that Act. I doubt it.

In short, the packaging needs some work. At the very least, it cites the legislation incorrectly. At worst (and I will try to confirm this on another day!) it refers to legislation neither in force nor incorporated into current legislation. Does that help?

This all sounded very interesting to me (like The Bold And The Beautiful), but I understood very little of it (like The Bold And The Beautiful). Time for me to put it into layman’s terms then:

OK. Basically as I understand it, Automatic pool cleaners and parts thereof [APCs (apt)] were banned from import and export in 1963 (although they weren’t), 11 years before they were invented. Forethought.
So it doesn’t exist and if it did exist, it doesn’t anymore and even if it did exist and doesn’t anymore, it doesn’t/didn’t refer to APCs (apt).

So this is complete BS? In which case, why are they printing it on the side of their boxes?

I don’t get it and I don’t like things I don’t get.

This is why we need legal people. To find out what the other legal people have done/are doing wrong.

Oh, and why are Katie and Bill bickering about who Hope should be with?

To which I got this reply (again beginning with “so”):

Sort of. The legislation will have come into effect in 1963, or shortly thereafter. The Minister will have announced (presumably because it was ‘necessary or expedient in the public interest’) by notice in a Government Gazette that APC’s were of a kind or class etc to be covered by this section. For present purposes I will assume that, astounding as the South African government’s powers of fortune-telling were in 1963, this GG notice was made post the invention of APC’s.

I suspect that given the Kreepy Krauly is a South African invention, one of which (I’m told) we are very proud, the motivation to provide protection under this section was a result of the fact that intellectual property protection was in its infancy. Nowadays a patent would suffice but I’m pretty sure enforcement of international patents at that stage was a far trickier business. Adding it to the list of goods closely controlled for export and import purposes would have given the SA govt some control over the invention. That’s my guess anyway.

As to why they are still printing it on the side of boxes, yeah, you’ve got me there. Habit?

It is possible that APCs are still covered by current legislation and the legislative reference has just not been updated. But as I said, I doubt it.

So there you have it. A legal eagle suggests that you will possibly get away with exporting APCs (apt) from South Africa. I have her name and contact details should you need bailing out of the cells at Edinburgh Airport. That said, as she is a lawyer, this will cost you an arm and a leg, so maybe you’d be better just showing them this post and they’ll let you go. Note that this might not happen as my word has surprisingly little influence in Scotland, where they have only just mastered the basic vowel sounds.

Thanks @MingBean

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