The latest surge in Covid-19 infections in South Africa, highlights once again that we are far from seeing the back of this pandemic. However, with 80% of South Africans having some level of immunity against Covid-19, either through infection or vaccination, we can only hope that the current fifth wave, and any future waves, are not as deadly as those experienced last year.
What will be critical to keeping hospital admissions and deaths low, is everyone taking personal responsibility for adopting the necessary precautions against the virus. This includes citizens getting vaccinated, receiving their boosters, sanitising their hands and wearing masks when indoors. All of these actions are going to become even more crucial as we head into the cold winter months, where people will be socialising indoors and immune systems will be weakened.
By everyone remaining vigilant and playing their part, South Africa can show that it is possible for people to continue going about their daily business despite the Covid-19 pandemic still forming part of our lives.
With our county’s official unemployment standing at 35.3%, we cannot afford another round of restrictions imposed by government which will close down the economy, such as the four alcohol bans that were enforced between March 2020 and July 2021.
These bans had a devastating impact on the alcohol industry, with 14.7% of projected sales volumes for 2020/2021 being lost (a total of 1,262.7 million litres), R42.2-billion lost in retail sales, and a R64.8-billion loss to the GDP (1.3% of the GDP).
The total excise income tax loss was R10.2-billion, while the tax revenue loss, without excise, was R36.4-billion (2.8% of tax revenue). The first and second ban alone resulted in 165,000 job losses. When it comes to the beer industry, by 11 January 2021, 30% of local breweries were forced to shut their doors permanently.
Against the backdrop of this economic devastation, the Beer Association of South Africa (Basa) is extremely concerned about new Regulations Relating to the Surveillance and the Control of Notifiable Medical Conditions: Amendment 2022 that was published by the Minister of Health on 15 March 2022.
These proposed regulations focus on interventions to contain the spread of notifiable medical conditions in the future, including Covid-19, and include the sale, dispensing and consumption of alcohol as information that the minister of health may share with Cabinet colleagues for purposes of disease control.
This means that despite government failing, to date, to provide sufficient scientific evidence on which they based their decision to enforce the previous four bans, this legislation will ensure future bans remain on the cards even when the country is not in a state of disaster.
These proposed regulations appear to be unconstitutional, as the regulation of the sale of alcohol to consumers is a provincial competence which was only suspended during the state of disaster, which was lifted by the president in April 2022. They are also vague and, if enforced, will create a high level of uncertainty and instability for the alcohol industry, which has been trying to recover from the impact of the previous bans.
It is clear that businesses, who have received zero financial relief from government despite being forced to shut their doors for a total of 161 days over a 16-month period, cannot operate in such an uncertain environment where the threat of future bans continues to hang over their heads.
Basa has therefore made a submission to the Department of Health requesting that this proposed regulation be scrapped. One of our key arguments for the scrapping of this clause is that there has been no empirical evidence presented to date that the sale, dispensing and consumption of alcohol and the transmission of notifiable medical conditions are linked.
These proposed regulations also highlight the importance of Basa’s ongoing review application in the Gauteng high court against the previous four bans, which we launched in December last year. The aim of our application is to have the previous bans declared irrational, invalid and set aside in terms of the Promotion of Administrative Justice Act (Paja) and/or the principle of legality.
Our court papers argue that the making of Covid-19 regulations amounts to administrative action, which action is reviewable in terms of Paja. A decision is declared irrational (and therefore unlawful) under Paja if, inter alia, relevant considerations were not taken into account.
In light of insufficient evidence having been provided by government to support its decisions to enforce the previous bans, Basa’s application has argued that it failed to take into account the devastating impact of the bans on the alcohol industry and for this reason, among others, these decisions are reviewable and destined to be set aside in terms of Paja.
Furthermore, we have also argued that if the Court finds that Paja is not applicable in this application, then the decision to ban alcohol — being the exercise of a 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 contends that the decision to ban alcohol could not be rational in light of there being no evidence, to date, which government considered and presented regarding the adverse financial implications to the alcohol industry and/or how it would serve to boost the illicit alcohol industry. Therefore, the previous alcohol bans should also be declared constitutionally invalid.
It is clear from the minister of health’s proposed regulations that future bans remain a real threat to the alcohol industry. It is therefore critical that the courts rule on this matter, hopefully declaring the previous bans unlawful and illegal, so the industry has certainty moving forward that they will not be forced to shut their doors again should there be a surge of Covid-19 infections in the country in the future.
Despite our high court application, Basa remains committed to working with government to mitigate the impact of future waves 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.
However, alcohol bans which destroy legal businesses and jobs, are not the answer. It is critical that we save lives without sacrificing livelihoods and therefore we call for cool heads to prevail when responding to the current fifth wave in South Africa and any future surges of infections. In particular, we need to keep driving the importance of getting vaccinated, the regular sanitising of hands, always wearing masks when indoors and avoiding large indoor gatherings. DM