Gary Moore is a Senior Consultant at the Free Market Foundation. He was a practising attorney in Johannesburg for 30 years. He is the author of published articles and monographs about the rule of law, the legality of state action, the meaning of statutes, and laws affecting small business.
The views expressed in the article are the author's and not necessarily shared by the members of the Foundation.
This article may be republished without prior consent but with acknowledgement to the author.
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This article was first published on Businesslive.co.za on
28 November 2022
“Health” laws harm small business
Regulations require restaurants to have windows of minimum size and rust-free walls. If a restaurant does not comply, an inspector tells the owner to remedy this. The focus is compliance, not hygiene.
Analyses by environmental-health and medical officers in Cape Town and KwaZulu-Natal show that food from street vendors is scarcely ever unsound, because it is cooked and sold immediately.
There is a health risk from preparing food with dirty hands. Regulations require personnel to wash their hands after visiting the toilet. This is unenforceable.
Restaurants provide good food so customers will return, not to comply with regulations.
A restaurant can be exempted from stringent regulations, if an inspector reports that they impose unreasonable requirements on it and exempting it won’t lead to a health hazard.
Inspectors have become flexible, but this leads to discretionary enforcement.
It would be preferable if stringent regulations flexibly applied were replaced with reasonable ones uniformly applied. Some may prefer higher standards for some communities, but health standards should not differ in different areas.
Health officers should provide guidance about how to handle food. The Department of Health acknowledges this improves hygiene most effectively.
The Foodstuffs Act prohibits selling contaminated food. Food not for sale need not comply. Poultry-meat delivered to food-handling businesses must be conveyed by vehicle with an internal temperature of 4°C or less. Poultry-meat for other premises need not comply. So, if a housewife will cook poultry-meat to serve her paying bed-and-breakfast guests she must transport it home in a vehicle chilled to that temperature, but not if serving her family.
Liquor Acts’ restrictions are unjustifiable on health grounds. Provincial Acts permit licensees to sell liquor for consumption off-premises (as a liquor store does) or on-premises (as a restaurant does), but not both. Liquor stores must close earlier on weekends.
These restrictions don’t curb drinking. Anyone can buy lots of liquor before closing.
The government admitted in 1997 that the state licenses less than 10% of 250,000 liquor outlets. In 2014, most of some 200,000 shebeens were reckoned to be illegal, their small turnover not justifying the costs of navigating licensing requirements.
Requiring liquor to be sold apart from other goods does not curb drinking. Countries with strict rules like Scandinavia’s have more drunkenness than south European nations where liquor is sold alongside other commodities.
Liquor Acts forbid barmen and bottlestores from supplying intoxicated persons and declare that anyone drunk in public commits an offence, but do not proscribe private drunkenness. They seek to prevent offensive public scenes, not overconsumption.
The Tobacco Products Control Act prohibits smoking in “public” places, defined as privately-owned enclosed areas open to the public even if admission requires payment.
The statute seeks, not to protect smokers (most at risk), but non-smokers. It should be repealed. An intrusive Bill to replace it should be withdrawn.
Freedom to smoke in private property (including workplaces) should be determined by agreement among proprietors, employees and customers.
The prohibition against advertising tobacco brands should be repealed. It harms advertising agencies, market researchers, billboard suppliers and sign-writers.
The prohibition against using tobacco brands to promote events harms sport players, performers, and security, catering, stage-construction and event-management businesses.
The Children’s Act criminalises unregistered child-care businesses. In low-income areas where mothers work, there is high demand for preschool child-care.
The Act forbids operating a part-day care facility for more than six children unless it is registered with the provincial government. Applications for registration must describe “programmes and services to be offered” and be accompanied by a “business plan” and “care plan” and the facility’s “constitution” and “procedure for amending the constitution”.
Bylaws require childcare premises to have double-bowl kitchen sinks and a sickbay and “incident book”. They are disregarded.
Officials want to know if places of care exist. Instead of compulsory registration on pain of criminal penalties, there should be voluntary notification incentivised by advice.
The Meat Safety Act prohibits animal slaughter outside abattoirs approved by provincial agriculture-department veterinarians, and prohibits selling meat slaughtered outside abattoirs. The Act is widely ignored; 80% of sheep are slaughtered illegally.
Regulations prescribe requirements for each abattoir’s grade or “throughput” (number of animals that may be slaughtered daily).
The smallest (“rural”) red-meat abattoir, for a daily throughput not exceeding two cows or twelve goats, must have a gate, fencing, room with two anterooms, partitioned area for offal, and toilet-cloakroom. (Similar provisions apply to poultry abattoirs for throughput not exceeding 50 fowl.)
Red-meat abattoirs with throughput exceeding two cows or twelve goats must have fencing, lairages six metres away with sides 1.8m high for cows and 1.0m for goats, lairage passages and crushes for herding animals to the stunning area, separate entrances and restraining and stunning facilities for cattle and goats, stunning apparatus and facilities for shackling stunned animals and bleeding in a hanging position, dressing rails and equipment with minimum clearances, room for emptying and washing paunches and intestines, chillers for holding daily slaughter throughput, and employee changeroom with shower. (Similar provisions apply to poultry abattoirs with throughputs exceeding 50 fowl.)
The Act exempts slaughter “for own consumption” from the prohibition against slaughter outside an abattoir. (This is unjustifiable if abattoirs served hygiene purposes.)
The number of abattoirs fell from 1,000 to below 300 after 1960s legislation imposed expensive requirements. The Meat Board’s meat scheme encouraged abattoir centralisation and benefited big business. Small-town abattoir closures reduced employment and local leather and tanning industries.
Those measures have been repealed, but current legislation makes small-scale slaughter uneconomic and increases meat prices.
Legislation is no guarantor. Public health could be maintained equally well by voluntary associations of abattoirs, cold-chain transporters and retailers, engaging independent vets and inspectors to certify meat as safe.
In the 1970s, abattoir laws were relaxed in Namibia’s north so meat production could continue during war. This led to mushrooming of informal slaughter. Meat was sold from carcasses on trees. There was an increase in protein supply, steep decrease in malnutrition, and 50% drop in the meat price. Authorities reportedly found no food poisoning.
The Constitution requires municipalities to promote socio-economic development. Municipalities should reintroduce communal slaughtering places.