South Africa, and in particular the Western Cape, is being subjected to a flurry of liquor legislation and regulations reminiscent of 1920s prohibition America. Aimed at reducing liquor abuse and associated social ills, the myriad of new laws – with some baffling clauses – are causing massive confusion and may damage some local economies and stimulate the illegal liquor trade.
The issue is also considerably complicated by the liquor sector being regulated at all three levels of government, national, provincial and local. New regulatory measures were recently introduced or are in the pipeline in several provinces and many municipalities.
The basic ground rules, standards and norms for the industry are determined by the national Liquor Act, then each province has its own liquor act largely regulating retail licensing, while municipalities mainly regulate local trading days and hours.
These measures often differ substantially between provinces and between municipalities. In some provinces old legislation remains in force; in others new legislation is being drafted; and in the Western Cape a new liquor law came into effect on 1 April last year, with some measures only kicking in on 1 April this year. Gauteng and KwaZulu-Natal are presently drafting new laws.
Various municipalities have published their different trading hours and days. For those who have not, trading hours and days are determined by the provincial legislation.
The Western Cape’s large wine-producing and tourism sectors are especially vulnerable to over-zealous legislative regimes, often driven by emotional and moralistic considerations not supported by thorough research. Both sectors are substantial contributors to the national economy.
The new Western Cape Liquor Act has been ridiculed for anomalies like overnight turning some private wine collectors into criminals due to a ban on possessing more than 150 litres or 200 bottles of wine, while the by-laws of municipalities are creating widespread confusion.
Some Western Cape municipalities have already published their liquor trade by-laws in terms of the Western Cape Liquor Act, some including transitional provisions.
The latter, says Danie Cronje, director of Liquor Law Services at Stellenbosch law firm Cluver Markotter Incorporated, caused confusion. What is legal in one town may be illegal in its neighbour.
“The police are totally confused as to where and what exactly they have to enforce,” he says.
In Cape Town the liquor industry responded with anger and dismay over an initial blanket ban on Sunday liquor sales for consumption off-premises (excluding wineries) and limiting trading hours from 8pm to 6pm. Under pressure the city has since suspended the Sunday ban pending a committee discussion and a further round of public participation. This could take many months, leaving the industry in limbo.
But the city’s retail liquor traders remain dismayed over the reduced trading hours, claiming they will be hard hit by lost sales in what previously was their main trading hours when people return home from work.
Job losses are also imminent. A number of retailers, like Michael Brownstone, owner of Cape Town’s landmark Harley’s Liquors that used to trade until 10pm daily, reportedly indicated they will be forced to retrench staff.
Many in the industry also question the rationale behind the new laws and regulations, saying much of it is being driven by zealous moralists and teetotallers.
The Western Cape and Cape Town legislators, however, say their aim is to reduce alcohol abuse in communities and curb illegal alcohol sales. Some politicians also indicated that drunken driving is being targeted.
But legal traders claim that it will only lead to a proliferation of illegal liquor trading, drive a lot of business underground and into unlicensed shebeens, which will rather exacerbate than alleviate alcohol abuse in some of the worst affected communities.
Cronje agrees, citing the fact that in the Western Cape there are between 7 000 and 8 000 legally licensed liquor outlets compared to 24 000 illegal, unlicensed shebeens. How, he asks, will the new laws and by-laws address this?
Cronje also questions whether sufficient research has been done to support the legislative moves. At a stakeholders’ meeting with the Western Cape government, this question was asked. Authorities then undertook to conduct research about relevant issues in the South African context. But to date, he has heard nothing further, Cronje says.
Off-site consumption retailers also argue that drunken driving is more likely to be caused by on-site consumption at outlets like bars and clubs, rather than from sales at outlets like liquor stores and wine estates for consumption at home.
Authorities responded to much of the criticism by saying that traders and others affected by the laws and by-laws can apply for various exclusions or extended trading hours provided for in legislation. But these are likely to be slow, costly processes without guaranteed outcomes and are not evenly applicable across the full industry spectrum.
Cape Town mayoral committee member for economic, environmental and spatial planning, Garreth Bloor, invited the public and stakeholders to come forward with information that could lead to reconsideration of some aspects.
He also reportedly said new information received from businesses in the tourism sector about the crippling effect of a Sunday sales ban, led to its suspension.
Meanwhile a new draft Liquor Act was introduced in the Gauteng legislature last month, which would if passed, amongst others, introduce a black economic empowerment element to every liquor licence application. The accompanying draft regulations could also see Sunday sales banned.
Draft legislation in KwaZulu-Natal, however, seeks to include Sunday sales saying the previous prohibition was a leftover from the pre-1994 days and had no place in a secular state. But this province may introduce a requirement for a separate till for liquor sales in supermarkets and that children be prevented from entering aisles containing alcohol.
Meanwhile the ruling African National Congress, and the national minister and department of health continue to air the possibility of banning alcohol advertising and raising the legal drinking age to 21.
Apart from some Muslim countries, the United States is one of only a few countries that have 21 as the legal age instead of 18 or 16. Judging by America's high incidence of alcohol-associated problems, this does not seem to have worked.
Cronje questions whether the proposed advertising ban is a national competency, since issues related to the retail sale of alcohol, with advertising as a component, falls under provinces rather than national government.
All these legislative and regulatory moves may cause much harm to the retail, liquor, tourism, hospitality and entertainment industries, all important contributors to the national economy.
The past 100 years have seen many other countries attempt to curb or outlaw liquor sales and consumption via strong legislative measures. In almost every case it failed.
It seems in South Africa those who want to curtail the enjoyment of others who contribute substantially to the government’s coffers through sin taxes, are not thinking too clearly. And they probably have not even touched a drop of the forbidden stuff … or so they say