Basa launches PAJA review application for lockdown alcohol bans to be declared invalid

3rd December 2021

By: Schalk Burger

Creamer Media Senior Deputy Editor

     

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The Beer Association of South Africa (Basa) has launched a review application in the North Gauteng High Court, in Pretoria, in terms of the Promotion of Administrative Justice Act (PAJA) and/or the principle of legality, for the previous alcohol bans imposed by government to be declared irrational, invalid and set aside.

The application focuses on the decisions by the Minister of Cooperative Governance and Traditional Affairs to enforce alcohol bans in July and December 2020, June 2021, as well as the decision to continue imposing further restrictions on the trade of liquor in and during July 2021.

Basa argues that the making of Covid-19 regulations amounts to administrative action, which is reviewable in terms of PAJA. A decision is declared irrational, and therefore unlawful, under PAJA if, besides others, relevant considerations were not taken into account.

"In light of no evidence having been provided by government to support its decisions to enforce the previous bans, Basa's application argues that it failed to take into account the devastating impact of the bans on the alcohol industry and for this reason, these decisions are reviewable and destined to be set aside in terms of PAJA," Basa said on December 3.

Basa further argues that if the court finds that PAJA is not applicable in this regard, then the decisions 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 [sales] 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," Basa CEO Patricia Pillay said.

"Basa remains committed to working with government to mitigate the impact of a fourth wave 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, and are committed to cutting off the supply of alcohol to those caught breaking the rules," she said.

The previous alcohol bans had a devastating impact on the alcohol industry, with 14.7% of projected sales volumes for 2020/21 having been lost, representing a total of 1.26-billion litres.

Further, R42.2-billion in retail sales were lost and there was a R60.7-billion loss to gross domestic product. The total excise income tax loss was R10.2-billion, putting more than 233 000 jobs at risk.

By January 11 this year, 30% of local breweries were forced to shut their doors permanently and 165 000 people had already lost their jobs. The bans also served as a major boost to the illicit alcohol industry which grew to be worth more than R20.5-billion in 2020, she said.

Another alcohol ban over the coming festive season, a time when we expect some recovery for the tourism and hospitality sector, will serve as the final nail in the coffin for thousands of businesses and citizens who just barely survived the previous bans.

"Alcohol bans, which destroy legal businesses and jobs are not the answer. It is critical that we save lives without sacrificing livelihoods, which is the aim of Basa's application," Pillay said.

Edited by Chanel de Bruyn
Creamer Media Senior Deputy Editor Online

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