Is the ban on tobacco and liquor unlawful and irrational?

On the eve of Thursday, 29 April 2020, the Minister of Cooperative Governance and Traditional Affairs, Dr Dlamini-Zuma published the Alert Level 4 Regulations (Regulations). The more-detailed Regulations replaced all previous iterations. Of relevance to this article are Regulations 26 and 27 which state respectively:

“26  Sale, dispensing or transportation of liquor

(1)   the sale, dispensing and distribution of liquor is prohibited.

(2)   the transportation of liquor is prohibited, except where alcohol is required for industries producing hand sanitizers, disinfectants, soap, alcohol for industrial use and household cleaning products.

(3)   the transportation of liquor for export purposes is permitted.

(4)   no special or events liquor licenses may be considered for approval during the duration of the national state of disaster.

27   Tobacco products, e-cigarettes and related products

       The sale of tobacco, tobacco products, e-cigarettes and related products is prohibited.”

The singling out of these products is unique in that they appear as provisions and not just as items listed (or excluded) in the Regulations’ annexure dealing with essential items.

In order to fully appreciate and discuss the Regulations, the starting point is to understand the levels of legislative hierarchy in South Africa. The hierarchy applicable to legislation is as follows:

• The Constitution, which is the supreme law of the Republic and any law of conduct inconsistent with it is invalid.
• Original legislation, which includes Acts of Parliament such as the Disaster Management Act 57 of 2002 (DMA).
• Subordinate or delegated legislation such as the promulgation of regulations or directives. This law-making power is usually delegated to certain persons, for instance under the DMA the power is given to the Minister of Cooperative Governance and Traditional Affairs. The power may also be granted to bodies established under a particular piece of legislation.

In terms of the relationship between original legislation and subordinate legislation, subordinate legislation may not be in conflict with original legislation, otherwise it would be ultra vires. However, if apparently contradictory provisions are capable of a sensible interpretation which would reconcile the apparent contradiction, that interpretation should be preferred.

Dealing with the liquor ban first, section 27(2)(i) of the DMA is clear in that the Minister may issue regulations or directions concerning “the suspension or limiting of the sale, dispensing or transportation of alcoholic beverages in the disaster-stricken or threatened area”. Considering the nature of the pandemic, it appears that the Minister is within her powers to regulate the sale of alcohol, even though it amounts to a complete ban.

With respect to tobacco products, the DMA does not expressly empower the Minister with any specific powers relating to the regulation of the supply chain and ultimate sale of tobacco products. However, what the DMA does allow the Minister to do is to publish regulations or directions concerning “the regulation of the movement of persons and goods to, from or within the disaster-stricken or threatened area” and “the control and occupancy of premises in the disaster-stricken or threatened area”. Again, considering the nature of the pandemic, this could mean that transportation of tobacco products (and any other products) could be subject to regulation as well as compelling the closure of a premises where tobacco may be sold.

That being said, the DMA does not empower the Minister to prevent the actual sale of tobacco and any other goods. The only way that transactions may be regulated is in respect of transportation, and separately by preventing people from physically attending at a premises where tobacco is being sold. It is arguable then that where a retailer or wholesaler/distributer has been granted permission to trade, it must be granted permission to trade in its entire line of stock at least until it is depleted. Regulation 27 is aimed only at the sale of tobacco products and does not at all refer to the transportation or control of such products nor to access of premises where tobacco may be sold. This casts serious concerns over the blanket prohibition against the sale of tobacco products (and indeed against the sale of other products that an authorised retailer or wholesaler/distributer has in stock). It must always be remembered that as a state functionary, the Minister is only entitled to act within the limits of the empowering legislation and any acts outside of those parameters will be unlawful.

Furthermore, even if the Regulations did control the transportation and access to premises where tobacco products are sold, under the DMA and in relation to the specific list of powers, the Minister is only empowered to publish regulations and directions to the extent that they:

• assist and protect the public;
• provide relief to the public;
• protect property;
• prevent or combating disruption; or
• deal with the destructive and other effects of the disaster.

These are broad objectives and the Regulations or Directions published (in respect of all aspects thereof including the sale of liquor and tobacco) must serve these purposes.

The ban on tobacco sales appears to be more of a general public health issue than something directly related to flattening the curve of infections; and in the absence of proper reasons from the Minister, the decision also reeks of irrationality.

Relatedly, and on that score, South Africa is founded on the Rule of Law. This means that the government and its institutions (including the President and members of the national executive when they make high-level decisions) must, at all times, act in accordance with the “principle of legality”: they must act lawfully, in good faith, for a proper purpose and rationally – no arbitrary public conduct is permissible in a constitutional democracy. Where the decisions have failed to meet this standard, they have been set aside by the courts.

As it currently stands, government has been threatened with legal action by tobacco manufacturers for the ban, with Fair Trade Independent Tobacco Association (FITA) representing some of the countries tobacco manufacturers proceeding with a court application to, amongst others, set a side Regulation 27. We understand that pursuant to Part A of the court application Government has decided to provide reasons to FITA for the ban. At the date of writing this article we have not had sight of the reasons from Government. The reasons, to the extent disclosed, may assist FITA to supplement Part B of its application to refine its argument and grounds that the ban is unlawful.

As mentioned above, arbitrary conduct is impermissible. The reasons by government, to the extent disclosed, may end up revealing such arbitrary/irrational conduct or they could reveal that government considered the matter thoroughly and acted rationally. But even if the latter proves true, rationality is not the only standard with which to judge state conduct. State functionaries like the Minister may only act within the confines of the empowering legislation or law. In the case of banning the sale of tobacco, the power just does not seem to be present and no amount of rational behaviour can justify acting outside of the confines of the law.

Ultimately, if FITA does not withdraw its application, it is hoped that the judgment will clearly delineate the powers of the Minister under the DMA.