KBL aims knockout punch at Masisi
Kgalagadi Breweries Limited (KBL) says President Mokgweetsi Masisi’s decision to ban alcohol sales was technically and constitutionally flawed while threatening the livelihoods of hundreds of thousands of Batswana.
In papers filed before Justice Tshepo Motswagole this week in the highly anticipated case, KBL is seeking urgent relief against the latest alcohol ban.
According to papers accessed by Mmegi at the High Court, the country’s top brewer has laid out technical and constitutional arguments it believes are sufficient to persuade Motswagole to overturn the alcohol ban.
KBL’s lawyers argue that they were challenging the lawfulness and validity of the impugned notice, issued in terms of the Emergency Powers Act, which purported to suspend all liquor licences as requirements for such were not met.
According to the lawyers at Minchin and Kelly, there are jurisdictional requirements for the exercise of any power in terms of the regulations including Regulation 30G, which requires amongst others that the Director of Health Services may reinstate a previously lifted restriction contained in the Emergency Regulations, that the Director must consult the President before exercising the power to reinstate the restriction.
“The requirements have not been met in the present case. Moreover, the power has not been exercised lawfully and in terms of the Constitution and underlying statutes,” stated the lawyers.
The lawyers submitted that the decision to reinstate the ban was expressly stated to have been made by the President while Regulation 30G requires the decision to reinstate the ban be made by the Director Of Health Services, not anyone else even the President.
They argued that the exercise of power is therefore not authorised by Regulation 30G and that insofar as the power could be said to have been exercised by the Director, the Director was manifestly acting under instruction or at the instance of the President, which was not what the Regulation required.
KBL lawyers explained that it must be an objective that the risks of COVID-19 had increased to make it necessary to re-impose the restriction of the total ban and that the increased risks that justify reinstatement of the ban have not been demonstrated and could not reasonably be considered to exist.
The decision was to be exercised reasonably and rationally, said the lawyers. This entails that the Director in exercising their powers must consider whether public safety from risks of COVID-19 could be obtained by means less drastic than an all-out ban, which has consequences, the lawyers stated.
Further, the lawyers said the effect of the reinstatement of the ban was to reintroduce the restriction imposed by Regulation 21 of the Emergency Regulations of which the Regulation itself was invalid for reasons that they infringe on constitutional rights, the provision was irrational and arbitrary.
The lawyers argued that the Regulation was invalid because the total ban was not measured necessary or expedient to secure public safety, that the suspension of liquor was not permitted in terms of either the Liquor Act nor was it permitted by the Emergency Powers Act or the Constitution.
The Regulation has not been duly and lawfully issued in terms of the Emergency Powers Act or the law, argued the lawyers.
By press time, the Attorney General was yet to file opposing papers. The Attorney General is cited as the first respondent, the President as the second respondent, while the Director of Health is the third respondent.