Page 25 - EngineerIt April 2021

LEGAL OPINION

Garyn Rapson Paula-Ann Novotny Emma Bleeker

(PROs). This will result in a market customers (i.e. the brand owners) to heeded brand owner calls to revisit the
influx of PROs, each driven by separate join the scheme and will ultimately be allocation of responsibility. On 15 March
corporate agendas and individual responsible if they do not, which is 2021, government proposed amendments
compliance schemes, which may override impracticable. This wide net further to the EPR regulations and the paper
each other or complicate the lines of introduces concerns of “double-taxation”. and packaging sector notice, which seek
responsibility. This also leaves small If the brand owners will be responsible to amend the definition of “producer” to
PROs by the wayside. for the EPR fee obligations, why should mean persons who put a certain volume
However, the wide definitions the upstream manufacturers also be? of identified products onto the market
undermine the effectiveness of the EPR In addition, extending the scope of EPR on an annual basis, and to differentiate
regime by blurring the lines in allocating to multiple parties creates a very real between scenarios where branded goods
responsibility throughout the value reporting challenge, where duplications are sold by local brand owners, foreign
chain. This has several unintended of declared “sales” and “targets” will brand owners or retailers. However,
consequences. be reported to government across the for local brand owners, the proposed
Firstly, limiting the scope to those supply chain, some of which may not amended definition of producer continues
brand owners who sell the final product or be reconcilable. As a result, the industry to extend the responsibility to the product
put it on the market is important because could face an issue of double counting, manufacturer, converter and/or the brand
it levels the playing field between locally which causes significant complications owner. There is no doubt that the “and/
manufactured goods, goods produced by for accurately calculating collection and or” language drafted into the proposed
third parties, goods which use imported recycling rates for products placed on amendments creates ambiguity as to who
packaging and fully imported goods. the market. is accountable; this leads to a real risk
Regulating only locally based supply Thirdly, the fact that sector notices that some producers will use this loophole
chains will discourage local manufacturing and schemes for lighting equipment and to avoid contributing to EPR schemes.
and turn the country into an importer of electrical and electronic equipment do And again, the local producers only cover
finished goods to circumvent regulation. not seem to be drafted as widely as the a portion of the market.
Overly broadening or restricting the scope paper and packing sector scheme, begs It therefore appears that the proposed
of ‘identified product’ components also the question of equity and fairness. Why amendments, which are currently out
blurs the lines between regulated and are equipment products regulated only for public comment, are ineffective and
unregulated manufacturing activities. in their final working and saleable state, continue to stray from the international
In addition, including converters in the while paper, packaging and some single- legal position.
definition of producer opens the field use products are regulated throughout the South Africa’s approach is driven
to power plays by large monopolies / supply and value chain? by the need to transition from the
duopolies in the South African market – It has been widely reported that voluntary structure run by industry to
where one cannot establish a PRO without international EPR regulation has been the legislated structure run by brand
them, but the effectiveness of the resultant effective in driving the circular economy owners. South Africa’s attempt at
PRO may be constrained by the veto agenda. It is therefore debatable whether creating a hybrid EPR model is, however,
powers of these large supply chain actors. the South African legislature was correct questionable without the necessary clear
Secondly, the current scope of the to try and reinvent the wheel, or whether allocations of responsibility or supporting
EPR regulations means that a packaging it will succeed. transitional arrangements. Time will tell
manufacturer in South Africa will have Recent developments seem to whether our implementation of this new
to enlist the co-operation of all of its indicate that government may have regime will succeed. n

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