Nkosazana Dlamini-Zuma’s powers do not override existing laws, argues SAB

SA Breweries (SAB) is awaiting a court date for a fresh legal challenge to the alcohol sales ban under lockdown regulations.

SAB filed papers in the Western Cape High Court on Wednesday challenging the ban on administrative law grounds. This is in addition to an earlier court application by SAB to review and set aside regulations prohibiting the sale of alcohol. That application is still pending.

“No official documented reasons have been issued for the ban despite repeated requests. SAB’s application is solely to review and set aside regulation 29 of the new regulations, and SAB is not attacking any of the other regulations published on June 28 2021,” the company said.

SAB said it agreed that lawful and reasonable measures were needed to curb the spread of the Covid-19 pandemic and to save lives and livelihoods. However, it contended that the fourth ban on alcohol sales in 18 months was unsubstantiated by robust scientific evidence.

The company said they believed they were left with no alternative but to defend their rights and take legal action to protect their business and urgently overturn this decision.

SAB argued in its latest court papers that co-operative governance and traditional affairs (Cogta) minister Nkosazana Dlamini-Zuma’s power under the Disaster Management Act (DMA) did not include the power to “override or repeal existing legislation”.

“She does not have the powers to repeal, override or contradict any existing law. She must accordingly exercise her powers within all the limitation imposed by all existing laws,” the papers read.

“The first respondent’s power under the DMA does not include the power to override or repeal existing legislation.

“The applicant contends the effect of the impugned regulations is to render the Liquor Act and other provincial legislation regulating inter alia the sale of alcohol inoperable for an undetermined period.

“The impugned regulations effectively repeal the existing legislation. This renders the impugned regulations ultra vires the DMA, and accordingly fall to be reviewed and set aside.”

SAB said Dlamini-Zuma’s decision to promulgate the regulations was procedurally unfair or procedurally irrational because she did not consult with them and other key stakeholders in the alcohol industry before the regulations were implemented.

“These stakeholders were never invited to make submissions on the need for the proposed ban on alcohol, even though it was clear their rights would be materially and adversely affected by the ban.”

SAB said it supported all “reasonable measures” to respond to the impact of Covid-19, had assisted in the transport and manufacture of sanitisers, distributed face shields to healthcare workers, and had donated medical equipment to the Gauteng and Eastern Cape provincial governments and R7m to the Solidarity Fund.

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