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.
The FMF is an independent, non-profit, public benefit organisation, created in 1975 by pro-free market business and civil society national bodies to work for
a non-racial, free and prosperous South Africa.
As a policy organisation it promotes sound economic policies and the principles
of good law. As a think tank it seeks and puts forward solutions to some of the country's most pressing problems: unemployment, poverty, growth, education, health care, electricity supply, and more. The FMF was instrumental in the post-apartheid negotiations and directly influenced the Constitutional Commission to include the property
rights clause: a critical cornerstone of economic freedom.
+27 11 884 0270
PO Box 4056, Cramerview 2060
This article was first published on Businesslive.co.za on
19 July 2022
Small Business Minister’s masterplan proposes unnecessary distractions
The Minister of Small Business Development intends to gazette a Small Enterprise Development Masterplan as a national policy for the support and development of small enterprises as contemplated in the 1996 National Small Enterprise Act. The draft Masterplan is a patchwork of proposals, most of them bad.
The Masterplan’s more attractive bits propose the identification of pieces of legislation that impose undue burdens on small enterprises, and the publication of guidelines about how those pieces of legislation might be amended to alleviate such burdens.
The draft Masterplan acknowledges that the Minister has issued no guidelines to date.
The absence of such guidelines identifying legislative provisions that warrant amending may be deterring the responsible organs of state from relaxing those provisions. Indeed, the Masterplan points to the risk that legislative owners may be hesitant to reform regulatory measures in the absence of guidelines to amend.
The Act defines a small enterprise as an owner-managed business carried on in any of eleven economic sectors, and categorised by its number of employees and annual turnover as a “micro”, “small”, or “medium” enterprise in that sector.
The Minister’s guidelines should recommend that a reforming law should appropriately relax offending legislation which unduly restricts micro, small, and medium enterprises in the economic sector with which that legislation is concerned.
A piece of legislation (be it a statute, or set of regulations made under a statute) which governs a certain economic sector might have certain provisions which unduly restrict only the sector’s “micro” businesses, while some provisions of that legislation might be so oppressive as to unduly restrict even the sector’s “small” businesses, and yet others of its provisions might go so far as to unduly restrict even the sector’s “medium” businesses.
In any such case, the Minister’s guidelines should (though the Masterplan does not expressly recommend this) identify, to the government department responsible for administering that piece of legislation, which of that legislation’s provisions unduly restrict only micro enterprises, which of its provisions restrict small enterprises unduly, and which of them go so far as also to restrict medium enterprises.
The Minister’s guidelines should then recommend to that department possible ways in which it might relax those provisions for the respective benefits of micro, small, and medium enterprises (“SMMEs”).
So much for the Masterplan’s better bits.
The Masterplan’s unnecessary, and indeed detrimental, bits include its proposals about a “Task Team established between Govt [sic] and business”, about the “Annual Review of Small Enterprise”, and about the identification of laws for “priority reform”.
The task team is to formulate any such guidelines on the assessment and review of the effect of existing legislation on small enterprise.
The Masterplan notes that there is no existing task team of representatives from government departments and business. The Masterplan mentions, as a risk which might deter the establishing of any such task team, “Lack of trust between Govt and Business”.
But it is unnecessary to establish any such proposed “task team” between government and business.
The Masterplan adequately identifies types of legislation that have an adverse effect on small enterprise, and how such legislation should be assessed and reviewed.
It is also a bad proposal. Any such task team established between government and “business” would likely be dominated by “big” business interests, which would drown out any small-business interests that may be represented on the team.
Another Masterplan proposal that is not essential to the project of the deregulating of laws that restrict small businesses, and is indeed bad, is the Masterplan’s recommendation that the “Annual Review of Small Enterprise” be published with inflexible regularity.
The Act envisages the annual compiling of the Review which, so says the Act, must include summaries of any findings or recommendations by the Director-General of Small Business Development about laws, proposed laws, and administrative practices that restrict small enterprises, as well as particulars of progress achieved in furtherance of the objects of the small-enterprise policy.
The Masterplan observes that, despite the Act’s requirement that the Review be an annual publication, it has been published only haphazardly. This writer found merely two.
The Masterplan asserts that regular publishing of the Annual Review is “fundamental” to the Masterplan’s success.
But publication of the Annual Review, regularly or otherwise, is not essential to the success of the Masterplan.
The publishing of the Annual Review is neither a necessary precondition either to the identifying by the Minister of legislation that may have an effect on small enterprise, or to the publishing by her of guidelines on the assessing and review of existing legislation’s effect on small enterprise.
The Review would include, says the Act, a mere summary of any findings or recommendations by the Director-General about laws and administrative practices that restrict small enterprises, and a mere record of progress achieved in furthering the objects of the policy.
The Masterplan echoes this, by saying that the Review must merely “publicly represent” the implementation over time of the programme of actions outlined in the Masterplan.
Thus, the Review would be just a backward-looking record, not a forward-looking identification of legislation affecting small enterprise, or a guideline assessing that effect.
Another proposal in the Masterplan which is not essential for the deregulating of laws that restrict small businesses is its proposal to identify laws “for priority reform”.
It is unnecessary to identify laws for priority reform.
The Masterplan already identifies legislation that should have priority.
Thus, those proposals in the Masterplan, about a “Task Team”, the “Annual Review of Small Enterprise” and the identification of laws for “priority reform”, are not essential requirements for the Minister’s vital task.
Her vital task is to identify legislation that imposes undue burdens on small enterprise, and to publish guidelines about how the government departments concerned could relax the offending legislation to alleviate that burden.
The Masterplan’s proposals for a task team, for more regular publishing of Annual Reviews, and for the identifying of laws that should have priority, would serve merely to complicate and delay that vital task.