LSSA says unconstitutional elements in Draft Liquor Amendment Bill can lead to closure of business premises

April 1st, 2017
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By Nomfundo Manyathi-Jele

The Law Society of South Africa (LSSA) made a number of submissions on proposed legislation, one of them being the Draft Liquor Amendment Bill, 2016 (the Bill).

In the submission made at the end of last year, the LSSA stated that it had considered the proposed amendments contained in the Bill, which proposes amendments to the existing Liquor Act 59 of 2003 and is of the view that, should the Bill, be promulgated in its current format, to impose provisions on the retail sale of liquor, such content will be unconstitutional.

In the submission, the LSSA stated that ‘all retail liquor stores, hotels, guest houses and restaurants in South Africa will close for the simple reason that almost all such business premises are within 500 metres from schools, places of worship, recreational facilities, rehabilitation or treatment centers, residential areas and public institutions and other like amenities. Sporting clubs, being recreational amenities, will not be able to be licensed. All tavern operators will be required to close their businesses.’

The LSSA questioned what the position would be if a church or school, for example, opened its doors within the prescribed 500 metres from an existing registrant. ‘Does this mean that the registrant must now relocate? Churches and private schools are mushrooming all over the country, establishing their facilities in business areas close to where people work.’

Issues to be addressed

In its submissions, the LSSA suggested that a few issues needed to be addressed, such as: ‘Section 1: The section is amended by the insertion of the definition of a “place of worship”. It is defined as “meaning a specially designed structure or consecrated space where in individuals or a group of people come to perform acts of devotion or religious services”.

The LSSA is of the view that the definition is problematic because, in terms of the new s 13A, the manufacture, distribution or retail sale of liquor is prohibited within 500 metres from a place of worship. The LSSA stated that, ‘as the definition stands now, it is not clear whether it applies to occasional religious services or to regular services. Where “individuals” perform “acts of devotion” in their homes or elsewhere will it make the homes or other places, places of worship.’

The LSSA added that the Bill prohibits the advertisement of liquor ‘in public platforms’ in the following (but not limited to) forms: Billboards less than 100 metres from junctions; street corners or traffic circles; distribution of pamphlets containing liquor adverts; radio and television advertising except in prescribed time slots; and that adverts must reflect the harmful effect of liquor abuse. The LSSA noted: ‘In addition, the Minister may after consultation prescribe more restrictions. This is unacceptable as it gives the Minister the power to restrict advertising severely or to ban it completely. These restrictions, especially the one relating to pamphlets, will seriously hamper new entrants to the liquor trade. How will the public even know that a new licensee is open for business? The result is that the established licensees will be protected from legitimate competition.’

Additionally, the sale of liquor to minors is substituted by ‘persons under the age of 21’. The LSSA is of the view that ‘legally, a 20-year-old is no longer a minor as minority ends on attaining the age of 18. The person is allowed to marry without parental consent, to vote and to enter into contracts unassisted. The age limit set in the Bill is an arbitrary one and is irrational. These provisions will be very difficult to enforce. It is common cause that, despite the 18 year age limit having been in force for many years, underage drinking is rife and that the authorities are unable to enforce the law. There is no reason to suppose that enforcement agencies will have more success by arbitrarily raising the drinking age thereby expecting adult university students and working class men and women to abstain from alcohol. The prohibition will simply be ignored and the authorities will be unable to do anything about it – this in turn will lead to further disrespect for the law which is currently an “epidemic” in South Africa.’

The LSSA concluded its submissions by stating that it is clear from the contents of the Draft Liquor Amendment Bill that it attempts to address some of the issues raised in the Final National Liquor Policy, 2016, but unfortunately the result of these amendments would not achieve the desired outcome.

The LSSA stated that the real issue is to educate not only those who consume liquor, but also the liquor traders and those responsible for the enforcement of the provisions of the Act, which includes the South African Police Service, liquor inspectors, liquor boards, etcetera, because it is of the view that those responsible for the enforcement of the liquor laws do not have the necessary knowledge of the liquor laws to enforce it properly.

The LSSA also offered to engage the decision makers on the drafting of liquor legislation with a view that such legislation must be in accordance with the Constitution and would provide adequate protection and control relating to the regulation of liquor as a harmful product.

Nomfundo Manyathi-Jele, Communications Officer, Law Society of South Africa, nomfundom@lssa.org.za

This article was first published in De Rebus in 2017 (April) DR 9.

 

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