Tobacco, alcohol bans wilt under scrutiny
The growing unease at the use of the Disaster Management Act to limit freedom of movement and ban the sale of alcohol and tobacco products has led to a change in the discourse around the Covid19 lockdown.
Constitutional law experts have questioned whether the act gives the National Command Council carte blanche to impose these prohibitions. They have also expressed serious concerns over the limitations imposed on freedom of movement, most notably the narrow exercise window (from 6am to 9am) and the night-time curfew.
The about-turn over the sale of tobacco products last week raised questions around the real motivation behind the cigarette ban. Notwithstanding assurances that the decision was a collective one, there have been allegations that at least one of the ministers in the National Command Council has links to the illicit tobacco sector.
British American Tobacco SA initially responded with the threat of legal action. Then it announced it would instead engage with the government over the “formulation and application of the regulations”.
It appears the liquor industry has adopted a similar approach.
While this may be seen as the less confrontational and more cost-effective way forward, several lawyers have suggested the regulations applicable to level 4 do not stand legal scrutiny.
Pierre de Vos, a constitutional law expert, makes this clear in his weekly newsletter: “To comply with the principle of legality, all regulations must at the very least be rationally related to the stated aims of the declaration of a national disaster.”
Second, he points out, “where a regulation limits one of the rights guaranteed in the bill of rights, the regulation will only be constitutionally valid if it is justifiable in terms of the limitation clause”.
Of particular relevance, De Vos says, is the question of whether a less restrictive approach might have achieved the same purpose.
Stephan du Toit SC has gone a step further, querying whether the declaration of a state of national disaster was warranted at the time.
“There were many parts of the country which had no recorded infections at the time the act was invoked,” he points out. “Imposing a lockdown in late March on the citizens of the Karoo and Carnarvon, for example, was clearly questionable.”
RATIONALITY
He adds the regulations imposed in terms of the Disaster Management Act are subject to the rules of administrative law. They must stand the tests of rationality, proportionality, absence of bias and reasonableness.
“Disaster management is not a state of emergency, and therefore it cannot abrogate basic rights. The act is therefore not covered by section 37 of the constitution, which deals with a state of emergency.
“This raises the question as to the constitutionality of the measures taken,” Du Toit says.
“On what basis can, for instance, a person not sell or buy a bottle of wine? This limits the right to trade.
“What is the purpose of this limitation, and are there not less restrictive means of controlling abuse, if that is the aim?”
The liquor industry’s submission to the government ahead of the transition from level 5 to level 4 lockdown offered a number of solutions for the sale of limited quantities of alcoholic beverages. None of these was accepted, nor was any reason given for the decision.
Du Toit also referred to what he considers was an irrational prohibition on wine exports during the level 5 lockdown.
“Speaking also as an interested party [Du Toit owns a wine estate], a more plausible reason should be given for the ban on wine exports than [transport] minister [Fikile] Mbalula’s specious argument that vehicles shipping freight to Cape Town harbour might be hijacked.”
De Vos notes that government ministers must justify their decisions in a way that is “factbased, rational and truthful”.
“When [the explanation] … appears to be irrational, it erodes trust in government and threatens the efficacy of the lockdown. It also renders the regulations open to constitutional challenge and invalidation.”
THERE WERE MANY PARTS OF THE COUNTRY WHICH HAD NO RECORDED INFECTIONS AT THE TIME THE ACT WAS INVOKED
GOVERNMENT MINISTERS MUST JUSTIFY THEIR DECISIONS IN A WAY THAT IS ‘FACT-BASED, RATIONAL AND TRUTHFUL’