- Government's ban on the sale of alcoholic drinks to save lives is self-defeating, brewer SAB argues in a legal filing.
- It is also unconstitutional, SAB says, under the same "right to be left alone" that saw dagga legalised for private use at home.
- If the government does want to ban booze, it could perhaps do so under a state of emergency, SAB says, but the fiat use of a state of disaster doesn't cut it.
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Banning the sale of alcoholic drinks under lockdown regulations is both unconstitutional and just plain stupid, South African Breweries (SAB) argues in legal papers it filed this week, seeking to overturn the ban.
Take dagga, for instance.
The brewer never directly mentions cannabis, but explains how the "right to be left alone", or the right to privacy, extends to both booze and to other substances.
"The Constitutional Court has held that this right entitles an adult person to use, cultivate or possess substances in private for his or her personal consumption. This applies, by parity of reasoning, to alcoholic beverages," it says.
"The right to privacy guarantees that a person’s inner sanctum, such as their home environment, must be shielded from erosion by conflicting rights of the community."
Preventing people from buying booze also prevents them from drinking it, SAB says, and limiting that "within the four walls" of a home limits privacy.
SAB also argues that the government's stated purpose for banning alcohol – reducing instances of trauma and so unburdening hospitals – is stupid. Over time the ban does not help the healthcare system, it says, because "the government forgoes such huge amounts of money that might be used for the legitimate purpose of providing hospital beds for the combatting of Covid-19".
It estimates that the latest ban will cost many billions more in lost tax and excise revenues.
"Had these taxes not been forgone, the government could have financed tens of thousands of ICU beds and ventilators and vaccines. It is difficult to think of a more self-defeating policy than the alcohol ban."
The government does, at least potentially, have the power to ban booze, SAB says – under a state of emergency.
"The Constitution recognises and provides for situations so drastically threatening and destructive that they cannot be dealt with in terms of existing legislation and without limiting certain constitutional rights. Such as situation is termed an ‘emergency’... But here, safeguards are built in...."
The state of national disaster, in terms of which the government now rules by decree, is declared under a Disaster Management Act with a "catch-all" provision that gives the government very broad powers.
President Cyril Ramaphosa and co-operative governance and traditional affairs minister Nkosazana Dlamini Zuma have gone to court to ensure those broad powers remain in tact, after they were potentially impugned in an adverse ruling on a previous tobacco ban.