Zakhele Mthembu | Policy Officer | Free Market Foundation | mail me |
The tragic deaths of children exposed to harmful chemicals from foreign-owned spaza shops have highlighted the need for regulations. As we push for more regulations, we must ensure that we do not harm ourselves in the process.
Various legal philosophies shape one’s understanding and interpretation of the law. Without diving into jurisprudence, we can categorise these philosophies into two broad camps. Some believe that the law is objective and discovered rather than made; these are natural law jurists. Others argue that the law is whatever the state proclaims; these are positivists.
South Africans are familiar with the problems of the positivist position. At one time, indigenous people had a lower legal standing than European descendants. Few would argue that laws like the 1912 Natives Land Act were just.
Justice connects closely to what the law is and ought to be. Justice means restoring a party to the position they would have enjoyed if they had not been injured.
For example, returning stolen property restores the victim to their previous position. This brief explanation does not fully explore the complex concept of justice. However, it highlights why justice should connect to the law.
Laws arise from conflicts between people
Without conflict, laws would be unnecessary. Natural law theorists find regulations problematic because they assume no conflicts exist. A typical health and safety regulation defines behaviour and prescribes actions. Like any law, it applies even to those who have not caused harm.
For example, regulations may dictate specific kitchen dimensions for food preparation in a business. These laws seek to regulate shop owners’ behaviour.
If an entrepreneur prepares food differently but still satisfies customers, they may still face prosecution. If the state enforces the law, that entrepreneur could be punished despite causing no harm. This injustice affects many township businesses. This argument does not excuse shopkeepers who harm customers through negligence or intent.
Authorities must prosecute these shopkeepers fully. Their harmful actions justify prosecution. However, prosecuting business owners who do not harm anyone but fail to follow guidelines remains unjust.
Justice vs regulation in spaza trading
Preventing all crimes is impossible. Murder and theft illustrate this reality. Laws against murder exist to enforce justice, not solely to deter killers. Harsh sentences may discourage some murders, but their primary purpose is justice. Many factors contribute to high murder rates, from economic status to family dynamics. Creating more murder laws will not prevent future murders. This principle should also apply to deaths caused by negligence or poison exposure.
Prosecuting those who harm customers should act as a deterrent. Instead of shutting down businesses for not meeting regulations, officials should focus on punishing those who cause harm.
Buying items from a shopkeeper is a harmless transaction. If both parties willingly engage, should the law criminalise it based on state standards. Criminalising peaceful activities remains unjust. This idea drives our Section 12 Initiative. The Initiative argues that the criminal justice system should target those who harm others.
Shopkeepers who negligently or intentionally expose customers to harmful substances should face consequences. However, the state should not dictate methods when customers willingly support a business. A backyard factory making fizzy drinks or a vendor cooking vetkoeks should not require state approval.
In conclusion
South Africans must recognise that laws should focus on harm prevention and justice restoration.
Purchasing food from an entrepreneur unaware of regulations does not constitute a crime unless harm occurs. Prosecution should follow only when harm is inflicted. Overregulation damages economies and, more importantly, punishes peaceful behavior.
Applying the law to those who cause no harm distorts justice. In protecting communities from harmful foreign-owned spaza shops, we must not expand state power unjustly. We should not commit injustices in the name of safety.
