The tragic deaths of children exposed to harmful chemicals from spaza shops highlight the need for accountability. However, over-regulating peaceful business activities risks injustice. Laws should address harm, restoring justice when injuries occur. Targeting shopkeepers who negligently harm others is essential, but criminalizing compliant entrepreneurs undermines freedom and fairness. South Africans must prioritize justice, ensuring laws address harm without stifling lawful trade or expanding state overreach unnecessarily.
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By Zakhele Mthembu*
The tragic deaths of children exposed to harmful chemicals from foreign-owned and operated spaza shops have brought regulations to the forefront. In the rush to call for more regulations, we must be careful not to harm ourselves in the process.
In law, there are various philosophies that inform one’s understanding and interpretation of the law. Without delving into a lecture on jurisprudence, it is safe to say that there are two broad camps. There are those who believe that the law is objective and discovered rather than made, known as the Natural Law jurists. Then there are those who believe that the law is whatever the state proclaims, known as Positivists.
In South Africa we are familiar with the pitfalls of the positivist position. It was once that the indigenous population had a lesser standing in the eyes of the law than the descendants of European colonists. Yet, it would be challenging to find someone who would argue that laws like the 1912 Natives Land Act were just.
The issue of justice is closely tied to what the law is and [ought to] be. In simple terms, justice is the restoration of a position that a party would have enjoyed if they had not been injured. For example, if someone steals your property, justice would be returning your belongings so that you are in the same position as if the theft had not occurred.
This brief explanation of justice does not delve deeply into the concept, something which is beyond the scope of this piece. The point is to show how justice should be connected to the law. The law arises from conflicts between people. Without conflict, there would be no need for law. This is why regulations from a natural law perspective are problematic, as they operate presuming no conflict exists.
A typical safety and health regulation seeks to define behaviour and set out appropriate actions – as any law should – for individuals who have not caused harm to others. For instance, a regulation stating that food must be prepared in a specific sink and kitchen dimension for sale aims to regulate the behaviour of a shop owner.
If an entrepreneur does not follow that law and chooses to prepare food differently but still satisfies their customers, they may still be prosecuted for breaching the law if the state decides to do so. This is an injustice, yet it is demanded of township businesses.
This argument should not be mistaken for condoning the actions, whether intentional or negligent, of shopkeepers who harm their customers with harmful substances. These shopkeepers must be fully prosecuted because their actions have caused harm. However, prosecuting a business owner who has not harmed anyone but does not follow certain guidelines is unjust.
Preventing criminal offenses is impossible. Crimes like murder or theft demonstrate this impossibility. The crime of murder is not primarily meant to deter people from committing murder; while the sentences for murder may dissuade potential murderers, the primary purpose is to enforce justice for the community and victim.
From economic status to family dynamics there are various motivations and factors contributing to high murder rates. When high murder rates are reported, seeking more murder laws to prevent future murders is not the solution.
This should apply to negligently causing the death of another person, whether through poison exposure or other means. Prosecuting those who harm their customers should serve as a deterrent. Instead of shutting down businesses that do not meet regulatory standards, officials should focus on prosecuting those who cause harm.
Engaging in trade – a business transaction – such as buying items from a shopkeeper, is a harmless activity. If this activity occurs without the shopkeeper meeting certain state standards, should it be considered illegal if both parties willingly engage in it?
Criminalising peaceful activities is unjust. This is the motivation behind the Free Market Foundation’s Section 12 Initiative. The Initiative details why crimes and the criminal justice system should be reserved for those who harm others, like shopkeepers who negligently or intentionally expose their customers to harmful substances.
For everyone else, whether running a backyard factory making fizzy drinks or cooking vetkoeks on a small stove, if customers willingly patronize the business the state’s approval of methods should not hold more weight than consumer choice.
South Africans need to understand that the law (and laws) should address harm done to others and to restore justice. When purchasing food from an entrepreneur who may not be aware of certain laws, no crime is committed unless harm is caused; prosecution should only occur if harm is inflicted.
Beyond the consequences of overregulation in any economy, the starting point is that regulating peaceful behaviour is unjust. Applying the law to those who have not harmed others is an injustice and a distortion of justice.
In our efforts to protect our communities from harm caused by foreign-owned spaza shops we must be cautious not to expand the state’s powers and commit injustices in the name of safety.
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*Zakhele Mthembu BA Law LLB (Wits) is Policy Officer at the Free Market Foundation.