Laws Affecting Small Business: Health

(This policy bulletin is an extract from an FMF booklet published in 1998 by Gary Moore & Leon Louw) 

Introduction

If health laws were applied to the way you prepare your food at home you would be by definition a habitual criminal. If abattoir laws were enforced on farmers and people living in traditional communities they would commit a criminal offence every time they slaughtered an animal.

South Africa’s health laws are a legacy of its racist and elitist past where standards were prescribed by people in air-conditioned offices to govern the way in which people live in the real world, far removed from theoretical ideals. These laws are applied only where trading takes place, which means that their real impact is not the protection of peoples’ health, but an imposition on those who are trying to earn an honest living. These inappropriate health laws increase the cost of entering into and conducting business and have a particularly detrimental effect on small firms. Reform of the health laws will remove an unnecessary burden on small firms that employ large numbers of people. This in turn will lead to higher economic growth and increased employment opportunities.

Problems

Health laws are made with the praiseworthy intention of protecting the public. Frequently however, the benefits of the legislation are remote and unproven, and the costs to businesses and society are unacceptably high. Small businesses in particular are hampered by inappropriate health laws governing restaurants, foodstuffs, liquor, smoking, crèches and childminding, boarding houses and small hotels, hairdressers, and abattoirs.

These laws act as barriers to entry, preventing many people from starting a business and creating employment opportunities. They also limit consumer choice. Ironically, some health laws actually exacerbate South Africa’s worst health problem, which is malnutrition caused by protein deficiency, by raising the costs of meat and dairy products and restricting their availability to the poor.

Recommendations

The following recommendations propose the repeal of a number of health laws. If repealin totois politically unattainable, they should be relaxed. There is a widespread misconception that in the absence of legislation, the consumer is unprotected. This is not so. If these laws are repealed, the common law will still apply…

RECOMMENDATION 1

Health legislation regulating the premises and equipment of restaurants, cafes, and caterers should be repealed, or limited to what is regarded as strictly necessary for health and hygiene.

RECOMMENDATION 2

The primary responsibility of environmental health officers should not be to enforce legislation, but to provide guidance, education and training.

RECOMMENDATION 3

Foodstuffs laws criminalising the sale of unsound food should be repealed, or replaced by laws requiring food manufacturers to have procedures for analysing the hazards at critical control points in the manufacturing process, and to have steps in place to avoid those hazards arising.

RECOMMENDATION 4

Restrictions on the days when bottlestores can sell liquor should be removed.

RECOMMENDATION 5

The Liquor Act’s provisions that treat liquor as a special commodity which must not be offered for sale alongside other goods should be repealed.

RECOMMENDATION 6RECOMMENDATION 6

The prohibition against making and selling skokiaan and similar liquor products should be repealed.

RECOMMENDATION 7RECOMMENDATION 7

The new law prohibiting smoking in so-called “public” places and in workplaces should be repealed. In all privately-owned property, irrespective of whether the public has access to it, the right to smoke should be determined by voluntary agreement between proprietors, their employees and their customers.

RECOMMENDATION 8RECOMMENDATION 8

The prohibition against advertising tobacco products should be repealed.

RECOMMENDATION 9

The provision of the Child Care Act which criminalises unregistered crèches and childminding business should be repealed.

RECOMMENDATION 10RECOMMENDATION 10

Instead of relying on compulsory registration to ascertain where places of care in their jurisdiction are situated, the authorities should attract childminders by offering them expert assistance, guidance, education and training.

RECOMMENDATION 11

If there are to be regulations for crèches, they should contain only the minimum necessary for the health and well-being of the children in care.

RECOMMENDATION 12RECOMMENDATION 12

The paying of government subsidies to registered places of care should end.

RECOMMENDATION 13RECOMMENDATION 13

All special bylaws for accommodation establishments should be repealed.

RECOMMENDATION 14

All hairdressing bylaws that do not have a clear health purpose should be revoked.

RECOMMENDATION 15

Occupational and building health laws should be replaced by the single, but clear and effective, common-law requirement that working conditions should be healthy. To this end there should be a systematic critical review of all such measures.

RECOMMENDATION 16

The Abattoir Hygiene Act should be repealed.

RECOMMENDATION 17

Informal slaughter should be legalised.

RECOMMENDATION 18

If there has to be a grading system, an abattoir should have the right to process any number of animals in a day in batches up to the maximum throughput of that grade of abattoir.

RECOMMENDATION 19

If there must be regulations, they should be amended to authorise single-bovine abattoirs.

RECOMMENDATION 20RECOMMENDATION 20

Local authorities should establish communal slaughtering places at which small-scale slaughterers and others can slaughter their animals.

RECOMMENDATION 21

An abattoir should not be required to have a refrigeration facility if the meat and animal products will be disposed of at the abattoir directly to the final consumer.

Source: This policy bulletin may be republished without prior consent but with acknowledgement to the author. The views expressed in the article are the author's and are not necessarily shared by the members of the Foundation.

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