Prohibition lockdown goes rogue

By Ferial Haffajee 20 April 2020
(Photos: Unsplash/Mathew Macquarrie/Ali yahya / Charles Duck Unita)

In its fourth week, the lockdown begins to loosen as people ripped from their freedom and plunged into an unprecedented era of prohibition get restless as the state doubles down. A mighty row between grocery stores and overly zealous bureaucrats looms as shebeens and taverns step out of the boxing ring. For now. Does the end justify the means?

Every day, the term lockdown trends, as if it’s cool. Social media mavens add a number to it. On Sunday, it was #Lockdownday24. Terrified by the scenes of plague death in China, then Italy, then Spain, in London and in the US, South Africans at first welcomed lockdown, forgetting that it is a term from the world of imprisonment. The hashtag trend is like high-fiving your own loss of freedom. In effect, we are imprisoned in our homes, subject to one of the world’s strictest lockdowns. 

In a public health emergency, individual rights can be restricted for a common or greater good.  In our case, the ends appear to be justifying the means as the virus has not grown as fast as the worst-case scenarios predicted. But how is the balance struck and when does lockdown power morph into an abuse of power?

Our founding President Nelson Mandela may have faced isolation and turned it into liberation for 27 years on Robben Island, but ordinary people are not made of such mettle. Around the world, the outer limits of human endurance are three to four weeks and South Africans are reaching a peak. In response, the bureaucracy is tightening as a government fearful of getting citizen blood on its hands goes into overdrive. Are they going too far – is prohibition limiting freedom? 

Food is food, or is it?

The terms of the South African lockdown were gazetted in terms of national disaster laws in March 2020 and then revised last week to take account of an additional two weeks that South Africa needs to test the true spread of Covid-19 among the mass population. The first three weeks appeared to be working as Health Minister Zweli Mkhize and Professor Salim Abdool Karim said last week, but another fortnight of home imprisonment was needed to see whether the viral curve would continue to flatten or spike. 

In the interim, fast food retailers and restaurants are restive as their and the fast-moving consumer goods sector hits a downturn that could see their businesses go bankrupt and hundreds of thousands of people lose their jobs. 

So, they have been lobbying government – along with the miners, the liquor industry, cigarette bosses and many others – to grant exemptions. To make the curve flatten, the health czars in Cabinet must retain the upper-hand and so most answers to requests for exemption are “no”. In fact, the government last week tightened restrictions, sometimes arbitrarily and by diktat.  

In a briefing, Trade and Industry Minister Ebrahim Patel announced that hot food sales in retailers like Pick ‘n Pay, Woolworths and Checkers is forbidden. But, that measure is not in any of the regulations or amended regulations. 

The @BizPortal account on Twitter, which belongs to the DTI, has sent out messages reinforcing the prepared food ban and it announced, but then deleted a ban on frozen foods too (both sale and transport).

The tweet said: “Prepared food is not allowed to be sold during the lockdown. Supermarkets are also not allowed to sell cooked food. If you know of one, please report them to the @SAPoliceService.” 

It may be a tweet, but it’s not in any regulation. 

And it is a stark raving bonkers requirement: Most food is “prepared” in some way and the original lockdown laws made food, as a category, an essential product. DTI spokesman Sydwell Medupi did not respond to Daily Maverick’s request for clarification on which law or regulation now prohibited prepared hot food.

It’s also a blind bureaucracy move: If you go to any hot food section, the people buying from them are usually health workers, police officers and the soldiers deployed to enforce the lockdown as well as the general working class. Young homeless people who use the traffic lights to earn something also buy (or get donations from), the hot food sections of these stores in the cities.

Hunger protests threaten mass unrest as people who have lost their wages (calculated at millions of people), go hungry.

This is on top of general food insecurity (there are 1,200 feeding schemes registered as non-profit organisations to give a scale of the problem), and this new prohibition can make things worse.  

Woolworths, for one, appears to have had enough of it. The regulations are framed to prevent leisure shopping so any aisles deemed to be selling non-essentials, at the retailers, are crudely red-taped or swathed in black plastic – an exhibition of prohibition and an exercise in arbitrary power if you’ve seen one. (For example: you can buy tins of food, but not a tin opener).  

The lawyers for Woolies, Webber Wentzel, went nuclear on the bureaucrats.

 “The enforcement authorities are acting unlawfully in seeking to stop the sale of cooked food and confiscating food from the counters. They potentially face a significant civil claim,” said the lawyers in a letter displayed at all Woolworths stores. “The lockdown regulations permit all grocery stores to sell essential goods. The first sub-heading under essential goods is headed ‘food’ and the first item under this heading is: ‘any food product, including non-alcoholic beverages’. 

“This definition of what may be sold does not contain any express restriction or exclusion … The reference to ‘Any food product’ means any item that can be consumed by a human being. It does not matter whether the item is raw, processed, frozen or cooked; nor does it matter whether it is healthy or unhealthy; nor does it matter whether it is luxury or not. Whatever the item is, it can be sold to consumers.”

Gear for a different sort of food war as retailers take on the big prohibition state.

Taverns and shebeens step back from court action for now

Gauteng’s taverns and shebeens meanwhile stepped back from legal action after fevered negotiations with the presidency at the weekend about the continued prohibition on alcohol sales. In legal papers, the Gauteng Liquor Forum (the country’s largest organisation of tavern and shebeen owners), said: “Our clients are concerned that the Regulations are unconstitutional as a whole and there is no authority under the law and the Constitution to issue the regulations.” The forum supported venue bans on drinking, but wanted the right to sell.

The forum took offence at the presidency’s suggestion that they apply for assistance from the Tourism Relief Fund and said they are generally excluded from state benefits because they are largely unregistered (all government relief is currently mired in bureaucracy of permits, registration and compliance certificates), and had been stigmatised since inception. In a throw-down to the presidency in a letter sent on Saturday 18 April 2020, the forum says the booze sale prohibition has race and class biases.

“The rest of your letter deals with irrelevant issues of violent crime, motor vehicle accidents and the reduction of ‘intoxicated persons’ among the ‘most vulnerable in society’ which is coded language for black people living in the townships where our clients operate. What is not explained is why the consumption of liquor in the white and affluent areas where the rich classes reside and drink liquor from their well-stocked bars and cellars, will not increase violence, including domestic violence. Such blatant racial discrimination has no place in a constitutional state.”

Because there are only 11 days left in the existing lockdown, court action is being placed in abeyance, but they have written to the presidency seeking details on whether or not the lockdown is likely to be extended and whether or not the booze ban is negotiable. 

“What prohibition?” asks Professor Charles Parry, director of the Medical Research Council’s Alcohol, Tobacco and Other Drug Research Unit. He was part of the team which informed President Cyril Ramaphosa’s decision to hang tough on the alcohol ban. Parry is genuinely perplexed at the idea that the temporary public health booze ban is being called prohibition politics. For one thing, the American prohibition was 13 years long, he points out and that it was associated with the puritanical and temperance movements.  

“I hate people telling me what to do,” says Parry, but he says that in a public health emergency, the trade-off limits personal freedom for a greater good.  “Our drinking context is quite different,” he says when asked why other countries had not put in place such stringent prohibition. He denies the suggestion that the government is trying to make alcohol reduction policy, using the Covid-19 epidemic as a cover.

“You have to understand South Africa’s unique drinking culture,” he says, pointing to detailed research which has shown that South Africans share bottles, and use alcohol and socialising interchangeably. It simply would not work with the isolation and physical distancing that a lockdown requires. The decision to continue the ban was scientific, says Parry. “You would be adding a fourth national queue to those for food, medicines and social grants.” Groups or lines of people spread the virus, he says, explaining how the decision was made. And the evidence presented another vital reason for continuing the lockdown. See this article.

Parry and his colleagues have calculated that the booze ban has emptied out the trauma units at 400 public hospitals and other facilities that will be needed as the Covid-19 storm starts. South Africa is regarded as being in the calm before the storm. The numbers of confirmed cases are now at 3,034 sick with about 1,400 recoveries and 52 deaths – low by international standards, but high on average public health infectious disease standards. (Stats as at 18 April 2020).

In our violent country, 1.8 million people a year are admitted into trauma units with one in two there for inter-personal injury, followed by accidents and then a general category that includes self-harm and other workplace injuries – this translates into 34,615 trauma admissions per week, says Parry. In about four in 10 cases, alcohol is a factor in the trauma.

Now the lockdown has brought an unusual calm to the trauma units, enabling hospitals to do the essential work of preparing themselves so that the scenes of mayhem and heartbreak at Italian, Spanish and New York hospitals does not happen here when Covid-19 makes proper landfall. In their early number-crunching, Parry and his colleagues have found that trauma admissions are down by 68% at Groote Schuur and 69% at Chris Hani Baragwanath and at similar levels in facilities across South Africa.  The highest numbers of Covid-19 cases are in Johannesburg and Cape Town, so the two hospitals are a useful indicator of why the booze ban may be working in the interests of public health. It’s a question of whether the ends of better public health services justify the means of prohibition and also a question of how long it lasts.

A ‘gwaai’ is not hard to find

A gwaai is slang for a cigarette: In South Africa, the estimates are that seven million people smoke 27 billion cigarettes a year. 

Despite some of the most stringent anti-tobacco laws in the world, which have made smokers and smoking a prohibited species and activity in public and private spaces for years now, the draw of nicotine is still high. The illicit economy flourishes as research in 2018 showed.

Most smokers stocked up ahead of the lockdown, but the extension means that many were caught withdrawing. That appears to be no problem in the prohibition and illicit economy. One of the most common arrests has been of people caught hauling alcohol and stock of cigarettes – either big multinational brands or the cheaper independent tobacco stock. But the supply is unstoppable.

Either way, a cigarette is not hard to procure, although the prices have gone through the roof though smokers seem immune to price when the withdrawal bites. A carton usually retails for between R300 and R450, but is now selling at R900 a pop.  A popular tobacco entrepreneur is adding an Uber-like service where he will drop off – for which he adds a R400.00 delivery service. This trade is on Facebook, but mostly on WhatsApp chat groups. 

In Joburg’s omnipresent Bangladeshi- and Pakistani-owned corner cafés, all trading as essential services, you can score a gwaai or a packet, but only if you are a regular and on greeting terms with the owner. 

Among young people who vape, there are networks to access the nicotine liquids to feed into your vaping device but, again, it’s by networks of friends and acquaintances in a trade run largely on WhatsApp groups. Prohibition has always and will always stoke illegal economies which is why the prohibition economy of the lockdown is cracking faster than a chocolate egg on an Easter Sunday morning. 

But Health Minister Zweli Mkhize is unimpressed, he said in a press briefing on 18 April 2020 that Covid-19 is a respiratory disease and it puts its little balls of virus primarily into the lungs which become inflamed. In a smoker, Covid-19 can quickly upgrade from an unpleasant flu to a killer disease. But the question here is who bears responsibility for risk: The state or the individual smoker and can you legally prohibit people from making stupid decisions? It is a constitutional battle. DM


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