The problem with government’s response to spaza shops: the Standard Draft By-Law for Township Economies
It gained prominence as part of the national government’s response to the dreadful incidents of illnesses and deaths caused by the consumption of contaminated or poisonous products sold by spaza shops. In this article, it is argued that there are legal difficulties with this standard by-law.
What is a standard draft by-law?
The Minister for local government may make standard draft by-laws on any matter for which municipal councils may make by-laws. An MEC for local government may do the same. Standard draft by-laws are applicable only if they are adopted by the council. The municipality may decide to use such a standard draft by-law as a basis for its own by-law process. The council may change the standard draft by-law to fit in with local conditions or circumstances. It may also ignore the standard draft by-laws altogether. The proclamation of a standard draft by-law therefore has no legal effect; the legal effect only occurs when a municipal council adopts the by-law (with or without changes).
What is the problem with the Standard By-Law for Township Economies?
The Standard By-Law for Township Economies was gazetted in November 2024, as a standard by-law. However, it uses language that addresses municipalities as if the provisions are national regulation. For example, it provides that “a municipality may … determine quotas” of foreign businesses and that the quotas “must ensure” that a proportion of staff members of foreign business as South African citizens or permanent residents. This wording cannot possibly feature in a municipal by-law. If a municipal council adopts these provisions (and thus decides that they do not amount to unfair discrimination and violate section 9 of the Constitution), it must change the wording first.
In fact, the consistent use of the phrase “a municipality must” or “a municipality may” throughout the Standard By-Law for Township Economies suggests that it is intended to be national regulation, even though it is presented as a standard draft by-law. However, the nature of the regulation is too detailed to be constitutionally permissible as national regulation. It deals with functions such as “street trading”, “trading regulations”, “licensing and control of undertakings that sell food to the public”, which are all original constitutional functions of local government and national government may only determine minimum standards. Many of the provisions in Standard By-Law for Township Economies go beyond the setting of minimum standards. For example, when it provides that no person may carry out a business next to an auto teller bank machine, it goes beyond the setting minimum standards.
There is no immediate legal harm caused by the Standard By-Law for Township Economies itself because, on its own, it has no legal effect. Municipal councils may amend the wording and ensure it has the appropriate language before adopting it.
However, there are two possible problem scenarios. The first is if a municipal council adopts the standard by-law without amending the wording. It will then adopt poorly drafted legal provisions. The municipality may face legal challenges when it attempts to enforce these provisions.
The second problem scenario is when a municipality, deceived by the peremptory wording of the standard by-law and its detailed provisions, implements the standard by-law without the municipal council first adopting (an amended version of it). In this scenario, there is no legal basis for any enforcement decisions of municipal officials because a standard draft by-law has no legal effect.
The Standard Draft By-Law for Township Economies is an inappropriate use of the instrument of standard by-laws. Rather than supporting municipalities with a ready-to-use standard draft by-law which they can tailor to their own circumstances, the national government may have sowed confusion, and set the scene for municipalities encountering legal difficulties.
Municipalities should not implement these provisions without first adopting them as a by-law, and when they do, ensure its provisions are adapted to their municipal context.