KBL adopts ‘wait-and-see’ after Court setback
Kgalagadi Breweries Limited (KBL) is weighing options following the ruling by High Court that its case in which it is challenging the President’s ban on alcohol sale is not urgent.
The brewer, which is still in a haze about the ruling, has now adopted a ‘wait-and-see’ attitude to decide a way forward on the matter as the Court had not given reasons for the decision. A panel of three judges comprising Godfrey Radijeng, Barnabas Nyamadzabo and Tshepo Motswagole on Tuesday ruled that the case in which KBL was challenging the government on the recent ban on alcohol was not urgent.
The judges in the instance meant that the case can continue for merits argument in the normal court due process.
Now KBL, clearly showing signs of disappointment post the ruling, said they will wait for the reasons of the ruling from the judges before weighing their options going forward.
The brewer, which was suing the President Mokgweetsi Masisi, Director of Health and Attorney General, said it will not be wise to decide a way forward without having a proper reconciliation of events including the details of the judges’ ruling.
Corporate Affairs Manager for KBL, Masegonyana Madisa said they were disappointed with the outcome of the case. He explained that they would take a step back and discuss with the lawyers in terms of what it means and also hear the reasons advanced by the Court.
“We are disappointed by the outcome, however it would be very important to know the reasons for the ruling and then decide a way forward based on the advice from the lawyers,” he said.
Madisa added the decision they would take going forward would be based on reasons from the judges, which are very important for steps to take. “We came here to represent the different stakeholders, our company, workers, consumers and anyone affected to say that don’t despair, we have lost the first part it doesn’t mean the case is over, KBL has many options to consider and it will make the right decision at the right time and give feedback,” he said.
State attorney, Kgalalelo Monthe said the KBL case was dismissed on the basis of preliminary objection that it was not urgent. “The Court agreed with the contention of the Attorney General that they have known for a long time about the ban,” he said.
He explained that it was up to KBL to weigh its options and decide whether it wants to follow the case on the normal due process or appeal the ruling that the matter was not struck off but merely dismissed on urgency.
Meanwhile, earlier on during arguments, KBL through their advocate from Minchin & Kelly argued that the case was urgent. The advocate indicated that at least 50,000 direct jobs and 200,000 livelihoods in the alcohol value chain were threatened by the latest ban. The brewer explained that each day that passes without the resolution of the matter the business continues to suffer and that it was not able to generate revenue while its costs in the form of salaries rent, and municipal charges continue to be incurred.
“If the relief sought is not granted urgently, then it will be too late for KBL, its employees and the dependents they would be financially prejudiced,” said KBL.
“The same considerations apply to hundreds of businesses in the value chain across the country. Also affected are KBL’s suppliers, majority of which are Batswana, (they) may indeed face bankruptcy.” KBL submitted that the conduct of the President was an infringement upon the rule of law and Constitutional rights.
Responding for the State, Monthe said the case was not urgent as the brewer had been aware of the ban for a long time to bring the matter on urgent basis. The senior counsel argued that the President was simply exercising his rights as empowered by the Emergency Powers Act (EPA) to make regulations as appear to him as necessary and expedient for securing public safety.
He explained that the only urgency was the President’s swift response to save the public. He added that he did that by simply exercising the powers vested on him by the EPA to introduce the alcohol ban and closure of liquors stores as a measure to control and limit transmission of the virus.
“The President found that the loss of lives couldn’t be compared with the pure economic gain that the applicant is seeking to protect. He found that the country was in a state of public health emergency and public safety was more important,” he said.
Monthe further said it was important for the court to take into consideration that the underlying factor to be considered was the safety and health of the nation at large, which the ban was seeking to achieve. He pointed out that it would not be prudent and in the best interest of the nation to ignore a health emergency such as COVID-19 and give preference to trading and making of profits by the applicant as the results would be catastrophic to the extent that when the country emerges from the scourge it would be left with depleted and ailing nation from the virus and its side effects.
He denied that the regulation infringed on any Constitutional rights more so that the applicant had not stated the rights that it infringes upon. Monthe Marumo (Incorporating Molatlhegi Attorneys) represents Masisi, AG and Director of Health while Minchin & Kelly represents KBL.