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Forget Gareth Cliff, a constitutional law expert shares views on alcohol ban, curfew

Whatever your views on the alcohol ban and curfew, this is the opinion on the potential constitutionality or otherwise of the latest lockdown regulations. It is unfortunate that the irresponsible actions of a minority have deprived the majority of South Africans, who have maturely observed the rules and patiently waited for each small concession, of yet more of our freedom. But we are curious as to whatever happened to the original high court judgment declaring the lockdown regulations unconstitutional.

Reprinted from iol.com, by Sihle Mlambo – 2020-07-14

Alcohol traders remain closed after the government announced on Sunday night that the alcohol ban would be reinstated.     Oupa Mokoena African News Agency (ANA)

Alcohol traders remain closed after the government announced on Sunday night that the alcohol ban would be reinstated. Oupa Mokoena African News Agency (ANA)

Johannesburg – President Cyril Ramaphosa’s announcement of an immediate ban on the sale and distribution of alcohol sent social media into a tailspin on Sunday night, with outraged citizens bemoaning that they had not been given notice to stock up ahead of the ban.

In enforcing the ban, Ramaphosa scolded South Africans who have been hosting parties, contravening lockdown regulations and contributing to the spread of the coronavirus which has now killed over 4 100 people and infected over 280 000 people since March.

On Tuesday controversial media personality Gareth Cliff added his voice to the mix, describing government’s decision to ban the sale of alcohol and instituting a curfew between 9pm and 4am as “bullsh**”.

“He goes on TV this president, willy-nilly and makes rules. He sits with his national coronavirus command council and they go ‘ah I think we need to ban alcohol’ and they decide among themselves and that’s it.

“Then he says there is a curfew and you can’t visit your family. Bullsh**. You do not get to decide for free people in a free country whether they can see their mother or father, brother or sister or their children, you don’t get to do that.

“And any government that tries to do that, even if they say it’s for health reasons, it’s a tyrannical state that is trying to control your behaviour,” said Cliff.

We asked constitutional law expert Professor Pierre De Vos to comment on Cliff’s rant, and he declined, describing him as irrelevant and his rant as ridiculous.

Writing on his blog, Constitutionally Speaking, De Vos shared his views on the rationality of the contentious decisions taken by the Ramaphosa administration on Sunday.

He was sharing his opinion based on how he felt the courts would rule on the matters if the ban on the sale of alcohol or the curfew faced a legal challenge.

ALCOHOL

On the alcohol ban, De Vos said based on the rising Covid-19 cases and the increasing number of people being admitted to hospital, it was likely a rational decision in the eyes of the court.

He argued, however, that the decision to stop the sale of alcohol during level 5 of the lockdown – when cases were low – could be invalid and also contributed to the backlash the government was now facing from the public.

“Arguably, the ban on the sale of liquor during level 5 lockdown when confirmed cases were low and hospitals were close to empty, was not necessary to deal with the destructive effects of Covid-19 and may have been invalid.

“The level 5 ban may also have been a strategic mistake as it may have contributed to the public hardening of attitudes towards the lockdown, thus turning a public health emergency into a matter of law and order in the eyes of the public. But given the general deference shown by our courts to lockdown regulations, it is not clear that the courts would have invalidated the ban,” said De Vos.

De Vos said it would be difficult to argue against the alcohol ban.

“It would be difficult to argue that the ban on the sale of liquor is not necessary to deal with the destructive effects of Covid-19.

“The ban is clearly authorised by the Disaster Management Act and as long as it is rationally related to the purpose of the declaration of the disaster, it will be valid. I would be surprised if a court found that there was no rational connection between the ban and the aim of freeing up hospital beds better to deal with the medical consequences of Covid-19,” he said.

CURFEW 

De Vos said due to the dire situation in which the country found itself, it would be difficult to argue against the need for a curfew as it curtailed those who hosted parties from doing so.

“I will assume the purpose of the curfew is to stop socialisation of people at night (as such socialisation will allow the virus to spread faster), and additionally to make it easier for the police to enforce the other lockdown regulations.

“The former is an important and pressing purpose while the latter is not. This must be weighed up against the impact that the imposition of the curfew will have on members of the public. Clearly, a curfew radically curtails an individual’s freedom of movement and would only be justified in extreme cases.

“The state would have to show that other measures that are less invasive of citizen’s rights are not available to achieve the purpose. I am not sure they will be able to do so, but, once again, given the deferential attitude of most courts towards the government imposed lockdown restrictions, I am not as confident as I would normally be that a challenge to the curfew would be successful,” he said.

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Simon Dippenaar | SD Law Cape Town

http://www.sdlaw.co.za

Simon Dippenaar has a BBusSc LLB degree and Professional Diploma in Legal Practice from the University of Cape Town, and is an admitted attorney of the High Court of South Africa. He is the founder and director of private legal practice, Simon Dippenaar & Associates, with offices in Cape Town and Gauteng representing South African and international clients.

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