The African Transformation Movement (ATM) says it has been vindicated after Public Protector Advocate Kholeka Gcaleka’s systemic investigation into food safety and hygiene standards in South Africa’s informal business sector found widespread failures by municipalities and government departments to enforce laws designed to protect consumers.

The findings stem from a complaint lodged by ATM Member of Parliament Vuyo Zungula in October 2024 following a series of food poisoning incidents involving children, including the deaths of children in Naledi, Soweto, after consuming food allegedly bought from a local spaza shop.

On Friday, Gcaleka publicly released a notice in terms of Section 7(9) of the Public Protector Act, setting out her intended findings and proposed remedial action. The notice forms part of an ongoing investigation and gives all implicated parties an opportunity to respond before the report is finalised.

The investigation focused on whether Gauteng municipalities, together with provincial and national departments, had adequately enforced food safety and hygiene regulations governing spaza shops, hawkers and other informal food businesses.

According to the Public Protector, the evidence paints a picture of a fragmented and ineffective enforcement system that has left communities vulnerable to unsafe food, poor hygiene standards and criminal exploitation of regulatory weaknesses.

ATM welcomed the findings, saying they confirmed concerns the party had consistently raised.

“The tragedy occurred because government stopped enforcing those laws,” the party said.

ATM argued that South Africa already has comprehensive legislation regulating food safety, environmental health, consumer protection, immigration, municipal governance and business licensing, but that the state had failed to implement and enforce those laws.

“The Public Protector’s investigation confirms that regulatory failures across municipalities, provincial government and national departments have allowed a dangerous environment to flourish where illegal operators, criminal syndicates and non compliant businesses are able to exploit systemic weaknesses while ordinary South Africans pay with their health and, in some cases, with their lives,” said Zungula

One of the investigation’s most significant findings relates to the severe shortage of Environmental Health Practitioners (EHPs), who are responsible for inspecting food premises, monitoring hygiene standards and preventing outbreaks of foodborne diseases.

The report found that none of Gauteng’s municipalities comply with the World Health Organisation and National Environmental Health Norms and Standards recommendation of one environmental health practitioner for every 10,000 residents.

Johannesburg currently operates at only 50% of the required staffing level, while Ekurhuleni and Tshwane are operating at just 23% and 21% respectively. Sedibeng and the West Rand district municipalities are even worse off, with staffing levels of only 16% and 18%.

Overall, Gauteng is operating at just over 30% of the required environmental health capacity.

The shortage has resulted in fewer inspections of food premises, fewer compliance notices being issued, fewer confiscations of unsafe goods and fewer prosecutions of businesses that violate food safety regulations.

The investigation also revealed widespread non compliance among spaza shops operating across Gauteng.

According to evidence gathered during the investigation, only 5% of operational spaza shops in Ekurhuleni are licensed, while compliance stands at 14% in Johannesburg and 30% in Tshwane.

Across Gauteng, the compliance rate is only 28%, meaning nearly three out of every four spaza shops are operating without the required licences or permits.

The Public Protector warned that these figures raise serious concerns about food safety oversight, tax compliance and consumer protection.

The investigation further found that foreign nationals operate the majority of spaza shops across Gauteng’s three metropolitan municipalities.

Of the 12,737 operational spaza shops identified, about 7,071, or 56%, are operated by foreign nationals.

However, the report notes that South African law, including a Supreme Court of Appeal judgment involving the Somali Association of South Africa, does not prohibit refugees or asylum seekers from operating spaza shops.

Instead, the Public Protector emphasised that every business, regardless of who owns it, must comply with the same immigration, tax, licensing and food safety laws.

The investigation also uncovered evidence suggesting possible business fronting, fraud and false declarations in some instances where South African citizens were listed as registered owners while businesses were allegedly operated by foreign nationals.

The Department of Small Business Development identified several suspected cases during verification processes linked to government support programmes for spaza shops.

The report also highlights weak coordination between municipalities, the Department of Home Affairs, the South African Revenue Service, law enforcement agencies and other regulators.

According to Gcaleka, these governance failures have created opportunities for organised criminal syndicates to exploit weaknesses in licensing systems, border management and inspection regimes.

The report also raises concerns over the illegal importation of banned pesticides and other hazardous chemicals, noting that the Department of Agriculture lacks sufficient inspectors to effectively police imports and enforce legislation.

Inspectors are also not designated as peace officers, limiting their ability to issue fines or make arrests.

Another major concern relates to schools participating in the National School Nutrition Programme.

The Gauteng Department of Education acknowledged that many schools lack proper kitchens because they were built before the nutrition programme was introduced.

The investigation found that of Gauteng’s 1,675 schools participating in the programme, only 1,056 have adequate kitchen facilities.

About 611 schools do not have proper food preparation infrastructure, while only 262 schools possess the required Certificates of Acceptability. More than 1,400 schools are operating without the mandatory certificates.

The Public Protector also examined the investigation into the deaths of children in Naledi, Soweto.

Although laboratory tests on food samples collected from the Dana Tuck Shop did not detect toxic substances, Gcaleka noted that inspectors only visited the shop a day after the incident, by which time the premises had already been looted and most of the food removed.

She said it was therefore difficult to rely on the laboratory findings as proof that the food sold at the shop was safe.

Overall, the Public Protector concluded that the allegations of inadequate enforcement by Gauteng municipalities and supporting provincial and national departments were substantiated.

The report identified numerous systemic failures, including severe staffing shortages, outdated legislation, poor funding of municipal health services, weak intergovernmental cooperation, inadequate use of technology, ineffective health governance structures, legislative ambiguities and deteriorating public confidence in government’s ability to regulate the informal business sector.

The notice also proposes extensive remedial action.

Municipal managers have been instructed to develop action plans within 60 days to address staffing shortages in environmental health and local economic development units.

Executive mayors have been directed to table the findings before municipal councils for discussion and implementation.

The Gauteng Department of Education has been instructed to audit food safety compliance in schools and develop a long term infrastructure plan for kitchens and food preparation facilities.

The Gauteng Health MEC has been directed to establish District Health Councils across the province, while the national Department of Health must finalise regulations clarifying food expiry date labelling requirements.

The Department of Small Business Development must work with SARS to improve tax compliance and submit evidence of suspected business fronting to the Broad Based Black Economic Empowerment Commission.

The Department of Agriculture has also been instructed to develop a staffing plan to strengthen inspections and coordinate enforcement against illegal pesticides and banned chemicals.

As required by Section 7(9) of the Public Protector Act, all implicated departments, municipalities and other affected parties have been given 10 calendar days to submit written representations before the findings are finalised.

A public hearing will also be held to allow affected parties to make oral submissions.

ATM said it would continue using Parliament and other constitutional mechanisms to ensure that the Public Protector’s remedial action is implemented.

“The ATM did not lodge this complaint for political convenience. We lodged it because South Africans were dying. We lodged it because government had failed,” Zungula said.

He called on all affected organs of state to fully implement the Public Protector’s recommendations, saying there should be “no selective compliance, no bureaucratic excuses and no attempt to water down the directives aimed at protecting the lives of South Africans.”