The Department of Trade and Industry (DTI) has proposed a new National Liquor Policy (NLP). It includes new liquor regulation and the harmonisation of provincial liquor Acts. In the process, it erodes the rule of law and largely shows a disregard to the informal liquor trade which caters for the major portion of consumption in volume terms in South Africa.
500 metre rule
The legislation proposed by the DTI, if enforced, would result in almost every bar and liquor store you know closing within two years. This provision is referred to as the 500 metre rule: “It is proposed that liquor premises be located at least five hundred meters (500m) away from schools, places of worship; recreation facilities, rehabilitation or treatment centres, residential areas and public institutions.” It is hard to imagine any convenient location satisfying this requirement. Gone will be the days of the local pub and any liquor trade will effectively be prohibited in townships.
Vicarious Liability
The NLP proposes vicarious liability: “Traders should not serve liquor products to already intoxicated persons. Should that happen and the intoxicated person is involved in motor accidents or crime related to substance abuse, the manufacturer, distributor and trader should bear liability for any harm or damages.” What this means is that manufacturers, distributors and suppliers will be held responsible for the car accidents and crimes of other people. By the same logic, it means that if a car produced by a manufacturer is sold to a reckless driver, the manufacturer would be held liable for any accident that may occur. What chance does ”the culprit” stand?
Establishing whether someone is intoxicated demands blood tests at the very least. It is impractical to expect every pub, tavern, restaurant, and bar owner to be able to monitor and control the behaviour of all their patrons, especially after they have left their premises.
Legal drinking age
The DTI also wants to change the legal drinking age to 21 years. To some people this might appear to be a wise and sober law but it means that even though an 18 year old is considered mature enough to vote, drive, get married, sign contracts and even hold a liquor licence, they are not considered responsible enough to choose whether to drink or not. There is scant evidence that reducing the age limit prevents drinking, but plenty that shows that it drives drinking underground and away from responsible areas. Freedom to choose at any age is not something to be relinquished without a fight.
Zoning
Townships do not have zoned areas. This is a relic of the apartheid era. The policy proposes to restrict sales to zoned areas. This will effectively make liquor trade illegal in townships. Prohibition in the apartheid years led to increased alcohol abuse and provided fertile soil for the establishment of shebeens.
Rule of Law
There has been a deeply disturbing tendency during recent years to transfer law-making functions to the executive and render the legislative branch of government increasingly redundant. Compliance with the rule of law dictates that legislative restrictions should be debated and decided democratically by accountable politicians in Parliament. The NLP confers the power to determine restrictions for advertising and marketing liquor to the Minister of Trade and Industry. This is a breach of the rule of law and the doctrine of the separation of powers. In particular, it is a breach of the non- delegation doctrine, and creates a legislative foundation for abuse of authority and corruption.
Advertising and Marketing
The NLP proposes to further restrict advertising and marketing. Advertising is the consumer’s way of knowing what products are available, what promotions are on offer, or where and when new and more convenient outlets open. It is a consumer’s right to information.
Sponsorships
The proposed NLP also suggests the Minister will have the power to prohibit sponsorships and promotions. Sponsorship is a powerful area in which large and small breweries alike can contribute to the socio-economic development of the country and to maintain and encourage the colour and richness of our arts, sports, culture and conservation. The people for whom sponsorships are the most important, are the destitute.
Barriers to liquor trade
It is nonsensical for the NLP to propose the implementation of several new restrictions to liquor trade, or proverbial "red tape". The majority of liquor traders already are pushed to operate illegally because of insurmountable barriers to obtaining liquor licences (e.g. the costs and complexity of the application, the need to obtain legal services and the requirements for land use rezoning) combined with a lack of alternate economic activities.
Informal Traders
The NLP does not address the realities of the informal trade of liquor. Previous legislation has not lead to a migration of informal traders to the formal market. Rather, informal traders hone their ability to evade law enforcement. Compliance is practically impossible for most informal traders so they absorb intensified law enforcement as a business cost to avoid going out of business altogether and losing their livelihood. Furthermore, the integration of the South African Police Services will perpetuate the incidences of police corruption, bribery and favouritism in the application of the law, a commonality faced by informal traders.
Harmonization of provincial Liquor Acts
The draft Policy proposes the harmonisation of the provincial liquor laws with the Act. It says it is imperative for purposes of effective liquor regulation that South Africa operates from a harmonised legal framework and that the old way of regulating liquor is eradicated. It is, in fact, not necessary to have uniformity of approach in order to combat alcohol abuse effectively. Different provinces should continue to be left to pursue strategies which they think will best combat alcohol abuse in their specific area. Not all will necessarily be the same. Policy should be tailored to the diverse needs of different communities and those that prove demonstrably more effective than others will be adopted in other provinces.
Conclusion
The proposed NLP is open for public comment until August 13th. If you wish to put in a submission or letter to the DTI regarding the NLP, please use this address: NRamphele@thedti.qov.za.
Author: Kate Louw is a researcher with the Free Market Foundation. This article may be republished without prior consent but with acknowledgement to the author. The views expressed in the article are the author’s and are not necessarily shared by the members of the FMF.