Industry warns of December alcohol restrictions as it launches new court challenge

The Beer Association of South Africa (BASA) has launched a High Court review of previous alcohol bans imposed by Cooperative Governance and Traditional Affairs (Cogta) minister Nkosazana Dlamini Zuma. The industry group said that the aim of the review is to have these bans declared irrational, invalid and set aside.

“The application focuses on the decisions by the Minister of Cooperative Governance and Traditional Affairs to enforce alcohol bans in July and December 2020, June 2021, as well as the decision to continue imposing further restrictions on the trade of liquor in and during July 2021,” it said.

BASA said that the previous alcohol bans had a devastating impact on the alcohol industry, with 14.7% of projected sales volumes for 2020/2021 being lost. R42.2 billion was lost in retail sales, and there was a R60.7 billion loss to the GDP. The total excise income tax loss was R10.2 billion, with just over 233,000 jobs being put at risk.

The association warned that another alcohol ban over the coming festive season, a time when the tourism and hospitality sector expects some recovery, will serve as the final nail in the coffin for thousands of businesses/citizens who just barely survived the previous bans.

The group previously noted that, even though president Cyril Ramaphosa kept the country on lockdown level 1 at the start of the week, he was clear in his warning that things could change in the coming weeks as Covid infections rise.

Other health experts – commenting on the lockdown restrictions that proved most effective in South Africa – also identified alcohol bans as a key lever for the government to pull when Covid cases are peaking.

BASA, along with other bodies in the alcohol industry have repeatedly implored government officials to engage and consult with the industry before implementing bans.

Legal argument 

BASA argues that the making of Covid-19 regulations amounts to administrative action, which is reviewable in terms of the Promotion of Administrative Justice Act (PAJA).

BASA said that a decision is declared irrational (and therefore unlawful) under PAJA if relevant considerations were not taken into account.

“In light of no evidence having been provided by the government to support its decisions to enforce the previous bans, BASA’s application argues that it failed to take into account the devastating impact of the bans on the alcohol industry and for this reason, amongst others, these decisions are reviewable and destined to be set aside in terms of PAJA.

“Furthermore, BASA argues that if the court finds that PAJA is not applicable in this application, then the decisions to ban alcohol – being the exercise of public power – may be reviewed and set aside in terms of the principle of legality. This principle requires all exercises of public power to be rational.”

BASA argues that the decision to ban alcohol could not be rational in light of there being no evidence, to date, which the government considered and presented regarding the adverse financial implications to the alcohol industry and how it would serve to boost the illicit alcohol industry.

Therefore, the previous alcohol bans should also be declared constitutionally invalid, it said.

Alcohol bans are not the answer 

Despite the High Court Application, BASA said it remains committed to working with the government to mitigate the impact of the fourth wave of infections.

“As the beer industry, BASA and its members have implemented a range of interventions to encourage the moderate, responsible and safe consumption of alcohol and are committed to cutting off the supply of alcohol to those caught breaking the rules”

“However, alcohol bans, which destroy legal businesses and jobs, are not the answer. It is critical that we save lives without sacrificing livelihoods, which is the aim of BASA’s application,” it said.

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