Business Licensing Bill:
SANTRA (Informal traders): "Theft by the aid of the law".
FMF: "Arbitary discretionary power equals corruption"
FMF executive director Leon Louw's response to Minister Rob Davies announcement yesterday that the business licensing bill would be redrafted is unequivocal: "If something is a bad idea, it's a bad idea, diluting a bad idea doesn't turn it into a good idea; the lesser of evils is evil".
At an FMF media briefing this week, Leon Louw expressed his astonishment that the bill could ever have been drafted in a constitutional democracy and wondered whether the Minister applied his mind to what had been presented to him. Louw said that anyone with elementary legal training would question the constitutionality of the bill. It is another example of legal drafting which pays scant regard to our constitutional mandates and values. It is filled with arbitrary discretion without basic checks and balances such as objective criteria. "This bill allows discretionary power in almost every paragraph without a clear purpose or specific criteria."
As it stands, the bill applies to anyone who supplies anything, anywhere and anyhow. It provides for unlimited fines, unlimited "penalties" and up to 10 years imprisonment without due process or judicial appeal. It replaces the rule of law with the rule of man and follows an alarming trend in South Africa whereby judicial and legislative functions are being replaced with law by decree. Legislative and judicial functions are being drained from Parliaments and the courts into the hands of unelected officials in the executive branch of government.
The real intention of the bill remains a mystery. Louw quoted lofty shibboleths and obligatory mantras in the bill's preamble, including creating a "simple and enabling framework"; prescribing "minimum requirements"; promoting "social and economic upliftment"; respecting, protecting, promoting and fulfilling "the right of every citizen to choose their trade, occupation or profession, promote "democratic values and services"; enforcing "impartially, fairly, equitably and without bias'; promoting "freedom of trade, occupation and profession and any rights in the Constitution"; developing "the economy"; encouraging "a conducive environment" and so on. He said "Later we were told the main intention is to crack down on illegal immigrants and illicit trading. Was this an afterthought"?
Louw also said that in a competition for the best idea to maximise corruption and extortion, the Business Licensing bill would be the clear winner.
This echoes the views of street traders whom this bill is meant to protect. They are vehemently opposed to it. Representatives of the South African National Retail Traders Association (SANTRA), which represents informal traders, joined Louw to tell their story first hand. Edmund Elias and Geoffrey Nemakonde told the audience that corruption is a daily reality with officials confiscating their goods and demanding bribes called "fines" under the guise of municipal by-laws.
Elias who sells used books on central Johannesburg sidewalks said "Our main concern is the punitive measures which will deprive an ordinary citizen of his livelihood without even a court appearance and will criminalise millions of non-criminals." He continued "This bill will entrench existing corruption via bribes and confiscating stock on a national scale". He said the government did not seem to realise how many people are scraping a living on the streets and that the bill would hit the poorest, hardest.
Sidewalk fruit vendor, Nemakonde, told the audience that he had been selling in the streets since the 1980s, that it was a hard and difficult life and that he and other informal traders had hoped that this new government would help them get off the streets and into better work. "Instead they give us this new law which will make our lives even harder. By laws exist already" he continued "and we fight unjust fines and the impounding of our stock, but with this new law, with the threat of a 10 year jail sentence, who will take the risk? We will see this corruption escalate. Officers already confiscate our goods, often taking our stock home yet this new bill doesn't even require a receipt for our goods taken by inspectors. It will just get worse and we will be able to do nothing. Already they insist on a "fine" of R 2,400 just to keep the space we have had for years".
According to Elias "Perversely it will be the "illegals", those the Minister seeks to oust, who will benefit, as they will pay the fines and bribes to stay in business while legal South Africans will face even more intimidation, corruption and extortion by officials enforcing the law, creating even more hardship for those who live life on the streets of South Africa."
Statement issued by the Free Market Foundation, May 17 2013
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