- The Western Cape High Court has dismissed an application by the wine producers' organisation Vinpro challenging national liquor bans.
- Vinpro claimed the bans interfered with what is exclusive to the powers of the premier of the province - namely the granting of liquor licences.
- Government argued that the Vinpro application had become moot because the January regulations had since been repealed.
National government's regulations relating to the sale of alcohol were reasonably necessary and incidental to the effective exercise of its powers relating to disaster management of the Covid-19 pandemic.
This was the finding of the Western Cape High Court on Tuesday in an application by wine producers' organisation Vinpro, which challenged the constitutionality and lawfulness of the nationwide liquor bans imposed by national government during the Covid-19 pandemic.
Vinpro - supported by the Western Cape provincial government - asked the court to rule that the power to impose restrictions on retail sales of liquor was exclusively vested in the provincial sphere of government. The High Court had earlier this year dismissed an application by Vinpro for urgent interim relief, finding the dispute was moot as President Cyril Ramaphosa had lifted the liquor ban on 25 July.
In its main application, Vinpro wanted the Western Cape premier to be authorised to deviate from the disaster management regulations to enable the sale of alcohol for off-site consumption. Alternatively, that the premier should be consulted about the imposition, extension or lifting of the liquor ban in the Western Cape and to reinstate the restrictions if necessary to preserve the capacity of hospitals and healthcare facilities in the Western Cape to treat Covid-19 patients.
The High Court has, however, ruled that if the sale, distribution and availability of liquor were not suspended and/or limited by the regulations, the national healthcare system would not have been able to free up the necessary resources and capacities to effectively address and manage the disaster.
Vinpro was not permitted to amend its original application dating from January 2021, and neither to introduce new evidence.
According to the judgment, Vinpro agreed that by temporarily reducing the consumption of alcohol, it does indeed protect the healthcare system and prevents it from being overwhelmed by the pandemic by reducing the number of trauma cases.
In reaction to the court ruling, however, Vinpro says the court erred in finding that Vinpro made the concession that by temporarily reducing the consumption, this does protect the healthcare system. Vinpro says it in fact emphasised that it remains the responsibility of government to create capacity in health care and use targeted interventions to reduce the impact on lives and livelihoods.
In its application Vinpro argued that a provincial, instead of a nationwide temporary limitation, would have been preferable. It wanted the court to authorise that the Western Cape premier is permitted to adopt deviations from the national disaster management regulations implemented in June relating to the sale, distributing, dispensing and transportation of liquor.
At the time of the court hearing the Vinpro application, the December, January and June regulations restricting alcohol sales were no longer in force.
"These pandemic regulations were not aimed at addressing the impact of alcohol on society generally, but were rather aimed at capacitating the health system during trying times. This, because SA has a much higher burden of alcohol-related trauma cases than experienced in many other countries," states the judgment.
Government argued that the Vinpro application had become moot because the January regulations, which are challenged, had since been repealed. The court agreed and the judgment states that it "cannot hang something on nothing".
Vinpro argued that the lockdown is still in place and government may again introduce the same or similar regulations and that this matter engages issues of public interest.
However, the court has ruled that "in the Vinpro application, whatever the factual position and circumstances were in January 2021 and whatever influences these held for the lawfulness or otherwise of the January regulations would have no bearing on any future regulations that may or may not be contemplated by the government respondents".
"In our view, this court does not have any discretion to hear a matter which has become moot and in our view, this matter has become moot," states the judgment.
"Even if the impugned regulations impacted on the issue of liquor licences, which is an exclusive provincial legislative competence, we are of the view that it would have allowed the national government to encroach thereon."
Vinpro said in a statement on Tuesday afternoon that it is "extremely disappointed" in the court ruling.
"Government's blunt approach, unwillingness to consult and lack of transparency regarding the empirical data used in decision-making, has caused irreversible damage to the wine and tourism industry. The industry has not only lost more than R10 billion in sales revenue, but also seen significant job losses and suffered international reputational damage," says managing director Rico Basson.
In response to criticism of Vinpro expressed by the three judges in the ruling regarding the timing of its court applications, Basson said Vinpro always submitted its applications and court documents timeously and on an urgent basis, but did not have control over when the applications would be heard.
"To our utmost frustration, we were at the mercy of a legal process over which we had no control. The court repeatedly unilaterally postponed the hearing dates, or reserved judgment until after restrictions on liquor sales had been lifted," says Basson.
Vinpro is currently considering whether to apply for leave to appeal the judgment. It continues to work closely with role players on various levels to help government make informed, fact-based decisions with regard to liquor trade.
* This article was updated with Vinpro comment at 17:00 on Tuesday 7 December.