Letter from the South African Jewish Board of Deputies to the Minister of Trade and Industry, Dr Rob Davies, November 9 2012:

Dear Sir

RE: NOTICE 832 OF 2012 IN GOVERNMENT GAZETTE NO 35796 - LABELLING OF GOODS ORIGINALLY FROM ISRAELI OCCUPIED TERRITORY WRONGLY LABELLED AS ORIGINATING FROM ISRAEL IN TERMS OF SECTION 24 OF THE CONSUMER PROTECTION ACT, 68 OF 2008

INTRODUCTION

The South African Jewish Board of Deputies (hereafter SAJBD) hereby provides its comments on the above Notice, pursuant to the invitation contained therein. It is important to note at the outset that these comments specifically do not address the technical irregularities in the Notice and our failure to deal with the irregularities should in no way be interpreted as us abandoning our right to do so at later stage should the Notice find its way into law.

From the outset, we would like to stress once again that the SAJBD is not opposed in principle to the accurate and correct labelling of products. It is of the view that it is most desirable for there to be proper compliance with the terms of the Consumer Protection Act, and so far as that is the intention of the Notice, the SAJBD would support that.

As has been stated in both written and oral submissions submitted previously, the SAJBD's objections to the legislation constitute the following:  

• That the proposed measure employs terminology that is politically biased and questionable in both fact and law.
• That it is in actuality motivated by political considerations rather than technical consumer protection issues.
• That it is inconsistent both with normal South African trade policy and with World Trade Organisation regulations.
• That it is of a country-specific and discriminatory nature
• Finally, that the Jewish community, as a key stake-holder in this matter, has been consistently denied an opportunity of making meaningful input into the process through which these concerns could be addressed and ways of arriving at a mutually satisfactory solution explored.

The SAJBD has identified two basic requirements which, if met, would provide a satisfactory remedy for the above-noted objections and allay its concerns. These are explained under the headings that follow.

1.  Labelling should be politically neutral, technical and descriptive

Much of the disquiet felt by the SAJBD is the manner in which the Notice is worded. In the first instance, the effect of such wording is to overtly politicize what is supposedly a technical, trade issue relating to consumer protection. In the second, the wording of the Notice is itself factually flawed.

Specifically, the Notice would require importers, producers, retailers or suppliers in South Africa to label goods originating from East Jerusalem, Gaza and the West Bank as "Made in Israeli Occupied Territory".

The SAJBD accepts that in these terms it is technically incorrect to label products emanating from such disputed areas as being products of Israel. Consequently, it does not object to their being relabelled so as to more accurately denote their place of origin. However, it is just as incorrect to refer to them as having been produced in "Israeli Occupied Territory', since to describe such territories as "occupied" by Israel is incorrect both in terms of international law and political-historical realities.

• With regard to Gaza, there is no basis whatever to describe it as "occupied" since as early as mid-2005, Israel completely withdrew its military forces from that territory and in addition evacuated in its entirety the Israeli Jewish population that had settled there in the 1967-2005 period.
• Regarding the West Bank and East Jerusalem, it is likewise incorrect to describe it as "Israeli Occupied Territory". Legally speaking, the status of the territory referred to is disputed land; at this time it belongs to neither Palestine nor Israel. It was agreed in the 1995 Oslo that this area would be considered a territory the size and nature of which would be subject to negotiation between the two entities i.e. the Palestinian Authority and the State of Israel and that until agreement was reached its status would be in left in abeyance.

A further strong objection to the wording of the Notice is that it contravenes the World Trade Organisation (WTO) Agreement on Rules of Origin. Since no bi-lateral trade agreement exists between South Africa and Israel, South Africa's labelling legislation is governed by these regulations. The WTO regulations specifically require that rules of origin be "prepared and applied in an impartial, transparent, predictable, consistent and neutral manner". Moreover, it is stressed that such "clear and predictable rules of origin and their application facilitate the flow of international trade" and that rules of origin themselves should be so applied as to "not create unnecessary obstacles to trade".

The Notice singles out only Israel, uses terminology that is both inaccurate and politically biased and requires traders to comply with additional complex rules and regulations. As such, it respectively contravenes WTO requirements of consistency, impartiality and the necessity of not creating unnecessary obstacles to trade.

The SAJBD firmly maintains that it is quite possible for the new legislation to protect the rights of the consumer by providing them with accurate information as to rules of origin without using politically partisan and inflammatory terminology. An alternative suggested by the SAJBD in its previous submissions made on this issue is that the products in question be labelled according to the town/city or Kibbutz from where they originates. In this way, the purpose of labelling of place of origin would be accomplished in an accurate and non-political manner and in so doing would be compliant with international trade agreements.

2.  Labelling legislation should not discriminate but apply consistantly to all trading partners

Reference has already been made above to the discriminatory nature of the Notice, and how such discrimination is inconsistent both with South African trade policy and WTO regulations. To address this, the SAJBD believes that the proposed labeling policy should be applied uniformly and consistently to all disputed territories, not to singling out Israel or any other country for differential and unfavorable treatment.

Should it be deemed mandatory under the Consumer Protection Act to accurately identify the origin of products from the West Bank, then the same principle should be made to apply uniformly to goods from all disputed areas around the world. Hence, it would apply to all international zones that are considered in certain quarters to be ‘occupied' or disputed, amongst them Northern Cyprus, Western Sahara, Tibet and Kashmir.

Failing such wider application of this principle in the legislation, the continued focusing solely on the case of Israel and the Palestinian territories, would be discriminatory and hence non-compliant with international trade practices and inconsistent with normal South African trade policy. It would demonstrate, in fact, that the real aim of the legislation is not enhanced consumer protection but rather the pursuit of an anti-Israel political agenda.

Concluding Remarks

We feel it is relevant to conclude by recording our disappointment at the fact that this Final Notice was issued without waiting for the relevant stakeholders to submit their "minimum requirements", as was agreed at the Parliamentary Portfolio Committee hearings. In terms of this, the SAJBD, SA Zionist Federation and Open Shuhada Street would first make these submissions and only then would the Final Notice be issued. In this regard, I refer to the statement by Mr Netshitenzhe from your department made at the conclusion of that meeting, in which he said "There will not be a final notice without talking to the public." Had these submissions been taken into account beforehand, the objections we have to the Notice detailed above might have been addressed.

We wish to conclude by again emphasizing that the SAJBD does not object to the principle of labelling products according to their origins. Rather, it urges that this is pursued in an appropriately impartial, non-discriminatory manner that focuses on addressing technical trade issues rather than making partisan political statements. In arriving at a mutually acceptable solution, it is recommended that this be dealt with through direct engagement between the Department of Trade and Industry and its Israeli counterpart.

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