1. The nature of Technical Regulations in WTO context

Technical Regulation. Document which lays down product characteristics or their related processes and production methods, including the administrative provisions, with which compliance is mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a product, process or production method.

Standard. Document approved by a recognised body, that provides, for common and repeated use, rules, guidelines or characteristics for products and related processes or production methods, with which compliance is not mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a product, process or production method.

WTO/TBT Agreement on Technical Barriers to Trade
(Italics added)

    1. Governments have a right and an obligation to intervene in markets to assure health and safety of their citizens, due to

    1. Such interventions can create barriers to trade; hence international agreements are in place to regulate such interventions (called Technical Regulations), e.g. the WTO Agreement on Technical Barriers to Trade (WTO/TBT). An analysis of the Articles of the WTO/TBT lead to a number of very important conclusions, namely

2. International Technical Regulation best practice

2.1 In recent years, as regions struggle to meet the requirements of the WTO/TBT and their own free trade arrangements, a Technical Regulation best practice is emerging.

    1. This Technical Regulation best practice encompasses five essential building blocks (see figure 1) for the effective and efficient implementation of Technical Regulations.


Technical Regulation

















































Product Characteristic









Administrative Procedures

















































Conformity Assessment












































Figure 1: Building blocks of Technical Regulation best practice

The building blocks in particular are:

3. Current situation in South Africa

3.1 Technical Regulations are in force in South Africa. These differ appreciably in the way they are being implemented, due to the fact that responsibility is apportioned amongst a wide variety of Government Departments and Regulators. They also differ appreciably in their effectiveness in providing the required outcome.

    1. A large number of the product characteristics of the Technical Regulations are embedded directly within legislation. This has lead to an unworkable situation, as

The result has been that such technical regulations are no longer effective.

    1. A review of the administrative procedures for Technical Regulations in South Africa shows that a large number do not lead to the desired output or result. This is mainly due to weaknesses in the Technical Regulations to address all the elements of an effective and efficient regime, namely

    1. South Africa as a signatory of the WTO Agreement on Technical Barriers to Trade has to fulfil a number of obligations. These include:

Whereas the notification process for standards is up to date, South Africa cannot fulfil its obligations regarding Technical Regulation notifications. Technical Regulations are being developed in many government areas, they are not referencing standards, and no system exists that would inform the SABS (as the WTO/TBT Information Point) regarding such developments.

4. Technical Regulation best practice models.

4.1 Decision to regulate.

Government performance is under pressure. Budget deficits and economic constraints must be managed even as citizens demand more action to deal with emerging social and environmental issues. As a result, the public sector must learn to do more with less, to do things differently and better. Government must find effective ways to make responsive policy decisions and to identify the right mix of instruments and incentives to implement.

The Organisation for Economic Co-operation and Development (OECD) has developed a checklist to facilitate more effective and efficient regulatory decision making. The list comprise ten questions designed to improve the legal and factual basis for technical regulations, clarifying options, assisting officials in reaching better decisions, establishing more orderly and predictable decision processes, identifying existing regulations that are outdated or unnecessary, and making government actions more transparent. The OECD Reference Checklist for Regulatory Decision-Making is attached as Appendix A.

Recommendation 1: The government should implement the OECD Reference Checklist for Regulatory Decision-Making (or a similar customised check list) in its own decision making process for developing new technical regulations, as well as in a review programme of existing technical regulations.

    1. Technical regulation legislation model

Recommendation 2: Government should develop and implement the best practice technical regulation legislation model for use throughout central and provincial government levels, irrespective of the departments or regulators involved. One of the most effective and efficient ways to ensure compliance is to promulgate an overarching technical regulatory framework as law that has to be complied with, otherwise the technical regulation is considered invalid.

    1. Product Characteristics/Standards

Recommendation 3: Government should use standards as "deem to satisfy" rules or by reference directly in legislation, depending on the particular commodity to be regulated. Government should refrain from placing the required product characteristics directly into legislative text, as this is a most in-effective and in-efficient way of dealing with the matter.

    1. Regulatory Authority

Recommendation 4: The South African government should seriously consider implementing a review of all the regulators and technical regulations in order to rationalise some of the domains.

Recommendation 5: The South African government should seriously consider setting up a Technical Regulation Office similar to that of the French government. The Head of this Regulation Office, as a very senior government official, would serve on all the Boards of the various Regulators, thereby bringing about the required liaison amongst the regulators, at the same time facilitating compliance with the technical regulation best practice model.

    1. Conformity Assessment

Conformity Assessment. Any procedure used, directly or indirectly, to determine that relevant requirements in technical regulations or standards are fulfilled.

Explanatory note: Conformity assessment procedures include, inter alia, procedures for sampling, testing and inspection; evaluation, verification and assurance of conformity; registration, accreditation and approval as well as their combinations.

WTO Agreement on Technical Barriers to Trade

Recommendation 6: The government should, as part of the technical regulation best practice model, provide guidance as to the risk assessment and the concomitant conformity assessment requirements to be implemented for each commodity to be regulated.

Recommendation 7: The government should open the conformity assessment side of technical regulations to commercial service providers should third party certification be required. A carefully constructed system of accreditation by SANAS (to denote technical competency) and approval by the Regulatory Authority (to ensure judicial liability of the service provider) should be put in place.

    1. Sanctions

Sanctions for non-compliance are very necessary, but should be dealt with through the proper judicial system. A combination of

Recommendation 8: The government should enact proper sanctions that can be brought to bear on suppliers that do not meet the requirements of Technical Regulations

  1. Conclusion

A number of countries, spearheaded by some of the OECD countries, are in the process of a total review of their technical regulations. In view of the current state of the effectiveness of technical regulations in South Africa and the importance of technical regulations in forthcoming trade negotiations, a review of the total system and the implementation of a best practice model is indicated.


MG Kellermann


June 2000

APPENDIX A: The OECD Reference Checklist for Regulatory Decision-Making

{OECD Occasional Paper in Public Management [OCED/GD(93)181]}


Question No. 1

Is the problem correctly defined?

The problem to be solved should be precisely stated, giving clear evidence of its nature and magnitude, and explaining why it has arisen (identifying the incentives of the affected entities).

Question No. 2

Is government action justified?

Government intervention should be based on clear evidence that the government action is justified, given the nature of the problem, the likely benefits and costs of action (based on a realistic assessment of government effectiveness), and alternative mechanisms for addressing the problem.

Question No. 3

Is regulation the best form of government action?

Regulators should carry out, early in the regulatory process, an informal comparison of a variety of regulatory and non-regulatory policy instruments, considering relevant issues such as costs, benefits, distributional effects, and administrative requirements.

Question No. 4

Is there a legal basis for regulation?

Regulatory processes should be structured so that all regulatory decisions rigorously respect the "rule of law"; that is, responsibility should be explicit for ensuring that all regulations are authorised by higher- level regulations and consistent with treaty obligations, and comply with relevant legal principles such as certainty, proportionality, and applicable procedural requirements.

Question No. 5

What is the appropriate level (or levels) of government for this action?

Regulators should choose the most appropriate level of government to take action, or, if multiple levels are involved, should design effective systems of co-ordination between levels of government.

Question No. 6

Do the benefits of regulation justify the costs?

Regulators should estimate the total expected costs and benefits of each regulatory proposal and of feasible alternatives, and should make the estimates available in accessible format to decision-makers. The cost of government action should be justified by its benefits before action is taken.

Question No. 7

Is the distribution of effects across society transparent?

To the extent that distributive and equity values are affected by government intervention, regulators should make transparent the distribution of regulatory costs and benefits across social groups.

Question No. 8

Is the regulation clear, consistent, comprehensible, and accessible to users?

Regulators should assess whether rules will be understood by likely users, and to that end should take steps to ensure that the text and structure of rules are as clear as possible.

Question No. 9

Have all the interested parties had the opportunity to present their views?

Regulations should be developed in an open and transparent fashion, with appropriate procedures for effective and timely input from interested parties such as affected businesses and trade unions, other interest groups, or other levels of government.

Question No. 10

How will compliance be achieved?

Regulators should assess the incentives and institutions through which the regulation will take effect, and should design responsive implementation strategies that make the best use of them.

APPENDIX B: Non-exhaustive list of Regulators (making use of technical regulations) currently active in various sectors in South Africa

  1. Consumer protection issues

  1. Road safety

  1. Occupational Health and Safety

  1. Building and Construction

  1. Health and Foods

  1. Environment

  1. Telecommunication

  1. Energy

  1. Miscellaneous