Dear NADA Member,
Re: SAPS Dealer Inspections: Rights and Obligations in terms of the Second-Hand Goods Act
On 08 September 2023 the NADA Chairperson circulated the following information to all NADA members relating to the SAPS Dealer Inspections: Rights and Obligations in terms of the Second-Hand Goods Act.
Due to the extremely high importance of this information, we are again drawing NADA members’ attention to the key issues impacting motor vehicle dealers.
We have also noted that certain Motor Dealers have been receiving mixed feedback from various SAPS Stations when trying to record changes to information that was provided in terms of their original registration as a second-hand goods dealer. For the record, if the responsible person as recorded on the certificate has changed, the Motor Dealer needs to complete a SAPS 604 form and submit same to the SAPS Station where the original application was made, even if the certificate has not reached its expiry date.
Should the personnel at the SAPS Station refuse to process the SAPS 604 form due to the fact that the certificate has not reached its expiry date, please record the details of the SAPS Station, the relevant SAPS personnel who rejected the application for amendment of the certificate and the date and time. This information should be emailed to the NADA Director, Gary McCraw (gary.mccraw@rmi.org.za) so that the matter can be escalated to the SAPS Head Office for attention.
NB – Please ensure that your second-hand goods certificate is always up to date as per the requirements of section 8 of the Act. If a SAPS inspection takes place at your premises and you are found with an invalid certificate (certificate expired and/ or responsible person details reflected thereon is incorrect) and a fine is issued it also will result in a criminal record for the DP and/ or owner of the dealership.
SAPS dealer inspections: rights and obligations:
We have seen media reports of cases on the rise of people impersonating SAPS officers as well as incidents of real SAPS officers seemingly exceeding their powers when inspecting vehicle dealerships. In order to clarify the rights and obligations of dealers, we reached out to the Section Commander of Second-Hand Goods Regulatory Services for SAPS, Colonel Pretorius, and obtained the following guidance:
- Powers of SAPS Officers –
Section 41 of the Criminal Procedure Act No. 51 of 1977 notes that
41.(1) A peace officer may call upon any person—
(a) whom he has power to arrest.
(b) who is reasonably suspected of having committed or of having attempted to commit an offence.
(c) who, in the opinion of the peace officer, may be able to give evidence in regard to the commission or suspected commission of any offence, to furnish such peace officer with his full name and address, and if such person fails to furnish his full name and address, the peace officer may forthwith and without warrant arrest him, or, if such person furnishes to the peace officer a name or address which the peace officer reasonably suspects to be false, the peace officer may arrest him without warrant and detain him for a period not exceeding twelve hours until such name or address has been verified.
(2) Any person who, when called upon under the provisions of subsection (1) to furnish his name and address, fails to do so or furnishes a false or incorrect name and address, shall be guilty of an offence and liable on conviction to a fine not exceeding R300 or to imprisonment for a period not exceeding three months.
Further to the above and in relation to vehicle dealers, the Second-Hand Goods Act 6 of 2009, Section 28(1) notes:
28. (1) A police official may, during times when business activity in respect of second-hand goods is taking place, enter the premises of any registered dealer in order to investigate compliance with this Act and require the dealer, owner, an employee or the person in control of the premises to—
(a) produce the certificate of registration relating to that premises for inspection.
(b) produce any register, record, book or other document relating to the goods in or on the premises for inspection or for the purposes of obtaining copies thereof or extracts therefrom.
(c) produce any goods found in or on such premises for examination; or
(d) explain any entry or absence of any entry in any register, book, record or document found therein or thereon.
While Section 27 says:
27. A police official, prior to exercising any power in terms of this Chapter, must identify himself or herself to the dealer, owner, employee or person in charge of the premises in question, and must produce his or her appointment certificate issued by the National Commissioner.
According to Colonel Pretorius, although the various laws provide a range of powers to SAPS officers it is important to clarify that there are also duties imposed on SAPS members as well. From a legal point of view, a member of the public must comply with any lawful request or instruction issued by a SAPS member. HOWEVER, dealer staff or any member of the public will always have the right to ask for identification or, in the case of search and seizure, a search warrant.
Where a member of the public is of the opinion that a person is impersonating a member of the Police Service, the member of the public may request identification and also follow up with the police station to which such member is supposedly attached to confirm his or her identity. A member of the public also has the right to resist an unlawful arrest.
Based on the above, the crux of Colonel Pretorius’ note is that dealers are obligated to comply with SAPS officials in their reasonable requests (even in cases where there is no warrant) but there is always the right to call for identification and to verify such independently.
NADA dealers are also reminded of the following obligations in terms of the Second-hand Goods Act bearing in mind that the exemptions for Motor Dealers have not yet been published:
Section 8 – Application for amendment of certificate
8. (1) The holder of a certificate of registration must notify the National Commissioner in writing within 30 days if-
(a) there is any change with regard to any information that was submitted in respect of the application for registration.
(b) there is a change in the control or ownership of the dealer; or
(c) there is any change that impacts on the ability of the dealer to meet all or any of the requirements for its registration in term of this Act.
Section 11 – Renewal of registration
11. (1) A registered dealer who intends to renew registration must apply for renewal not more than 180 days and at least 90 days before the date of termination of registration.
(2) An application for renewal of registration must be made to the National Commissioner in the prescribed manner.
(3) An application for the renewal of registration may only be granted if the dealer shows that he or she has continued to comply with the requirements of registration in terms of this Act.
(4) If an application for the renewal of registration has been lodged within the period provided for in subsection (1), registration remains valid until the application is decided.
Section 15 – Display and maintenance of certificates
15. Where a certificate has been issued in terms of this Act, the original certificate must be
(a) displayed in a prominent place clearly visible to the public on the premises for which such certificate has been issued; and
(b) maintained in such a state that it can be produced undamaged and in a legible condition.
Section 23. – Restriction on Dealers
(1) No dealer may—
(d) deliver goods acquired by him or her to a person or change the form or alter the appearance thereof until after the expiration date of a period of seven days from the date of acquisition thereof.
We trust that the information shared will assist you and your staff in respect of your obligations and rights in terms of SAPS’ dealer inspections.
Sincerely,
Gary McCraw
Director
NADA
