Omphemetse Sibanda writes that he is baffled by the government's decision to ban off-site sales of alcohol and allow on-site consumption at restaurants, shebeens and bars over the Easter weekend.
President Cyril Ramaphosa announced on Tuesday that the country would remain on an Alert Level 1 lockdown over the Easter weekend but also announced a few restrictions.
Standing out like a sore thumb is the announcement on the consumption and sale of liquor.
There is a belief that no matter how sensible and rational you are, you cannot make your best choices when under the influence of alcohol. The reasoning is that once you start guzzling, you exercise less care and make many stupid or nonsensical choices that you will live another day to regret them.
I want to convince myself that the government was not intoxicated when it decided on these restrictions.
Differentiated approach
President Ramaphosa has caught the country off guard with his announcement, which effectively promotes the on-site consumption of liquor and bans sales for off-site consumption.
"Given the role of alcohol in fuelling reckless behaviour, we will put in place some restrictions over the Easter weekend. To this end, the sale of alcohol for off-site consumption will be prohibited this coming Friday, Saturday, Sunday and Monday," he said.
On the other hand, amid his concern on alcohol's role in fuelling reckless behaviour, the president allowed the sale of alcohol for on-site consumption.
"On-site sales at restaurants, shebeens and bars will be allowed, according to licensing conditions, up until 23:00," the president retorted.
For some, this differentiated approach to alcohol regulation may be a relief. But, truth be told, this is the most nonsensical and irrational decision made by our government, which is factually, morally and legally illogical.
Before delving into my amazement at the president's differentiated ban of alcohol sales favouring bars, shebeens, taverns, clubs and similar establishments, I must pronounce that I am not arguing for a blanket ban on all nightlife activities and other on-site drinking places. Such a ban has proven to be economically devastating. But clearly, the irrationality of the decision comes on many fronts, in a similar way as a total ban of alcohol.
The first irrationality is that on-site sales at restaurants, shebeens and bars have proven impossible to police in South Africa, and it is socially harmful. These establishments represent the best aerosol-dispensing environment for Covid-19 as they often jammed-packed and have limited ventilation.
It has been proven worldwide and in South Africa that these on-site establishments are high-risk sites for Covid-19 outbreaks.
Just imagine that one reveller hugs and kisses at least 10 people during a visit to the club. Or another person talking loudly to compete with the boom-boom sound from the music system and leaning close to another patron, with a lowered mask, so that the person can hear.
Then compare that to someone who buys a six-pack of their favourite beer to drink it at home in the company of a family of not more than three people.
The likelihood is that at least several of the clubbers may be diagnosed with Covid-19 following their night of revelry, while the one person who bought the six-pack from a known off-site liquor sales establishment has a 100% chance of testing negative, or so I would assume.
The second and incidental argument for the view I am expressing is that Penelope Mashego, writing on News24, made a good argument that off-site sale of alcohol saves jobs. My spin to her statement will be that off-site sales and "home consumption" of alcohol will not only keep jobs but are much safer than on-site sales and consumption.
The third irrationality is more about the unfairly discriminatory nature and approach of the off-site ban.
Two days ago, IOL reported that the University of KwaZulu-Natal's acting deputy vice-chancellor of research and innovation, Professor Mosa Moshabela, labelled the liquor industry irresponsible for expecting the government to have no alcohol restrictions in place over the Easter holidays.
"It is irresponsible for the industry to expect the government not to place restrictions on alcohol, we know this, and they know this. Ensuring that people are safe is what is important", said Moshabela.
I guess Moshabela was not banking on the government acting irresponsibly, like it did with the Easter-weekend differentiated ban.
Court action?
I would not be surprised if the liquor industry approaches the courts to challenge the off-site ban on an urgent basis.
Perhaps we will have a Good Friday case, with the courts helping the government to self-correct it's mixed messaging on alcohol as an enabler for reckless behaviour when it comes to Covid-19.
A sober court, or rather a sober judge, should not take long to declare the off-site ban irrational and in violation of the fair treatment clause in the Constitution.
I am still trying to figure out and explore the circumstances under which Ramaphosa's ban would be rational and constitutional. But I have, so far, failed to find reasons because the president's justification does not make sense at all.
The rationality and constitutional issues in question are implicit in the president's recognition of "the role of alcohol in fuelling reckless behaviour".
The flip-flopping inherent in allowing on-site alcohol consumption and not off-site alcohol sales, can reasonably be perceived as the government's endorsement of the behaviour in nightclubs, shebeens and taverns as responsible during the pandemic, and the punishment of retail alcohol establishments.
Punish citizenry
There seems to be favouritism that is a very misplaced and blatant attack on off-site alcohol establishments. It is such a decision that will fuel suspicion that lockdown regulations and decisions are meant to punish the citizenry and not help fight Covid-19.
From the liquor industry's perspective, the emphasis must be equal treatment. Absent the most unusual circumstances, and compelling reasons, the off-site sales ban is nothing short of the unlawful, irrational and unconstitutional infringement of trading rights; the right to economic activity.
No reasonable objective observer of the government's handling of the restrictions, will find that the ban is the best approach in the fight against the spread of Covid-19 over the Easter weekend. But, as one person said, "if you like laws and sausages, you should never watch either one being made".
Ke madambabamba (It's a mess). And this says a lot about the government's Covid-19-related public messaging.
- Professor Dr Omphemetse S Sibanda, Legal Scholar Without Borders, is a professor of law and the executive dean of the Faculty of Management and Law at the University of Limpopo. He holds a Doctor of Laws (in International Economic Law) from North-West University, a Master of Laws from Georgetown University Law Centre, US and an LLB (Hon) and B Juris from the former Vista University, Soweto Campus.
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