Dotty Davies gets ready to close up shop

Politicians and officialdom are not known for their grasp of nuance. This makes for inadvertently amusing acronyms to give us the occasional giggle.

We have had such gems as Boss, the apartheid era’s Bureau of State Security, Saps, the hapless police force that shot dead 34 at Marikana, and Wasps, the Worker and Socialist Party, would-be revolutionaries clearly unaware of the insidious nature of God-fearing white Anglophone capital. There is also a dotty cabinet minister, whose law making makes one wonder whether he has lost his marbles.

Department of Trade and Industry (Doti) Minister Rob Davies has drafted a Licensing of Business Bill. Contrary to the stated intention of “building a simple and enabling framework” for small business, this Bill is going to give entrepreneurs, SMMEs, and those who are precariously economically active a hefty kick in the scrotum. Since the government’s National Development Plan relies on these very groups for economic growth and employment, dotty indeed.

Davis has cannily released the draft Bill in the middle of the Easter season, with its plethora of consecutive long weekends, and none of the opposition parties appears to have even noticed it. The closing date for public comment on the proposed legislation is April 18.

But as businessman Rob Wooding puts it: “The Bill is poorly conceived, vague, draconian, impractical and fails at a fundamental level to meet the motivations listed for it. By adversely impacting on entrepreneurial activity it will work directly against the creation of new businesses and jobs and will inevitably result in widespread corruption. The draft itself is riddled with contradictions, grammatical errors and missing words.”

Firstly, the Bill will mean that every conceivable activity, from selling smileys at the side of the road to koeksusters at the back door, will require a licence from the local municipality. So, too, will anyone working from home, be it doctor, architect or farmer.

The previous Act narrowly confined licensing to the sale of perishable foodstuffs, health facilities and public entertainment. “A valid case can be made for these and similar industries as being in the interests of the public,” comments Wooding. “But by placing the conduct of every form of business essentially at the whim of a local municipality, the right to freedom of trade, occupation and profession is substantially curtailed.”

Secondly, although the municipality will be obligated to rule on a licence within 30 days, it is left to the local authority to decide the criteria for issue and how any appeal process will be constituted. Essentially, the rule maker will also be the arbitrator of any dispute, which is patently unfair.

Given that the penalty for being unlicensed is an unspecified fine and administrative penalties, as well as up to 10 years imprisonment, as Wooding notes, “it is entirely conceivable that local personal interests will, as they do at present, have a bearing on the issuing of licences, while party political support and black economic empowerment will become overt or covert [factors in] the granting of a licence”.

Thirdly, under the previous Act, a licensing inspector’s powers were limited to issuing a compliance order. In terms of the Bill, an inspector — any municipal employee, customs and excise official, or law officer — can demand entry to anywhere business is suspected of occurring. He or she can impound without warrant any goods (for which the inspector might or might not choose to give you a receipt), can issue spot fines and can arbitrarily close your business with immediate effect.

This is outrageous, unworkable and probably unconstitutional. In other words, par for the course. After all, not only has much of the post-1994 legislation created perverse incentives that neutralise the social engineering goals that the ANC seeks to achieve, but laws are so poorly drafted that when challenged in the higher courts virtually every one has been shown to be flawed in concept and execution.

The guttural leitmotif of the National Party era, “but havya gotta a licence, meneer?” is back in play, courtesy of Dotty Davies.