The manner in which the South African government recently reinstated the ban on the sale of alcohol under lockdown level 3 indicates a disregard for the Rule of Law and the Constitution.
This is according to economic and legal analyst at the Free Market Foundation, Jacques Jonker.
In his address to the nation on Sunday 12 July, President Cyril Ramaphosa announced that the sale, manufacturing, and distribution of alcohol was banned with “immediate effect”.
Jonker told MyBroadband this approach was problematic, as the government had not gazetted the regulations at this point or immediately following Ramaphosa’s statement.
“Granted, it was published soon after his speech, but these technicalities matter from a legal standpoint since it speaks to government’s constant undermining of the Constitution and the Rule of Law,” Jonker noted.
In addition, various parties within the alcohol industry, ranging from producers to suppliers and distributors, were caught off-guard by the ban – saying that they received no warning of the change beforehand.
Ramaphosa claimed the ban was needed because of the irresponsible behaviour of citizens who were ignoring rules around social visits and throwing parties.
The abuse of alcohol has also lead to more trauma cases at hospitals, putting additional strain on the healthcare system.
Jonker submitted that the measure may be seen as reasonable from a purely hedonistic utilitarian perspective, but he believes that punishing all South Africans for the actions of certain irresponsible citizens is wrong.
“Limiting individuals’ freedom based on criminal actions by others (drunk driving, etc.) is asinine to me in principle,” Jonker said.
“It offends the very notion that the law should, at least in theory, only punish individuals and entirely suspend certain freedoms based on their own conduct and not that of others.”
“Individuals’ freedom should not be dependent on the conduct of criminal elements within society,” he added.
ANC might pursue further limits
Police Minister Bheki Cele has claimed the alcohol ban is the reason for a marked decrease in crime during lockdown, and said he wished the ban would remain in place after lockdown.
Jonker warned that although there have been no overt indications that government would actually continue to ban alcohol after the lockdown is completely lifted, the current steps have strengthened the foundation for political paternalism.
Paternalism describes the action of limiting a person or group’s liberty or autonomy with the intention of promoting their own good.
Jonker said that the South African government favours this approach highly, as evidenced by its historic clamping down on marijuana, sex work, and hallucinogenic drugs.
“I doubt that direct clampdowns outside of the context of the pandemic would be considered constitutional, but it is not like any of the ANC administrations have shown the necessary regard for the Constitution and the Rule of Law, so there is always the possibility that they might at least attempt to do so,” Jonker cautioned.
However, a push for further curbs on alcohol would not go unchallenged, he stated.
“I suspect that such moves would not only be opposed by civil society, but also by elements within government such as National Treasury and the like, considering the contributions that alcohol sales make to government’s coffers.”