The past 10 months were littered with court cases arising from the Covid-19 lockdown regulations imposed in terms of the Disaster Management Act — and the courts are set to be just as busy in 2021.
The regulations that govern the lockdown all but brought the economy to a standstill in the first half of 2020, and some concerned stakeholders turned to the courts before restrictions were gradually lifted as SA passed the first wave of Covid-19. But harsher restrictions were reimposed at the end of 2020 as a second wave hit the country.
While some issues being heard by the courts are residual, such as the government’s announcement last week that it would appeal a high court ruling that the prohibition on the sale of tobacco products was unconstitutional, the prohibition on the sale of alcohol will be considered by the courts for the first time.
Last week SA Breweries, a unit of multinational alcohol giant AB InBev, filed an application to have the prohibition on the sale of alcohol declared unlawful as it is unconstitutional.
In papers filed in the high court in Cape Town, SAB says the ban, reimposed before the New Year’s Eve celebrations to relieve pressure on overwhelmed hospitals, is unconstitutional as it denies the fundamental right to trade freely, and the right to dignity.
SAB director Richard Rivett-Carnac says in the founding affidavit that an erosion of these rights caused the destruction of livelihoods. SA law does not permit the executive to ban entire industries, he says, especially when there are reasonable and proportionate measures to achieve legitimate aims while respecting constitutional rights. Reasonable and measured restrictions on sales, as well as social restrictions for all businesses, are proven remedies if extreme solutions are needed, he says.
“Prohibition, however, is unconstitutional, ineffective, a boon to criminal elements and economically devastating,” he says.
SAB spells out the consequences of the two previous bans, including about 165,000 job losses and loss of investment to the country. The latest ban has now resulted in the company being unable to comply with conditions set out in the 2016 merger of AB InBev and SABMiller. SAB says the government was informed last week that these conditions are now suspended effective from the announcement of the new ban in December.
This has implications for two of the most critical issues facing SA, namely jobs and investment, as the merger conditions require that the company not retrench existing workers and invest R1bn over five years once the merger is completed in SA. It is these conditions SAB now says have been suspended.
It is not only the prohibition on the sale of alcohol that is being challenged. One of the critical issues in 2021 is the procurement of Covid-19 vaccines for SA. Health minister Zweli Mkhize has made it clear that all vaccines will be acquired and distributed by the national government, which has already secured 1.5-million doses of the University of Oxford-AstraZeneca vaccine for health workers from the Serum Institute of India. One-million doses are due to arrive in January and 500,000 more in February.
The government has also signed up to get vaccines under the Covax global facility, which will secure vaccines for middle- and low-income countries.
However, lobby group AfriForum and trade union Solidarity have instructed a legal team to prepare a case challenging the government’s proposed monopoly on the purchase and distribution of Covid-19 vaccines.
“The two organisations want to ensure that those who seek to get the vaccine are not obstructed from doing so by government mismanagement or corruption,” they said in a joint statement.
The organisations are arguing that the government cannot have a monopoly on deciding who receives the vaccine and who does not, saying that allowing the private sector to purchase and distribute Covid-19 vaccines would allow “for better efficiency regarding distributing the vaccine to those who want it, to prevent abuse of power by the government, as well as to ensure that government incompetence or corruption does not derail the process”.
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