The regulations banning the sale, dispensing and distribution of spirits in 2020 were necessary to support and protect the public and to address other devastating effects of the Covid-19 pandemic, particularly the health system collapse .
< p>The Western Cape High Court also found that Dr. Nkosazana Dlamini-Zuma, Minister of Cooperative Governance and Traditional Affairs, had proved that the regulations represented the least restrictive means to achieve the purpose of immediately releasing hospital facilities and services to people infected Covid-19.
< p>The court on Friday dismissed an application by South African Breweries (SAB) to challenge the rules in a two-to-one decision.
SAB had filed an order declaring that the dated Ministerial Orders 44 and 86 issued on December 29, 2020 are unlawful and lack force and effect.
One of the reasons put forward by SAB was the total ban on alcohol – consumption intact during departure — was unconstitutional because it denied basic constitutional rights to free trade and human dignity.
According to the SAB, the result of this erosion was the destruction of livelihoods.
SAB also argued that the Executive Branch’s use of its powers under the Disaster Management Act (DMA) to impose a total ban on alcohol – the only product banned in SA – was a violation of public house owners’ rights , shopkeepers and breweries, and everyone along the value chain, is so disproportionate as to be unconstitutional.
The application was filed on January 6, 2021 and continued after the alcohol ban was lifted in early February 2021.
SAB said the issues at issue were not contentious and that the court should consider them as they constituted a violation of constitutional rights.
In the majority judgment of Justice Rosheni Allie, in which Justice Judith Cloete voted to, the court said the minister had shown these regulations had a direct impact on the relationship that existed between alcohol use and trauma cases in hospitals.
“Given the fatal consequences of Covid-19 infections, savings in hospital beds and access to medical treatment was justified under the DMA and the Constitution,” Allie said.
Allie said the minister proved that the decree rationally coupled with the DMA’s statutory purpose of saving lives and livelihoods, said the DMA’s constitutional mandate to uphold the right to life and the right to adequate health care.
However, Judge Tandazwa Ndita disagreed in a dissenting statement ruling and said she had found the regulations unlawful and lacked force and effect.
Ndita said the minister had not proved that the sweeping alcohol bans alone had the impact on hospitals, trauma and emergency rooms reduced as there were other restrictive measures implemented.
“In other words, when the challenged provisions were implemented in December 2020 g there was only a correlation and no clear causal relationship between the imposition and a reduction in trauma cases due to other restrictions, which also had the same effect.”
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