The Public Protector, lawyer Kholeka Gkaleka, addressed the press on Friday, presenting preliminary findings from a systemic investigation into food safety violations in informal food outlets. It was revealed that Gauteng municipalities are failing to ensure proper control over hygiene and product safety in spaza shops and other informal trading points.
The investigation was initiated following a series of deaths among children and illnesses among other schoolchildren who consumed products bought from informal traders. Lawyer Gkaleka emphasized that because the cases involved fatalities, including children, a systemic approach is necessary rather than addressing individual incidents.
The audit aimed to determine the effectiveness of adherence to food safety standards in the informal business sector, including market vendors, traders, and food preparation sites, as well as to assess the fulfillment of supervisory functions by provincial and national departments. According to the collected data, there are serious gaps in municipal capacity and compliance monitoring.
Statistical data shows that no municipality in the Gauteng province meets the ratio between environmental protection staff and population established by the World Health Organization and National Environmental Health Standards. The standards require one environmental protection specialist per 10,000 residents, yet the entire province operates at less than 30.3% of the required staffing level.
Specifically, Johannesburg operates at only 50% of the required specialist capacity, while Ekurhuleni and Tshwane function at levels of 23% and 21% respectively. The municipalities of Sedibeng and West Rand operate with figures of only 16% and 18% of the required personnel level. This deficit raises concerns about the municipalities' ability to conduct regular inspections of food processing sites, as required by law.
The investigation also uncovered widespread non-compliance among spaza shops across the province. Ekurhuleni has the lowest compliance rate—5%, followed by Johannesburg with a rate of 14%, and Tshwane with 30%. Overall in the Gauteng province, including districts such as Sedibeng and West Rand, the compliance rate is 28%. This means that for every five licensed spaza shops in Gauteng, nearly three unlicensed ones are operating.
The Public Protector found that the municipalities' licensing and regulatory systems are ineffective, creating opportunities for businesses to operate without adhering to necessary food safety standards. Furthermore, a lack of coordination was noted between business licensing bodies and tax compliance processes. The report indicates that spaza shop owners subject to tax control must register to pay income tax to the South African Revenue Service, but there is no visible coordination between business licensing checks and tax compliance, which opens the door to tax evasion and other violations.
The investigation also examined the ownership profile of spaza shops in Gauteng and found that a significant portion of enterprises in this sector are run by foreign nationals. Of approximately 12,737 operating spaza shops in three Gauteng urban municipalities, about 7,071, or 56%, are owned by foreigners. However, Gkaleka stressed that South African legislation does not prohibit refugees and asylum seekers from trading in spaza shops. She referred to the Appellate Division Supreme Court ruling in the case of Somali Association of South Africa versus Limpopo Department of Economic Development, Environment and Tourism, which indicates the absence of a law prohibiting refugees and asylum seekers from working in spaza shops in South Africa.
The Public Protector stated that the findings suggest that several state structures may have failed in their duty to protect consumers from unsafe food products. Gkaleka called for an urgent and thorough investigation into the growing public health threat posed by expired and spoiled products in markets. She noted that various government bodies, from municipal health departments to national regulatory agencies, may have failed in their obligation to protect consumers and maintain food safety standards, and South Africans deserve accountability and protection from those entrusted with ensuring their health and safety.
A Section 7(9) notification was sent to the affected municipalities, state departments, and public structures, giving them an opportunity to respond before the publication of the Public Protector's final report and the determination of mismanagement or misconduct. Gkaleka emphasized that this notification is not a final conclusion of the investigation, and responses from interested parties will be taken into account.
The Ombudsman identified five major failures in municipal service delivery by the City of Cape Town, finding that residents in the Langa Flats and Khayelitsha areas were denied constitutionally guaranteed services, and ordered mandatory corrective measures.
Ombudsman Kholeka Gqaleka stated that the results of the systemic investigation confirmed complaints regarding low quality of service. In her view, the municipality's actions qualify as improper conduct, inefficient management, and bias against affected residents.
Gqaleka emphasized that providing basic municipal services is not merely an administrative function but a fundamental constitutional obligation that directly impacts the human dignity, safety, and well-being of South African citizens.
The investigation was initiated by complaints received from residents during the annual outreach events of the South African Ombudsman in the Western Cape in March 2022 and April 2023. Gqaleka checked whether the City provided services progressively and effectively, as required by the Constitution and law, and confirmed that the assertion of non-compliance with the Constitution and law in the provision of basic services was justified.
Five critical areas were identified where the City failed to meet its constitutional and legislative obligations:
The Ombudsman discovered that the City of Cape Town had not concluded lease agreements with all residents of Langa Flats while continuing to collect monthly rent. This failure to formalize agreements undermined residents' housing guarantees, exposing them to uncertainty, disputes, and potential eviction.
Furthermore, it was found that the sewage infrastructure had not been fully repaired, and structural defects and fire safety equipment remained unresolved. Gqaleka noted that the City's inability to repair and maintain fire safety equipment directly affects constitutional rights to life, dignity, and adequate housing.
Residents of the SST-Mariana area continued to face inadequate access to water, and non-functional high lighting masts created safety risks for communities. The report indicated that the City violated the right to sufficient water, guaranteed under Section 27(1)(b) of the Constitution, by failing to provide water access to SST-Mariana residents.
It was also established that the City did not consult Eskom before relocating residents, resulting in some families being left without electricity. According to the report, this violates the City's positive obligations under Sections 152(1)(b) and (d) of the Constitution to ensure sustainable service provision and create a safe environment.
The investigation showed that the Mathew Goniwe and Town Two clinics lacked smoke detectors and CCTV systems, putting patients, staff, and visitors to the medical facilities at risk. The Ombudsman noted that the City's inability to install smoke detectors affects the municipality's constitutional obligation to ensure safe access to medical services.
Weaknesses in municipal governance were found, including inadequate application of bylaws, illegal construction on sewer easements, frequent sewage blockages, illegal dumping, and accumulation of waste. Illegal constructions hindered service provision by interfering with the operation of the sewerage infrastructure.
In addition, despite regular waste collection, the accumulation of refuse and illegal dumping continued to negatively affect residents.
The City's inability to resolve service provision issues over a prolonged period was deemed a pattern of improper conduct. The report indicated that the municipality's failure to implement reasonable measures within available resources, coupled with an inadequate response to three years of documented service deficiencies despite numerous promises, forms a pattern of improper conduct.
Gqaleka acknowledged the City's challenges, such as aging infrastructure, vandalism, land invasions, rapid urbanization, and competing demands for service provision. However, she stated that resource constraints cannot indefinitely postpone the realization of residents' constitutional rights.
Gqaleka issued mandatory corrective measures against the City of Cape Town, requiring the elimination of the identified shortcomings. The Municipality must ensure water access for SST-Mariana residents within 30 days, complete the repair of sewerage infrastructure in Langa Flats and Khayelitsha within 120 days, restore high mast lighting, resolve electricity issues for relocated families, and improve safety measures in clinics.
Monitoring compliance with these requirements has been assigned to the MEC for Local Government in the Western Cape. The Ombudsman stressed that municipal difficulties cannot justify persistent failures in basic service delivery, insisting that the Constitution requires progressive implementation and accountability.
The City welcomed the Ombudsman's recognition of its close cooperation with the office during the investigation and stated that it has already taken steps to address many of the raised issues. It also expressed approval of the findings concerning the National Treasury and the Department of Human Settlements, noting that the report acknowledged the financial and infrastructural difficulties faced by municipalities.
The Municipality clarified that the investigation concerned part of the N2 Gateway residential complex, the relocation of 10 families to SST-Mariana for sewer repairs, and safety measures in two municipal clinics. The City maintained that basic services are provided in the N2 Gateway complex, and that relocated families have access to water and sanitation.
In response to the remarks, the City reported that waste collection, sewer maintenance, and fire safety measures have already been implemented, and further updates to the sewer infrastructure are planned. It was noted that 94 valid lease agreements exist, but many residents have refused to sign or renew the agreements, which may require legal formalization.
