The Western Cape High Court, in a two-to-one decision, on Friday dismissed an application by South African Breweries (SAB) against the regulations banning the sale and dispensing of alcohol during lockdown.
SAB had sought an order declaring that regulations 44 and 86 promulgated on 29 December 2020 were unlawful and had no force and effect.
TimesLIVE reports that the application was launched on 6 January 2021 and was pursued even after the alcohol ban was repealed in February 2021.
SAB said the consequence of the ban was the destruction of livelihoods, and that the prohibition, under the Disaster Management Act (DMA) to declare a total ban on alcohol – the only product banned in SA as a result of the Covid-19 regulations – infringed on the rights of tavern owners, shopkeepers, brewers and others along the value chain in so disproportionate a manner as to be unconstitutional.
In the majority judgment penned by Judge Rosheni Allie, with which Judge Judith Cloete concurred, the court said the minister had shown these regulations had a direct effect on the relationship between alcohol consumption and trauma cases at hospitals.
“In the light of the fatal consequences attached to COVID-19 infections, saving of hospital beds and access to medical treatment was justified as contemplated under the DMA and the Constitution,” Allie said.
The court also found that Minister of Co-operative Governance & Traditional Affairs, Dr Nkosazana Dlamini-Zuma, had proven that the regulations represented the least restrictive means of achieving the purpose of immediately freeing up hospital facilities and services to people infected with COVID-19.
However, in a dissenting judgment, Judge Tandazwa Ndita said she would have found that the regulations were unlawful and have no force and effect.
Ndita said the minister did not prove that the wholesale bans of alcohol on its own had the effect of reducing the demands on hospitals, trauma and emergency units as there were other restrictive measures implemented.
“Put in another way, when the impugned provisions were invoked during December 2020, there was only correlation and no clear causal connection between the imposition and any reduction in trauma cases because of other restrictions which also had the same effect.”
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See more from MedicalBrief archives:
SA’s liquor ban ‘remarkably successful’, argues Dlamini-Zuma
SA’s alcohol industry hits back at its fourth lockdown ban
Alcohol ban has been lifted but quest for ‘legal certainty’ continues
Constitutionality of alcohol ban challenged after government ‘fails to consider alternatives’