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South African Breweries (Pty) Ltd v Minister of Corporative Governance and Traditional Affairs and Another (10996/2021) [2021] ZAWCHC 135

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South African Breweries (Pty) Ltd v Minister of Corporative Governance and Traditional Affairs and Another (10996/2021) [2021] ZAWCHC 135

Legal gavels and scales

23rd July 2021

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Click here to read the full judgment on Saflii

[1]        This matter is concerned with the scope of the first respondent’s, the Minister of Corporative Governance and Traditional Affairs (“the Minister”), powers to make regulations in terms of section 27(2) the Disaster Management Act 57 of 2002 (“the DMA”), and the nature and origin of such powers.  The last mentioned issue relates to the question whether such powers reside within the realm of executive action or administrative action.

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[2]        The applicant (“the SAB”) is aggrieved with the decision taken by the Minister on 27 June 2021 in making regulations to suspend and limit the sale, dispensing or transportation of alcoholic beverages, which led to a total prohibition on the sale and dispensing of alcoholic beverages as from the mentioned date.  This led to the SAB seeking relief from this court, on an urgent basis, to have the decision which resulted in the Minister making the impugned regulations reviewed and set aside.  In these proceedings the SAB does not take issue with the underlying reasons, and the rationale, for the Minister making the regulations in respect of the sale and distribution of alcoholic beverages.

[3]        Subsequent to the novel coronavirus (“Covid 19”) arriving on our shores in March 2020, a national state of disaster was declared on 15 March 2020.  With the escalation of infections in this country it resulted in the country being placed under a so–called “hard lockdown” on 26 March 2020, termed the Level 5 lockdown, because the pandemic posed an unprecedented health risk to the lives and health of everyone living in South Africa, and across the world. 

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[4]        Various adjustments of the lockdown levels followed - from the highest and most restrictive, which is level 5, to the lowest and least restrictive, level 1 - when the circumstances relating to the levels of infection of Covid 19 that prevailed at the given time, justified such adjustments.  This in turn led to either a tempering or an intensification of the impact and consequences of these regulations.

[5]        During each level the restrictions are adjusted by means of regulations, the most important of which is in relation to the movement of persons, the operation of certain businesses and hours of operation and, particularly relevant in this case, the intensification or moderation of the impact of the regulations in respect of the sale, dispensing, distribution or transportation of alcoholic beverages.  As her reasons for the necessity of the impugned regulation, the Minister states, inter alia, in her answering affidavit, that certain restrictive measures (such as a temporary suspension) have been necessary at different stages of the pandemic depending, inter alia, on the rate of new infections, the rate of hospitalisations, the capacity of the healthcare system, and its ability to cope.

[6]        The underlying imperative, according to the Minister, has been to ensure that the health system does not become overwhelmed and that as a result lives are not lost unnecessarily; the government has been fully alive to the fact that measures such as the temporary suspension have come at a significant financial cost to those working and operating in the affected sectors, but notwithstanding that, measures such as the temporary suspension have been necessary to ensure the capacity of the healthcare system to deliver healthcare services to those in need thereof, and in so doing to avoid any unnecessary loss of lives.

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