Agriculture, Economic Development and Tourism

1. Whether there is any legislation in South Africa requiring the registration of spaza shops; if so, what are the relevant details?

There is no legislation in South Africa specifically requiring the registration of spaza shops, however, certification or licensing may be necessary depending on the nature of the goods sold and the business operations. The following legislation applies to the certification and licensing of spaza shops where foodstuffs are concerned:

1. 1. The Foodstuffs, Cosmetics and Disinfectants Act, 1972 (Act No. 54 of 1972) (“the Foodstuffs Act”), governs the sale, manufacture, and importation of foodstuffs. The Regulations Governing General Hygiene Requirements for Food Premises, the Transport of Food and Related Matters were made in terms of section 15(1) of the Foodstuffs Act (GN 638 of 22 June 2018: Government Gazette No. 41730). Regulation 3 provides that a person may not handle food or permit food to be handled on food premises in respect of which a valid certificate of acceptability has not been issued or is not in force. Application for a certificate of acceptability must be made in writing to the local authority in whose area of jurisdiction the food premises are situated.

b.    The Businesses Act, 1991 (Act No. 71 of 1991) regulates the licensing of businesses and provides that no person shall carry on business by the sale or supply to consumers of (a) any foodstuff in the form of meals for consumption on or off the business premises, or (b) any perishable foodstuff, unless, he is the holder of an apposite licence issued to him by the licensing authority in respect of the business premises concerned.

Thus, while spaza shops may require certification and/or licensing under the above legislation, the need for such certification and/or licensing is circumstantial and linked to the nature of the goods sold.

2. Whether there are any regulations in place in the country requiring the regulation of spaza shops; if so, what are the relevant details?

The regulation of spaza shops is determined by the nature of the goods sold and the business operations.  In addition to the Foodstuffs, Cosmetics and Disinfectants Act, 1972 (Act No. 54 of 1972) and the Businesses Act, 1991 (Act No. 71 of 1991), some municipalities in the Western Cape have adopted specific by-laws or policies regulating spaza shops within their jurisdictions.

Annexure A to this response further outlines the laws that may apply in a broader context to the incidents of food poisoning stemming from spaza shops, as well as the Provincial Departments responsible for the implementation of and/or monitoring of compliance with these laws.

3. Whether the Province is empowered by law to regulate spaza shops; if so, what are the relevant details?

The administration of the Businesses Act, 1991 (Act No. 71 of 1991) was assigned to the Province in terms of Proclamation 18 of 9 March 1995 and the Act was subsequently amended at Provincial level (“the Businesses Act”).

The Businesses Act provides that the Provincial Minister responsible for economic development in the Western Cape Province (“the Provincial Minister”) may by notice in the Official Gazette designate a municipality, or appoint any person or body, as a licensing authority for an area which the Provincial Minister specifies or defines in the notice, to undertake from a date specified in the notice the licensing of businesses in the area concerned.  In 2003, the Provincial Minister designated the metropolitan, district and local municipalities in the Province as licensing authorities to undertake, from 28 February 2003, the licensing of businesses in their respective areas of jurisdiction.

The Province is therefore empowered to regulate spaza shops under the Businesses Act, particularly in respect of licensing, where the nature of the goods sold by the spaza shop falls within the purview of the Businesses Act.  While the metropolitan, district and local municipalities have been designated as licensing authorities, the Provincial Minister remains the appeal authority on matters relating to licensing.

In addition to what is stated above, Annexure A to this response further outlines the laws that may apply in a broader context to the incidents of food poisoning stemming from spaza shops, as well as the Provincial Departments responsible for the implementation of and/or monitoring of compliance with these laws.

4. Whether his Department has called for the regulation of spaza shops; if not, why not; if so, what are the relevant details?

No, the Department has not called for the further regulation of spaza shops. The regulation of spaza shops is currently determined by the nature of the goods sold and the business operations.  In respect of foodstuffs: 

1. 1. The Foodstuffs, Cosmetics and Disinfectants Act, 1972 (Act No. 54 of 1972) (“the Foodstuffs Act”) empowers the Director-General of the national Department of Health to authorise persons as inspectors. An inspector may at all reasonable times enter upon any premises on or in which any foodstuff is or is suspected to be manufactured, treated, graded, packed, marked, labelled, kept, stored, sold or served or on or in which any other operation or activity with or in connection with any foodstuff is or is suspected to be carried out, and may exercise various powers, including: inspecting or searching such premises; examining, taking and removing samples of foodstuff; and seizing foodstuff that appears to provide proof of a contravention of any provision of the Foodstuffs Act. The national Minister of Health may authorise a local authority to enforce within its area of jurisdiction provisions of the Foodstuffs Act – such a local authority may exercise or perform the powers, duties and functions of an inspector for the purposes of the administration of a provision of the Foodstuffs Act, and may prosecute in respect of any contravention of or failure to comply with a provision which it has been authorised to enforce.
2. 2. The Regulations Governing General Hygiene Requirements for Food Premises, the Transport of Food and Related Matters (GN 638 of 22 June 2018: Government Gazette No. 41730) provide that food many not be handled on food premises unless a valid certificate of acceptability has been issued (by the local authority in whose area of jurisdiction the food premises falls) or is not in force.
3. 3. In terms of the Businesses Act, 1991 (Act No. 71 of 1991) the Provincial Minister responsible for economic development in the Western Cape Province designated the metropolitan, district and local municipalities in the Province as licensing authorities to undertake, from 28 February 2003, the licensing of businesses in their respective areas of jurisdiction.
4. 4. Some municipalities in the Western Cape have adopted specific by-laws or policies regulating spaza shops within their jurisdictions.
5. 5. In addition to what is stated above, Annexure A to this response further outlines the laws that may apply in a broader context to the incidents of food poisoning stemming from spaza shops, as well as the Provincial Departments responsible for the implementation of and/or monitoring of compliance with these laws.

There is no demonstrable need for the introduction of further measures to regulate spaza shops and to allow the relevant authorities to carry out their functions in this regard.

5. What is the role of his Department concerning health checks at businesses, including spaza shops, that sell all kinds of food?

Section 55 of the Consumer Protection Act, 2008 (Act No. 68 of 2008) (“the CPA”) provides that consumers have the right to receive goods that are safe, of good quality, and compliant with applicable standards and public regulations. Section 56 of the CPA provides for the return of unsafe or defective goods and for a refund to be provided. The Department, through its Office of the Consumer Protector (“OCP”), contributes to enforcing consumer rights under the CPA. However, the OCP operates on a reactive basis, investigating consumer complaints after they are reported.

It is critical to distinguish between consumer protection and public health responsibilities. As indicated, the Foodstuffs, Cosmetics and Disinfectants Act, 1972 (Act No. 54 of 1972) (“the Foodstuffs Act”) empowers the Director-General of the national Department of Health to authorise persons as inspectors. An inspector may at all reasonable times enter upon any premises on or in which any foodstuff is or is suspected to be manufactured, treated, graded, packed, marked, labelled, kept, stored, sold or served or on or in which any other operation or activity with or in connection with any foodstuff is or is suspected to be carried out, and may exercise various powers, including: inspecting or searching such premises; examining, taking and removing samples of foodstuff; and seizing foodstuff that appears to provide proof of a contravention of any provision of the Foodstuffs Act. The national Minister of Health may authorise a local authority to enforce within its area of jurisdiction provisions of the Foodstuffs Act – such a local authority may exercise or perform the powers, duties and functions of an inspector for the purposes of the administration of any provision of the Foodstuffs Act, and may prosecute in respect of any contravention of or failure to comply with a provision which it has been authorised to enforce.

To conclude, the Department’s role, through the OCP, is primarily focused on safeguarding consumer rights under the CPA, particularly concerning the quality and safety of goods. While the OCP has an important role in addressing complaints and investigating violations, general health inspections are outside its purview.