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[2021] ZAWCHC 135
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South African Breweries (Pty) Ltd v Minister of Corporative Governance and Traditional Affairs and Another (10996/2021) [2021] ZAWCHC 135; [2021] 4 All SA 189 (WCC) (22 July 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
Case No: 10996/2021
In
the matter between:
THE
SOUTH AFRICAN BREWERIES (PTY) LTD
Applicant
and
THE
MINISTER OF COOPERATIVE GOVERNANCE
AND
TRADITIONAL AFFAIRS
First Respondent
THE
MINISTER OF TRADE, INDUSTRY AND COMPETITION
Second Respondent
Date
of hearing: 9 July 2021 via virtual platform on MS Teams
Date
of Judgment: 22 July 2021 (delivered by email to the parties’
legal representatives. The Judgment shall be deemed
to have
been handed down at 16h00.)
JUDGMENT
Henney, J:
Introduction and
background
[1]
This matter is concerned with the scope of the first respondent’s,
the Minister
of Corporative Governance and Traditional Affairs (“the
Minister”), powers to make regulations in terms of section
27(2) the Disaster Management Act 57 of 2002 (“the DMA”),
and the nature and origin of such powers. The last mentioned
issue relates to the question whether such powers reside within the
realm of executive action or administrative action.
[2]
The applicant (“the SAB”) is aggrieved with the decision
taken by the
Minister on 27 June 2021 in making regulations to
suspend and limit the sale, dispensing or transportation of alcoholic
beverages,
which led to a total prohibition on the sale and
dispensing of alcoholic beverages as from the mentioned date. This
led to
the SAB seeking relief from this court, on an urgent basis, to
have the decision which resulted in the Minister making the impugned
regulations reviewed and set aside. In these proceedings the
SAB does not take issue with the underlying reasons, and the
rationale, for the Minister making the regulations in respect of the
sale and distribution of alcoholic beverages.
[3]
Subsequent to the novel coronavirus (“Covid 19”) arriving
on our shores
in March 2020, a national state of disaster was
declared on 15 March 2020. With the escalation of infections in
this country
it resulted in the country being placed under a
so–called “hard lockdown” on 26 March 2020, termed
the Level
5 lockdown, because the pandemic posed an unprecedented
health risk to the lives and health of everyone living in South
Africa,
and across the world.
[4]
Various adjustments of the lockdown levels followed - from the
highest and most restrictive,
which is level 5, to the lowest and
least restrictive, level 1 - when the circumstances relating to the
levels of infection of
Covid 19 that prevailed at the given time,
justified such adjustments. This in turn led to either a
tempering or an intensification
of the impact and consequences of
these regulations.
[5]
During each level the restrictions are adjusted by means of
regulations, the most
important of which is in relation to the
movement of persons, the operation of certain businesses and hours of
operation and, particularly
relevant in this case, the
intensification or moderation of the impact of the regulations in
respect of the sale, dispensing, distribution
or transportation of
alcoholic beverages. As her reasons for the necessity of the
impugned regulation, the Minister states,
inter alia
, in her
answering affidavit, that certain restrictive measures (such as a
temporary suspension) have been necessary at different
stages of the
pandemic depending,
inter alia
, on the rate of new infections,
the rate of hospitalisations, the capacity of the healthcare system,
and its ability to cope.
[6]
The underlying imperative, according to the Minister, has been to
ensure that the
health system does not become overwhelmed and that as
a result lives are not lost unnecessarily; the government has been
fully
alive to the fact that measures such as the temporary
suspension have come at a significant financial cost to those working
and
operating in the affected sectors, but notwithstanding that,
measures such as the temporary suspension have been necessary to
ensure
the capacity of the healthcare system to deliver healthcare
services to those in need thereof, and in so doing to avoid any
unnecessary
loss of lives.
[7]
Cabinet, as was in the case in December 2020/January 2021, is alive
to the fact that
the temporary suspension would once again affect
livelihoods in certain sectors of the economy, and they recognise
that the liquor
industry is a major employer and an important
contributor to the South African economy. They realise that
some sectors would
be affected more greatly than others, particularly
so in the context of what is known about the Delta variant, which
brings about
increased transmissibility. A balancing exercise
is required, which is directed at saving lives and ensuring capacity
in
the healthcare system moving forward.
[8]
The government realised that when the decision was made to impose the
suspension,
contained in the impugned regulation which forms the
subject of these proceedings
[1]
,
the healthcare infrastructure of some more economically advanced and
better-resourced countries, when faced with similar challenges,
had
reached critical or near breaking point, and that based on these
experiences of what happened in other countries and how they
coped
with the new variants of Covid 19 the government on the advice
rendered by scientists from South Africa and other medical
experts
adapted certain measures to mitigate the number of Covid 19 related
deaths and to ensure continued access to healthcare
services.
[9]
The government’s underlying objective is to ensure that no
person who needs
medical assistance is turned away from healthcare
facilities, for the reason that the system does not have the capacity
to provide
such assistance. Unless this approach is followed
Covid 19 will, on account of an overburdened healthcare system, kill
people
in South African in more significant numbers and potentially
leave hundreds of thousands of others impacted and permanently
affected.
In particular, the impugned regulation resulting in
suspension and limitation of the sale and distribution of alcohol in
terms of regulation 29 of the Regulations issued in terms of
Government Notice No. R 565 and the Government Gazette for 4772 dated
of 27June 2021
[2]
,
is centrally aimed at achieving the ultimate objective of increasing
the capacity of the healthcare system, through a reduction
in the
number of alcohol-related trauma and emergency cases.
[10]
These measures also decrease the likelihood of transmissions, because
of the social aspect of
liquor consumption and an associated decrease
in inhibition, which may translate into an increase in risky
behaviour, which in
relation to Covid 19 involves not adhering to
social distancing, mask wearing and regular hand washing/sanitising
rules. Based
on the best available information at their
disposal at the time, and in the prevailing circumstances, the
difficult decision had
to be taken to impose the temporary suspension
as detailed in the impugned regulation. The failure to do so
(in the face
of an exponential increase in the number of overnight
infections and increased transmissibility of the Delta variant) could
result
in the virus spiralling out of manageable control,
unimaginably desecrating our healthcare service and leading to a
devastating
(and preventable) loss of life, with a further direct
indirect and direct impact on the economy.
[11]
According to the Minister the impugned regulation is permissible,
sanctioned by and indeed necessary
under the current legal framework.
In particular, it is necessary, firstly, to alleviate the
impact and effects of the pandemic.
Secondly, to prevent the
escalation thereof. Thirdly, to alleviate, contain and minimise
as best possible the effects
of the pandemic. And lastly, to
assist and protect everyone in South Africa by providing relief to
the public, preventing
and combating the myriad of disruptions caused
by the pandemic, whilst also dealing with the fallout caused by the
pandemic at
every level of government in relation to every aspect of
governance.
The relief
[12]
The relief the SAB is seeking in this matter, is that it be declared
that regulation 29 of the
Regulations published by the first
respondent under section 27(2) of the DMA, in Notice 565 on 27 June
2021, be declared unlawful
and invalid and that it be reviewed and
set aside. This case is concerned with the extent of the
Minister’s powers,
in terms of section 27 of the DMA, to make
regulations to suspend or limit the sale, dispensing or
transportation of alcoholic
beverages during the disaster. The
Minister opposes the application on the following grounds:
1) that
the application is not urgent;
2) that
she did not act
ultra vires
when she made the regulations and
that the regulations are in conformity with the provisions of
sections 26(2) and 27(2)(i) of
the DMA and the Constitution.
3) that
she had adequately consulted with all the stakeholders, between 15
June 2021 and 27 June 2021, before she made
the impugned regulation;
alternatively, that the exigencies brought about by the rapid rate of
the spread of the infection brought
about by the Delta variant,
justified the lack of full and proper consultation with all the
stakeholders, including the SAB;
4) that
it is improper to challenge the rule-making powers of the Minister in
terms of the provisions of the Promotion
of Access to Administrative
Justice Act 3 of 2000 (“PAJA”); alternatively that it was
administrative action susceptible
for review based on the principle
of legality.
Urgency
[13]
I think it would be appropriate at this stage to deal with the
question whether this matter justified
a hearing on an urgent basis,
in terms of the provisions of Rule 6(12) of the Uniform rules of
Court. The Minister, in contending
that these proceedings are
not urgent, states that regulations limiting and suspending the sale
of alcohol had been in force since
March 2020, and the SAB at no
stage until the regulations promulgated on 29 December 2020
[3]
sought to challenge the lawfulness of such regulations. In
respect of the December 2020 regulations, which no longer exist,
there is pending litigation, aimed at having the alcohol suspension
under those regulations declared unlawful and of no force and
effect.
[14]
This application was not pursued expeditiously by the SAB and
subsequent to the lifting of the
temporary suspension, little effort
has been made to date to have its application adjudicated. Now
on top of that pending
application, the SAB brings an application on
an extremely urgent basis, with limited notice to the respondents,
seeking in essence
the same relief as it seeks in the pending
application. In this application the SAB only advances its own
commercial interests
and pays little regard to the factual context in
which it seeks relief. The SAB, in countering this argument,
refers to what
the Minister stated in her answering affidavit
[4]
regarding the
proceedings in the pending application:
‘
It was explained in my
answering affidavit in the pending application that that application
is moot, because at the time of filing
the answering affidavit there
in, the alcohol suspension had been lifted; and that any further
suspension would be determined on
the relevant facts at that point in
time and would accordingly need to be challenged and adjudicated on
those new facts. This
is exactly what has now occurred with the
Delta variant. South Africa also in a different position than
it was a year ago
relation to how to deal with the pandemic.’
[15]
I agree with Mr. Campbell, who appeared together with Mr. Cockrell
for the SAB, that, based on
the position the Minister had taken in
the pending proceedings, notwithstanding their persistence to proceed
with the pending application,
that it does not behove the Minister in
these proceedings to raise the point that, due to the pending
proceedings, they are not
entitled to institute these proceedings
afresh, on an urgent basis. Ordinarily though, a court would
not permit a party to
adopt such a procedure. It is
well-established that a party’s failure to institute
proceedings on an issue that existed,
and of which that party may
have been aware for some time, would make it difficult for such a
party to have that issue adjudicated
on an urgent basis.
[5]
[16]
There are exceptions to this general rule, especially in cases where
there is an ongoing violation
of rights of persons notwithstanding
their delay in bringing the application.
[6]
Van
der Westhuizen J, at 462H-463B, said the following on this particular
point:
‘
This
matter came before me as one of urgency. The urgency was
opposed by counsel on behalf of the respondent. I found
the
matter to be urgent indeed for the following reasons:
The
applicant alleges that the dignity and privacy of himself and Ms
Prinsloo are violated on an ongoing basis, because of the intimate
sexual nature of the images in the possession of the respondent.
Dignity and privacy are important constitutionally recognised
fundamental rights, to which I later return. On the assumption
that the applicant's case may indeed have merit (without deciding
that point at the moment) I am of the view that the violation of an
individual's privacy and dignity in a manner as alleged in
this case,
namely by the possession by another of photographic material of a
sexual and highly intimate nature, creates a degree
of urgency which
is at least sufficient to justify a ruling that the matter not
be struck off the roll and therefore have
to wait for a court date
three or four months further into the future. An applicant in a
situation such as the one which
allegedly prevails here cannot be
expected to endure the anxiety and embarrassment of a continued
violation of his or her privacy,
which directly relates to one's
human dignity.’
[17]
Similarly, in my view, in this particular case the SAB, and other
entities and persons associated
with the business conducted by the
SAB, are suffering on an ongoing basis, which results in the
violation of their rights. The
mere fact that the regulations
prohibiting the sale, distribution and dispensing of alcoholic
beverages has been in place for some
time, and the fact that they are
involved in pending litigation regarding the regulations that were
made in December 2020, does
not make their case less serious or
undeserving to be heard on an urgent basis.
[18]
The Minister herself recognises that the circumstances that currently
exist in the country are
totally different from the circumstances
under which previous regulations were issued. Also that given
the uncertainty and
unpredictability of the virus and its various
strains, there exists some uncertainty as to what effect the
regulations would have,
not only the SAB, but also on other
businesses and persons living in this country affected by the
regulations at any given time.
The uncertainty and
unpredictability about the prohibition of the sale, dispensing or
distribution of alcoholic beverages
existed throughout since the
inception of the state of disaster, in March 2020.
[19]
In some instances there was a total prohibition, and in other
instances there were certain limitations
with respect to the hours
and days of operation, for example under Government Notice 659,
Government Gazette 43364 of 28 May 2020,
where the so-called alcohol
suspension was eased and the sale of liquor at any licensed premises,
or through e-commerce delivery,
was permitted from Monday to Thursday
between 9:00 and 17:00 hours. This changed once again under
alert level 3, in Government
Notice 763, Government Gazette 43521 of
12 July 2020. Under Government Gazette 43725 dated 18 September
2020, under alert
level 1, the normal trading hours were restored for
the sale of alcohol at retail outlets, and this lasted until 29
December 2020.
Thereafter, until 15 June 2021, the country was
operating under alert level 1, and no restrictions were placed on the
sale,
dispensing, distribution and transportation of alcoholic
beverages.
[20]
It is understandable given the circumstances, and the uncertainty
that existed with regards to
the sale, dispensing, distribution and
transportation of alcoholic beverages, that the SAB and other parties
did not enthusiastically
pursue litigation against the government.
I do not think the Minister, in my view having realised the impact
that the regulation
suspending or limiting the sale, distribution and
transportation of alcoholic beverages would have on the industry and
also the
livelihoods of people affected, thereby cannot possibly view
the matter as urgent. Further, it seems that all of us, including the
Minister and the government, up to 24 hours before the president
announced that the country would be adjusted to alert level 4,
were
unaware of what impact the Delta variant would have on the spread of
infections in the country, especially during the third
wave.
[21]
Whilst the SAB might have brought this application to promote their
commercial and own self-interest,
and not merely for the interests of
the industry or society at large, that does not mean that the court
cannot view it as urgent.
They are, in my view, entitled to do
so and I agree with Mr. Campbell that it is well-established that
where a party acts
in its own commercial interests, such a party is
justified in bringing such an application on an urgent basis.
[7]
[22]
In
Twentieth Century Fox Film Corporation and another v Anthony
Black Films (Pty) Ltd
, Goldstone J, at 586E, thus said:
’
The
respondent's counsel submitted that there was no urgency in the
absence of some serious threat to life or liberty and that the
only urgency here was of a commercial nature. It was
because of this factor that the applicants' attorney in fact decided
to set the matter down on a Tuesday when the Chamber Court was in any
event in session during the Court recess to dispose of unopposed
applications. In my opinion the urgency of commercial interests
may justify the invocation of Uniform Rule of Court 6 (12)
no less
than any other interests. Each case must depend upon its
own circumstances. For the purpose of deciding
upon the urgency
of this matter I assumed, as I have to do, that the applicants' case
was a good one and that the respondent was
unlawfully infringing the
applicants' copyright in the films in question.’
[23]
This is especially so in circumstances such as we find ourselves in,
as a result of the disastrous
effect the pandemic has had on the
economic interests and livelihoods of people such as the SAB in this
case. In my view,
for all of these reasons mentioned, the SAB
was justified in bringing this application on an urgent basis,
because not only were
their own rights and economic interests under
threat, but also those of other entities like themselves that operate
in the same
environment, as well as ordinary members of the public
whose livelihoods are dependent on the industry within which the SAB
operates.
Does the
Minister’s power to make regulations amount to administrative
action in terms of PAJA?
[24]
It will also be very convenient at this stage to deal with the
question as to whether the Minister’s
regulation-making powers
falls within the sphere of her executive functions, or whether it
constitutes administrative action in
terms PAJA. There is no
uncertainty in my mind that this issue was adequately settled by
Plasket JA in
Esau
v Minister of Corporative Governance and Traditional Affairs
[8]
,
despite the
Minister’s insistence that her powers to make regulations
constitutes executive action.
In Esau, para 83,
Plasket JA said:
‘
In this court . . . in
City of Tshwane Metropolitan Municipality v Cable City (Pty) Ltd
,
Maya JA, with reference to the
New Clicks
judgment, stated
that she agreed with “the applicant’s contention that the
making of regulations by a Minister constitutes
administrative action
within the meaning of [PAJA]”. So, too, in
Sizabonke
Civils CC t/a Pilcon Projects v Zululand District Municipality and
Others
. Gorven J, after referring to Chaskalson CJ’s
judgment in
New Clicks
to the effect that, properly construed,
rule-making fell within the ambit of administrative action in terms
of s 33, concluded
that this “being the case, in this matter
the actions of the third respondent, who does not have original
legislative powers,
but is akin to a functionary with powers vested
in him by the Act, are subject to review” and that “his
actions are
characterised as legislative administrative action and
are reviewable under PAJA”.’
Plasket JA
continues, para 84:
‘
Although the respondents
asserted that regulation-making was not administrative action, they
put forward no argument why this was
so. They never took issue
with the finding to the contrary in this court in
City of Tshwane
,
or with the reasoning in
New Clicks
, set out above, upon which
it was based. I am aware of judgments, including in this court,
in which misgivings have been
expressed on the issue. This case
is not, however, the correct case to explore whether those misgivings
have any merit. We,
of course, are bound by the finding in
City
of Tshwane
unless we are convinced that it is clearly wrong. No
attempt was made by the respondents to convince us of that.’
This court is
clearly bound by this decision and regards the regulation-making
function of the Minister as administrative action
in terms of PAJA.
The applicable
legislative provisions
[25]
I have already referred to the impugned regulations which is
regulation 29(1) above
[9]
.
I will now set out the legislative provisions relevant to these
proceedings. These are certain provisions of the DMA
and, in
particular regulation 29 of the regulations, as referred to above.
‘
26. Responsibilities
in event of national disaster.
—
(1) The
national executive is primarily responsible for the co-ordination and
management of national disasters irrespective
of whether a national
state of disaster has been declared in terms of section 27.
(2) The
national executive must deal with a national disaster—
(a)
in terms of existing legislation and contingency arrangements, if a
national state of disaster has not been declared in terms
of section
27 (1); or
(b)
in terms of existing legislation and contingency arrangements as
augmented by regulations or directions made or issued in terms
of section 27 (2), if a national state of disaster has been
declared.
(3) .
. .
27. Declaration
of national state of disaster.
—
(1) In
the event of a national disaster, the Minister may, by notice in
the
Gazette
, declare a national state of disaster if—
(a)
existing legislation and contingency arrangements do not adequately
provide for the national executive to deal effectively with
the
disaster; or
(b)
other special circumstances warrant the declaration of a national
state of disaster.
(2) If
a national state of disaster has been declared in terms of
subsection
(1),
the Minister may, subject to
subsection
(3)
,
and after consulting the responsible Cabinet member, make regulations
or issue directions or authorise the issue of directions
concerning—
(a)
the release of any available resources of the national government,
including stores, equipment, vehicles and facilities;
(b)
the release of personnel of a national organ of state for the
rendering of emergency services;
(c)
the implementation of all or any of the provisions of a national
disaster management plan that are applicable in the circumstances;
(d)
the evacuation to temporary shelters of all or part of the population
from the disaster-stricken or threatened area if such
action is
necessary for the preservation of life;
(e)
the regulation of traffic to, from or within the disaster-stricken or
threatened area;
(f)
the regulation of the movement of persons and goods to, from or
within the disaster-stricken or threatened area;
(g)
the control and occupancy of premises in the disaster-stricken or
threatened area;
(h)
the provision, control or use of temporary emergency accommodation;
(i)
the suspension or limiting of the sale, dispensing or transportation
of alcoholic beverages in the disaster-stricken or threatened
area;
(j)
the maintenance or installation of temporary lines of communication
to, from or within the disaster area;
(k)
the dissemination of information required for dealing with the
disaster;
(l)
emergency procurement procedures;
(m)
the facilitation of response and post-disaster recovery and
rehabilitation;
(n)
other steps that may be necessary to prevent an escalation of the
disaster, or to alleviate, contain and minimise the effects
of the
disaster; or
(o)
steps to facilitate international assistance.
(3) The
powers referred to in
subsection
(2)
may
be exercised only to the extent that this is necessary for the
purpose of—
(a)
assisting and protecting the public;
(b)
providing relief to the public;
(c)
protecting property;
(d)
preventing or combating disruption; or
(e)
dealing with the destructive and other effects of the disaster.
(4) Regulations
made in terms of
subsection
(2)
may
include regulations prescribing penalties for any contravention of
the regulations.
(5) A
national state of disaster that has been declared in terms
of
subsection
(1)
—
(a)
lapses three months after it has been declared;
(b)
may be terminated by the Minister by notice in the
Gazette
before
it lapses in terms of
paragraph
(a)
;
and
(c)
may be extended by the Minister by notice in the
Gazette
for
one month at a time before it lapses in terms of
paragraph
(a)
or
the existing extension is due to expire.’
[26]
Before dealing with the particular grounds upon which the SAB submits
that regulation 29 is
ultra
vires
,
it would be best to deal with the comparison made by SAB between the
consequences of the rights of persons affected under a state
of
emergency and that in a state of disaster with particular reference
to the impugned regulations. The SAB submits that
in a state
emergency, declared in terms of section 37(1)
[10]
of the Constitution, section 37(2) clearly sets out the consequences
regarding the effect of legislation or action taken during
a state of
emergency, and the powers of the courts to decide on the validity of
such legislation or action. Furthermore,
section 37(5)(b) and
(c) determines which rights may not be derogated from, either by an
act of Parliament or action as a consequence
of a declaration of a
state of emergency. The SAB argues that having regard to these
provisions of the Constitution, in dealing
with a state of emergency,
the regulation dealing with the so-called alcohol ban had not been
laid before the National Assembly
for approval or extension, as
required in a state of emergency under section 37(2)(a). As a
consequence, fundamental and
other rights have been attenuated in a
manner the Constitution does not authorise.
[27]
The SAB further contends that the Constitution recognises no other
situation, other than a state
of emergency, whereby ordinary laws and
the rights enjoyed by citizens and inhabitants of South Africa can be
attenuated.
They therefore submit that if the DMA is to be read
as constitutionally compliant, it must be read as not conferring
powers upon
the Minister that would only be constitutionally
permissible under section 37 of the Constitution.
[28]
Whilst the SAB has persistently characterised its case as not being
based on a full frontal constitutional
challenge, either against the
DMA, and in particular section 27(2), or the regulations, these
submissions, in my view, seem to
be a veiled challenge on the
constitutionality thereof. In my view, what the SAB contends is
that the DMA, as a result of
section 27(2)(i), which gives the
Minister the power to make regulations to,
inter alia
, suspend
or limit the sale of alcohol and, by implication, suspend or limit
certain rights, is in effect unconstitutional.
[29]
In these proceedings, there is no dispute that section 27(2) of the
DMA gives the Minister the
power to make regulations to,
inter
alia
,
suspend or limit the sale of alcohol. In my understanding of
section 27(2) it clearly envisages a limitation or attenuation
of a
number of rights as contained in the Bill of Rights and, without
deciding the issue in particular, the right of the SAB, in
terms of
section 22, to practice its trade, which includes its rights to
manufacture, dispense, distribute and sell alcoholic beverages
freely.
[11]
To this extent, these submissions
of the SAB clearly amount to a veiled challenge to the
constitutionality of the DMA, more particularly,
section 27(2)(i),
and regulation 29 promulgated by the Minister as a consequence
thereof. Whilst these submissions were made,
I have, however,
not been asked to adjudicate a dispute dealing with the
constitutionality of the DMA, section 27(2)(i) or regulation
29.
I will therefore, for the purpose of this judgment, deal with these
provisions on the basis that they are constitutionally
compliant
despite these submissions. It is in any event not framed as
part of the relief that the SAB sought in this application.
The SAB’s case
[30]
The SAB submits that the impugned regulation constitutes unlawful
administrative action, and
that the regulation falls to be reviewed
and set aside. They submit that the Minister’s power to
regulate the sale,
dispensing or transportation of alcoholic
beverages, does not include the power to impose a wholesale
prohibition of the kind contained
in the impugned regulation. They
contend that the impugned regulation is therefore
ultra vires
to the Minister’s powers. Mr. Cockrell submits these the
regulation is
ultra vires
on the following grounds:
firstly
,
regulation 29 operates indefinitely, unlike other provisions in the
regulations that are stipulated to come to an end on 11 July
2021.
He submits that according to the Minister, the alcohol ban was
approved by the Cabinet (which also functions as the
National
Coronavirus Command Council).
[31]
The affidavit of Minister Patel (the second respondent), however,
states that the Cabinet decided
‘on the suspension of alcohol
sales for a two-week period.’ He explained that the
Cabinet decided that the measures
‘would not be open ended as
was the case during the first wave in 2020’. This was
also what the President stated
when he announced the alcohol ban on
27 June 2021. Regulation 29 therefore fails to give effect to
the decision of the Cabinet,
because it operates indefinitely and not
only for two weeks. The SAB contends that for this reason alone
regulation 29 is
ultra vires
.
Secondly
, the SAB
submits that regulation 29 does not ‘suspend’ or ‘limit’
the sale of alcohol. Section 27(2)(i)
of the DMA deals
specifically with alcohol and in accordance with the maximum
generalia specialibus non derogant
, the Minister cannot rely
on the more general provisions of section 27(2), when it comes to
regulating the sale of alcohol.
[32]
Section 27(2)(i) provides that the Minister may make regulations
concerning the ‘suspension’
or the ‘limiting’
of the ‘sale, dispensing or transportation of alcoholic
beverages in the disaster-stricken
or threatened area’. The
SAB submits that this must be read with section 26(2)(b), which
provides that the national
executive must deal with a national
disaster ‘in terms of existing legislation and contingency
arrangements as augmented
by regulations or directions made or issued
in terms of section 27(2)’. According to them the
ordinary meaning of ‘augment’
is ‘to add to’.
In this regard they rely on the decision of
Esau
and others v Minister of Co-operative Governance and Traditional
Affairs and others
[12]
.
They contend that section 26(2)(b) therefore means that
regulations may add to existing legislation, but that it does not
authorise the making of regulations that subtract from existing
legislation. This argument, they contend, equally applies
to
‘suspension’ as envisaged in section 27(2)(i).
[33]
According the SAB regulation 29(1) does not ‘limit’ the
sale, dispensing or transportation
of alcoholic beverages. On
the contrary, it prohibits those activities altogether. To
‘limit’ an activity
means to impose restrictions on the
activity, not to prevent the activity from being performed at all.
They further contend
that regulation 29(1) does not ‘suspend’
the sale, dispensing or transportation of alcoholic beverages. They
say so for the following reasons:
1)
Regulation 29 does not purport to suspend
anything. It uses the language of
prohibition
and not the language of
suspension
;
2)
A ‘suspension’ means a
temporary cessation, and the Minister correctly accepts that the
suspension must be ‘of
a temporary nature’. Regulation
29 contains no end date. The SAB therefore submits an activity
‘is not
suspended’ if it is prohibited indefinitely.
Cabinet approved the alcohol ban for two weeks, but this is not
reflected
in the wording of regulation 29. They contend that an
indefinite prohibition is permanent unless it is lifted;
3)
they submit that section 27(2)(i) gets its
colour
from section 26(2)(b), which refers
to the augmenting of existing legislation, and existing legislation
is not augmented when it
is non-operational.
[34]
They therefore contend that the Minister’s power to regulate
the sale, dispensing or transportation
of alcoholic beverages, does
not include the power to impose a wholesale and indefinite
prohibition of the kind contained in regulation
29. It is
neither a ‘suspension’ nor a ‘limiting’ of
the ‘sale, dispensing or transportation
of alcoholic beverages
in the disaster-stricken or threatened area’. They
further submit, relying on the judgment of
Didcott and Hoexter in
S
v Perumal
[13]
,
that ‘the power to regulate an activity by subordinate
legislation does not normally include the power to ban it, either
entirely or substantially.’
[35]
The
Perumal
decision referred to
Williams
[14]
,
where Appellate Division held that “trade and the regulation or
governance of it, and indeed a power to regulate and govern
seems to
imply the continued existence of that which is to be regulated or
governed.’ They also rely on the decision
of Telkom SA
SOC Ltd v Cape Town (City) and another
[15]
where it was said that ‘where a power to regulate is given, it
may not be used to prohibit, either in whole or in substantial
measure, the activity in question.’
[36]
The SAB therefore contends that regulation 29 is
ultra vires
the Minister’s powers, and the decision to make regulation 29
should be reviewed and set aside in terms of section 6(2)(a)(i)
of
PAJA.
Thirdly
, regulation 29 is
ultra vires
because it is inconsistent with existing legislation. In
particular, inconsistent with national and provincial legislation,
because different considerations apply in each case.
[37]
Regarding national legislation, the Liquor Act 59 of 2003 (“the
Liquor Act&rdquo
;) is legislation that was enacted by Parliament for
the entire country. It provides that subject to conditions, a
manufacturer
(such as the SAB) may distribute the liquor it has
manufactured to another manufacturer, to a distributor and to a
retail seller
in terms of
section 4(3).
[38]
They submit that to the extent that
regulation 29
prohibits the
‘distribution’ of liquor indefinitely, it is inconsistent
with the
Liquor Act. That
is because
regulation 29
prohibits a
manufacturer (such as the SAB) from performing the very activity that
the
Liquor Act
>authorises
the manufacturer
to perform, namely to distribute liquor. The Minister, the SAB
submits, is wrong in her contention that
regulation 29
does not
override legislation, because it takes away the rights that are
conferred by the
Liquor Act.
[39
]
Section 27(2)
all the DMA does not confer on the Minister the power
to make regulations that are inconsistent with legislation enacted by
Parliament
(such as the
Liquor Act). Further
, that Parliament
could not empower the Minister to make delegated legislation that is
inconsistent with the legislation of Parliament
itself. They
reiterate that
section 26(2)(b)
of the DMA refers to the augmenting
of existing legislation by regulations made in terms of
section
27(2)
, and once again they argue that to augment means to add to and
not to subtract from.
[40]
According to the SAB, it is wrong for the Minister to argue that,
because it did not challenge
the constitutionality of section
27(2)(i) of the DMA, the SAB cannot adopt such a position. This
is because
section 27(2)(i)
of the DMA would be unconstitutional if
it purported to confer on the Minister the power to make regulations
that are inconsistent
with national legislation. They submit
that in accordance with well-established authority
[16]
,
section 27(2)(i)
should be interpreted in a manner that preserves its
constitutionality.
Section 27(2)(i)
should be interpreted as
not to empower the Minister to make regulations that are inconsistent
with an act of Parliament.
[41]
In this regard, the applicant relies on
Democratic
Alliance v Minister of Co-operative Governance and Traditional
Affairs
[17]
,
where the full court of the Gauteng Division, contrary to the view
held by this court in
BATSA
[18]
,
was of the view that nowhere in the Act does it give the Minister the
power to amend or repeal existing legislation. The Minister
only has
the power to augment existing legislation and contingency
arrangements. The applicant submits that this court should
follow the reasoning in
Democratic
Alliance
.
According to them, regulation 29(1) is
ultra
vires
to the extent that it prohibits the distribution of liquor, because
the Minister has no competence in law to prohibit an activity
that is
permitted by the
Liquor Act.
[42
]
Regarding
regulation 29(1)
’s inconsistency with provincial
legislation, they submit that provincial legislation in all nine
provinces
authorise
the sale of liquor by
persons who are in possession of the appropriate licenses, issued by
the provincial licensing authorities.
Regulation 29(1)
now
prohibits those licensees from performing the very activity that the
provincial legislation
authorises
, which is
to sell liquor. To the extent therefore that
regulation 29
prohibits the sale of liquor, the applicant contends it is
inconsistent with provincial legislation.
[43]
In this regard, they argued that Schedule 5 to the Constitution lists
‘liquor licenses’
as a functional area of exclusive
provincial competence. This issue was already considered by the
Constitutional Court in
Ex
Parte President of the Republic of South Africa: In Re
Constitutionality of the Liquor Bill
[19]
,
where the court held that the term ‘liquor licenses’
encompasses the grant or refusal of permission to sell liquor,
the
imposition of conditions relevant to that permission, and the
collection of revenue attached to the grant of such permission.
In
this regard they submit that the Constitutional Court held that the
regulation of the retail sale of liquor resides with
in the exclusive
power of the provinces, under the functional area of ‘liquor
licenses’ in Schedule 5 of the Constitution.
Parliament
may generally not legislate on those matters, and may only do so
under its power of intervention in terms of section
44(2) of the
Constitution, when it is necessary for the limited purpose sanctioned
by that section.
[44]
Section 44(2) of the Constitution provides that ‘Parliament may
intervene, by passing legislation
in accordance with section 76(1),
with regard to a matter falling within a functional area listed in
Schedule 5, when it is necessary’
for one or more of the
purposes listed in paragraphs (a) to (e). In this particular
case it is the Minister, and not Parliament,
that has purported to
intrude into the functional area of liquor licenses by making
regulation 29, which the Minister, in terms
of section 44 of the
Constitution, has no competence to do. The Constitution does
not empower the Minister to deal with a
matter listed in Schedule 5,
it is only Parliament that may do so.
[45]
The SAB disagrees with the Minister that, in the absence of a frontal
challenge to the constitutionality
of section 27(2)(i) of the DMA,
this argument does not avail in these proceedings. They submit
that the frontal challenge
is not required, because section 44(2) of
the Constitution does not allow Parliament to delegate to the
Minister the power to make
legislation of the sort referred to in
that section. Also, that section 27(2)(i) should be interpreted
in a manner that preserves
its constitutionality. The SAB
contends that section 150 of the Constitution requires a court to
prefer any reasonable interpretation
of legislation that would avoid
a conflict between national and provincial legislation. Section
27(2)(i) should therefore
be interpreted as not empowering the
Minister to exercise a power that is foreclosed by the Constitution
itself.
[46]
The SAB does not agree with the Minister’s contention that the
DMA should be classified
as dealing with the functional area
‘disaster management’ (which is listed in Schedule 4 of
the Constitution), rather
than the functional area ‘liquor
licenses’ (which is listed in Schedule 5). They contend
therefore that regulation
29(1) is
ultra
vires
to
the extent that it prohibits the sale of liquor, because the Minister
may not make regulations for the functional area ‘liquor
licenses’
. Regulation 29(1) is
ultra
vires
and
should be reviewed and set aside, in terms of section 6(2)(a)(i) of
PAJA; alternatively in terms of the principle of legality.
[47]
The further ground upon which the SAB contends that the regulation
should be reviewed and set
aside, is on the basis that it was made in
a procedurally unfair manner. In this regard they contend that
in terms of PAJA,
where administrative action materially and
adversely affects the rights of the public, section 4(1) of PAJA
determines that an
administrator is required to make a decision
regarding the process he or she deems it appropriate to follow, in
order to give effect
to the right to procedurally fair administrative
action. This can be done in various ways: the administrator may
decide to
hold a public inquiry; by following a notice and comment
procedure; by following another fair procedure described in
legislation;
or by following another appropriate procedure that gives
effect to section 3.
[48]
It is common cause that the Minister made no attempt to comply with
any of the procedures contemplated
in section 4 of PAJA before
regulation 29 was promulgated. The Minister, in her answering
affidavit, concedes that neither
public comment nor public
submissions were sought. She submits rather that the views of
the affected parties were sought
on an earlier occasion, namely in
the lead up to the regulations of 15 June 2021. The SAB submits
that this cannot be regarded
as proper consultation, because on that
occasion the Minister decided not to impose a total prohibition on
the sale of alcohol,
and that when she changed her mind two weeks
later, fairness required that the affected parties be afforded an
opportunity to make
representations; this did not occur. The
Minister’s decision to make regulation 29 should, therefore, be
reviewed in
terms of section 6(2)(c) of PAJA.
[49]
The SAB argues in the alternative that if PAJA should be held not to
be applicable, the principle
of procedural rationality would apply as
a component of a legality review. In terms of this principle,
the process followed
by the decision-maker (no less than the decision
itself) must be rational. In other words, the requirement of
rationality
applies not only to the decision, but also to the process
in terms of which that decision was taken.
[50]
The SAB accepts that procedural rationality does not mean that the
decision-maker must always
afford a hearing to the affected party,
but there will however be occasions where it is indeed irrational to
make a decision without
hearing from the affected parties. In this
regard, they rely on the decision of
Earthlife
Africa and another v Minister of Energy and others
[20]
.
The SAB therefore submits that regulation 29 should be reviewed and
set aside, on the basis that it was made in a manner
that was
procedurally unfair within the meaning of section 6(2)(c) of PAJA;
alternatively on the basis that it was procedurally
irrational in
terms of the principle of legality.
I will deal with the issues
raised by the SAB, and also the Minister’s case, hereunder.
Does regulation 29 operate
indefinitely?
[51]
The SAB contends that regulation 29 is
ultra
vires
,
because regulations dealing with other matters state the specific
time limit within which those regulations will be in operation
and
reviewed, until 11 July 2021. This is clearly contrary to what
Minister Patel stated in his affidavit, that cabinet decided
on a
suspension of alcohol sales for a two-week period. In this
regard Mr. Cockrell referred to regulation 21, which states
that all
gatherings are prohibited and, in particular, regulation 21(3), (4),
(6), (7), (8), (9) and (10).
[52]
These the regulations
inter
alia
state that all social
gatherings and faith-based gatherings are prohibited until 11 July
2021; gatherings at political events and
traditional Council meetings
are prohibited until 11 July 2021; gatherings at cinemas and theatres
are prohibited until 11 July
2021; gatherings at casinos are
prohibited until 2021, etc. All the sub regulations state that
the prohibition will be in
existence until 11 July 2021, after which
these provisions will be reviewed. In respect of regulation
29(1), however, it
only states that the sale, dispensing and
distribution of liquor is prohibited, it does not clearly state that
this is until 11
July 2021, after which it will be reviewed.
[53]
The Minister, in countering this allegation, firstly states that the
SAB never raised this objection
in its founding affidavit, and that
if it had been raised in the founding affidavit the Minister would
have had the opportunity
to give an explanation in her answering
affidavit. Mr. Cockrell submitted that this was only noticed at
the time that Minister
Patel filed his affidavit which formed part of
the Minister’s answering affidavit.
[54]
I agree with the Minister; this is a totally new point that was only
raised in a detailed manner
in the SAB’s heads of argument.
From the SAB’s replying affidavit, the impression was
clearly created that they
would not be raising a substantial
challenge based on the Minister’s failure to mention the time
within which the regulation
was to operate. The SAB, in its
replying affidavit, deposed to by their Legal Ethics and Compliance
Director, Warren Shane
Van Rooyen, at paragraph 31.2, states the
following in passing in this regard:
‘
.
. . I also note on the second respondent’s affidavit that the
national executive
authorised
only a
two-week suspension. The first respondent has strayed beyond
her powers in this regard as well.’
[55]
The fact that the SAB only noticed this aspect for the very first
time after they had regard
to Minister Patel’s affidavit, is
not a convincing argument. It does not detract from the fact
that the Minister was
clearly taken by surprise, and limited her
answering affidavit, and subsequent heads of argument, to the attack
on the regulations
based on those aspects which were set out in the
founding affidavit. I say that the argument is not convincing,
because in
the President’s address to the nation on the evening
of 27 June 2021, he stated that the measures to prohibit or to limit
the spread of the virus, including
inter alia
the prohibition
on all gatherings, funerals and cremations, a curfew between 9 PM and
4 AM, as well as the ban on the sale of alcohol
for both on-site and
off-site consumption, would last until 11 July 2021.
[56]
Furthermore, on publication of the regulations, the SAB should have
been alerted to the fact
that some of the regulations were drafted in
the manner as pointed out by Mr. Cockrell, namely that the
prohibition of certain
matters and affairs would only be in force
until 11 July 2021, whereafter it would be reviewed. No
explanation was given
as to why the SAB was not aware, at the time of
deposing to its founding affidavit, that regulation 29 did not have
the same time
limit as the other regulations, in order that it could
have specifically raised this point. It is clear that on a
plain reading
of the regulations, it would have been alerted to this
anomaly.
[57]
In my view, therefore, the contention that the SAB only became aware
of this two-week time limit,
until 11 July 2021, after they were
alerted to that fact in Minister Patel’s affidavit, is not a
convincing reason to allow
them to have raised this point at this
late stage. This salutary principle is well established in
motion proceedings, that
a party’s case cannot stray beyond the
case they set out in their founding affidavit. This principle
was once again
confirmed in
Esau
[21]
,
where it was said that in ‘motion proceedings, applicants are
required to make out their case in their founding affidavit
and may
not make out their case in reply.’
[58]
In any event, if one has regard to the structure of the DMA, no
measure taken in terms of the
act can operate indefinitely and, at
most, a measure like regulation 29 would only be in operation during
the state of disaster.
In terms of section 27(5) a national
state of disaster lapses three months after it has been declared, or
may be terminated
by notice in the Gazette before it lapses. Section
27(5)(c) furthermore states that a national state of disaster may
also
be extended by the Minister by notice in the Gazette for one
month at a time, before it lapses. Therefore, the challenge
based on the argument that regulation 29 operates indefinitely falls
to be dismissed for these reasons.
Does regulation 29 suspend or
limit the sale of alcohol?
[59]
I cannot agree with the submission of the SAB that regulation 29,
based on the provisions of
section 27(2)(i) of the DMA – which
gives the Minister the power to make regulations concerning in
particular ‘the
suspension or limiting of the sale, dispensing
or transportation of alcoholic beverages in the disaster-stricken or
threatened
area’ – does not suspend or limit the sale,
dispensing or distribution of alcoholic beverages. Based on the
fact
that read with section 26(2)(b) of the DMA, which provides that
the national executive must deal with a national disaster ‘in
terms of existing legislation and contingency arrangements as
augmented by regulations or directions made or issued in terms of
section 27(2).
[60]
Whilst I agree with the argument of the SAB that the ordinary meaning
of ‘to augment’
is to add to, and that section 26(2)(b)
of the DMA means that regulations may add to existing legislation, I
however disagree that
regulation 29 ‘subtracts’ from
existing legislation. This is for the simple reason that there
is no provision
in the existing legislation that deals with the sale,
distribution and transportation of alcoholic beverages during
a
state of national disaster
.
[61]
I was not shown any such provision, either in the
Liquor Act or
provincial legislation dealing with the sale, distribution and
transportation of alcoholic beverages. The obvious reason
for
that, is that it is the purpose and object of existing national and
provincial legislation to deal with the sale, distribution
and
transportation of alcoholic beverages under normal circumstances, and
not in circumstances where there is
a national disaster
.
Otherwise there would have been no need for a provision dealing
with the sale, distribution and transportation of alcoholic
beverages
in a national state of disaster. In this regard the regulations
and, in particular,
regulation 29
, augments existing legislation, or
fills a void which existing legislation does not cater for. In
my view, if ‘augment’
cannot be interpreted in this
particular manner, then the power given to the Minister in terms of
section 27(2)(i)
would be rendered meaningless and this provision
would be totally unnecessary or superfluous.
[62]
Parliament has specifically, by means of
section 27(2)(i)
, given the
power to the Minister to make regulations regarding the sale,
distribution and transportation of alcoholic beverages
in a national
state of disaster. Whilst I agree that
regulation 29(1)
in its
present form does not ‘limit’ the sale, dispensing or
transportation of alcoholic beverages, it surely ‘suspends’
these activities. Section 27(2)(i) plainly gives the Minister
the power to either ‘limit’ or ‘suspend’.
With this particular regulation, the Minister exercised her
discretion, given the existing circumstances, not to simply limit
as
she did in the previous iterations of the regulations, where the sale
and distribution of alcoholic beverages had been limited
to certain
hours of the day and certain days of the week (or in certain
instances where on-site consumption had not been allowed).
[63]
I also do not agree that
regulation 29
does not purport to suspend
anything, because it uses the language of
prohibition
and not the language of
suspension
.
This interpretation clearly ignores the overall provisions of
the DMA and the purpose for which it was enacted, and any
such
regulations made in consequence thereof. It further does not
have regard to the normal and ordinary rules of interpretation,
that
requires that a unitary approach be adopted. In this regard,
the decision of
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[22]
clearly
provides helpful guidance. In a more recent judgment,
Unterhalter AJA in
Capitec
Bank Holdings Limited v Coral Lagoon Investments 194 (Pty) Ltd and
others
[23]
neatly
summarised the principles enunciated in Endumeni, and warned against
courts applying it in a mechanical fashion without applying
the
principles to a particular text or document. He stated:
‘
Our
analysis must commence with the provisions of the subscription
agreement that have relevance for deciding whether Capitec Holdings’
consent was indeed required. The much-cited passages from
Natal
Joint Municipal Pension Fund v Endumeni Municipality
(
Endumeni)
offer
guidance as to how to approach the interpretation of the words used
in a document. It is the language used, understood
in the
context in which it is used, and having regard to the purpose of the
provision that constitutes the unitary exercise of
interpretation. I
would only add that the triad of text, context and purpose should not
be used in a mechanical fashion.
It is the relationship between
the words used, the concepts expressed by those words and the place
of the contested provision
within the scheme of the agreement (or
instrument) as a whole that constitutes the enterprise by recourse to
which a coherent and
salient interpretation is determined.
As
Endumeni
emphasised,
citing well-known cases, “[t]he inevitable point of departure
is the language of the provision itself”.’
(Internal footnotes omitted.)
These principles in
Endumeni had once again been endorsed recently by the Constitutional
Court in New Nation Movement NPC and others
v President of the
Republic of South Africa and others
[24]
as well as in
the decision of South African Legal Practice Council v Alves
and others
[25]
.
[64]
In coming back to this case, and applying the unitary approach, when
interpreting a document
or legislation one should consider the
context as well as the language of the document or piece of
legislation. In this regard
the language used should not be
interpreted in isolation, and one has to have regard to the word
prohibition
as opposed to the word
suspension
. It
is clear from a common understanding of the DMA, which only operates
during a limited time under a state of national
disaster, and for a
period not longer than three months (unless extended by notice in the
Gazette
), that
regulation 29
cannot possibly be interpreted to
mean that the sale, distribution and transportation of alcoholic
beverages will remain in place
for an indefinite period. The
only sensible interpretation is that
regulation 29
‘suspends’
the sale, distribution and transportation of alcoholic beverages for
a specific period. To hold that
the suspension is indefinite,
would not give a sensible meaning to, and understanding of, the
provisions of the DMA, as well as
the regulations, in its entirety.
So, for instance, it cannot possibly be imagined, if one should
have regard to
regulation 17
dealing with the movement of persons,
which confines every person to his or her place of residence from
21H00 until 04H00, that
such a restriction will endure indefinitely,
simply because no time limit or date upon which it will be reviewed
had been determined
by the Minister.
[65]
I am therefore of the view that whilst
regulation 29
does not limit
the sale of alcoholic beverages, it suspends same for a period and,
given the overall context of the regulations,
up until 11 July 2021.
The Minister, by means of
regulation 29
, did not prohibit the
sale of alcoholic beverages indefinitely, but only suspended it for
the above-mentioned period. This
challenge against
regulation
29
also falls to be dismissed.
Is
regulation 29
inconsistent with existing legislation, and the provincial
legislation in all nine provinces which authorises the sale of liquor
by persons who are in possession of the appropriate licenses issued
by the provincial authorities?
[66]
I do not agree that
regulation 29
prohibits ‘distribution’
of liquor indefinitely or that it is inconsistent with the
Liquor
Act. Whilst
it is correct that
regulation 29
prohibits the SAB
from performing the very activity that the
Liquor Act authorises
it
to perform, which is the distribution of liquor, I do not agree with
its proposition that the Minister made regulations that
are
inconsistent with legislation enacted by Parliament, such as the
Liquor Act, when
she made the regulations in terms of
section 27(2)
of the DMA. In my view, what the Minister did, as explained
earlier, was to fill a void in existing legislation, like the
Liquor
Act, as
it does not provide for dealing with the sale, dispensing and
transportation of alcoholic beverages during a national state of
disaster.
Section 27(2)
, in my view, clearly gives the Minister
such powers. In my view these regulations are not inconsistent
with existing legislation
enacted by Parliament, rather it
compliments it, providing for a situation which the existing
legislation does not provide for
during a national state of disaster.
[67]
Parliament, in my view, must have been alive to the provisions of the
Liquor Act and
the powers it had given to entities in terms of the
Act, such as the SAB, to distribute and sell liquor, when it enacted
the provisions
of the DMA. The provisions of section 27(2)(i)
of the DMA deal with the powers of the Minister during a national
state of
disaster. What is important is that the Minister has
no such powers under normal or ordinary circumstances. The
objects
and purpose of the
Liquor Act are
totally different from the
objects and purpose of the DMA. The purpose of the DMA, as set
out in
section 27
, is that after a state of disaster has been
declared, and if existing legislation and contingency arrangements do
not adequately
provide for the national executive to deal effectively
with the disaster, the Minister may make regulations and issue
directions,
or authorise the issue of directions, concerning any of
those matters dealt with in
section 27(2).
This includes the
issuing of regulations concerning the suspension or limiting of the
sale, dispensing or transportation
of alcoholic beverages in a
disaster-stricken area, under
section 27(2)(i).
[68]
Whilst I am of the view that the regulations augment and cater for a
situation which the existing
legislation cannot adequately address in
a state of disaster, I am nevertheless in agreement with and bound by
the decision of
the full court in this division in BATSA
[26]
,
where
the court was of the view that the Minister may make regulations
which are inconsistent with existing laws. The court
held:
‘
After considering the
constitutional obligations of the Respondents, together with the wide
definition of “disaster”
and “disaster management”
set out in the Act, as well as the wide sweeping and general powers
bestowed in terms of
section 27(2) . . . we are of the view it was
not
ultra vires
for the Minister to pass regulations
inconsistent with existing acts, insofar as the inconsistency did not
amount to a prohibition.’
[69]
The SAB has invited this court not to follow the reasoning of the
full bench of this court in
the decision as mentioned above, but
rather the view taken by the full bench of the Gauteng Division, in
Democratic
Alliance
[27]
,
where the following was said on this very point:
‘
The applicant
asserted that the Act gives the Minister the right to depart from
existing legislation. This is incorrect. Nowhere
in the
Act does it give the Minister the power to amend or repeal any
existing legislation. In terms of section 26(2)(b)
the national
executive, which is primarily responsible for the coordination and
management of national disasters, must deal with
a national disaster
in terms of existing legislation and contingency arrangements
augmented by regulations or directions made or
issued in terms of
section 27(2), if a national state of disaster has been declared.
This makes it plain that the Minister
does not have the power
to amend or repeal existing legislation. In fact, the national
executive, which includes the Minister,
may only augment existing
legislation and contingency arrangements. Parliament’s
plenary legislative powers are not
implicated in this matter. The
Act does not allow the Minister to usurp Parliamentary legislative
powers.’
[70]
In this case, apart from the reasons I have stated above, I am not of
the view that the regulations
are inconsistent with existing
legislation. I am nonetheless bound, as a single judge, by the
decision of the full bench
in BATSA. It must also be remembered
that in both the decisions mentioned, there was a frontal challenge
to the constitutionality
of section 27(2) of the DMA, which, as
highlighted by the Minister, is not the same challenge the court is
faced with in these
proceedings. For the purposes of these
proceedings, as pointed out by the Minister, I have to accept, in the
absence of such
a frontal challenge that section 27(2) of the DMA is
constitutionally compliant.
[71]
I am therefore of the view, firstly, given the reasons I have stated
above, that regulation 29(1)
is not
ultra vires
, because the
Minister has the power, by augmenting existing legislation through
regulations, to suspend the distribution of liquor
in a state of
disaster, and, secondly, that the Minister, based on the BATSA,
decision, has the power to make regulations which
are inconsistent
with existing laws. This challenge against regulation 29(1)
therefore also falls to be dismissed.
Does regulation
29 override provincial legislation?
[72]
Before dealing with this question, it would be appropriate to have
regard to the provisions of
the Constitution regarding the
legislative competencies of provinces and the national government
respectively. In this regard,
I will in particular have regard
to the provisions of section 44 and Schedules 4 and 5 of the
Constitution. Section 44 of
the Constitution provides that:
‘
1)
The national legislative authority as vested in Parliament—
(a)
confers on the National Assembly the power—
(i)
to amend the Constitution;
(ii)
to pass legislation with regard to any matter, including a matter
within a functional area listed in Schedule 4, but excluding,
subject
to subsection (2), a matter within a functional area listed in
Schedule 5; and
(iii)
. . .
(b)
. . .
(i)
. . .
(ii)
to pass, in accordance with section 76, legislation with regard to
any matter within a functional area listed in Schedule 4
and any
other matter required by the Constitution to be passed in accordance
with section 76; and
(iii)
. . .
(2)
Parliament may intervene, by passing legislation in accordance with
section 76(1), with regard to a matter falling within a
functional
area listed in Schedule 5, when it is necessary—
(a)
to maintain national security;
(b)
to maintain economic unity;
(c)
to maintain essential national standards;
(d)
to establish minimum standards required for the rendering of
services; or
(e)
to prevent unreasonable action taken by a province which is
prejudicial to the interests of another province or to the country
as
a whole.
(3)
Legislation with regard to a matter that is reasonably necessary for,
or incidental to, the effective exercise of a power concerning
any
matter listed in Schedule 4 is, for all purposes, legislation with
regard to a matter listed in Schedule 4.
(4)
When exercising its legislative authority, Parliament is bound only
by the Constitution, and must act in accordance with, and
within the
limits of, the Constitution.’
[73]
Schedule 4 of the Constitution provides for the functional areas of
concurrent national and provincial
legislative competence, and is
divided into Part A and Part B. The functional area ‘Disaster
Management’ is one
of the areas where there exists a concurrent
national and provincial legislative competence.
[74]
Schedule 5 of the Constitution provides for the functional areas of
exclusive provincial legislative
competence and, under Part A, the
item ‘Liquor Licenses’ is one of the areas where there
exists an exclusive provincial
legislative competence. I agree
with the SAB that in terms of section 44(1)(a)(ii), Parliament may
not pass legislation with
regards to a functional area listed in
Schedule 5, which falls within the area of competence of the
provincial legislature, such
as liquor licenses, but it is authorised
to do so in terms of section 44(2).
[75]
I also agree that section 44(2) provides that ‘Parliament may
intervene, by passing legislation
in accordance with section 76(1),
with regard to a matter falling within a functional area listed in
Schedule 5, when it is necessary’
under the circumstances
listed in subsections 2(a)-(e), as referred to above.
[76]
I do not, however, agree with the submission of the SAB, that it was
the Minister, and not Parliament,
that purported to intrude into the
functional area of liquor licenses, by making regulation 29. Whilst
I agree that the Minister
has no competence to do so, it was
Parliament, by means of the enactment of the DMA, in terms of section
44(2) of the Constitution,
that gave the Minister the power, in
particular in terms of section 27(2)(i) of the DMA, to make
regulations regarding the sale,
dispensing and distribution of
alcoholic beverages in a state of disaster.
[77]
I agree with the Minister’s submission that, in the absence of
a challenge to the constitutionality
of section 27(2), Parliament
exercised its functions in terms of Schedule 4 when it enacted
section 27(2)(i) of the DMA. By
enacting the legislation,
Parliament in an unambiguous and deliberate manner gave the Minister
the power to make regulations limiting
and suspension of the sale,
dispensing, distribution and transportation of alcoholic beverages
under a state of disaster
by including it in the DMA in the
manner it did. Thereby, although it deals with the sale,
dispensing, distribution and transportation
of alcoholic beverages,
it chose to deal with it as a matter falling within a functional area
of concurrent national and provincial
legislative competence listed
in Schedule 4.
[78]
Therefore, Parliament deliberately chose not to deal with it as
falling with in the functional
area of exclusive provincial
legislative competence as listed in Schedule 5, which for the purpose
of this case is liquor licenses,
but chose to classify it as a matter
to be dealt with under the DMA. In my view therefore, the
suspension and limiting of
the sale, dispensing, distribution and
transportation of alcoholic beverages, as listed under section
27(2)(i) of the DMA, is clearly
a disaster management competence in
terms of Part A of Schedule 4 of the Constitution, over which there
exists concurrent national
and provincial legislative competence, and
not a liquor licensing competence as provided for in Part A of
Schedule 5, over which
there exists exclusive provincial legislative
competence.
[79]
I also agree with the Minister that disaster management and trade are
functional areas of concurrent
national and provincial legislative
competence, as contemplated in Part A of Schedule 4. I
therefore do not agree with the
submission of the SAB that regulation
29(1) is
ultra vires
to the extent that it prohibits the sale
of liquor, because the Minister may not make regulations dealing with
the functional area
‘liquor licenses’, and their
submission is wrong because the Minister did not make regulations
dealing with the functional
area of ‘liquor licenses’,
but rather with the functional area of ‘disaster management’,
when it made regulation
29, which it was empowered to do in terms of
section 27(2)(i) of the DMA. It is a power that was properly
delegated to her
by Parliament, that enacted the DMA in terms of
section 44(2) of the Constitution. This challenge against
regulation 29(1)
also falls to be dismissed.
Was the
administrative action procedurally fair?
[80]
In terms of section 3 of PAJA, administrative action which materially
and adversely affects the
rights or legitimate expectations of any
person must be procedurally fair. The minister conceded in her
answering affidavit
[28]
that
neither public comment nor submissions were sought. She stated
that the very nature of the pandemic is fluid, requiring
quick
responses which militated against this. Further, that the
manner in which the pandemic evolves is not always conducive
to
extensive consultation processes, such as calling publicly for
written submissions, even if time permitted this, which it did
not do
in the case of the impugned regulation. According to her, it
became apparent on 26 June 2020 that the government had
to act
swiftly based on the information at their disposable at that time.
The situation that existed at the time was extremely
urgent and
action was required in response to the pandemic; there was no time
for further planning or extensive canvassing of the
public’s
views.
[81]
According to the Minister, there have been numerous engagements with
the relevant industry role-players
throughout the pandemic, both
individually and as part of the Nedlac process, in relation to
possible alcohol restrictions and
suspensions in sales. The
consultation process, the Minister submits, during a national
disaster, must be put into context,
where extreme urgent action was
required particularly, after having been advised on the effect the
delta variant has on the pandemic
with regards to the rapid
transmission thereof on 26 June 2021.
[82]
As of 15 June 2021, the information received by the government was
that the rate of Covid 19
infections, and the rate of
hospitalisations was increasing. Recommendations were made by
the Ministerial Advisory Committee
(“MAC”) for a
tightening of the restrictions, and it was recommended that
consideration be given to introducing a wide
range of measures to
limit the spread of the virus, including restrictions on the sale and
distribution of alcohol, to address
the negative effects which may
result from the rising infections experienced as part of the third
wave.
[83]
On 15 June 2021 it was decided to apprise the stakeholders in the
alcohol industry of, and obtain
their inputs on, issues the
government was contending with and the possibility of a third wave.
Their input was sought in
respect of a change to the existing
liquor sales arrangements; the introduction of restrictions on the
trading hours similar to
that which applied during the second surge;
or whether to introduce other restrictions which may be raised
through the various
consultation processes. Minister Patel,
together with Minister Didiza and Deputy Minister Majola, coordinated
these consultations
with the different stakeholders in the alcohol
industry.
[84]
Various responses were received from these stakeholders. The
Minister emphasised that the
pandemic did not allow for lengthy
consultation processes. Decisions based on the exigencies of
the situation had to be taken
quickly and decisively. It was
not the first time that such restrictions were being considered and
accordingly the role-players
were all familiar with the options
available to government in imposing restrictions. Thereafter, a
report back was considered
by Cabinet to enable consideration of the
inputs received from the consultation process. After taking
into consideration
the level of infections at the time, the
government, on the advice of the MAC, decided to impose limited
restrictions, as per Government
Notice 530 published in Government
Gazette 44715, which took effect on 16 June 2021. At that
stage, a complete suspension
of the sale of alcohol was not imposed.
After 15 June 2021 the infection rate continued to increase,
and it was abundantly
clear that South Africa was experiencing a
sharp rise in a third wave of infection and further urgent steps were
needed.
[85]
According to the Minister there was no need, and no purpose would
have been served
thereby, to repeat this process, already undertaken
less than two weeks previously, as that consultation process had
already indicated
what the views of the stakeholders were in relation
to the measures to be adopted in the regulations in anticipation of
an increasing
number of infections.
[86]
Given the expert advice received, as well as the urgent need to
impose more stringent measures
to counteract the proliferation of the
highly transmissible Delta variant, the exigencies of the situation
required the most stringent
approach to be taken, and for this to be
done swiftly; it did not allow for, nor did fairness require, the
process embarked on
a mere 10 days early, to be repeated.
[87]
The general stance of the alcohol industry was well known. The
alcohol industry in the
main did not support any restrictions that
prevented the sale of alcoholic products. The stance was
further communicated
in a letter dated 27 June 2021, which was
addressed to the National Coronavirus Command Council (“NCCC”),
among others,
the SAB, Distell, Diageo, the National Liquor Traders
Council and other industry role-players. This letter was duly
considered
by the NCCC and the Cabinet, prior to the decision being
taken to effect the temporary suspension. The Minister submits
that,
in fact, the engagement that had previously occurred was then
specifically referred to again, as consideration was given to the
proposals encapsulated in the letter of 27 June 2021, regarding the
measures that the industry proposed for implementation.
[88]
From the above it is clear that, immediately prior to the
implementation of the current regulations
published on 27 June 2021,
there was no prior consultation, because of the situation that
existed at that time, due to the rapid
increase in infections due to
the Delta variant. However, less than 14 days prior thereto,
industry role-players had been
invited to make representations, which
they had considered prior to introducing the restrictions of 16 June
2021. In fact,
the NCCC also received representations from the
industry role-players on 27 June 2021, immediately prior to the
implementation
of the current regulations. Regarding the
question of prior consultation before administrative action is taken,
Plasket JA
said the following in Esau:
‘
[96] I turn now to whether
the time allowed for the making of representations was sufficient in
the circumstances. Once again,
context is crucial to the
resolution of this issue: while, in one case, it may be unfair to
allow a person two weeks to make representations,
in another, it may
be fair. It will always depend on the circumstances. In
MEC, Department of Agriculture, Conservation and Environment and
Another v HTF Developers (Pty) Ltd
, for instance, a developer had
been given 48 hours within which to make representations as to why a
prohibitory directive should
not be issued in terms of the
Environment Conservation Act 73 of 1989. This, it was argued,
was procedurally unfair. The
Constitutional Court held,
however, that –
“
in light of the serious
harm already caused and the threat of continuing harm, the 48-hour
notice period, which HTF did not struggle
to meet in submitting its
representations, was adequate by the procedural fairness standards
required by PAJA”.
[97] The DMA does not prescribe a
procedure for the making of regulations in terms of s 27. That
is left to the COGTA Minister
who, whatever procedure she chooses, is
under a duty to act fairly. The absence of a procedure in the
DMA is not surprising,
given the nature of disasters. In some
cases, such as a flood or an earthquake, for instance, extremely
urgent action may
be required to manage the disaster, while in other
cases, a long drought, for instance, more time for reflection,
planning and
consultation may be available to decision-makers. The
definition of a disaster recognises a sliding scale in the nature of
disasters, ranging from the sudden to the progressive. Within
this context, the COGTA Minister was required to assess the
urgency
of the matter, and to calibrate the procedure adopted by her,
including the time to be allowed for the making of representations,
to the degree of urgency.
[98] In that weighing-up process,
the need to relieve the populace of some of the more draconian
economic and social restrictions
was an important factor. As
the lockdown regulations impacted on the rights of people, their
planned amelioration brought
with it a measure of urgency that
justified the limiting of the time available to members of the public
to make representations.
As soon as regulations no longer
served a legitimate purpose, they had to be repealed or amended as
quickly as reasonably
possible. It is also important to bear in
mind that the level 4 regulations in their initial form were not
necessarily to
be the final word on level 4 restrictions: it had
always been made clear by the COGTA Minister that rule-making in
terms of the
DMA was flexible, particularly because, in its response
to the pandemic, the government was feeling its way in hitherto
uncharted
territory, there being no blueprint for how to respond to
so unique and unexpected a disaster: if a measure was not, in
retrospect,
appropriate to the purposes of the DMA, it could at short
notice be repealed or amended.’
(Internal
footnotes omitted.)
What is further
relevant to this case is stated as follows:
‘
[100] When the nature of
the process is viewed holistically in the context of the DMA, the
circumstances prevailing in respect of
this particular disaster, the
lockdown regulations that had been in force, and the intention to
ameliorate some of the economic
and social harshness of the lockdown
regulations, I am of the view that the two-day period afforded to
members of the public within
which to make representations was
reasonable. It cannot be said, in other words, that by
restricting members of the public
to two days within which to make
representations, the COGTA Minister acted in a procedurally unfair
manner.’
[89]
In coming back to this case, having regard to the exigencies that
existed at the time when the
minister had to make the decision to
suspend the sale of alcohol and the fact that, less than 14 days
prior to that, although in
the context of the regulations that had
been issued on 16 June 2021, the views of the industry role-players
had been canvassed,
which included a letter to which the SAB was a
party being presented to the NCCC and Cabinet on the 27 June 2021,
and which was
considered immediately prior to the making of the
regulations. The Minister also knew at that stage, and it was
common cause,
that industry role-players were opposed to any
restrictions on the sale of alcohol. Given the circumstances
and the limited
timeframe in which the Minister had to act, it cannot
be said that she acted in a procedurally unfair manner. In the
result
therefore, the submission made by the SAB, that regulation 29
was made in a procedurally unfair manner, also falls to be dismissed.
Costs
[90]
The SAB submitted that the court should not grant a costs order
against it because, whilst it
acted in its own commercial interests,
it also acted in the wider interests not only of the industry, but
also of the community
at large. Furthermore, whilst they did
not challenge the constitutionality of the legislation, they acted to
vindicate the
right to fair administrative action. Mr. Campbell
urged the court to apply the principles as set out in
Biowatch
Trust v Registrar, Genetic Resources, and others
2009 (6) SA 232
(CC), where the Constitutional Court referred to the
dictum of Ngcobo J in
Affordable
Medicines
[29]
,
to the effect that where an applicant has raised important
constitutional issues, and where the issues raised are beneficial not
only to the parties in the case, but to others as well, as in this
case other role-players in the industry, fairness and justice
require
that the applicant should not be burdened with an order of costs, and
that to order costs might have a chilling effect
on litigants who
might want to raise constitutional issues.
[91]
It was also held in Biowatch, based on the dictum in
Affordable
Medicines
,
that if in litigation between the government and a party seeking to
assert a constitutional right, the government loses, it should
pay
the costs of the other side, and if the government wins, each party
should bear its own costs
[30]
.
In my view, given the circumstances of this case, it seems that
the litigation was primarily pursued by the SAB in their
own economic
interests, wherein they employed no less than two eminent senior
counsel and a junior. Furthermore, they are
already engaged in
litigation with the government regarding the very same regulations
issued in December 2020.
[92]
It seems, from a perusal of SAFFLI that, given the nature of the
litigation which erupted around
the regulations made in order to curb
the spread of the virus, the government had to ward off and defend
litigation on various
points based on the regulations it made to
protect society at large. It also seems that the government
will, in future, be
faced with similar challenges against the
regulations. It would therefore be unfair not to award them the
costs they incurred
against a multinational entity like the SAB. It
would also be unfair that the state coffers be burdened with such
costs,
in circumstances like these where the government was
successful in litigation. These considerations, in my view, are
sufficient
justification not to award an order as to costs along the
lines as contemplated in Biowatch. I am, however, not convinced
that costs should be awarded to the respondents consequent upon the
employment of four counsel, as was engaged in this matter.
[93]
I therefore make the following order:
That the application
is dismissed with costs, such costs to include the employment of
three counsel.
R.C.A. Henney
Judge of the High
Court
[1]
Reg 29(1) of the current regulation states the following: ‘The
sale, dispensing and distribution of liquor is prohibited.’
[2]
At the time of writing this judgment, 3 days after the hearing of
this application on 11 July 2021, some of these regulations
were
amended, but it is unrelated to the regulation under scrutiny in
this application, and will have no bearing on the outcome
of this
application.
[3]
Government
Gazette number 44044, Notice number R1432, dated 29 December 2020.
[4]
Para
185 page 154 of the answering affidavit in these proceedings.
[5]
Schweizer
Reneke Vleismaatskappy (Edms.) Bpk v Die Minister van Landbou en
Andere
1971
(1) PH F11 (T).
[6]
P
rinsloo
v RCP Media Ltd t/a RAPPORT
2003
(4) SA 456
(T).
[7]
1982
(3) SA 582 (W).
[8]
2021 (3) 593 (SCA).
[9]
FN 1.
[10]
‘
(1)
A state of emergency may be declared only in terms of an Act of
Parliament, and only when
(a)
the life of the nation is threatened by war, invasion, general
insurrection, disorder, natural disaster or other public emergency;
and
(b)
the declaration is necessary to restore peace and order.
(2)
A declaration of a state of emergency, and any legislation enacted
or other action taken in consequence of that declaration,
may be
effective only
(a)
. . .
(b)
for no more than 21 days from the date of the declaration, unless
the National Assembly resolves to extend the declaration.
The
Assembly may extend a declaration of a state of emergency for no
more than three months at a time. The first
extension of the
state of emergency must be by a resolution adopted with a supporting
vote of a majority of the members of the
Assembly. Any
subsequent extension must be by a resolution adopted with a
supporting vote of at least 60 per cent of the
members of the
Assembly. A resolution in terms of this paragraph may be
adopted only following a public debate in the Assembly.
(3)
Any competent court may decide on the validity of
(a)
. . .
(b)
. . .
(c)
any legislation enacted, or other action taken, in consequence of a
declaration of a state of emergency.
(4)
Any legislation enacted in consequence of a declaration of a state
of emergency may derogate from the Bill of Rights only
to the extent
that
(a)
the derogation is strictly required by the emergency; and
(b)
the legislation
(i)
is consistent with the Republic's obligations under international
law applicable to states of emergency;
(ii)
conforms to subsection (5); and
(iii)
. . .
(5)
No Act of Parliament that authorises a declaration of a state of
emergency, and no legislation enacted or other action taken
in
consequence of a declaration, may permit or authorise
(a)
indemnifying the state, or any person, in respect of any unlawful
act;
(b)
any derogation from this section; or
(c)
any derogation from a section mentioned in column 1 of the Table of
NonDerogable Rights, to the extent indicated opposite
that
section in column 3 of the Table.’
[11]
See paras [119] and [121] of Esau (supra) (SCA Judgment)
[12]
(5807/2020)
[2020] ZAWCHC 56
;
2020 (11) BCLR 1371
(WCC) (26 June
2020) para 201, where it was stated that to ‘augment means to
widen and give more value to.’
[13]
[1977] 1 All SA 567
(N) at 569.
[14]
R v Williams 1914 AD 460.
[15]
2020 (1) SA 514
(SCA) para 49.
[16]
Investigating Directorate: Serious Economic Offences and others v
Hyundai Motor Distributors (Pty) Ltd and others: In Re Hyundai
Motor
Distributors (Pty) Ltd and others v Smit NO and others
[2000] ZACC 12
;
2001 (1) SA
545
(CC) para 23.
[17]
2021 JDR 0780 (GP) para 41.
[18]
British American
Tobacco South Africa (Pty) Ltd and others v Minister of Co-operative
Governance and Traditional Affairs and others
[2020] ZAWCHC 180
(11 December 2020).
[19]
[1999] ZACC 15
;
2000 (1) SA 732
(CC).
[20]
2017 (5) SA 227
(WCC) para 50; Albutt v Centre for the Study of
Violence and Reconciliation, and others 2010 (3) SA 293 (CC).
[21]
2021
(3) SA 593
(SCA) para 60.
[22]
2012 (4) SA 593
(SCA), paras 18 - 19.
[23]
(470/2020)
[2021] ZASCA 99
(9 July 2021) para 25.
[24]
2020 (6) SA 257
(CC) para 165.
[25]
2021 (4) SA 158
(SCA) para 5.
[26]
Fn 16 above, para 213.
[27]
Fn 15 above, para 41.
[28]
Para 83, page 123.
[29]
See
Affordable
Medicines Trust and others v Minister of Health and others
2006 (3) SA 247 (CC).
[30]
Para
22.