Laws Affecting Small Business: Health was launched by lawyer Gary Moore on 2 November 2022. Scroll down for the full text or PDF of the booklet. View the launch here:
SYNOPSIS
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, 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 repeal in toto is politically unattainable, they should be substantially 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 If these laws are repealed, the common law will still apply. The common law provides adequate, and often superior, protection against people who endanger public health. One reason health regulations were considered necessary in the past was that the laws of civil and criminal procedure make the courts inaccessible to ordinary people, especially the poor. (See the entry on “Justice” in this series for recommendations for reform of these procedures.)
RESTAURANTS, TAKEAWAYS, AND CATERERS
- Health legislation regulating the premises and equipment of restaurants, cafes, and caterers should be repealed, or limited to what is regarded as strictly necessary for health and hygiene.
- The primary responsibility of environmental health officers should not be to enforce legislation, but to provide guidance, education and training.
FOODSTUFFS
- Foodstuffs laws criminalising the sale of unsound food should be repealed, and reliance should be placed solely on the laws requiring food manufacturers to have procedures for analysing the hazards at critical control points in the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.
LIQUOR
- Restrictions on the times when bottlestores can sell liquor should be removed.
- The provincial Liquor Acts’ provisions which treat liquor as a special commodity that must not be offered for sale alongside other goods should be repealed.
- The prohibition against making and selling skokiaan and similar liquor products should be repealed.
SMOKING
- The 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.
- The prohibition against advertising tobacco products should be repealed.
CHILD CARE
- The provision of the Children’s Act which criminalises unregistered child-care facilities should be repealed.
- Instead of relying on compulsory registration to ascertain where places of partial care in their jurisdiction are situated, the authorities should attract childminders by offering them expert assistance, guidance, education and training.
- If there are to be regulations for partial-care facilities, they should contain only the minimum necessary for the health and well-being of the children in care.
BOARDING HOUSES AND SMALL HOTELS
- All special bylaws for accommodation establishments should be repealed.
OCCUPATIONAL AND BUILDING HEALTH LAWS
- 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.
ABATTOIRS
- The Meat Safety Act should be repealed.
- Informal slaughter should be legalised.
- 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.
- Local authorities should establish communal slaughtering places at which small-scale slaughterers and others can slaughter their animals.
- A poultry 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.
RESTAURANTS, TAKEAWAYS, AND CATERERS
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.
The business of supplying meals for sale is one of the most important small business activities in South Africa, employing hundreds of thousands of people. But inappropriate health laws increase the cost of entering and carrying on business in this sector, as well as the cost to consumers of the food it supplies.
Restaurants, takeaways, and catering businesses are governed by national regulations. These measures are intended to protect customers against falling ill from unsound food and dirty utensils. However, they cannot guarantee either cleanliness or good food. The incidence of food poisoning is in fact extremely rare. And to the extent that there is a risk, the health regulations tend to aggravate rather than prevent it. Under “natural” (i.e., unpreserved and unrefrigerated) conditions, contaminated food is immediately identifiable by sight, smell, or taste. This prevents us from eating enough of it to do us any harm. The problem of food poisoning usually arises when food is refrigerated in compliance with health regulations. Refrigeration does not prevent the growth of harmful bacteria but does tend to prevent the food from rotting and thereby alerting us to the fact that it is unsafe to eat.
Regulations stipulate that the interior walls of premises where food is prepared must be made of rust-free, non-absorbent, dustproof, and water-resistant material. The minimum dimensions of a window are specified. Food premises must have a specified number of latrines, urinal stalls, and hand washbasins.
The person in charge of food premises must ensure that the premises are kept free of any items that do not form an integral part of the food handling operation and that have a negative effect on the general hygiene of the premises.
The person in charge of food premises must obtain from the municipality a certificate of acceptability of the premises. A certificate will not be issued if a municipal inspector is not satisfied that the premises and facilities comply with the regulations.
The benefit to the public health of regulations such as these is probably slight. But the cost to a small cafe or restaurant of complying with these stringent and arbitrary measures can be crushing. As a result, they are routinely breached by both formal and informal establishments.
Officials, restaurant proprietors, and their customers all tend to focus on whether the regulations are being observed, rather than on whether the business is being run with proper and appropriate attention to hygiene. People are lulled into a false sense of security, believing that the existence of the regulations and the powers of the officials can protect them from harm. They cannot.
The only effective way to protect the public against eating contaminated food is to analyse every meal and dish before it is served. This is of course impossible. In practice, what happens is that health officers react to complaints. A restaurant customer might complain to the municipal health department after having a bad experience from eating an unwashed salad or infected shellfish or, more dramatically, after seeing a rat while en route to the restroom.
Very commonly another restaurateur complains, in the hope that his competitor will be put to expense by the authorities or even forced to close down. Responding to the complaint, an official arrives, inspects the premises, and identifies all the features of the restaurant and its equipment, personnel and methods that do not comply with the regulations. The restaurant owner is told to remedy these shortcomings within a stipulated period at the risk of being prosecuted. The food poisoning or rodent incursion was not avoided, and cannot be prevented from recurring in the future.
Analyses conducted by environmental health and medical officers in Cape Town and rural KwaZulu-Natal showed that foodstuffs supplied by street vendors are seldom if ever unsound. The reason is that food prepared by street vendors is cooked and sold almost immediately, thereby avoiding the contamination that can arise when food is kept for long periods. By contrast, food kept in refrigerators in established restaurants often becomes infected by harmful bacteria, as health inspectors employed by major hotel chains can verify.
A real environmental health risk in the preparation of food is infection from dirty hands. Regulations stipulate that restaurant owners must have proper hand-washing facilities, and that all personnel involved in handling food must wash their hands after visiting the toilet. Of all the health regulations, this one is the most essential. Unfortunately, it is also completely unenforceable.
Environmental health laws are ineffective to achieve their purpose and simply create unnecessary expense. Restaurants and other suppliers of meals do their best to provide good food for the public, not in deference to the regulations, but so that customers will patronise them again and make their business a success. A restaurant or cafe that made a habit of producing meals which made people ill would quickly gain a bad reputation and go out of business.
There has been some recognition in official quarters that existing regulations are unduly stringent, impose expensive burdens on small businesses that are often not justifiable from a health point of view, and are practically impossible for small food businesses in disadvantaged areas to observe.
Some regulations issued in recent years by the national Department of Health contain relatively reasonable and appropriate rules compared to previous measures. Also, enlightened environmental health officers adopted a more flexible policy in their enforcement of health regulations. This approach is to be commended.
However, strict regulations are still on the books.
A flexible approach in applying them can lead to selective, discretionary, and arbitrary enforcement. This creates public perception that the law is what the officials choose to enforce, rather than what the law states.
Also, regulations allow an owner of food premises to apply for a municipal exemption from any of the regulations (other than the need to hold a certificate of acceptability). The owner will be exempted if an inspector reports that the regulation concerned imposes unreasonable requirements on him and that exempting him will not lead to a health hazard.
It would be preferable if the existing stringent legislation was replaced by more reasonable and appropriate measures that can be uniformly and consistently applied.
Considerations
In defence of all these regulations, it is argued that they are necessary to achieve environments which will tend to have a reduced risk of infection. But no one can accurately say how much infected food would be served if these regulations didn’t exist.
All they really achieve is to create a false sense of security, without addressing the real health risks. It is interesting to note that where there is conspicuous non-compliance with regulations, the evidence suggests that the incidence of food contamination has in fact been lower.
Some people may baulk at having minimal regulations that can be universally applied, and may prefer to have higher standards in some communities. But this is an elitist view. There cannot be two differing health standards for different people or different areas.
RECOMMENDATION 2
The primary responsibility of environmental health officers should not be to enforce legislation, but to provide guidance, education and training.
Health officials should concentrate on offering guidance and information about hygienic methods to businesses that supply meals to the public. The real risks arise out of ignorance, and bad practices that cannot be policed through regulation.
The national Department of Health acknowledges in policy documents that environmental-health education remains the most effective means to improve hygiene practices among individual and communities.
Whether the walls are rust-free or water-resistant has little to do with whether food will be contaminated. In the complete absence of such measures, food can be, and usually is, completely safe and healthy.
Conversely, in the presence of the most sophisticated buildings and equipment, bad practices would render food unfit for consumption.
What determines the quality of food remains, as it has been throughout history, the way it is handled and whether it is consumed before it goes off: i.e., whether there are dangerous germs present on the hands of those who handle food from harvesting to consumption, on the containers in which it is transported, stored or prepared for consumption, or on the tools and utensils used in the process; and whether the food is consumed promptly or stored for long periods.
To put it plainly and unambiguously, all that matters is how the food is handled. All laws and regulations regarding equipment, utensils, premises and the like are irrelevant.
Considerations
People draw comfort from the belief that inspectors are enforcing legislation. But officials would be more effective if they became more pro-active, i.e., if they gave businesses advice about hygienic food preparation instead of merely reacting to infractions of the regulations.
FOODSTUFFS
Besides rules for the control of the premises where food is prepared and the people who prepare it, there are also measures aimed specifically at the food itself. Despite the fact that their stated purpose is to protect health, the criterion which these laws apply is whether the food is going to be used in trade. If food will not be sold, the law disregards its threat to health.
For instance, businesses involved in the preparation of food must keep the core of perishable food at a temperature below 7°C. Food that is not prepared in the course of a business is exempt.
The Foodstuffs Act prohibits the sale of food that is contaminated, impure, or decayed, or which is harmful or injurious to human health. But food that is not sold does not have to comply.
Poultry-meat and fish delivered to premises used for a business involving the handling of food must be conveyed in a vehicle in which a temperature of 4°C or lower is maintained. These rules do not apply to premises not used for food businesses. Thus, a housewife who carries on a bed- and-breakfast business in her home must transport the food home in a vehicle which maintains a temperature not higher than four degrees if she is going to prepare the food for her paying guests, but does not have to use a cold vehicle if she is going to serve it to her family.
There are, of course, a number of reasons why health legislation stops short at policing the preparation of meals that are not for sale. First, people would regard it as an intolerable intrusion if the regulations applied to the preparation of meals at home for domestic consumption.
Second, if there are insufficient inspectors to police restaurants, there are certainly not enough officials to inspect every private household.
Third, there is a perception that meals made in the home will be prepared with more attention to hygiene than meals prepared as a business in a restaurant for paying customers. The implication is that business people are indifferent or reckless about the quality of the goods that they supply.
All these laws which control only food in trade, and not all food, are not health laws at all. They are in fact buyer-protection laws, which should be administered by the Department of Trade and Industry, not by health departments. By contrast, building regulations and vehicle-safety standards are genuine safety laws which apply even if the building or vehicle is not used for business purposes.
RECOMMENDATION 3
Foodstuffs laws criminalising the sale of unsound food should be repealed and reliance should be placed solely on the 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.
Foodstuffs legislation which prohibits, on pain of criminal fines and imprisonment, the sale of food which is contaminated, impure, or decayed, or which is harmful or injurious to human health, should be repealed.
The criminal penalties in the legislation are not essential, whether they concern the environment where meals are prepared or the soundness of the food itself. Any person who negligently or intentionally supplies harmful food is liable at common law in damages to anyone who suffers harm or injury from eating it, and the injured person can claim compensation from the wrongdoer.
A more practical approach to avoiding accidental contamination of food in the production process is to require the producers to apply only the Hazard Analysis and Critical Control Points system (the “HACCP” system, as it is known), which has been prescribed under the Foodstuffs Act. The risky stages in the process of food production can be identified, and safeguards put in place to avoid the risk at those stages.
Considerations
As with environmental health laws applying to food premises, people draw comfort from the existence of foodstuffs laws prohibiting the sale of unsound food on pain of criminal penalties. But the public health would be better served by focusing entirely on ensuring a careful production process.
This will also satisfy countries to which we may export food products. Importing countries are more interested in there being effective internal controls in food factories, rather than that the exporting country having a plethora of food legislation.
LIQUOR
Legislation controlling the supply of liquor imposes unnecessary and arbitrary restrictions on small businesses that sell liquor. The harmful effects of the licensing requirements in the liquor laws have been referred to in the entry on “Licensing” in this Laws Affecting Small Business series. Here we discuss the supposed health objectives of the liquor laws.
RECOMMENDATION 4
Restrictions on the times when bottlestores can sell liquor should be removed.
The current provincial Liquor Acts are less restrictive than previous liquor laws. But they still impose restrictions in the name of protecting the public health, which on examination cannot be justified on health grounds.
These Liquor Acts tend to be an amalgam of conflicting policies. On one hand, they permit the sale of liquor subject to conditions. On the other hand, and to accommodate various sentiments about the harmful effects of liquor, they impose various constraints which are capricious and illogical.
The Acts commonly decree that a liquor licensee may sell liquor either for consumption off the premises (as a liquor store for example), or for consumption on the premises (as a restaurant does), but not for both on- and off-consumption: A liquor store (bottlestore) can sell liquor to take away, but a restaurant can’t. And you can drink in a restaurant, but not in a bottlestore.
Liquor stores are required to close earlier on Saturdays than on weekdays, and earlier on Sundays than on Saturdays. To justify these restrictions, it is said that the excessive consumption of alcohol is harmful, that control over its availability is a recognised and rational means of limiting consumption, and that it is therefore justifiable to restrict the times when liquor may be sold for off-consumption on Saturdays and especially on Sundays.
In practice, however, these restrictions are completely ineffective. Any person can buy as much liquor as he or she wants, on weekdays and on Saturdays and Sundays before liquor stores close, and drink it after the stores have closed. And people can drink liquor all Saturday night and Sunday at pubs and restaurants.
Limiting the times when liquor may be sold for off-consumption appeases the temperance movement but does not curb excessive drinking, and serves only to restrict business activity and to inconvenience the public.
Considerations
Some would argue that any restriction on the availability of alcohol curbs consumption to some extent. But in practice this is not so.
The provincial Liquor Acts commonly forbid a barman, restaurateur, or bottlestore owner from supplying liquor to a person who is intoxicated. The laws also declare that a person who drinks or is drunk in a public place is guilty of an offence, but do not proscribe private drinking or drunkenness. The real intention in both cases is to prevent offensive scenes in public, not to discourage alcohol consumption per se.
RECOMMENDATION 5
The Liquor Acts’ provisions which treat liquor as a special commodity that must not be offered for sale alongside other goods should be repealed.
Another common restriction on liquor stores prohibits them from selling other goods on the premises, except soft drinks, cigarettes and the like. Presumably the intention is to check liquor consumption by preventing buyers of other goods from being exposed to the temptation and opportunity to buy liquor at the same time. But this stipulation is unlikely to reduce liquor consumption. It is also inconsistent in that the holder of a grocer’s wine licence is allowed to sell wine alongside groceries and other general goods.
Perhaps those of us concerned about small business are placing too much store on the prohibitions. In reality, the liquor laws are widely ignored, and the authorities appear unable or unwilling to enforce them. The government stated in its 1997 liquor-policy document that the criminalisation of liquor traders had ironically led to a regulatory breakdown so that the state licensed less than 10% of the estimated 250,000 liquor outlets. This meant that nine out of ten small businesses that sell liquor to the final consumer simply ignore the legislation. In 2014, it was reckoned that the majority of the estimated 200,000 shebeens still remain unlicensed and illegal. It has been observed that legal requirements are too stringent for the vast majority of traders whose small turnover and modest profits do not justify the direct and indirect costs of navigating a complicated formal system for licensing.
The rules that require liquor to be sold apart from other goods are ineffective in curbing drinking and should be repealed. Countries with strict rules on liquor sales such as the Scandinavian countries have more problems with drunkenness than do southern European nations where liquor is treated like other commodities and sold alongside them. The only rule in the Liquor Act that could be sustained on health grounds is the prohibition against supplying liquor to persons under 18 years of age.
Considerations
Some may contend that liquor is not an ordinary commodity and that it should therefore be subject to special rules. But these provisions are both arbitrary and ineffective, and their main effect is to restrict small business activity and limit the reasonable requirements of the public.
RECOMMENDATION 6
Prohibitions against making and selling skokiaan and similar liquor products should be repealed.
Another rule ostensibly aimed at protecting the public health is the prohibition against the making, possession, sale, supply, or consumption of anything made by fermenting treacle, sugar or other substances, and known as skokiaan, barberton, or hopana. Hopana or hop beer was originally made by Chinese on the Reef and sold to Africans. In time, Africans also started making these drinks. The liquor laws apply mainly to drinks containing above a certain percentage of alcohol, but the law prohibits the making of hopana even if it contains less than that percentage.
It is clear from reported court cases from the early years of the century that the aim of these laws was simply to outlaw drinks made for sale to Africans at a time when selling liquor to persons of colour was forbidden. Even though the law against selling liquor to persons of colour has long since been repealed, a rule prohibiting skokiaan, barberton, and hopana still exists on the statute book in some provinces. It is astounding that such a racist measure continues to apply.
There is no health justification for banning skokiaan and the other prohibited drinks. Just as there is no law prohibiting mampoer (which is drunk mainly by whites), there should be no law prohibiting skokiaan (which was mainly drunk by blacks). The ingredients of liquor are already governed by the Liquor Products Act and the Foodstuffs Act and its regulations. The prohibition against skokiaan is a legacy of apartheid.
Considerations
Some may think that these drinks should be banned for health reasons, whatever their alcoholic content. But their ingredients are the same as those which can be found in other alcoholic drinks that are lawful. The reported court cases from the 1920s are an eye-opener; the judges (using language which would be unacceptable today) never mention health reasons for these laws, and say only that they were intended to prevent the native population from access to alcoholic beverages.
SMOKING
RECOMMENDATION 7
The 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.
The Tobacco Products Control Act, 1993, prohibits smoking in any public place. A public place is given a special definition to mean any indoor or enclosed area which is open to the public or any part of the public. This includes any place to which members of the public have access, even if they have to pay to be admitted. It includes any such place owned by a private person and not by the government. In other words, a public place is defined to include a private place.
This covers any shop, shopping mall, office open to the public, exhibition hall, retail warehouse, or tented area.
The law prevents businesses from accommodating customers who smoke. It removes the power of businesspeople and their customers to negotiate and make their own arrangements.
The prohibition against smoking extends to any indoor or enclosed workplace where employees perform the duties of their employment. The definition of an employee in the basic conditions of employment legislation probably applies, where an employee means any person who works for another person and who receives any remuneration, and any other person who in any manner assists in carrying on or conducting the business of an employer.
Experience is that where workplaces are made non-smoking areas, some employees leave the area to smoke outside. The legislative prohibition of smoking in workplaces will therefore affect the productivity of every business. People in a workplace will be unable to make their own arrangements regarding ventilation, separating smokers from non-smokers.
The statute is not aimed at protecting smokers, who are the people most at risk of falling ill from smoking. Nor will it prohibit the possession and use of tobacco. The legislation is aimed at protecting people who don’t smoke.
This legislation is a draconian measure which should be repealed. A more intrusive Bill being contemplated to replace the existing Act should similarly be withdrawn.
Considerations
People against smoking will insist that the law is necessary to protect the public health. But the anti-smoking lobby’s main concern must surely be active smokers, not non-smokers. It is undesirable to enact a law which even the health authorities concede cannot be properly enforced.
RECOMMENDATION 8
The prohibition against advertising tobacco products should be repealed.
The same legislation prohibits the advertising of tobacco products, tobacco brands, and company names and trademarks. This harms the business of advertising agencies, advertising subcontractors, market researchers, billboard suppliers and erectors, and sign-writers, many of whom are small businesses.
The prohibitions against advertising effectively criminalise the display by a tobacconist of a cigarette box, tobacco packet, or cigar tube in his or her shop window. A retailer is allowed to post signs, in accordance with regulations made under the statute, that indicate the availability of tobacco products. The regulations are so strict that in effect they permit only the display of a sign stating starkly “Tobacco products available here”.
The law also bans the use of tobacco brand or company names and trademarks for the purposes of advertising any organisation, service, activity, or event. This restricts the income available for sports matches, musical concerts, and similar events. This has an effect on small businesses in this sector, including sportsmen and women and businesses in the fields of security, parking, seating, catering, stage construction, event management, cleaning, and so on.
The placing of vending machines containing tobacco products in any indoor or outdoor location is forbidden, other than in smoking areas not exceeding 25 percent of the public place concerned as designated by the owner thereof. The sale of tobacco products from vending machines is restricted to places where the machines are inaccessible to persons under the age of 18 years. This harms the many small businesses that supply and fill cigarette vending machines. In 2018, the national Minister of Health published for public comment a draft Bill that would entirely prohibit the locating in any place or premises of vending machines containing tobacco products.
The 1993 legislation also prohibits the sale of tobacco products to persons under the age of 18 years and a person who contravenes this is liable to a fine not exceeding R100,000. By contrast, a person who contravenes the prohibition against using a tobacco brand name to advertise any event is liable to a fine of up to R1,000,000. This suggests that the commercial crime is regarded as 10 times more serious than supplying cigarettes to children.
Banning advertising will not stop smoking. People smoke, not in response to advertisements, but because they find smoking a pleasant and comforting activity, because of tobacco’s mild stimulating effect, and because it promotes concentration and increases resolve. Suppressing all advertising of tobacco products will create the perception among children and teenagers that smoking is an illicit activity. Youngsters’ natural rebelliousness will tempt them to experiment with this forbidden fruit. The banning of tobacco advertising in some countries has not led to a reduction of smoking among young people. Any decline in smoking is due to growing opinion that smoking is harmful to health rather than because of legislated criminalisation.
Considerations
This is a controversial recommendation. The proponents of anti-smoking legislation say that advertising makes smoking appear glamorous to impressionable minds. But attempts to sweep smoking under the carpet will make it appear even more glamorous to the young.
CHILD CARE
RECOMMENDATION 9
The provision of the Children’s Act which criminalises unregistered child-care facilities should be repealed.
The legislation governing children criminalises thousands of crèches and day-care businesses that undertake the part-time care of children.
The business of childminding is carried on in all areas, communities, and socio-economic classes. In low-income areas, where mothers of preschool children are in full-time employment for economic reasons, there is a particularly high demand for day care. Many live-in domestic servants leave their children in places of care from early childhood. Parents also place their children of school-going age in lodgings to remove the children from an environment of violence and crime. In the past, many children were cared for within the extended family system, but this social structure no longer exists for many families, particularly in urban and peri-urban areas.
The Children’s Act, 2005 stipulates that a person may operate a partial-care facility (the care of more than six children on behalf of their parents during part of the day or night), only if the facility is registered with the government of the province concerned.
The provincial authorities may issue a “notice of enforcement” instructing anyone operating an unregistered partial-care facility either to stop operating or to apply for registration in a specified period. The authorities can also instruct anyone operating a registered facility in contravention of the Act or its conditions of registration to comply.
Any person who contravenes these provisions is guilty of an offence.
Municipalities may in terms of the Constitution also enact laws governing child-care facilities. There are municipal bylaws that say a child-care facility which cares for six or fewer children must obtain a municipal health-compliance certificate. Contravention of the bylaw is an offence.
However, the Act and these bylaws are widely disregarded. There are probably more children in unregistered or uncertificated facilities than in registered or certified ones. This is almost certainly true in disadvantaged areas.
The result of criminalising unregistered or uncertificated places of care is that they do not receive the benefit of any education and guidance that the authorities could provide. The criminal penalty discourages places of care that are unable to comply with the prescribed standards from seeking registration. This means that facilities that are most in need of help are the least likely to receive it.
To enable parents to earn incomes, and to ensure that their children are cared for while they do so, is an important priority. The common law governing any person who acts in loco parentis protects the health and safety of the child. (The procedural rules of our legal system should be amended to improve access to the courts, which are the upper guardian of all children under common law.)
Considerations
Some officials feel there should be a registration requirement, if only to notify the authorities that the place of care exists.
Instead of registration linked to the disincentives of criminal penalties, there should instead be voluntary notification linked to the incentives of advice and assistance. This will meet the concern of the authorities who wish to know of the existence of all places of care in their areas of jurisdiction. Official policy should be aimed at improving the standards of childcare by providing training and education for childminders.
RECOMMENDATION 10
Instead of relying on compulsory registration to ascertain where places of partial care in their jurisdiction are situated, the authorities should attract childminders by offering them expert assistance, guidance, education and training.
Education, rather than law enforcement, should be the primary governmental function. The registration requirement does not reflect the real world in which most South Africans live and work from day to day. It is simply not possible for most places of care in poor areas to satisfy all the conditions for registration. The best one can do is to ensure that parents have affordable and expeditious access to common-law remedies against abuse.
By criminalising unregistered childminders, the registration requirement drives the activity underground. If the officials change their policy from law enforcement to assistance and advice, childminders will come forward.
Considerations
Certain officials would still prefer the registration requirement to oblige childminders to make their businesses known to the authorities. But compulsory registration has in fact proved to have the opposite effect.
RECOMMENDATION 11
If there are to be regulations for partial-care facilities, they should contain only the minimum necessary for the health and well-being of the children in care.
A partial-care facility will be registered only if it complies with requirements prescribed by the national Minister of Social Development by regulation. The regulations include the requirements that the premises must be safe, clean and “well-maintained”, space for different activities and functions must be “clearly demarcated”, there must be “cooling facilities for storage of perishable food”, and the food preparation area must be “clearly marked”.
An application for registration must describe the qualifications, skills and experience of the applicant in partial care, and “the contents of the programmes and services to be offered, including the aims and objectives”, a “business plan” containing the “day care plan”, and “the constitution” of the facility containing information of the composition of the management and its powers to delegate authority with regard to care, behaviour management and development of children to the head of the partial care facility “where applicable”, and the procedure for amending the constitution.
It is undesirable to enact standards that are impossible for all communities to comply with.
As so often with legislation aimed at health or safety or preventing ill-treatment, these regulations are off-target in focusing on standards that have a relatively remote influence over the health and well-being of children.
There are municipal bylaws which say that a child-care facility, regardless of the number of children it accommodates, must have
a sickbay with first-aid equipment and a bed; an indoor play area with 1,5 sqm of free floor area per child; a sleeping mat or mattress for each child in full-day care; a separate approved kitchen (if it provides meals to children) with a double-bowl sink and hot-water supply and a separate wash-handbasin; a pantry and storage facilities for each child’s and staff member’s personal belongings; separate toilets for children over three years old; separate toilets for boys and girls of school-going age; washing facilities; a minimum outdoor area of 2 sqm per child fencing 2 metres high; an indoor study area of 1.5 sqm per child of school-going age.
The suitability of most of these requirements are subject to the municipality’s approval having regard to “the reasonable environmental health requirements that may apply in the circumstances”. Contravention of the bylaw is an offence.
These demands are well and good, in the sense that everyone would want their children to be cared for in a place that had these prerequisites, as well as a wide choice of safe and stimulating toys and activities, and also nutritious food and highly-trained childminders. But they are to some degree out of touch with reality.
In practice, very few childminders in underprivileged areas can comply with all these regulations and bylaws. The result is that they might make no attempt at obtaining registration or certification, and carry on business under the stigma of criminality, with health authorities unaware of their existence. Where the authorities discover an unrecorded child-care facility that does not comply with the prescribed requirements, they do not have the option of providing assistance or guidance to improve the quality of care and the health and well-being of the children there: they are obliged to lay a criminal charge against the childminder for conducting an unregistered or non-compliant place of care.
Instead of inappropriate regulations and bylaws describing ideal standards for buildings and equipment, there should be an appropriate set of rules containing the minimum standards necessary to safeguard the health and physical welfare of all children in care in South Africa without exception.
The law should focus, not on registration, but on the health and safety of the child. If a child in a place of care is abused, it is irrelevant whether the place of care is registered or unregistered. Conversely, if a child is well-cared-for in an unregistered place of care, the fact that it is not registered should be of no importance. Registration adds nothing to officials’ and social workers’ ability to protect children; the laws against child abuse apply irrespective of whether a childminder is registered. There should be no disincentives in the law to prevent childminding from being an open and visible activity that is easy for parents and neighbours and the community to monitor.
Considerations
In some quarters, universal rules of this kind will not be enough. More prosperous parents will demand additional and more luxurious amenities and facilities in crèches to which they entrust their children. There is nothing to stop any child-care facility that wants to meet these consumer demands from doing so, and advertising that it does. A number of facilities could form a self-regulatory voluntary association with a code of conduct imposing standards additional to the legislation, and market their services accordingly.
BOARDING HOUSES AND SMALL HOTELS
RECOMMENDATION 12
All special bylaws for accommodation establishments should be repealed.
Carrying on business as a bed-and-breakfast establishment or small hotel, often from their own home, presents a business opportunity for many people. But unnecessary bylaws increase the costs of entering and carrying on these businesses.
In terms of the Constitution, municipalities may make bylaws prescribing trading regulations. The bylaws usually state that no person may conduct an accommodation establishment unless the premises comply with the bylaws’ requirements. They often require separate ablution facilities for each sex, including two baths.
The minimum floor area of the dining room provided for the guests is often prescribed.
As with so many other bylaws, the real criterion appears to be to control business rather than the health of the public. If the criterion was health, these requirements should be imposed on all domestic residences, not only on boarding establishments. Compliance with general building regulations by boarding houses, hotels and bed-and-breakfast establishments should be sufficient.
Considerations
If there must be special rules for accommodation establishments, they should be restricted to what is clearly justifiable in the interests of health.
RECOMMENDATION 13
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.
There are complex and diverse requirements concerning health in many statutes, bylaws, regulations, and directives, ranging from local government building codes to employment agreements. They prescribe a multitude of costly requirements that are not considered necessary in private homes, where people spend most of their time.
These laws provide perverse incentives for employers, especially small businesses, to avoid employing people and to use machinery instead.
Such formal and costly requirements tend to disadvantage small businesses disproportionately, while increasing unemployment and providing no real guarantee of healthy working conditions. The good health of employees can be secured only by healthy practices, which, in turn, will be observed only if people are properly informed about such matters.
We do not discuss the many specific provisions in this publication. We propose a systematic analysis of the extent to which the costs of health measures exceed the benefits.
ABATTOIRS
RECOMMENDATION 14
The Meat Safety Act should be repealed.
As is the case with restaurants, there are elaborate regulations governing the premises where animals are slaughtered. And as with restaurants, the health benefits of many of the regulations are indirect only. The cost disadvantages to small businesses involved in supplying fresh meat to the public can outweigh the supposed health advantages. The meat-safety legislation also allows for many arbitrary discretions and exemptions. It is clear that many of the exemptions have been granted for social or economic rather than health reasons.
Abattoir legislation is inappropriate and is widely ignored. More than half of all animal slaughter in South Africa takes place outside approved abattoirs. About 80% of sheep are slaughtered illegally.
The Meat Safety Act, 2000 states that no person may slaughter any animal at any place other than an abattoir which has been approved, registered, and graded by the designated veterinarian at the provincial agriculture department. Meat from an animal which has been slaughtered at a place other than such an abattoir may not be sold to any person.
A person wishing to construct an abattoir must apply for the officer’s approval and submit design plans that comply with the requirements prescribed for abattoirs in the regulations made under the Act. Approval can be withdrawn if the abattoir is not operated in accordance with the regulations.
The regulations prescribe fairly detailed requirements, depending on the grade of the abattoir.
Many of the rules are relatively expensive to observe, except perhaps in the lowest grade of abattoir.
The yardstick used to determine the grade of an abattoir is its “throughput”, or maximum allowable number of animals that may be slaughtered there each day. Each grade of abattoir must have specified facilities. If an abattoir reaches its maximum throughput before the day’s end, it must stand idle for the rest of the day. No abattoir can exceed the maximum throughput for its grade by slaughtering more animals, without first meeting the requirements prescribed by the regulations for the higher grade.
There are three grades of red-meat abattoirs, and three grades of poultry abattoirs.
In the lowest grade of red-meat abattoir (the so-called “rural” abattoir) the daily throughput must not exceed two cows or twelve goats. A rural abattoir is the most basic abattoir and the fewest facilities are required, effectively a gate and fencing and one room with two anterooms, with a partitioned area for offal, and a toilet-cum-cloakroom. The main slaughter-hall can also serve for hanging, bleeding and dressing the carcasses. There must be an adjacent curbed and drained area for handling and keep rough offal and to hold containers with inedible products prior to removal. There must be a toilet and washing facilities.
Corresponding provisions that are appropriate for poultry apply to rural poultry abattoirs (i.e., abattoirs with a throughput of not more than 50 fowl per day.)
The design of a rural abattoir must allow for future upgrading of the facility.
Additional requirements are prescribed for the two higher grades of abattoirs. If a red-meat abattoir will have a throughput of more than two cows or twelve goats per day, its premises
must be fenced, lairages must be available at least six meters from the abattoir with sides at least 1.8m high for cows and 1.0m for goats and minimum floor space per animal, lairage passages and crushes for herding animals to the stunning area must have a prescribed minimum width, separate entrances and separate restraining and stunning facilities must be provided for cattle and goats, stunning apparatus and facilities for shackling stunned animals and bleeding in a hanging position must be provided, dressing rails and equipment with prescribed minimum clearances must be provided, a room where paunches and intestines are emptied and washed must be provided, and a change room as well as a shower and hand-wash facilities and toilet must be provided on the premises for employees.
Chillers equipped with accurate thermometers must be provided to hold at least the daily slaughter throughput. Minimum clearances are prescribed for rails and equipment in bleeding areas, dressing areas, and chillers.
(Corresponding provisions appropriate for poultry apply to poultry abattoirs with a throughput of more than 50 fowl a day.)
More stringent requirements are prescribed for high-throughput abattoirs, i.e., abattoirs with a daily throughput of more than 20 cows or 120 goats (or 2,000 fowl).
The Act does not apply to, and thus exempts from the requirement that animals must be slaughtered in an abattoir, slaughter “for own consumption” or for cultural or religious purposes. If the criterion for requiring slaughter in an approved abattoir is hygiene, there can be no valid grounds for allowing someone to slaughter outside an abattoir for own consumption or cultural or religious purposes. As with restaurants, while the ostensible standard is health, the actual benchmark is trade: the rules don’t apply if the food isn’t sold.
The exemption for slaughter for cultural or religious purposes recognises that standards other than those in the regulations can be acceptable.
The legislation lays down an ideal for inspection which is not attained in practice. The Act decrees that the owner of a red-meat abattoir must employ a veterinarian or other qualified person as a meat inspector, who must be registered by the provincial executive officer for that abattoir. No person shall slaughter any animal at an abattoir unless it has been inspected and passed as fit for slaughter by a meat inspector (or in the case of a rural abattoir and if the provincial executive officer has granted an exemption, a meat examiner). And no carcass, part thereof, or red offal may be sold or dispatched from an abattoir unless it has been inspected and approved by a registered inspector.
There used to be over a thousand abattoirs, but national legislation introduced in the 1960s imposed expensive requirements and led to a reduction in the number of abattoirs to fewer than 300. The now-repealed meat scheme administered by the Red Meat Board also encouraged centralisation of abattoirs and benefited big business in the meat industry. The repeal in the 1990s of the abattoir industry legislation under which abattoirs could be prohibited in certain areas, and the repeal of the red-meat scheme, favour the creation of new abattoirs, but the legislation still makes entry into this sector relatively uneconomic for small-scale slaughtering businesses.
The old policies caused the closure of many rural abattoirs. This harmed the economy of numerous small towns and surrounding districts. Local abattoirs assisted rural development by creating employment opportunities and by supporting leather and tanning and other related industries.
Small business opportunities in the meat production sector should not be restricted by unnecessary legislation. Undernourishment is prevalent among many communities, and there is a need to make protein available cheaply.
Though the aim of the current legislation is to promote meat safety, its effect is still to restrict access to any meat by increasing its cost above many people’s ability to pay. It also operates to the disadvantage of smaller abattoirs. It requires excessive capital investment in infrastructure, which often has to lie idle after the daily throughput has been reached, or while waiting for an inspector to arrive. The goal of maintaining meat safety could be performed equally well and probably better by self-regulatory and voluntary associations run by the abattoirs, cold-chain transporters and retailers, engaging independent vets and inspectors, and applying measures for the supply of safe meat, which will be marked and labelled accordingly as fit for public consumption. Any exporter wishing to export to another country should simply have the choice to comply with that country’s requirements.
Considerations
Many will feel that the meat-safety legislation is indispensable to protect the public from infected meat. But its environmental requirements cannot guarantee the soundness of the meat. The numerous exemptions from the legislation discredit any argument that the law has an essential health purpose.
The standard of meat products should merely be governed by the Agricultural Products Standards Act and by compulsory standard specifications under the Standards Act governing canned meat foodstuffs.
RECOMMENDATION 15
Informal slaughter should be legalised.
If there must be abattoir legislation, it should not criminalise informal slaughter outside an abattoir.
Meat has been slaughtered under perfectly hygienic conditions for centuries using a slaughter pole. Indeed, the original Afrikaans word for abattoir is slagpale – literally, slaughter poles.
In the 1970s the abattoir laws were relaxed in the north of Namibia (then South West Africa) to permit the continued production of meat for the local population at a time of capital shortages and other difficulties incidental to the liberation struggle being waged in that territory. This relaxation gave rise to a mushrooming of informal slaughter, and meat was lawfully offered for sale from carcasses hanging on trees. This led to an increase in the supply of essential protein to the public, a steep decrease in the incidence of malnutrition, and a 50% reduction in the price of meat. The health authorities reportedly found no cases of food poisoning as a result of this relaxation of the abattoir legislation.
A 2017 study of the effect of post-slaughter handling during distribution on the microbiological quality and safety of meat in South Africa’s formal and informal sectors concluded merely that foodborne disease (albeit a common public-health problem worldwide) is generally underreported and poorly investigated in South Africa; that the informal sector in the majority of cases does not adhere to the legal requirements that the formal sector follows before and after slaughter; and that a food-safety knowledge gap in the informal sector has been identified.
Considerations
If considered essential, there could be a regulation that there should be a net to stop flies, and a safe method of disposing of blood and stomach contents.
The Meat Safety Act, 2000, by providing for the registration of so-called rural abattoirs, should be saluted as a step in the right direction.
The Act also follows international trends by moving from the previous legislation’s preoccupation with building standards to a more holistic emphasis on hygiene-management systems and programmes.
RECOMMENDATION 16
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.
The current position where the legislation prescribes a fixed maximum daily throughput should be altered to give every abattoir the right to process batches more intensively. This will lead to the more effective use of abattoirs, and give a better return on capital invested.
Provided the number of animals being processed at any one time stays within the maximum capacity of the abattoir, it should be able to take in any number of animals in a day, in batches within its capacity. Instead of fixing a maximum throughput for an abattoir as a whole, which leads to underutilisation of some sections, there should instead be fixed a maximum throughput for each section of an abattoir, thus permitting each section to operate to its full capacity.
Considerations
Sufficient time must be allowed for the abattoir to be cleaned between batches. In practice, the rate of processing will be limited by the section of the abattoir with the smallest capacity.
RECOMMENDATION 17
Local authorities should establish communal slaughtering places at which small-scale slaughterers and others can slaughter their animals.
Communal slaughtering areas should be reintroduced. Municipalities provided communal slaughtering areas until the 1960s. The municipality supervised the facility and members of the public were permitted to slaughter there.
Considerations
Communal slaughtering places would make it easy for the health authorities to provide guidance and education to slaughterers, empowering them to acquire more skills in the hygienic production of meat.
RECOMMENDATION 18
A poultry 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.
The present requirement that larger poultry abattoirs must provide freezers should be done away with where the meat is not going to be transported over a long distance or be handled by intermediaries. Much slaughter takes place for immediate consumption, and no butcher or carrier intervenes between the abattoir and the final consumer. The slaughterer often hands over the poultry carcass or other products to the creature’s owner or other customers, who intend to cook the meat at once. Refrigeration is expensive to provide. This proposal will lead to lower costs in the production of poultry meat.
Considerations
Refrigeration can be required if poultry carcasses or meat will be transported over a long distance, or be delivered to retail butchers, where there is a risk of infection between the arriving meat and the butcher’s existing meat stock.
Select sources
Legislation and policy documents
Foodstuffs, Cosmetics and Disinfectants Act 54 of 1972—
s 1 (definitions) svv “appliance”, “foodstuff”, “manufacture”, “premises” and “sell”; s 2(1)(b)(i) (prohibition of sale of foodstuff which is contaminated, impure or decayed); s 8 (liability of employer or principal); s 11 (powers, duties and functions of inspectors); s 15(1)(nA)–(nN) and (9) (regulations); s 17 (offences); s 18 (penalties); s 20 (forfeiture); s 22 (proof of facts, and presumptions); s 23 (administration of Act by authorized local authority); s 24 (right to prosecute); s 25 (delegation of powers by Director-General); s 26 (defect in form not to invalidate); s 27 (restriction of liability)
Govt Notice 638 of 22 Jun 2018: Regs governing general hygiene requirements for food premises and transport of food: Reg 1 (definitions) svv ‘food premises’, ‘handle’, ‘health hazard’, ‘perishable food’ and ‘person in charge’, reg 3 (certificate of acceptability), reg 4 (prohibition on handling and transportation of food), reg 5 (standards and requirements for food premises), reg 6 (standards and requirements for facilities on food premises), reg 7 (standards and requirements for food containers, appliances and equipment), reg 8 (standards and requirements for display, storage and temperature of food), reg 9 (standards and requirements for protective clothing), reg 10 (duties of person in charge), reg 11 (duties of food handler), reg 12 (standards and requirements for handling of meat and meat products), reg 13 (standards and requirements for transport of food), reg 14 (exemptions, additional requirements and reservations), reg 15 (offences), reg 16 (commencement), reg 17 (repeal of regulations);
Govt Notice R908 of 27 Jun 2003 (as amended in 2009 and 2018): Regs relating to application of Hazard Analysis and Critical Control Point (HACCP) system;
Constitution of the Republic of South Africa, 1996—
s 104(1)(b)(i) and (ii) (legislative authority of provinces), s 156(2) (powers of municipalities to make by-laws);
Sched 4 (areas of concurrent national and provincial legislative competence): Pt B (local- government matters): Child-care facilities; trading regulations;
Sched 5 (areas of exclusive provincial legislative competence) Pt B (local-government matters): Licensing and control of undertakings that sell food to the public;
National Health Act 61 of 2003—
s 1 svv “health nuisance”, s 90(1)(n) (environmental health regulations);
Govt Notice 951 of 4 Dec 2013 (National environmental health policy): par 7.5.5 (food-borne diseases), par 10.1 (environmental health education), par 10.2 (food control);
Tobacco Products Control Act 83 of 1993—
s 2 (control over smoking), s 3 (advertising, display and labelling), s 4 (prohibitions relating to persons under 18, etc), s 5 (vending machines);
Govt Notice 2063 of 2 Dec 1994: (regulations re labelling, advertising and sale);
Govt Notice R975 of 29 Sep 2000 (ministerial notice re smoking in public places);
Govt Notice 475 of 9 May 2018 (draft Control of Tobacco Products and Electronic Delivery Systems Bill: Invitation for public comment);
Meat Safety Act 40 of 2000—
s 7 (no slaughter except at abattoirs, and exemptions), s 8 (approval of facility), s 11(1)(a)–(j) and (o) (essential standards);
Govt Notice 1072 of 17 Sep 2004 (red meat regulations);
Govt Notice R153 of 24 Feb 2006 (poultry regulations);
Children’s Act 38 of 2005—
s 76 (partial care), s 79 (norms and standards for partial care), s 80 (partial-care facility to be registered), s 85(1)(a)(i) and (ii) (notice to stop operating partial-care facility or apply for registration), s 305(1)(f) and (g), (6) and (7) (offences and penalties for failure to comply);
Govt Notice R261 of 1 Apr 2010 (general regulations regarding children) reg 13 (norms and standards for partial care) read with annex B (norms and standards) pt 1 (partial care), reg 14 (application for registration of partial-care facility);
Agricultural Product Standards Act 119 of 1990—
s 3 (control over sale of products) and s 15 (regulations);
Govt Notice R946 of 27 Mar 1992 (regulations about control over sale of poultry meat);
Govt Notice R55 of 30 Jan 2015 (regulations about classifying and marking meat for sale);
Standards Act 8 of 2008—
s 24 (issuing of national standards);
National standard: “Requirements for a Hazard Analysis and Critical Control Point (HACCP) system” SANS 10330:2007 (ed 2.1) SABS;
Gauteng Liquor Act 2 of 2003 s 41(1) (licensed business must not be conducted on premises where any other business, trade or occupation is carried on or pursued);
Western Cape Liquor Act 4 of 2008 s 49(4) (licensee of premises where retail food store business is carried on may not sell liquor other than natural wine);
Limpopo Liquor Act 5 of 2009 s 53(1) (prohibition of sale of concoction made by fermenting treacle, sugar or other substances and known as hopana, skokiaan or barberton);
Kwazulu-Natal Liquor Licensing Act 6 of 2010 s 78 read with Sched 3 (trading hours)
Municipal bylaws
eThekwini [Durban] Municipality: Child Care Facilities By-law 2015 (Mun Notice 200 of 2015, Kwazulu-Natal Prov Gazette Extraordinary 1530 of 22 Oct);
City of Cape Town: Environmental Health By-law 2003 (Prov Gazette Extraordinary 6041 of 30 Jun 2003) s 28 (accommodation establishments)
Caselaw
Ex parte President: In re Constitutionality of Liquor Bill, 2000 (1) BCLR 1 (CC);
S A Liquor Traders Assoc and others v Chair, Gauteng Liquor Board and others, 2006 (8) BCLR 901 (CC);
Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd and others 2008 (11) BCLR 1123 (CC) par [80] (municipalities’ enhanced status does not prevent two spheres of control from co-existing even if they overlap and even if the one may in effect veto the decision of the other, in light of the fact that the one sphere operates from a municipal and the other from a national perspective, each with its own constitutional and policy considerations);
City of Johannesburg Metro Municipality v Gauteng Development Tribunal and others (MEC of KwaZulu Natal for Local Government and others intervening, S A Property Owners Assoc and ano as amici curiae) 2010 (9) BCLR 859 (CC) par [56] (each sphere of government is allocated powers which it alone is entitled to exercise, apart from areas of concurrent competence);
Min of Local Govt W Cape v Habitat Council and others (City of Johannesburg amicus curiae) and related matter 2014 (5) BCLR 591 (CC) par [19] (provincial and national governments cannot overriding municipal decisions, but they may have coordinate powers to withhold or grant approvals of their own)
Articles
Rani Z T, Hugo A, Hugo C J, Vimiso P, Muchenje V, South African Journal of Animal Science 2017 vol 47(3), “Effect of post-slaughter handling during distribution on microbiological quality and safety of meat in the formal and informal sectors of South Africa: A review”;
Alcohol, Development and Poverty in South Africa research collaboration (2015), Alcohol regulation in South Africa: Popular controversies;
Charman A, Petersen L, Piper L, Development Southern Africa 2013 vol 30(4–5), “Enforced informalisation: the case of liquor retailers in South Africa”