FREE MARKET FOUNDATION, COMMENTS to the DIRECTOR-GENERAL OF THE DEPARTMENT OF TRADE AND INDUSTRY (for the attention of Ms. Baneke Dalasile) about the proposed LICENSING OF BUSINESSES BILL, 2013 [made known under Notice 231 of 2013], April 17 2013
1.1. Economic growth and licensing
Commenting on the substance only of the proposed Licensing of Businesses Bill does not adequately deal with the economic consequences of the implementation of such laws.
Whatever the proposed purpose might be, there is no doubt that licensing will impact negatively on the economy and most particularly on the poorest people in the country.
The proposed licensing laws run directly counter to the policies that are necessary to bring about growth, employment and a reduction in poverty.
We attach two documents that deal in broad terms with the essential elements of economic policies that result in high growth:
- FMF Submission to the National Planning Commission on the National Development Plan Economic Overview / South Africa's Economy from an Economic Freedom Perspective
- Habits of Highly Effective Countries: Lessons for South Africa (see here)
The attached documents should be read together with our submission on the content of the Bill.
1. Introduction
1.1. The Free Market Foundation (also referred to here as ‘the Foundation' or ‘the FMF') submits written comments as follows on the proposed ‘Licensing of Businesses Bill' (hereinafter referred to as ‘the proposed Bill' or ‘the draft Bill').
1.2. The proposed Bill was published by the Minister of Trade and Industry under a General Notice[1] in the Government Gazette on 18 March 2013.[2]
2. Deadline for comment
2.1. The Notice states that the proposed Bill is published for public comments, and that interested persons may submit written comments on the Bill.
2.2. The website of the Department of Trade and Industry states that comments can be e-mailed[3] by no later than Thursday, 18 April 2013.[4]
3. Executive summary
3.1. This proposed Bill will be draconian and unworkable and should be withdrawn.
3.2. The Bill requires every business in the country to obtain a licence. It applies to every provider of any goods or services. This is wide enough to cover every grocery and greengrocer, car dealer, pharmacy, and seller of livestock. It includes every factory and wholesaler of heavy machinery and raw materials. It also includes every service provider, from lawyers and hospitals to hotels, carparks, airports, freight carriers and advertising agencies. It is doubtful if each licensing authority will exercise its powers to grant exemptions generously.[5]
3.3. The Bill will criminalise all businesses, existing or new, who don't obtain a licence.[6]
3.4. The Bill provides no clear transitional period to enable all existing businesses to obtain licences. Licensing authorities will be swamped with applications.[7]
3.5. The Minister says optimistically that licensing will be easy. This is unlikely. The licensing authorities will be municipalities. The Financial and Fiscal Commission said last year that lack of capacity is crippling municipalities due to their high vacancy rates, skills deficits, inappropriate staffing and poor accountability for performance.[8]
3.6. It is not clear that licensing authorities will be obliged to issue licences to businesses that qualify. The Bill does not say that a licensing authority ‘must' issue licences to businesses which satisfy the requirements. It says instead that the licensing authority ‘may' issue a licence.[9]
3.7. Licensing authorities can impose any licence condition in their sole discretion, and amend any licensee's licence conditions unilaterally.[10]
3.8. The Bill envisages ‘deemed licences'. This will be unworkable in practice. The Bill says that, if the licensing authority has not issued or renewed a licence within a specified time after receiving the application, the application must be deemed to have been approved and the licence must be ‘deemed as having been issued'. This won't work. Businesses will be at risk of being penalised for being unable to produce a licence. Inspectors are given powers to impose fines on a licence holder who ‘fails to produce a business licence' upon request, and to ‘close any premises pending further investigation'. In practice, applicants to whom licensing authorities have not promptly issued licences and whose licences are ‘deemed as having been issued' will be penalised as if they were unlicensed.[11]
3.9. The Bill will have draconian consequences for persons convicted of contravening the counterfeit-goods, tax, food-safety or immigration laws. It would empower municipalities to order persons found guilty of contravening such a law to stop business.[12]
3.10. The Bill will create barriers to entry by small businesses into the economy. Since the greatest share of the future business growth in this country will be in the hands of small entrepreneurs, government must ensure that no statutory constraints, intended or unintended, are placed on small business growth. Legislation that requires a person to obtain a licence before carrying on business inhibits economic growth by preventing or restricting people from entering the economy. This is especially true of people who are poor, uneducated, or disadvantaged in some way.[13]
3.11. Licensing laws protect existing businesses by preventing new entrepreneurs from entering into the economy and competing with them. Licensing laws reduce productivity and impose financial costs and administrative burdens on small businesses. Because established (licensed) businesses are protected by licensing laws from free and open competition, they do not have to work as hard to satisfy their customers by improving goods and services and keeping prices down. Thus, whilst licensing laws are described as being introduced to protect the consumer, the effect is the opposite.[14]
3.12. Licensing laws criminalise ordinary economic activity and create opportunities for corruption.[15]
3.13. Many licensing laws once considered essential have been repealed.[16]
3.14. Licensing as a method of obtaining information of persons active in business is unnecessary.[17]
3.15. Licensing laws should not disqualify applicants who have prior convictions. The applicant has already been sentenced by a court of law to a penalty deemed appropriate to the crime, the circumstances of the accused, and the needs of society. Nevertheless, the licensing law is used to inflict further punishment on the applicant.[18]
4. Bill imposes new licensing requirement for any sale of goods and any service
4.1. The Bill applies to ‘any person carrying on business or who seeks to carry on business within the Republic'.[19]
4.2. The Bill says that ‘"business" means the offering of goods or services for sale to the public'. [20] And ‘"carry on business" includes the opening or keeping open of any premises for such purpose'.[21]
4.3. It would include every business supplying any goods for sale to the public, including, for example-
Foodstuffs and groceries; flowers, fruit and vegetables; clothing and footwear; jewellery; gold and silver coins; stationery; telephones, computers, televisions and other electronic goods; cameras; liquor; petroleum products; tools, implements, hardware and cutlery; light motor vehicles, pedal cycles, trailers, parts and accessories; pumps; pharmaceutical products; boats; clocks and watches; musical instruments; furniture and bedding; lamps and lights and their fittings; toys, games and sports equipment; paintings, sculptures and other artworks; curios and souvenirs; tobacco, cigarettes and cigars; disinfectants, insecticides, fungicides, poisons and herbicides; leather, saddles, harness, travel goods and handbags.
4.4. The Bill applies to the sale of ‘goods'. The term ‘goods' probably embraces all movables, which are commonly bought and sold in the course of business,[22] including livestock,[23] gold coin,[24] and fruit and vegetables produced upon the seller's own property.[25] The sale or leasing of fixed property, being immovable, would appear to be excluded.
4.5. The Bill goes further. It says that ‘"sell" includes exposing for sale or having in possession for sale or purposes of sale or any purpose of trade or manufacture or (among other things) to transmit, deliver for sale, or to dispose of to any person in any manner for consideration or not.[26]
4.6. This is very wide, in saying sale includes having in possession for ‘any purpose of trade or manufacture'. It goes beyond ordinary sales to the public. It would include sales of raw materials and capital goods to manufacturers and others. Raw materials and capital goods could include, for example-
Livestock, poultry, fish and shellfish; silk, wool, cotton and general textiles; trees and wood; cork and straw; malt, starches and oil seeds; straw and fodder; earths and stone; lime and cement; building material; ores, metals and minerals; iron, steel and aluminium and other metals; gums and resins; heavy motor vehicles, trailers, parts and accessories; agricultural machinery; electrical generators, converters, transformers, rectifiers and inductors; electronic transistors and integrated circuits; pharmaceutical preparations; fertilisers; explosives; plastics and rubber; paper pulp, paper, board, cartons and boxes; labels and tape; boilers, machinery, mechanical appliances and nuclear reactors; electrical machinery and equipment and parts; railway locomotives and rolling stock; railway traffic signalling equipment; ships; optical, measuring, checking, precision, medical and surgical instruments; arms and ammunition; signs and nameplates; prefabricated buildings; chemicals; tanning and dying products; tubes and pipes; insulating and refractory goods and ceramic products.
4.7. The Bill also covers the supply of services. This is wide enough to include provision of any service to the public, including-
Legal services; accountancy and auditing; medicine and dentistry; engineering and architectural design; building construction and repair; conveyance of persons and goods; driving lessons, provision of accommodation; cinemas and theatres; nightclubs; amusement parks, massage services; advertising and marketing services; auctioneering; barbering and hairdressing; gardening services; kennelling; laundry services; vehicle repair and servicing; conducting a parking garage; motor vehicle attendance; pawn broking services; photography; private investigation; warehousing.
4.8. Each licensing authority will have power, in consultation with the Minister and the Minister for Local Government and a provincial MEC, on its own initiative or on application by any person, to exempt ‘certain categories of persons' from provisions of the Bill.[27] It is doubted that a licensing authority will readily exempt any category of business in its area of jurisdiction. Licensing can be a source of official revenue. The Bill says that licence applicants will have to pay an application fee.[28]
5. Bill criminalises all businesses who don't obtain a licence
5.1. The Bill says that no person may carry on business without a valid licence issued in respect of the premises by the relevant licensing authority.[29] Any person who contravenes this provision is guilty of an offence and may on conviction be liable to a fine or imprisonment.[30]
5.2. The Bill states that it applies to any person ‘carrying on' business or who ‘seeks to' carry on business within the Republic.[31]
5.3. This means that the Bill applies to all existing businesses supplying goods or services, as well as to any future businesses.
6. No clear transitional period to enable existing businesses to obtain licences
6.1. The Bill does not provide a transitional period for all existing businesses to obtain licences.
6.2. The only transition provided for in the new Bill[32] is for pending applications under the Businesses Act, 1991.[33] The Bill will repeal that Act, [34] but says that pending applications under that Act must be finalised despite its repeal.[35] That Act requires licences[36] for only three categories of business (the sale or supply of meals or perishable foodstuffs from fixed premises; the provision of certain types of health facilities or entertainment;[37] and hawking in meals or perishable foodstuffs).[38]
6.3. Licensing authorities will be swamped with applications from existing businesses for licences.
7. Licensing authorities will probably not have necessary capacity
7.1. The Minister of Trade and Industry has reportedly[39] said:
There ought to be a cheap, easy and accessible process of registering any business activity at local level. Anybody who is legally entitled to business activity will have a right to register. ... So we're introducing a new Bill which will deal effectively with the licensing of business activity in public.
7.2. The Bill says that municipalities are to be the licensing authorities envisaged in the Bill.[40]
7.3. It is doubted that municipalities will have the necessary capacity to carry out the functions of licensing authorities for all the applicable categories of business.
7.4. The Financial and Fiscal Commission observed last year:[41]
Local government performance is uneven not only because of capacity constraints, but also (perhaps more importantly) as a result of tensions in intergovernmental roles and responsibilities, the political-administrative interface, high vacancy rates and instabilities in administrative leadership, skills deficits, poor organisational design, inappropriate staffing, low staff morale and poor accountability for performance.
7.5. It is likely that licensing authorities will not be efficient in discharging their duties as licensing authorities.
8. Not clear that licensing authorities obliged to issue licences to businesses that qualify
8.1. The Bill does not say that a licensing authority ‘must' issue licences to businesses which satisfy the requirements. It says instead that the licensing authority ‘may' issue a licence where requirements are met.[42]
8.2. The word ‘may' is usually permissive. However, the word ‘may' can sometimes be interpreted in a statute to mean ‘must' or ‘shall', and to impose a duty to act.[43] But employing the word ‘may' would raise an unnecessary question of interpretation, and create unwelcome uncertainty.
9. Licensing authorities can impose any licence condition in their sole discretion
9.1. The Bill says that a licensing authority may issue a licence ‘with such conditions [as] the licensing authority deems fit'.[44]
9.2. Similarly, the licensing authority can renew a licence with such conditions as it deems fit.[45]
9.3. And the licensing authority can approve an application to transfer a licence to another person, ‘subject to conditions'.[46]
9.4. The Bill lays down no criteria or guidance regarding the type of conditions which a licensing authority should be able to impose. Licensing authorities are left with an unfettered discretion as to what conditions to impose.
9.5. The Bill will also authorise licensing authorities to amend any licence condition in their sole discretion ‘where it will be in the public interest to do so'.[47]
10. Proposed ‘deemed licence' will be unworkable
10.1. The Bill says that, if the licensing authority has not issued a licence applied for, within 30 days after receipt of the application[48] or any extension of that period,[49] the application must be deemed to have been approved and the licence must be ‘deemed as having been issued'.[50]
10.2. There are similar provisions in the case of an application for renewal of a licence.[51]
10.3. Presumably these clauses mean that a licence applicant who has not been issued a licence within the period or extension will nevertheless be regarded as licensed and entitled to proceed or continue to carry on business.
10.4. This will be unworkable in practice, for the following reasons.
10.5. The Bill says that ‘no person' may ‘fail to produce' a trading licence upon request by the licensing authority.[52] Any person who contravenes is ‘guilty of an offence'.[53] An inspector can impose an administrative fine on a licence holder who ‘fails to produce a business licence' upon request.[54]
10.6. An inspector will have the power to ‘close any premises pending further investigation'.[55]
10.7. In practice, an applicant to whom the licensing authority did not promptly issue a licence, and whose licence must therefore be ‘deemed as having been issued', will be penalised as if it were an unlicensed business.
11. Bill empowers municipalities to order persons convicted of contravening
counterfeit-goods, tax, food-safety or immigration laws to stop business
11.1. The Bill provides draconian consequences for persons convicted of contravening certain laws.
11.2. The Bill empowers the licensing authority (municipality) to revoke a person's licence or order the person to stop trading, if the person has been found guilty of contravening the laws governing counterfeit goods.[56]
11.3. The Bill also says that the licensing authority can revoke a person's licence or order the person to stop trading, if the person has been found guilty of contravening the laws governing customs and excise[57] or ‘any applicable tax legislation'.[58] (This reference to being found guilty of contravening ‘any applicable tax legislation' presumably refers to the provisions of the statute governing tax administration[59] which create a variety of criminal offences relating to non-compliance with tax laws (including the laws governing income taxation[60]and value-added tax[61])[62] and relating to tax evasion.[63])
11.4. The Bill says furthermore that the licensing authority can revoke a person's licence or order the person to stop trading, if the person has been found guilty of contravening the laws governing safety of foodstuffs, cosmetics and disinfectants.[64]
11.5. And, says the Bill, the licensing authority can revoke a person's licence or order the person to stop trading, if the person has been found guilty of contravening the laws governing immigration[65] or employing an illegal foreigner[66] or refugees.[67]
12. Bill creates barriers to entry into the economy for small businesses[68]
12.1. Business-licensing laws and bureaucratic requirements and practices at any level of government act as barriers to entry by small and other businesses into the economy.
12.2. Laws should be judged by their consequences rather than by their intentions. Since the greatest share of the future business growth in this country will be in the hands of small entrepreneurs, government must ensure that no statutory constraints, intended or unintended, are placed on small business growth. All entrepreneurs require a business environment that is conducive to risk-taking and that does not burden them with unnecessary costs and time-wasting compliance requirements.
12.3. In the absence of a conducive policy environment, official small-business assistance programmes (welcome though they might be for the small enterprise community) are doomed to failure.
12.4. Licensing laws protect existing businesses by preventing new entrepreneurs from entering into the economy and competing with them. In the past, white-dominated licensing authorities often found some pretext for refusing business licences to persons of colour. Group areas legislation was later introduced to achieve this result more effectively.
12.5. Licensing legislation requires a person to obtain a licence from a government authority before he or she can carry on a specified type of business. Anyone who contravenes the law is guilty of a criminal offence. It does not matter whether the permission is called a licence, permit, authority, consent, approval, or certificate of acceptability. The effect is the same in every case: a person is prohibited from carrying on the activity without the licence or permission.
12.6. Legislation that requires a person to obtain a licence from a government authority before he or she can carry on a business inhibits economic growth by preventing or restricting people from entering the economy. This is especially true of people who are poor, uneducated, or disadvantaged in some way. Where no such requirement exists, people are much more likely to start a business.
12.7. Licensing laws prescribe certain requirements that applicants must satisfy in order to obtain a licence; applications that do not meet these requirements are rejected by the licensing authorities. The effect of any licensing law, therefore, is always to limit the number of people carrying on a particular business, since it ensures that not everyone who wants to carry on that business activity is allowed to do so. That, in turn, means that customers have fewer choices.
13. Licensing legislation reduces productivity at public expense
13.1. Because established (licensed) businesses are protected by licensing laws from free and open competition, they do not have to work as hard to satisfy their customers by improving their goods and services and keeping their prices down.
13.2. If there were no entry limitations, customer dissatisfaction would encourage new entrants to open competing businesses to supply the quality of products and services that customers are seeking. Thus, whilst licensing laws are generally described as being introduced to protect the consumer, the effect is invariably the opposite. Consumers benefit most from having the greatest possible choice.
13.3. Limiting the number of businesses that may participate in a sector not only reduces the level of quality and service but also raises costs. Licensees in such a sector become members of a government-created cartel. In the absence of the cartel, high returns would encourage more investors to enter the industry and prices would tend to decline.
13.4. Licences enrich some people at the expense of the public and create what has been called a tyranny of beneficiaries. They reduce the number and variety of businesses that would otherwise exist, and keep up the prices charged by the persons who are permitted to carry on the licensed businesses.
13.5. The people who introduce and administer licensing laws argue that the laws are required in the public interest, and that the motives for introducing them are altruistic. In other words, they justify the laws by referring to their good intentions, and ignore the harmful effects. Noble intentions, however, are no assurance of beneficial outcomes and do not justify the inflicting of harm on consumers. Moreover, hidden behind most proposals for licensing control are the vested interests of the promoters. Whatever altruistic arguments they put forward, their aim is almost always to protect the existing businesses in an industry from new competitors.
13.6. For example, businesses in a particular industry may urge that a licensing law is necessary to protect the public from dishonest and unscrupulous suppliers: they say there is a need to ‘clean up the industry' and ‘clear out the fly-by-nights'. This often occurs in regard to new and fast-growing industries. However, the people who argue for minimum entry standards tend to forget that if the standards they propose had been in existence when they started, many of them would not have been able to comply.
14. Licensing laws criminalise ordinary economic activity and create opportunities for corruption
14.1. Licensing legislation makes criminals of ordinary small business people who are making a living for themselves and their families, providing goods and services, and creating employment. Their only crime is that they have not taken out a licence.
14.2. Another pervasive consequence of the laws is that they create opportunities for official corruption. Dishonest law enforcement officials often use the fact that businesses are operating without licences to extract bribes from them, particularly in the case of activities such as liquor sales and gambling.
15. Many licensing laws once considered essential have been repealed
15.1. Some progress has been made towards repealing licensing laws. At one time it was thought necessary to require a person to hold a licence before being permitted to carry on any of a very wide range of trades and occupations. These licensing laws are no longer regarded as necessary.
15.2. As a result of the enactment of the Businesses Act, 1991,[69] a person has been free to start up a business in any of the following trades without first having to apply to a licensing authority for a licence to do so:
Accommodation establishment, advertising agent, auctioneer, baker, barber, bicycle dealer, building contractor, butcher, café, cartage contractor, commercial traveller, driving instructor, fishmonger, gardening services contractor, general dealer, hawker, hiring service, kennel, laundry, livestock or produce dealer, mail order undertaking, market agent, motor garage, motor graveyard, motor vehicle attendant, motor vehicle dealer, parking garage, pawnbroker, photographer, poultry farm, private investigator, quarrier, recreation ground, rickshaw hauler, riding school keeper, salesman, vending machine keeper, warehouse, and workshop.
15.3. The draft Bill now proposes going back to the old order. The Bill will require licences, not only for those businesses that required licences under the licensing laws repealed by the Businesses Act, 1991, but for every business that supplies or provides any kind of goods or services, without exception.
16. Licensing as information of persons active in business is unnecessary
16.1. It is argued that a licensing requirement is necessary as a source of information for the authorities so that they can keep track of persons active in a business sector, and to enable officials to inspect and to enforce other laws.
16.2. In fact, however, licensing laws do not meet this requirement in many cases.[70]Government authorities rarely have enough inspectors to enable them to police industries proactively by visiting all the business premises on their list. In most cases, inspectors and police officials respond only to complaints received, and they therefore investigate breaches of rules and regulations reactively. Because most violations are brought to the attention of the authorities by a complaint received from a member of the public, licensing as a source of information about businesses is redundant.
17. Licensing laws should not disqualify applicants who have prior convictions
17.1. Frequently, a licensing law lays down that the licensing authority must not grant a licence if the applicant has been convicted of certain offences.
17.2. The applicant has already been sentenced by a court of law to a penalty that the court deemed appropriate to the crime, the circumstances of the accused, and the needs of society. Nevertheless, the licensing law is used to inflict further punishment on the applicant. The convicted person, although having already paid a debt to society, is prevented from rehabilitating himself or herself by starting or returning to business in the licensed industry.
17.3. It could be argued that to permit persons convicted of certain offences would be to admit undesirable people into the industry. But a prohibition against granting licences to persons with previous convictions would not prevent these persons from being employed by other persons in the industry who have licences.
17.4. A disqualification for offences does not guarantee that persons who are granted licences will observe the law.
Leon Louw
Executive Director, Free Market Foundation
Gary Moore
Legal Consultant, Free Market Foundation
-oooOooo-
About the Free Market Foundation
The Free Market Foundation (FMF) is an independent non-profit policy organisation founded in 1975 to promote and foster an open society, the rule of law, personal liberty and economic and press freedom as fundamental components of its advocacy of human rights and democracy based on classical liberal principles. It is financed by membership subscriptions, donations and sponsorships. The Foundation is a registered Non Profit Organisation and a Public Benefit Organisation with Section 18A(1)(a) approval.
[1] Notice 231 of 2013.
[2] Government Gazette 36265 of 18 March 2013.
[3] To Ms Baneka Dalasile at [email protected].
[4] DTI website, http://www.dti.gov.za/default.jsp , ‘Call for comments on the Licensing of Businesses Bill'.
[5] See part 4 below.
[6] See part 5 below.
[7] See part 6 below.
[8] See part 7 below.
[9] See part 8 below.
[10] See part 9 below.
[11] See part 10 below.
[12] See part 11 below.
[13] See part 12 below.
[14] See part 13 below.
[15] See part 14 below.
[16] See part 15 below.
[17] See part 16 below.
[18] See part 17 below.
[19] Bill cl 3.
[20] Bill cl 1 definition "business".
[21] Bill cl 1 definition "carry on business".
[22] R v Greenspan 1945 AD 474.
[23] R v Nyembe 1957 2 SA 357 (T).
[24] Commr of Customs v Sallie 1920 CPD 530; R v Collins 1923 CPD 518.
[25] R v Brown 1940 EDL 168.
[26] Bill cl 1 definition "sell".
[27] Bill cl 4(1).
[28] Bill cl 6(1)(d).
[29] Bill cl 25(1). This clause states that no person may ‘carry on business or sell goods as a hawker' without a valid licence issued in respect of that premise [sic] or place by the relevant licensing authority. Presumably this does not mean that no person may ‘carry on business as a hawker or sell goods as a hawker' without the licence: It is assumed that the clause means that no person may ‘carry on business from fixed premises, or sell goods as a hawker,' without a valid licence.
[30] Bill cl 27(1). The clause is not well drafted.
[31] Bill cl 3.
[32] Bill cl 44(2) and Schedule 1.
[33] Act 71 of 1991.
[34] Bill cl 44(1).
[35] Bill Schedule 1 para (1).
[36] Businesses Act 71 of 1991s 2(3).
[37] The carrying on of business by-
providing turkish baths, saunas or other health baths;
providing massage or infrared treatment;
making the services of an escort, male or female, available to another person;
keeping three or more devices used for playing a game, recreation or amusement, the operation of which involves payment, whether by insertion of a coin or token or in any other manner;
keeping three or more snooker tables;
conducting a night club or discothèque;
conducting a cinema or theatre;
conducting adult premises referred to the Films and Publications Act, 1996.
[38] Businesses Act 71 of 1991 Schedule 1 items 1, 2 and 3.
[39] FinWeek, 22 March 2013, ‘Business Licensing Bill',http://finweek.com/2013/03/22/business-licensing-bill/ (accessed 11 April 2013).
[40] Bill cl 1 definition "licensing authority".
[41] Financial and Fiscal Commission, Policy Brief 9/2012: ‘Lack of Capacity is Crippling Delivery of Services in Municipalities'.
[42] Bill cl 6(2).
[43] It is only by considering the general provisions of the law in question and the purview of the whole legislation on the subject that we can tell whether may confers a discretionary power or imposes an obligatory duty. No definite rule can be laid down: R v Dietrich 1946 EDL 62. (And see, generally, Claassen, R.D., Dictionary of Legal Words and Phrases, ‘May'.) The enabling words are construed as compulsory whenever the object of the power is to effectuate a legal right. It is easier to show that there is a right where private interests are concerned: R v Tithe Commissioners 14 QB 474 at 244; South African Railways & Harbours v Transvaal Consolidated Land & Exploration Co Ltd 1961 (2) SA467 (A) at 480.
[44] Bill cl 6(2).
[45] Bill cl 12(2).
[46] Bill cl 21(2)(b).
[47] Bill cl 22(1) and (3).
[48] Bill cl 6(2).
[49] Bill cls 7(1) and (3).
[50] Bill cl 8.
[51] Bill cl 14, read with cl 12(2) and cls 13(1) and (3).
[52] Bill cl 25(3). This is so widely written that it applies to every person in the Republic, and not only to a person carrying on or reasonably suspected of carrying on a business for which a licence under the Act is required.
[53] Bill cl 27.
[54] Bill cl 35(a).
[55] Bill cl 32(1)(h).
[56] Counterfeit Goods Act 37 of 1997: Bill cl 18(1)(c).
[57] Customs and Excise Act 91 of 1964.
[58] Bill cl 18(1)(d).
[59] Tax Administration Act 28 of 2011.
[60] Income Tax Act 58 of 1962.
[61] Value-added Tax Act 89 of 1991.
[62] Tax Administration Act s 234(a)-(o).
[63] Tax Administration Act s 235(a)-(e).
[64] Foodstuffs, Cosmetics and Disinfectants Act 54 of 1972: Bill cl 18(1)(e).
[65] Immigration Act 13 of 2002.
[66] The Immigration Act defines an ‘illegal foreigner' as a foreigner who is in the Republic in contravention of the Act.
[67] Refugees Act 130 of 1998.
[68] The material in this and subsequent paragraphs of this submission can also be found in Moore, G., & Davie, E., Laws Affecting Small Business: Licensing, compiled by the Free Market Foundation, 1997, Friedrich-Naumann-Stiftung.
[69] Act 71 of 1991.
[70] For example, there are probably more unlicensed liquor retailers in South Africa than there are licensed ones.
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