Presented by Herman Toerien Member of the Ward Committee

8/14/2019 Presented by Herman Toerien Member of the Ward Committee

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Presented by Herman Toerien

Member of the Ward Committee forWard 22


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Green Paper on home businesses

Introduction

Taking into consideration government policy as stated in the White Paper on LocalGovernment, the White Paper on Small Business Development, the Constitution andother legislation

Rulings by the Constitutional Court and other courts

Practical considerations such as unemployment and

Historic considerations

It is hereby attempted to formulate a concept policy for the handling of home businesses.

In March 2000 the then chair person of the Bloemfontein Transitional Council, Mr. MossMogamise, said in council that the present policy by which business in traditional whiteareas and traditional black areas differ, and that this discriminatory policy will soon bechanged to be the same in all areas. In a following media interview he indicated that thisalso applies to home businesses, and that this kind of discrimination can not be removedovernight. He said this would happen within two years. The two-year period is drawingto a close, and the not-fulfillment of this has certain legal consequences.

The Mangaung Local Municipalitys approach should not entirely be directed by thethreat of legal consequences, but rather in terms of its duty to the well being of allinhabitants. In this regard the Constitutional court had been extremely helpful, as for e.g.in the Kayalami ruling.

One need also take into consideration the policies of the major parties represented incouncil:

- Re the Newlands soccer debacle, the ANC took the approach that the localgovernment applied racial discriminatory policies to expect from soccer to apply for a

permit to stage a test of a sport not listed on the zoning of the area. A similar approach was followed by the ANC in the matter where the DA controlled localgovernment of George took legal action against people who have a butchery on their small holding, and the owners wife was apparently racially assaulted by white peoplewhen complaining to the ANC.

- The DA includes the National Party, later NNP, which adopted a policy of deregulation, which culminated in the present version of the Businesses Act and theWhite Paper on Urbanisation 1986. Another important, and relevant indicator, wasthe recommendation of the Venter Commission in 1982 that all limitations on title


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deeds should be scrapped. The then Free State provincial council reported back viathe White Paper on Urbanisation that the recommendations of the Venter Commission had been implemented. This had apparently not happened, and thelimitations are still applied. The title deeds in Langenhovenpark still states that noBlack person may stay in the area overnight. This matter had been referred to the

local branch of the Human Rights Commission on 25 May 2001.

Legal overview

The last statement indicates that the legal framework applied by this municipality isarchaic in nature. This overview is in no means comprehensive, and simply touches onoutstanding points.

- Towards the white communities, provincial ordinance 9 of 1969 is applied. This iscurrently being challenged in court

- Towards the black communities, a section of one of the apartheid corner stone acts,Act 4 of 1984, is being applied. The municipality claims that this section had not beenrepealed with the rest of the act. The contrary becomes evident from the ruling of Judge Mulinsky ( Municipality, City of Port Elizabeth v Rudman and Another), whostated however that the regulations issued in term of this Act, is still applicable. Thematter thus shifts to a political level, where Council needs to make a decision on the

political will to apply regulations (if they exist in the Free State) originating from anApartheid law. (The Act is also not listed in the laws, which apply in the White Paper on Urbanisation the White counterpart, Ordinance 9 of 1969, is mentionedhowever. (It is doubtful whether the law makers ever intended the said ordinance wasintended to be the White counterpart of Act 4 of 1984, as is the practical implicationof the municipalitys approach. Neither Act 4 of 1984 or any forthcoming regulations

are mentioned as being applicable in the White Paper on Local Government, 1998.The statement of a municipal employer to the press that different laws apply to whiteand black because in the black culture neighbors do not mind so many peoplevisiting and being noisy, therefore could clearly have no legal basis.

An interesting aspect is that the municipality does not apply the universal principle of predominantly used, or, primarily used and primary use as mentioned by JudgeMulinsky. The implication is that no distinction is being drawn between a person havinga home business causing a nuisance, and a person selling for e.g. insurance / GoldenProducts from home. A danger is that if the council looses a court case, the matter

becomes complicated as no prior distinction had been drawn, and it will be extremely

difficult to prevent a situation of all doors being legally thrown open.

It is therefore very necessary that clear distinctions being drawn, taking universal practices into consideration, between home business, so that an apple not is chargedunder laws meant for pears, as the case is currently.

The final policy should therefore be fare, and universal accepted. To be out of line withuniversal practices, especially as different rules apply in predominantly white and


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predominantly black areas, the municipality will have a never ending task of prosecuting people who did not know they were committing a crime. In most cases the crime being to try and earn a living in a dignified and legal manner.(The municipal officers claim that the distinction between communities is being drawnaccording to the applicable town layout scheme. This is obviously not the case, as Lourier

Park falls under the same layout scheme as Heuwelsig, yet the laws are being applied asin Mangaung. The same goes for the informal areas East of the old Dewetsdorp Road,which falls, together with Heidedal, under the Bloemfontein Layout scheme, yet the samerules apply as in Freedom Square, part of the Mangaung layout scheme).

Launching the campaign for the introduction of Ward Committees for Mangaung, thePremier, Ms Winkie Direko, said we must achieve a non-racial community. Indefinitelyupholding practices, which boil down to racial discrimination, as stated by Mr.Mogamise, will not result in a non-racial society.

The PE case clearly puts the distinction drawn between white and black home businesses

in the ambit of constitutional judgment. Transgressors are however charged in theMagistrates Court under statutory law; effectively making the constitutional ideals, asstated by the Premier, irrelevant as few people can afford taking matters to the HighCourt.

In the end it is not a matter of whether the Council can do enough judicial acrobatics soas to uphold through legal actions apartheid relics, but whether council has the politicalwill to move to a non racial society.

Pragmatic issues

The present system applied, where whites have to apply for permission, and blacks not,are not only legally unsound Judge Melunsky rules in favor of the PE Council on thegrounds that both black and white need to apply but also pragmatically ridiculous. Thisopens the door for bribery and put officials under extreme pressure on using discretion asto where to draw the line.

For a white to own a home business, a position he is mostly forced into because he losthis employment, it means he has to apply to have certain limitations lifted on his titledeeds (which according to the White Paper on Urbanisation had already been abolished

by 1986 flowing from the Venter Commission recommendations). This costs a person, just financially hard hit approximately R2 000. This is on condition he can get the

permissions from the bondholder. After the Newlands soccer debacle it seems as thoughat least some banks are reluctant to get involved in practices described by government asracial. If the bank does not respond, the enterprise can not move forward irrespective of merit.

After this cost had been laid out, the white person needs to get permission from neighborswithin a certain radius from his home. After this, he needs to get permission fromcouncil, also meaning cost.


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Nome of the above apply to black people.

The extent to which judge Mulinsky applied affirmative action principles to legalizedistinction between the way whites and blacks are handled, is limited to less stringent

applications on permissible surfaces used. This also applies to the area of the MangaungLocal Municipality whites may use no more than 25% of the surface of their homes, or 50 square meters, which are the lesser, and blacks can use up to 50% of the surface of their homes. As mentioned, in the PE-case, both black and white need to apply, here onlywhite need to apply, having cost implications and therefore clearly runs outside the ambitof affirmative action.

This is somewhat ironically, as the application of apartheid laws place blacks at anadvantage, yet, the White paper on Local Government finds that Financial shortfallswere built into local government for black areas. Apartheid regulations barred most retailand industrial developments in black areas. This limited the tax base and forced residents

and retailers to spend most of their money in white areas. Municipalities in black areaswere therefore deprived of all the means to meet the needs of local residents.

(It seems in practice that once a white person does get permission, the 25% or 50 squaremeters are not strictly enforced. Georgiou Trust use far more that 50 square meters, andso also Dries Myburgh Photographers, to name but two examples without knowingwhether they actually have permission or not).

It is no secret that crime in South Africa s rife and that crime such as house breakinginfluence property markets. In Langenhovenpark, with many home businesses, crime wasthe lowest for any area in Bloemfontein, despite crime contributing factors such as thenearby crime suffering small holding areas, easy access to passing by criminals etc. Sincethe municipality clamped down on home businesses in this area, crime statistics had goneup. This is not scientifically analyzed, but inhabitants consulted state that they are gladthat there are home businesses from where an eye could be kept on what is going on.

The present policy also does not take technology into account, especially electronictechnology. This changes the complex of business, and any White Paper should take thisinto consideration. By trying to apply archaic laws and principles, the city will find that

progressive firms feel strangled, and will rather shift elements to other areas where theare less restricted.

(Unemployment is not the only reason why people start home businesses. Some-onemight need to take care of an aged parent, the person can be temporarily disabled to reacha conventional place of work etc. In my own case our youngest child has a rare mentaldisability, with best treatment being maximal parental care). Especially where temporarysituations exist, it makes little sense in entering into complex legal applications and cost.


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Economic aspects

Complaints from people such as Clr. Jan van der Merwe and business people that home

businesses kill business in the CBD, is not scientifically supported. All home businessescombined could not have a simular impact on the CBD as the Hyperama for e.g. In fact,in recent media reports it was sated that the Southern suburbs of Bloemfontein were self reliant in terms of shopping needs. Fact is that most home businesses buy their suppliesfrom the CBD, and therefore rather stimulating the CBD. Suburban shopping centers, onthe other hand, mostly obtain supplies directly from Gauteng.

Some of Bloemfonteins most noteworthy businesses started as home businesses, such asMode, Bloempapier and HDL. The security firm, BDR, originated in a Pretoria home. Bykilling of home businesses future large contributors to the citys economy could have

been killed.

From recent reports in the Business Bulletin it appears as though the Mangaung LocalMunicipalitys policy for business, especially small business development, is not in linewith that of the national government. Whilst the Department of Trade and Industrydevelops macro, medium, small and micro business, the Municipality draws the line withsmall business. It is a fact that the creation of employment opportunities in the microsector is much cheaper than in the larger sectors.

It is not the intention here to rewrite the White Paper on Local Government, but indrawing up a white paper for home businesses in the judicial area of the Mangaung LocalMunicipality, note should be taken of the following: Small and large businesses rely onthe actions of local government in a number of ways. They are also subject to a number of municipal regulations. A review and simplification of municipal procedures andregulations can have a significant impact on the local economy.

Recommendations

That Council appoint a task team to compile a White Paper on Home Businesses, withfocus on eradicating racial discrimination, supporting the economy especially as far ascombating of unemployment is concerned, the development of entrepreneurship isstimulated and property values are not brought in jeopardy.

That this task team give ample opportunity to individuals and interest groups to makesubmissions or give evidence on aspects such as existing, but forgotten laws.

The task team consult with provincial and national government so as to avertimplementing contradictory laws such as a provincial government component(Economic development) stimulating the creation home businesses, and the municipalauthorities prosecuting the owners, as is now the case.

Presented by Herman Toerien Member of the Ward Committee

Documents

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