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[2021] ZAWCHC 261
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Vinpro NPC v President of the Republic of South Africa and Others (1741/2021) [2021] ZAWCHC 261 (3 December 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
Case Number: 1741 / 2021
In
the matter between:
VINPRO
NPC
(
Registration
Number:
2008/012968)
Applicant
and
PRESIDENT
OF THE
REPUBLIC
OF SOUTH
AFRICA
First Respondent
THE
MINISTER OF CO-OPERATIVE GOVERNANCE
AND
TRADITIONAL
AFFAIRS
Second Respondent
THE
PREMIER OF THE WESTERN CAPE
PROVINCE
Third Respondent
MINISTER
OF HEALTH, WESTERN CAPE PROVINCE
Fourth Respondent
MINISTER
OF COMMUNITY SAFETY
(WESTERN
CAPE
PROVINCE)
Fifth Respondent
MINISTER
OF
HEALTH
Sixth Respondent
Coram:
Dolamo, Wille
et
Slingers, JJ
Heard:
23
rd
, 24
th
and 25
th
of August 2021
Delivered:
3
rd
of December 2021 delivered via email
JUDGMENT
DOLAMO,
WILLE
et
SLINGERS, JJ
:
(unanimous)
INTRODUCTION
[1]
In this application the applicant challenges the constitutionality
and lawfulness of the nationwide
liquor bans imposed by the national
government during the Covid-19 pandemic. The applicant
ostensibly launched the application
to vindicate the constitutional
values of respect for the rule of law, inter-governmental
co-operation and public accountability.
It also sought to
vindicate various constitutional rights. One of the grounds on
which the applicant challenged the constitutionality
and lawfulness
of the nationwide liquor ban was that the power to impose the liquor
ban fell within the provincial sphere and not
within the national
government sphere (the structure of government argument).
[2]
The applicant is an organization that represents wine producers, wine
sellers and some industry
stakeholders in South Africa. This
application is concerned with the capacity of the government to
realise and implement processes
to uphold and protect the lives,
health and the livelihood of South Africans in order to manage the
Covid-19 pandemic.
[1]
[3]
At the outset, the applicant makes the concession that by temporarily
reducing the consumption
of alcohol, this does indeed protect our
healthcare system and prevent it being overwhelmed by the pandemic.
Put in another
way, it is common cause for the purposes of this
application, that a reduction in the consumption of alcohol reduces
the number of
trauma cases which, as a matter of necessity, be dealt
with in and by our healthcare system. Coupled with this is the
fact
that such a reduction allows for an increased capacity to deal
with the real and crucial effects of the pandemic.
[4]
Several preliminary issues arose for determination in view of the
fact that the initial application
at the instance of the applicant
underwent a chameleonic change due to the effluxion of time.
This because the regulations
issued out by the second respondent were
amended from time to time to deal the fluidity of the pandemic.
Besides, at the time
of the refinement and finalization of this
judgement, further regulations had been promulgated, in the interim,
partially lifting
certain of the restrictions dealing with the sale
of alcohol.
[5]
The preliminary issues that bore scrutiny were the following, namely,
the amendment application,
the issue of mootness
[2]
and the governmental structural challenge. This latter issue
was and is in no manner affected by the amendment issue or the
issue
dealing with the mootness of the application. This issue of the
amendment and the mootness issue are by their very nature,
inextricably linked to and with each other.
[6]
In the initial application by the applicant the relief sought was in
connection with the striking
down of regulations that have since been
repealed about (6) months prior. In order to preserve the
initial application, the
applicant sought to amend its relief to
include a challenge to the more recent regulations.
[3]
As time progressed however, these more recent regulations were also
repealed. The structural challenge issue is progressed
by the
applicant on the basis that a provincial, as opposed to a nationwide
temporary limitation, would have been of preferable application
in
the Western Cape Province.
[7]
The initial application was piloted during January 2021. The
relief sought was, inter
alia, a striking down of certain Regulations
in Government Notice No. R. 11 (GG44066) under the DMA
[4]
,
in response to the pandemic.
[5]
These regulations suspended the selling, dispensing,
distributing and transporting of liquor. Moreover, in this
connection,
the applicant sought urgent interim interdictory relief.
[8]
This relief was set down for hearing on the 5
th
of February 2021. The
January
Regulations
were
the subject of repeal on the 1
st
of February 2021. As a direct consequence, the urgent interim
relief was abandoned, coupled with a reservation of rights to
re-enrol the application at a later stage, should this be necessary.
Indeed, this was and is the application that was set down
for
hearing before us for the period from the 23rd to the 26
th
of August 2021.
[9]
In the intervening period, the applicant re-enrolled the application
seeking urgent temporary
interim relief because the second respondent
imposed a further temporary suspension on the selling, dispensing,
distributing and
partially on the transporting of liquor in response
to the onset of the third wave of the pandemic.
[6]
The applicant formulated the relief it contended for in the
form of an -
authorization
- that the
third respondent be permitted to adopt deviations from the
June
Regulations
relating
to the sale, distributing, dispensing and transportation of liquor,
alternatively wine, whilst limiting such deviations to
the Western
Cape Province.
[10]
This latter application was heard on the 21
st
of July 2021 and the judgment therein was reserved. Prior to
any judgment or order being delivered and on the 25
th
of July 2021, the second respondent issued out regulations setting
aside the
June
Regulations
.
On the 3
rd
of August 2021, a judgment was handed down in connection with this
latter application which ruled that the urgent application was
rendered moot, and the matter was accordingly struck from the court
roll.
[11]
This initial application was not the only application which sought to
challenge the validity of the pandemic
regulations. During
January this year, South African Breweries
[7]
,
launched a separate application seeking to have declared unlawful and
of no force and the
December
Regulations
in
connection with the sale and distribution of alcohol. The
government respondents in this application filed extensive answering
papers in the SAB application and these papers were also annexed to
the opposing papers in this application.
[12]
It is common cause that the
December,
January and June Regulations
were
no longer of any force and effect as there was no longer in
existence, at the time of the hearing of the application, any general
suspension of the selling, dispensing, distributing and transporting
of liquor.
These
pandemic regulations were not aimed at addressing the impact of
alcohol on society generally but were rather aimed at capacitating
the health system during trying times. This, because South
Africa has a much higher burden of alcohol related trauma cases
than
experienced in many other countries.
[13] As
alluded to earlier it is common cause that there is a clear and
obvious correlation between the sale
and availability of alcohol on
the one hand and the demands on trauma units and emergency units on
the other hand. When there
is an additional strain on the
existing health care system because of the pandemic, clear and direct
indications are that such strain
can be alleviated by restricting the
publicâs access to alcohol as unrestricted access unduly burdens
the public health care system.
This nexus does not form the
subject of any dispute as between the parties to this litigation.
THE APPLICATION TO AMEND
[14]
Firstly,
the
applicant seeks to amend a specific prayer in its notice of motion by
essentially including an -
additional
prayer
- for a
declaration of unlawfulness and invalidity of the
June
Regulations
.
[8]
Regulation 29 provided, inter
alia, as follows:
â
(1)
The sale, dispensing and distribution of liquor is prohibited.
(2)
The transportation of liquor is prohibited, except where alcohol is
required
for industries producing hand sanitizers, disinfectants,
soap, alcohol for industrial use and household cleaning products.
(3)
The transportation of liquor for export purposes is permitted.
(4)
No special or events liquor licences may be considered for approval
during
the duration of the national state of disasterâ
[15]
Regulation 29 was subsequently amended in Government Notice No. R 567
dated 29 June 2021 published in
Government Gazette 44778 and provided
as follows:
â
(1)
The sale, dispensing and distribution of liquor is prohibited.
(2)
The transportation of liquor is prohibited, except where the
transportation
of liquor is
(a)
in
relation to alcohol required for industries producing hand
sanitizers, disinfectants, soap or alcohol for industrial use and
household
cleaning products.
(b)
for
export purposes;
(c)
from
manufacturing plants to storage facilities; or
(d)
being
transported from any licence premises for safe keeping.
(3)
The transportation of liquor for export purposes is permitted.
(4)
No special or events liquor licences may be considered for approval
during
the duration of the national state of disaster
(5)
The Cabinet member responsible for transport must, after consultation
with
the Cabinet members responsible for cooperative governance and
traditional affairs, police and trade, industry and competition,
issue
directions for the transportation and storage of liquorâ
[16]
At that -
moment
critique
- when the
applicant sought to amend the relief that it sought to challenge to
the validity and lawfulness of Regulation 29 as contained
in
Government Notice R 565, it no longer existed in the form in which it
was formulated, prior to its amendment on the 29
th
of June 2021. By this stage, the second respondent had already
signed into law different regulations, by introducing, inter
alia,
Regulation 44 (Government Notice No. R 673 dated 25 July 2021
published in Government Gazette 44895)
[9]
,
which indicated as follows:
â
(1)
The sale of liquor â
(a)
By
a licenced premises for off-site consumption is only permitted from
10h00 to 18h00, from Mondays to Thursday, excluding Fridays,
Saturdays, Sundays and public holidays, and
(b)
By
a licenced premises for on-site consumption is permitted until 20h00.
(2)
The provisions of sub-regulation (1)(a) do not apply to duty-free
shops at international
airports which are permitted to
operate in accordance with their operating licence.
(3)
The consumption of liquor in public places, except in licensed
on-site consumption premises,
is not permitted.
(4)
Registered wineries, wine farms, micro-breweries and
micro-distilleries may continue
to operate in offering wine-tastings
and other brew-tastings, and the selling of wine and other brews to
the public for off-site
and on-site consumption is permitted until
20h00 and further subject to strict adherence to social distancing
measures and health
protocols.
(5)
The transportation of liquor is permitted.
(6)
The sale and consumption of liquor in contravention of
sub-regulations (1) and (3) is
an offenceâ
[17]
Moreover, in terms of the now new regulations
[10]
,
restaurants, bars, shebeens and taverns whether indoors or outdoors
were to close at 21h00. This also applied to theatres
and
casinos. Further, the number of persons allowed in restaurants,
bars, shebeens and taverns were limited to (50) or less
indoors and
(100) outdoors with the observance of social distancing between
persons. This with a capacity limitation.
[18]
There was no challenge to the then extant regulations which came into
effect on 25
th
of July 2021.
[11]
The order sought was connected to
and with Regulation 29 which, by then no longer existed in any manner
or form. The challenge
was on the following basis: that
the second respondent was not competent to have acted for the reasons
set out in the notice
of motion: that the imposition, and
maintenance, of a uniform prohibition in all areas of South Africa
was not necessary for
the purpose of achieving any of the objectives
listed in section 27(3) of the DMA and that the nationwide temporary
restriction imposed
by Regulation 29 was and is inconsistent with
section 10, 11, 14, 22, 25 and 27 of the Constitution and was further
not justified
in terms of section 36 of the Constitution.
[19]
Most significantly, there was no case made out in the initial
application (or in the application for
the urgent interim relief),
for a declaration of invalidity and unlawfulness in connection with
this specific Regulation 29.
The national government
respondents contend for the position that the urgent application was
in essence not a re-enrolment of revised
urgent application, but
rather an entirely new application for interim relief because it was
connected to and with a different regulation
[12]
,
informed by a different factual matrix.
[20]
Moreover, the founding papers in the urgent application made it clear
that the relief sought was limited
to interim relief in relation to
off-site sales and not on-site sales of alcohol. The relief
sought was also limited to the
Western Cape. On this score, it
was argued that the nature of the interim relief sought was explained
in the founding papers
as being limited to the following:
authorising the Premier,
[13]
to adopt deviations from
Regulation 29 to enable the sale of alcohol for off-site
consumption: alternatively, that the Premier
should be
consulted about the imposition, extension or lifting of the liquor
ban in the Western Cape Province (which relief was abandoned).
[21]
In addition, this was only to the extent that the liquor ban was
still in force in the Western Cape Province
(by the time that the
application for interim relief was heard) and declaring the second
respondentâs failure to lift the ban in
the Western Cape Province
unconstitutional and invalid (which relief was also abandoned).
[22]
The relief sought by the applicant at the hearing of the urgent
application for interim relief was,
inter alia
, the following:
ââ¦
pending
the determination of the application for final relief to be heard on
23 to 26 August 2021 by a Full Bench of this Court, Third
Respondent
is authorised to adopt deviations from the provisions of Regulation
29 of the Regulations made by Second Respondent in
terms of section
27(2) of the Disaster Management Act 57 of 2002 (âthe DMAâ) and
promulgated by Government Notice No R. 565 of
27
June
2021 (GG 44772) relating to the
sale,
dispensing, distribution and transportation of liquor, provided that
such deviations will only be applicable in the Western
Cape Province
and will take effect on promulgation in the Provincial Gazetteâ
In the alternative:
ââ¦
pending
the determination of the application for final relief to be heard on
23 to 26 August 2021 by a Full Bench of this Court, Regulation
29 of
the Regulations made by Second Respondent in terms of section 27(2)
of the Disaster Management Act 57 of 2002 (âthe DMAâ)
and
promulgated by Government Notice No R. 565 of 27 June 2021 (GG 44772)
relating to the sale, dispensing, distribution and transportation
of
liquor, is suspended in respect of the Western Cape Province but may
be reinstated by Second Respondent at any time if necessary
to
preserve the capacity of hospitals and health care facilities in the
Western Cape Province to treat Covid-19 patientsâ
[23]
Moreover, no relief was sought in the terms now being sought in the
amendment
[14]
and it seems that the cause of
action now advanced is somewhat different to that which the
respondents were obliged to respond to
and, indeed answered in the
urgent application for interim relief. Of importance was an
omission to launch an attack on the
unlawfulness and invalidity on
Regulation 29, when same was extant.
[24]
This challenge was pioneered for the first time on the 3rd of August
2021. What it in effect pre-ordained
was the introduction a
fresh cause of action that was moot. This, because it did not
exist and there was no live controversy.
Put in another way, we
were requested to adjudicate upon declaratory relief in respect of a
âlawâ which did not exist at
the time when such relief was being
sought. We are requested to âhang something on nothingâ.
[25]
On this score, it is trite law: that a court is vested with a
discretion as to whether to grant
or refuse an amendment: that
an amendment cannot be granted for the mere asking thereof:
that some explanation must be
offered therefor: that this explanation
must be in the founding affidavit filed in support of the amendment
application: that
if the amendment is not sought timeously,
some reason must be given for the delay: that that party
seeking the amendment must
show
prima facie
that the amendment
has something deserving of consideration: that the party
seeking the amendment must not be mala fide:
that the amendment
must not be the cause an injustice to the other side which cannot be
compensated by costs: that the amendment
should not be refused
simply to punish the applicant for neglect and that mere loss of time
is no reason, in itself, for refusing
the application.
[26]
Absent on the papers before us is any noteworthy explanation why the
applicant made the calculated election
to wait until after Regulation
29 was repealed, before it commenced its challenge thereto.
Besides, the applicant elected to
bring the challenge by way of an
urgent application pending the determination of the main application.
The urgent application
was launched on the 29
th
of
June 2021. This would have been the opportune and crucial time
to seek the amendment. Yet, this is only done on the
3
rd
of August 2021, absent any explanation why the applicant should be
provided with such an indulgence.
[27]
It may well be that such a course of action would lead to the
inevitable result that should the amendment
be granted it would have
the result of rendering the cause of action subject to an legitimate
exception. Of equal importance
is that there was no
consultation that ensued with the government respondentsâ deponents
so to prepare affidavits in answer to
the fresh case which is now
being sought, for the first time, albeit via an amendment. In
our view, herein lies the prejudice.
[28]
It is submitted by the national government respondents that this
prejudice is rendered insurmountable
even if they were afforded an
opportunity to file further affidavits to this fresh challenge.
On this, we agree because what
the applicant contends for is the
drawing of an inference from the government respondents in not
identifying the precise nature of
the evidence that it would need
deal with this fresh challenge.
[29]
The practical effect of the various regulations is the bringing into
effect a temporary suspension on
alcohol distribution and sale, made
in entirely discrete factual circumstances. Each and every temporary
suspension is buttressed
by the facts that existed at the time those
decisions were taken. If the amendment were to be granted it
would allow the applicant,
albeit under these most peculiar
circumstances, an unopposed opportunity to cannonade the validity and
lawfulness of a non-existent
regulation and or regulations.
Patently, this is not permissible.
[30]
We say this because the prejudice would be too immense. The
government respondents manifestly cannot
be held to a factual matrix
which they formulated in their opposing affidavits, only now to meet
an entirely different case. This
cannot be cured by a
postponement and order as to costs. The proverbial clock
âcannot be turned backâ so as to facilitate
a triable issue. The
applicant vacated the peremptory amendment procedures as set out in
the court rules and sought to compel
the respondents to respond to a
fresh application, for new relief, under unilaterally imposed time
frames. This because there
is no urgency on the papers, as
currently formulated, in connection with the applicantâs challenge
to the
June Regulations
. More than a month has since
elapsed. Put in another way, the applicant waited for more than
a month to pass before it
raised its lawfulness challenge.
[31]
Finally, the relief now contended for as formulated in the
application for amendment is a determination
of declaratory relief,
which is final in effect. This, contended for on an urgent
basis, absent any explanation for urgency
or any cogent reasons for
the delay
[32] For
these reasons, we are of the view that the application for amendment
falls to be refused and it follows
that the application to have the
new evidence admitted, relating to the interim relief, also fails.
MOOTNESS
[33]
A matter is moot if the issues underlying the dispute have, in some
way, been resolved. A case is moot
and therefore not justifiable if
it no longer presents an existing or live controversy or the
prejudicing or threat of prejudice,
to a party, no longer exist
[15]
.
[34]
The government respondents in this matter submitted that this matter
has become moot because the
January Regulations
which are
challenged have since been repealed. The applicant, however holds the
view that the matter is not moot notwithstanding
the fact that the
particular regulations have been repealed. The argument is that
the lockdown is still in place and the government
may again introduce
the same or similar regulations and that this matter engages issues
of public interest.
[35]
In
President of the
Ordinary Court Martial N.O. v Freedom of Expression Institute
[16]
the Constitutional Court held
mootness is likely to be a bar to relief where the constitutional
issue is not merely moot as between
the parties, but is also moot to
society at large, and no consideration of compelling public interest
requires the court to reach
a decision. Where it is in the
public interest that the constitutionality of legislation should be
determined it is unlikely
that a court will decline to entertain the
matter
[17]
.
[36]
With regard to appeals section 16 of the Superior Courts Act
[18]
provides that when at the hearing
of an appeal the issues are of such a nature that the decision sought
will have no practical effect
or result, the appeal may be dismissed
on this ground alone. This provision is applicable to the Supreme
Court of Appeal and would
also be applicable to the High Court, if it
was sitting as a court of appeal against the judgment of a single
Judge.
[37]
While the section does not apply to the Constitutional Court it held
in the
Court Martial
N.O
. case,
supra
,
that it has a discretion to exercise its powers in terms of section
172 (2) of the Constitution to confirm an order of another court
declaring legislation to be invalid when the matter in issue had
become moot. In
Independent
Electoral Commission v Langeberg Municipality
[19]
,the
Constitutional Court held that its discretion must be exercised
according to the interests of justice. Relevant factors
in the
exercise of its discretion may include the practical effect that any
possible order may have, the importance of the issue,
its complexity,
and the fullness or otherwise of the argument advanced.
[38]
No such discretion however, accrues to the High Court when sitting as
a court of first instance. This
much was made clear
in
Minister
of Justice and Correctional Services and Others v Estate Late James
Stransham-Ford and Others
.
[20]
Wallis
JA, in
Stransham-Ford
sharply
criticised the court of first instance for having decided a matter
that was moot and indicated the position to be as follows:
â
When
a court of appeal addresses issues that were properly determined by a
first instance court and determines them afresh because
they raise
issues of public importance, it is always mindful that otherwise
under our system of precedent the judgment at first instance
will
affect the conduct of officials and influence other courts when
confronting similar issues. A feature of all the cases referred
to in
the footnotes to para 22 above is that the appeal court either
overruled the judgment in the court below or substantially modified
it. The appeal courtâs jurisdiction was exercised because âa
discrete legal issue of public importance arose that would affect
matters in the future and on which the adjudication of this court was
requiredâ.
The
High Court is not vested with similar powers. Its function is to
determine cases that present live issues for determinationâ
[21]
[39]
Factually, the potential âmootnessâ in connection with this
application arose more than (6) months
ago when the
January
Regulations
were the subject of appeal. By contrast, in
BATSA
, the application was fully argued when the dispute was
âliveâ. Judgment was reserved and the issue of mootness
only made
an appearance (2) weeks later, this before the judgment was
handed down.
[40]
Conversely, in the current application, whatever the factual position
and circumstances were in January
2021 and, whatever influences these
held for the lawfulness or otherwise of the
January Regulations
would have no bearing on any future regulations that may or may not
be contemplated by the government respondents.
[41]
Unterhalter AJA, writing for the court in
Capitec
Holdings Limited and Another v Coral Lagoon Investments 194 (Pty) Ltd
and Others
[22]
,
eloquently set out the correct test to be applied when a shield of
mootness is raised in the following terms, namely:
ââ¦
if
the appeal remains live in respect of the principal litigants, there
is no basis to rule that the appeal is mootâ¦â
[42] In
our view this court does not have any discretion to hear a matter
which has become moot and in our
view, this matter has become moot.
STRUCTURE OF GOVERNMENT
[43] The
applicant seeks an order directing that
section 27(2)(i)
of the
Disaster Management Act, Act
57 of 2002 (âDMAâ),must be read to
conform with
section 44(2)
and/or the rationality requirement in
section 1 of the Constitution and on such a reading:
(i)
the
second respondent may not make regulations or issue directions
concerning the suspension or limiting the sale, dispensing or
transportation
of alcoholic beverages in a disaster-stricken or
threatened area; and
(ii)
second
respondent may authorise the relevant provincial premier to issue
directions concerning the suspension or limiting of the sale,
dispensing or transportation of alcoholic beverages within a
particular province.
[44] In
the alternative, the applicant seeks an order declaring section
27(2)(i) of the DMA to be inconsistent
with section 44(2),
alternatively section 1 of the Constitution and invalid to the extent
that it authorises second respondent, without
any form of
consultation with responsible provincial authorities, to make
regulations or issue directions concerning the retail sale
of liquor.
[45]
Furthermore, the applicant sought a declarator that regulations 44
and 86 of the regulations made by
the second respondent in terms of
section 27(2) of the DMA to be unlawful and invalid in that:
(i)
the
second respondent was not competent to make the regulations;
(ii)
the
imposition, and maintenance, of a uniform prohibition of in all areas
of South Africa of the sale, dispensing, distribution and
transportation of liquor as
provided
for in the
regulations
is not necessary for the purposes of achieving any of the objectives
listed in section 27(3) of the DMA; and/or
(iii)
the
nationwide ban is inconsistent with sections 10, 11, 14, 22, 25 and
27 of the Constitution and not justified in terms of section
36 of
the Constitution.
[46]
Regulation 44 reads as follows:
â
44(1)
The sale and dispensing of liquor for-
(a)
off-site
consumption; and
(b)
on-site
consumption,
is prohibited.
(2)
The consumption of liquor in public places is prohibited.
(3)
The tasting and selling of liquor to the public by registered
wineries, wine farms, and other
similar establishments registered as
micro manufacturers, is prohibited.
(4)
The transportation of liquor is prohibited, except where the
transportation of liquor is-
(a)
in relation to alcohol required for industries producing hand
sanitizers, disinfectants,
soap or alcohol for industrial use and
household cleaning products;
(b)
for export purposes;
(c)
from manufacturing plants to storage facilities; or
(d)
being transported from any licensed premises for safe-keeping.
(5)
No special events liquor licences may be considered for approval
during the duration
of the national state of disaster.
(6)
The Cabinet member responsible for transport must, after consultation
with the Cabinet
members responsible for cooperative governance and
traditional affairs, health, police and trade, industry and
competition, issue
directions for the transportation and storage of
liquor.
(7)
The sale, consumption and transportation of liquor in contravention
of subregulations
(1), (2), (3), (4) and 5 is an offence.â
[47]
Regulation 86 echoes regulation 44 but, applies to areas designated
as hotspots.
[48] This
portion of the judgment will address the applicantâs case based on
the structure of government
challenge and will,
inter alia,
pose
the question whether or not the national respondents were
constitutionally empowered to make the regulations or whether it
amounted
to an unlawful infringement of the provincial competencies.
[49]
The question of which sphere of government may make the impugned
regulations is important as it will
address any doubt the public or
spheres of government themselves may have pertaining to the
legislative competence with regard thereto.
This certainty will
preclude any dispute about whether the provinces have legislative
competences with regard to the matter concerned.
[23]
[50] The
structure of government challenge is premised on Schedules 4 and 5 of
the Constitution. Schedule
4 lists the functional areas of
concurrent national and provincial legislative competence and
includes â
disaster managementâ
and â
tradeâ
under part A thereof. Schedule 5 lists the functional areas of
exclusive provincial legislative competence and lists â
liquor
licencesâ
under part A thereof.
[51] The
applicant contends that section 27(2)(i) of the DMA obliterates
provincial control over the selling,
dispensing and transportation of
liquor without any form of consultation with provincial government
and therefore, it intervenes
in schedule 5 competencies.
Furthermore, as there is no Cabinet member responsible for the retail
selling and dispensing of
liquor, the provisions of section 27(2)
cannot be complied with. In response to this challenge, the
national respondents have
stated that the Minister of Trade, Industry
and Competition is the relevant Cabinet member to consult, and that
he was in fact so
consulted.
[52]
Although the provincial respondents have formally elected to abide by
the decision of the Court, in reality
they have made common cause
with the applicant in respect of the challenge to the impugned
regulations based on the structure of
government argument and have
presented both written and oral arguments in respect thereof.
Therefore, any reference to the
respondents in this section of the
judgment should be understood as a reference to the national
respondents.
[53]
Before addressing the merits of this challenge, it is necessary to
understand the structure of government
and the constitutional
principles which underpin it.
[54]
Section 40(1) of the Constitution stipulates that government consists
of a national, provincial and local
sphere, which are all
distinctive, interdependent and interrelated. Section 40(2) of
the Constitution obliges each sphere of
government to observe and
adhere to the principles set out in Chapter 3 of the Constitution and
must conduct their activities within
the parameters provided by
Chapter 3. The principles of co-operative government and
intergovernmental relations are set out
in section 41(1) which reads
as:
â
All spheres of
government and all organs of state within each sphere must-
(a)
preserve
the peace, national unity and the indivisibility of the Republic;
(b)
secure
the well-being of the people of the Republic;
(c)
provide
effective, transparent, accountable and coherent government for the
Republic as a whole;
(d)
respect
the constitutional status, institutions, powers and functions of
government in the other spheres;
(e)
respect
the constitutional status, institutions, powers and functions of
government in the other spheres;
(f)
not
assume any power or function except those conferred on them in terms
of the Constitution;
(g)
exercise
their powers and perform their functions in a manner that does not
encroach on the geographical, functional or institutional
integrity
of government in another sphere; and
(h)
co-operate
with another in mutual trust and good faith by â
(i)
fostering friendly relations;
(ii)
assisting and supporting one another;
(iii) informing
one another of, and consulting one another on, matters of common
interest;
(iv)
co-ordinating their actions and legislation with one another;
(v) adhering to
agreed procedures; and
(vi) avoiding
legal proceedings against one another.â
[55] In
the constitutional scheme for the allocation of legislative powers
between Parliament and the provinces,
the legislative powers of the
provinces are enumerated and clearly defined, while those of
Parliament are not. On the contrary,
Parliamentâs legislative
powers are described as being plenary.
[24]
[56]
When Parliament assigns its legislative powers to the provinces it
must do so in a manner that creates
certainty about the nature and
extent of the powers assigned. This will enable the provinces
to exercise those powers in accordance
with, and within the limits
of, the terms of assignment.
[25]
A defining feature of this model
of government is that the legislative functions between the national
and provincial sphere of government
are not rigidly assigned and many
important functions are shared. Consequently, the Constitution
introduced a new philosophy
and introduced the principles of
co-operative government and intergovernmental relations.
[26]
[57]
This approach is consistent with the constitutional principles set
out in Chapter 3 of the Constitution.
[58]
If the legislative powers of the provincial legislatures were to be
implied beyond those expressly set
out in the Constitution, it would
diminish, through an expansive reading of the Constitution, the
residual legislative powers of
Parliament. This would be
inconsistent with the scheme of the Constitution, by which the
provincial legislatures are given
specific powers under the
Constitution, and Parliament is assigned the rest. The plenary
legislative powers granted to Parliament
are not to be
diminished by implying legislative powers of provincial legislatures
not expressly stated in the Constitution.
The assignment of
powers to the provinces must be expressed in clear and unequivocal
language.
[27]
[59] The
structure of the government challenge centres around sections
44(1)(a)(ii), 44(2) and 44(3) of the
Constitution. Section
44(1)(a)(ii) vests the national legislative authority in Parliament
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.
[60]
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 to:
(a)
maintain
national security;
(b)
maintain
economic unity;
(c)
maintain
essential national standards;
(d)
establish
minimum standards required for the rendering of services; or
(e)
prevent
unreasonable action taken by a province which is prejudicial to the
interests of another province or to the country as a whole.
[61]
Section 44(3) provides that 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.
[62] The
applicant contends that the impugned regulations do not comply with
the requirements of section 44(2),
which would authorise the national
sphere of government to override the exclusive provincial legislative
competence, and therefore,
the necessary legislative competence to
pass regulation 44 and 86 was absent rendering them unlawful and
invalid. The respondents
contend that the impugned regulations
are covered by the provisions of section 44(3) and that the
regulations were necessary and
incidental to disaster management and
trade, which are both listed in Schedule 4. The applicant
disputes that the necessary
and incidental matters contemplated in
section 44(3) include matters within the exclusive provincial
competences in Schedule 5.
[63] The
meaning and parameters of section 44(3) have yet to be judicially
defined and interpreted.
The applicant and provincial
respondents rely heavily on the decision of
Ex
Parte President of the RSA: Constitutionality of the Liquor Bill(âthe
liquor bill caseâ)
[28]
,
to support their
argument that the respondents were not authorised to make the
regulations. In this case, Cameron AJ stated
the following:
â
Determining
the place of s44(3) in the constitutional scheme, and in particular
its relationship in the exclusive provincial legislative
competences
in Schedule 5, is not free from difficulty... On one approach, s44(3)
authorises an enlarged scope of encroachment on
the exclusive
competences by
permitting
national intrusion into Schedule 5 where this is reasonably necessary
for, or incidental to, the effective exercises of
a Schedule 4
power. On another approach, s44(3) is not directed to the
Schedule 5 competences at all, but is designed to specify
the ambit
of national legislation and provincial legislation falling with
functional area listed in Schedule4. The express
allusion in
s44(3) to Schedule 4 legislation may provide support for this
approach.â
[64] The
applicant and provincial respondents argue that the approach which is
not directed at the Schedule
5 legislative competencies is the
correct one and should be adopted.
[65] The
above extract was expressed when the Constitutional Court was called
upon to determine the tagging
of the liquor bill as either affecting
or not affecting provinces and the consequent procedure which had to
follow pursuant to such
determination. Tagging is not concerned
with determining the sphere of government that has the competence to
legislate on a
matter, nor is the process concerned with preventing
interference in the legislative competence of another sphere of
government.
Rather, it is concerned with the extent and nature
of the input of provinces on the content of legislation affecting
them.
[29]
When determining legislative
competence, it falls to determine the subject-matter or substance of
the legislation, the true purpose
and effect thereof.
[30]
[66]
Cameron AJ went on to state that:
â
According to
The New Shorted Oxford Dictionary, âtradeâ in its ordinary
signification means the â(b)uying and selling or exchange
of
commodities for profit, spec between nations; commerce, trading,
orig. conducted by passage or travel between trading partiesâ.
Nothing in Schedule 4 suggests that the term should be restricted in
any way and the Western Cape government did not contend that
Parliamentâs concurrent competence to âtradeâ should be limited
to cross-border or inter-provincial trade. It follows
that in
its ordinary signification, the concurrent national legislative power
with regard to âtradeâ includes the power not only
to legislate
intra-provincially in respect of the liquor trade, but to do so at
all three levels of manufacturing, distribution and
sale.â
[31]
[67] Not
only did Cameron AJ recognise that the concept of
liquor licence
was narrower than that of
liquor trade
but also that
liquor trade encompassed the manufacturing, distribution and sale of
liquor.
[68] The
structure of government challenge cannot properly be determined
without considering same as contextualised
but the
Disaster
Management Act, Act
57 of 2002 (âDMAâ) to which, I now turn.
[69] The
DMA was enacted to provide for an integrated and co-ordinated
disaster management policy that focuses
on preventing or reducing the
risk of disasters, mitigating the severity of disasters, emergency
preparedness, rapid and effective
response to disasters and for the
establishment of a national, provincial and municipal disaster
management centre.
[70] The
DMA defines a national disaster as a disaster classified as such in
terms of
section 23.
Section 23(6)
defines a disaster as a
national disaster if it affects (a) more than one province or (b) a
single province which is unable to deal
with it effectively.
Neither the applicant nor the provincial respondents contest that the
disaster was incorrectly classified
as a national disaster.
[71]
Section 26
of the DMA sets out the responsibilities of the national
government in the event of a national disaster and states that:
â
(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.â
[72] In
accordance with the provisions of
s26(2)(b)
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)
, if a national
state of disaster has been declared.
[73] the
DMA defines:
(i)
disaster
â a progressive or sudden, widespread or localised, natural or
human-caused occurrence which causes or threatens to cause
inter alia
death, injury, or disease, significant disruption of the life of a
community;
(ii)
disaster
management â a continuous and integrated multi-sectoral,
multi-disciplinary process of planning and implementation of measures
aimed at preventing or reducing the risk of disasters, mitigating the
severity or consequences of disasters, emergency preparedness,
a
rapid and effective response to disasters and post
[32]
disaster
recovery and rehabilitation.
[74] It
is the National Centre which is tasked with classifying the disaster
as a local, national or provincial
disaster and which determined that
the COVID-19 pandemic was a national disaster.
[75]
After a national disaster has been declared, 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
inter
alia
the
suspension
or limiting of the sale, dispensing or transportation of alcoholic
beverages in the disaster-stricken or threatened area.
Section 27(2)(i)
is only
activated after a national state of disaster has been declared.
Section 27(2)(i)
must not be looked at in isolation but must be
examined as part of the DMA as a whole.
[76] It
is the applicantâs case that
section 27(2)(i)
drastically
interferes with the exclusive provincial legislative competences
concerning liquor licences, as listed under Schedule
5. The
applicant contends that the provision pertaining to the suspension or
limiting of the sale, dispensing or transportation
of alcoholic
beverages in the disaster -stricken or threatened area falls to be
classified as an exclusive provincial legislative
function under
Schedule 5 as it pertains to liquor licence. The respondents
dispute this and contend that it falls within Schedule
4A- a
concurrent national and provincial competence because it is a
disaster management and or trade issue and not a liquor licence
issue.
[77] In
determining whether
regulation 27(2)(i)
is a liquor licence issue or
a disaster management or trade issue, regard must be had to the
subject matter or substance thereof,
or to the true purpose and
effect thereof.
[33]
[78] The
objectives of the Liquor Act, Act 59 of 2003 are set out in the
preamble and section 2 thereof which
states that the objects are to
reduce the socio-economic and other costs of alcohol abuse and to
promote the development of a responsible
and sustainable liquor
industry. As set out above, the DMA is enacted to provide for
an integrated and co-ordinated disaster
management policy that
focuses on preventing or reducing the risk of disasters, mitigating
the severity of disasters, emergency preparedness,
rapid and
effective response to disasters and for the establishment of a
national, provincial and municipal disaster management centre.
[79]
Regulations 44 and 86 gave effect to the objective of the DMA to
provide for an integrated and co-ordinated
approach to addressing the
global COVID-19 pandemic. It was part of a national strategy
and approach which included the implementation
of curfews and the
suspension and limitation of social gatherings. The regulations
were part of a greater approach aimed at
regulating and limiting the
movement of people nationally. The objectives of the
regulations were to control and regulate the
distribution and sale of
liquor in pursuit of social objectives at a time when the nation was
vulnerable. Therefore, on applying
the substance or true effect
test to the regulations, it is clear that they form part of disaster
management, which is a Schedule
4, concurrent legislative competence.
[80]
Although the regulations had the effect of suspending or limiting the
sale and distribution of liquor,
it would have done so in furtherance
of the objective of reducing the socio-economic and other costs of
alcohol use (not necessarily
abuse) and of promoting the development
of a responsible and sustainable liquor industry as the envisaged end
result thereof was
to ease the pressure on the health care system at
a time when it was placed under severe strain by the demands of the
COVID-19 pandemic.
It was not focused on granting overall and
general permission for the sale and distribution of liquor. To
our mind, this resulted
in the regulations being made in terms of the
liquor trade and not as part of the liquor licencing. Liquor
trade is a Schedule
4 competence.
[34]
[81]
Furthermore, even of the impugned regulations impacted on the issue
of liquor licences, which is an exclusive
provincial legislative
competence, we are of the view that section 44(3) would have allowed
the national respondents to encroach
thereon. This approach is
consistent with the recognition that the legislative functions of
government are not rigidly assigned
to the provincial or national
sphere and that their functions often overlap, as well as the
principles of co-operative government
and intergovernmental
relations. We are of the view that section 44(3) authorises an
intrusion into the Schedule 5 competences
when it is reasonably
necessary or, incidental to, the effective exercise of a Schedule 4
power.
[82] The
making of regulations 44 and 86 were reasonably necessary to and/or
incidental for the effective
exercise of the legislative competence
relating to the management and response to the national disaster in
the sense that the response
to the global pandemic would have been
ineffective in the absence thereof. The applicant has conceded
that the availability
of alcohol resulted in additional pressure
being placed on the healthcare system at a time when it needed to be
resourced and equipped
to attend to the demands placed on it by the
COVID-19 pandemic. If the sale, distribution and availability
of liquor were not
suspended and/or limited by the regulations the
national healthcare system would not have been able to free up the
necessary resources
and capacities, both human and non-human, to
effectively address and manage the disaster, as a result of the
demand placed on it
by the availability of liquor; and the other
steps taken by the respondents such as the imposition of a curfew and
limitation and/or
suspension of social gatherings could have been for
nought.
[83] The
applicant and provincial respondents argued that this would erode the
exclusive legislative competence
of the provinces as any matter could
be said to be incidental to the exercise of a Schedule 4 power.
We do not agree.
The ability to invoke the provisions of
section 44(3) are limited by the requirements set out therein.
For a matter to be classified
as being
reasonably necessary to
or
incidental to,
it has to be shown to be closely connected
to or intrinsic to the principal matter set out in Schedule 4.
Furthermore, it must
be required for the effective exercise of the
matter listed in Schedule 4.
[84] In
conclusion, we find that the respondents were authorised to make
regulations 88 and 44 as they fell
under Schedule 4 as part of
disaster management or trade, alternatively, that the national
respondents were authorised by section
44(3) to infringe on the
exclusive legislative competence pertaining to liquor licence as set
out in Schedule 5.
COSTS AND
CONCLUSION:
[85]
The parties were wisely in agreement that the
Biowatch
principle should be applied in connection with the costs of and
incidental to this application. We agree. In the result, the
following order is granted, namely:
1.
That
the application for leave to amend is refused.
2.
That
the application to introduce new evidence is refused.
3.
That
the application as formulated is âmootâ.
4.
That
the structural challenge application is dismissed.
5.
That
each party shall be liable for their own respective costs.
DOLAMO, J
WILLE, J
SLINGERS, J
[1]
The
âpandemicâ.
[2]
On no
less than (3) grounds.
[3]
Applicable
at the time. Understandably so, because this was a âmoving
targetâ so to speak.
[4]
The
Disaster Management Act, 57 of 2002
.
[5]
The
âJanuaryâ Regulations.
[6]
This,
after
the promulgation on the 27th of June 2021 of the âJune
Regulationsâ by the second respondent.
[7]
The
âSABâ application.
[8]
Promulgated in Government
Notice No R. 565 of 27 June 2021 â the âfirstâ of the âJune
Regulationsâ.
[9]
The âJuly
Regulationsâ
[10]
As indicated
at the time of formulating this judgment further updated regulations
have been promulgated which allow for a more liberal
trade and
distribution of alcohol both in respect of the
off-site
sale and the on-site sale of alcohol.
[11]
The
position has again since changed due to the now new regulations.
[12]
Regulation
29.
[13]
The
premier of the Western Cape.
[14]
To
prayer 2.3 of the notice of motion.
[15]
Constitutional Law of
South Africa Woolman et Al 2
nd
Edition Volume 1 7-18.
[16]
1999 (4) SA 682 (CC)
[17]
S v Manamela
2000 (3) SA 1 (CC)
[18]
Act 10 of 2013.
[19]
2001 (3) SA 925 (CC).
[20]
2017 (3) SA 152 (SCA)
[21]
At para 25
[22]
(470/2020)
[2021] ZASCA 99
(9 July 2021) at para [21].
[23]
Premier,
Limpopo v Speaker of Limpopo Provincial Government
2011 (6) SA
396
[24]
Premier,
Limpopo supra
[25]
ibid
[26]
Tongoane v Minister of
Agriculture and Land Affairs
2010
(6) SA 214
[27]
Premier, Limpopo supra
[27]
ibid
[28]
2000
(1) SA 732
[29]
Tongoane supra
[30]
Ibid
[31]
paragraph
54
[32]
Section
27(2)((i) of the DMA
[33]
Tongoane supra
[34]
Ex
Parte President of the RSA
at
para [54]