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Durban - All the parties involved in a court case to try to overturn restrictions on fireworks have been given until November 15 to identify as many cultural and religious organisations with an interest in this constitutional issue.
The KwaZulu-Natal Fireworks Association made a high court application to declare the fireworks regulations in the Explosives Act unconstitutional or invalid, claiming it has not been enforced over the past 20 years.
The application was made ahead of Diwali to allow fireworks wholesalers and retailers to increase their stock from the regulated 1 000kg and 500kg respectively.
The sectional commander of the SAPS Explosives Unit accused fireworks dealers of trying to secure their profits.
He said 163 warnings and 18 prosecutions had been issued since October 2009.
Last Friday, Durban High Court Judge Rashid Vahed adjourned the matter indefinitely.
The association, its members, the respondents - the Minister of Safety and Security and the Explosives Unit - have until November 15 to identify as many cultural and religious organisations who may have an interest in these constitutional issues.
The applicants include seven fireworks dealers in Durban.
Rajendra Desai, the director of Gandhi and Company - a fireworks dealer in oThongathi (Tongaat), said in his founding affidavit that there were more than 1 200 dealers in fireworks in KZN and more than 12 importers of fireworks.
He estimated that approximately 40 tons of consumer fireworks are imported into South Africa annually, saying this translates into hundreds of millions of retail rand.
“The flourishing industry has created new business entrepreneurs, employment, and other opportunities including revenue for the South African Revenue Services,” read Desai’s affidavit.
He said the industry was allowed to develop and that the relevant authorities, including the SAPS, therefore accepted that the Explosives Act and its regulations were “archaic” and conceived in a pre-constitutional era.
“It is inconceivable that the industry would have developed to the size which it currently is if the act and or the regulations had been enforced,” he said.
Some of the regulations were conceived at a time when there were small general dealer shops and fireworks were sold over a counter from shelves behind.
Today, he said, goods were displayed in a typical supermarket-style and consumers were allowed to handle such goods.
He believed that fireworks manufactured and packaged today were significantly different to the past and that safeguards were entrenched to avoid any risks associated with handling.
According to the current regulations, a wholesale dealer can carry up to 1 000kg of fireworks and a retail dealer up to 500kg.
This, he said, meant a retailer may only carry a total of approximately 40 cartons and a wholesaler about 80 cartons of fireworks at any given time.
He said that if dealers were subjected to the weight limitations in these regulations, the industry would not have developed and grown to its current size.
Further, he said that except for a few isolated incidents, there had not been any prosecution by the authorities for over 20 years and described the display and weight regulations as unconstitutional.
Colonel Johannes van Staden, section commander of the explosives unit, argued, in opposing papers, that the association and its members cannot rely on the probability that existing legislation, “which they have clearly contravened or intend to, might be altered at some stage or labelled unconstitutional”.
“I respectfully submit that this matter is not about constitutional rights or the violation thereof. The real reason for this application is the (association’s seven applicants’) intention to secure their profits above everything else,” he said.
“It is clear that the applicants do not represent the greater Hindu community or any other community in South Africa for that matter,” he said.
He said there was no constitutional violation and that these regulations were in place to protect public safety and to uphold reasonable and necessary safety standards in dealing with the sale of fireworks to the public.
Van Staden said that despite the applicants accepting that they have to operate within the ambit of the law, they have “grossly abused the law” and in certain instances “flagrantly disregarded” the provisions of the act and the regulations.
According to statistics from the Commercial Explosives System (CES), in 2012, 1 029 fireworks dealer inspections were conducted in KZN. In 2008, there were 338; in 2009 there were 631; 548 in 2010; and 727 in 2011.
These inspections were conducted to enforce legal compliance in terms of the current legislation.
The CES also showed that many of the applicants had contravened the regulations during December 2010, October 2011, and November and December 2012.
These contraventions dealt with being overstocked and exceeding the allowed weight for fireworks.
A total of 163 warnings were issue in KZN from October 2009 to October 4, 2013. There was a total of 18 prosecutions in the province from October 2009 to October 4, 2013.