After the president’s national address, the Minister of Cooperative Governance and Traditional Affairs declared a national state of disaster in terms of Section 3 of the Disaster Management Act of 2002, which was published in Government Gazette No. 43096 on 15 March 2020.
On 18 March 2020 the said Minister published regulations (attached hereto) regarding the steps necessary to prevent the spreading of the COVID-19 virus and to alleviate, contain and minimize the effects of the disaster.
We reached out to ANTOINETTE VAN DALEN liquor lawyer and once on the WC Liquor Board who clarified the below.
I have not received any formal notification from the Western Cape Liquor Authority in this regard, but licensees should take note that these regulations are not subjected to confirmation by the provincial Liquor Authority and they will be enforced by the national Government regardless of how the provincial Liquor Authority decides to react.
Being issued in terms of a Disaster Management Act, these regulations supersede all contradictory licence conditions and provincial or national Liquor Acts and will be applicable on all licensed outlets in South Africa until the ban is lifted.
Please take note of the following regulations, which will affect all licensed premises in South Africa:
PREVENTION AND PROHIBITION OF GATHERINGS
3. (1) In order to contain the spread of COVID-19, a gathering is prohibited.
(2) An enforcement officer must, where a gathering takes place—
(a) order the persons at the gathering to disperse immediately; and
(b) if they refuse to disperse, take appropriate action, which may, subject to the Criminal Procedure Act, include arrest and detention.
(3) The assembly of more than 50 persons at premises where liquor is sold and consumed is prohibited.
LIMITATION ON THE SALE, DISPENSING OR TRANSPORTATION OF LIQUOR
8. (1) All on-consumption premises selling liquor, including taverns, restaurants and clubs, must be closed with immediate effect, or must accommodate no more than 50 persons at any time: Provided that adequate space is available and that all directions in respect of hygienic conditions and limitation of exposure to persons with COVID-19, are adhered to.
(2) All premises selling liquor which provide accommodation must implement measures to stop the spread of COVID-19: Provided that adequate space is available and that all directions in respect of hygienic conditions and limitation of exposure to persons with COVID-19 are adhered to.
(3) No special or events liquor licenses may be considered for approval during the duration of the national state of disaster.
(4) All on-consumption premises selling liquor referred to in subregulation (1) must be closed —
(i) between 18:00 and 09:00 the next morning on weekdays and Saturdays; and
(ii) from 13:00 on Sundays and public holidays.
(5) All off-consumption premises selling liquor must be closed —
(i) between 18:00 and 09:00 the next morning on weekdays and Saturdays; and
(ii) from 13:00 on Sundays and public holidays.
OFFENCES AND PENALTIES
11. (1) For purposes of regulation 3, any person who—
(a) convenes a gathering;
(b) permits more than 50 persons at premises where liquor is sold and consumed; or
(c) hinders, interferes with, or obstructs an enforcement officer in the exercise of his or
her powers, or the performance of his or her duties in terms of these Regulations,
is guilty of an offence and, on conviction, liable to a fine or to imprisonment for a period not exceeding six months or to both such fine and imprisonment.
(2) A person is guilty of an offence if that person fails to comply with or contravenes the provisions of regulations 6 and 9 of these Regulations.
(3) A person convicted of an offence mentioned in subregulation (2) liable on conviction to a fine or to imprisonment not exceeding six months or to both a fine and imprisonment.
(4) Any person who intentionally misrepresents that he, she or any other person is infected with COVID-19 is guilty of an offence and on conviction liable to a fine or to imprisonment for a period not exceeding six months or to both such fine and imprisonment.
(5) Any person who publishes any statement, through any medium, including social media, with the intention to deceive any other person about—
(a) COVID-19;
(b) COVID-19 infection status of any person; or
(c) any measure taken by the Government to address COVID-19,
commits an offence and is liable on conviction to a fine or imprisonment for a period not
exceeding six months, or both such fine and imprisonment.
(6) Any person who intentionally exposes another person to COVID-19 may be
prosecuted for an offence, including assault, attempted murder or murder.
FOLLOW UP QUESTIONS*:
*Following our initial post of the above 19 March 2020, we received numerous follow-up questions in hopes of allowing businesses clarity and a manner in which to continue trading. These were some of the questions we consulted on.
All the questions related to Regulations 8, which states as follows:
(1) All on-consumption premises selling liquor, including taverns, restaurants and clubs, must be closed with immediate effect, or must accommodate no more than 50 persons at any time: Provided that adequate space is available and that all directions in respect of hygienic conditions and limitation of exposure to persons with COVID-19, are adhered to.
(2) All premises selling liquor which provide accommodation must implement measures to stop the spread of COVID-19: Provided that adequate space is available and that all directions in respect of hygienic conditions and limitation of exposure to persons with COVID-19 are adhered to.
(3) No special or events liquor licenses may be considered for approval during the duration of the national state of disaster.
(4) All on-consumption premises selling liquor referred to in sub-regulation (1) must be closed —
(i) between 18:00 and 09:00 the next morning on weekdays and Saturdays; and
(ii) from 13:00 on Sundays and public holidays.
(5) All off-consumption premises selling liquor must be closed —
(i) between 18:00 and 09:00 the next morning on weekdays and Saturdays; and
(ii) from 13:00 on Sundays and public holidays.
CONFIRM IF GUESTHOUSES ALSO FALL INTO THE CATEGORY WHERE A PREMISES IS SUPPOSED TO CLOSE AT 18H00 (MONDAY – SATURDAY) AND 13H00 (ON SUNDAY)?
In terms of regulation 8(2) all premises selling liquor which provide accommodation must implement measures to stop the spread of COVID-19: Provided that adequate space is available and that all directions in respect of hygienic conditions and limitation of exposure to persons with COVID-19 are adhered to.
This provision calls on hotels and other places of accommodation to basically self-regulate by implementing “measures” to stop the spread of the virus. The regulation does not address the extend of the measures that should be implemented.
It is debatable if guest houses should also fall under the ambit of Regulation 8(1), which is applicable on all on-consumption premises selling liquor. It should be noted that Regulation 8(1) is not made subject to the provisions of sub-regulation (2) and it could thus be argued that regulations 8(1) and (2) must be read and interpreted together and that regulation (2) does not replace the provisions of regulation (1).
I believe that it would be utterly unwise to argue that guest houses are completely exempt from the provisions of Regulations 8(1) and (4).
The regulations were published to implement measures to stop the spread of the virus and our interpretation of the regulations should be consistent with purpose of the regulations (which is to prevent the spreading of the COVID-19 virus and to alleviate, contain and minimize the effects of the disaster).
It is for this reason that I believe that all on-consumption premises (licensed and unlicensed) including taverns, restaurants and clubs that do not sell liquor should be bound the provisions of regulation 8(1) and (4) and
(i) must therefore be closed — between 18:00 and 09:00 the next morning on weekdays and Saturdays; and from 13:00 on Sundays and public holidays
(ii) should not accommodate no more than 50 persons (including staff members) at any time
CONFIRM WHETHER THE LICENSEE MUST SEIZE THE SALE OF LIQUOR AT 18H00 OR IF THE PREMISES MUST PHYSICALLY CLOSE AT 18H00?
WE HEAR FROM THE POLICE THAT WE CAN OPEN AFTER 18H00 BUT ONLY SERVE SOFT DRINKS? IS THAT TRUE?
The regulations do not limit the times during which liquor may be sold. It prescribes the times when the premises (in other word the physical premises and thus also the business) must close:
(4) All on-consumption premises selling liquor referred to in sub-regulation (1) must be closed — (i) between 18:00 and 09:00 the next morning on weekdays and Saturdays; and (ii) from 13:00 on Sundays and public holidays.
[own emphasis]
Legislation is not supposed to prescribe irrational provisions and legislation should therefore be interpreted in a manner that avoids absurdities. An argument that an establishment that is not selling liquor would be allowed to trade if they seize the sale of liquor at a certain hour, would be utterly absurd as it would be based on the argument that the virus cannot be contracted in a room where liquor is not sold.
Such an argument will also make the regulations purposeless. What is the purpose of the regulations if all liquor outlets can circumvent these regulations by seizing all liquor sales?
WHAT HAPPENS IF THE CAPACITY IS LESS THAN 50 PEOPLE
PLEASE CONFIRM IF A COFFEE SHOP (RESTAURANT) THAT SELLS LIQUOR MAY ONLY BE OPEN BETWEEN 9H00 AND 18H00, REGARDLESS OF WHETHER I HAVE ENOUGH SPACE
If the capacity of the premises allows less than 50 people, the business will not be affected by the provisions of Regulation 8(1). “Not affected” should however not be confused with “not applicable”.
Regulation 8(1) and therefore also regulation 8(3) will still be applicable on the business and the premises will still have to close at 18h00 (Monday – Saturday) or 13h00 (on Sundays).
WHAT HAPPENS IF THE GUESTS BRING THEIR OWN LIQUOR?
The fact that clients bring their own liquor is irrelevant and cannot be seen as an exemption to the rule.
The regulations require the premises to be closed:
(4) All on-consumption premises selling liquor referred to in sub-regulation (1) must be closed — (i) between 18:00 and 09:00 the next morning on weekdays and Saturdays; and (ii) from 13:00 on Sundays and public holidays.
[own emphasis]
As stated above, legislation is not supposed to prescribe irrational provisions and legislation should therefore be interpreted in a manner to avoid absurd conclusions.
An argument that an establishment is allowed to stay open if the clients bring their own liquor would be completely irrational as it would be based on the argument that the virus will not be contracted while drinking your own liquor.
DOES THIS MEAN THAT GUEST HOUSES SHOULD CLOSE FOR DINNER SERVICE?
This question relates to the provisions of Regulation 8(2) and forms part of the measures that must be implemented by places of accommodation.
It would be absurd to argue that the virus cannot be contracted in the dining areas of guesthouses and hotels.
As stated above, I believe that all on-consumption establishments (including guest houses) should comply with the provisions of regulation 8(1) and (4).
WHAT IF I DECIDE NOT TO SELL LIQUOR AND PUT A NOTICE AT THE DOOR ON IT, MAY I STAY OPEN LATER? OR EVEN IF I STOP SELLING LIQUOR BEFORE 18:00, I MAY STAY OPEN IF I WANT TO SERVE MEALS.
Regulation 8(1) refers to all on-consumption premises selling liquor, including taverns restaurant and clubs and does not make provision for any exclusions.
The fact that the relevant regulation does not refer to licensedpremises, means that unlicensed premises (selling liquor) is definitely also included. The interpretation gets grey with the reference to “taverns, restaurant and clubs”, but since the restaurants, taverns and clubs that sell liquor are already included in the reference to “all on-consumption premises selling liquor”, we have to accept that the reference to these three establishments was added because so many taverns, restaurants and clubs (sport clubs) in South Africa are still unlicensed and the specific reference to these three establishments would therefore specifically include them regardless if they sell liquor or not. It would thus be senseless to argue that unlicensed restaurants would not be affected by this regulation.
And it would thus also be impractical to suspend licences or seize the sale of liquor in an attempt to circumvent the regulations that are aimed to prevent the spreading of the COVID-19 virus and to alleviate, contain and minimize the effects of the disaster.
As stated above, one of the presumptions of statutory interpretation is that legislation is never supposed to be absurd or inconsistent, which is why legislation should therefore be interpreted in a manner that avoids irrational conclusions. An argument that an establishment that is not selling liquor would be allowed to trade if they seize the sale of liquor at a certain hour, would be utterly absurd as it would be based on the ridiculous argument that the virus can only be contracted in a room where liquor is sold.
Such an argument will also make the regulations purposeless. What is the purpose of the regulations if all liquor outlets can circumvent these regulations by seizing all liquor sales?
DOES THE 50 PEOPLE LIMIT INCLUDE THE STAFF ON DUTY?
Yes.
CAN WE CLOSE AT 18H00 AND THEN RUN WITH A SKELETON KITCHEN STAFF AND DO TAKE AWAYS VIA DELIVERY? (WITH NO CUSTOMERS COMING TO THE SHOP)
It is not possible to do take aways from a closed premises. Clients will have to collect their food, which means that the premises will not be closed.
The deliveries can be done even though the premises is closed, but is dangerous as it can unintentionally become a mechanism to spread the virus if proper measures to maintain hygienic conditions are not adhered to.
CONCLUSION
My opinion is based on the wording of the regulations. It is however possible that Government implements it in a different manner despite the stringent wording when they realise the tremendous effect it will have on the economy.
There is also the possibility that they may change the wording to give effect to a more lenient interpretation.
According to the Restaurant Association of South Africa (RASA)
- Restaurants can continue to trade in their normal hours, but can only sell liquor 9am – 6pm weekdays & up to 1pm Sundays.
- 50 people max on the premises, incl staff
All on-consumption premises selling liquor (including taverns, restaurants and clubs) MUST BE CLOSED between 18:00 and 09:00 the next morning on weekdays and Saturdays; and from 13:00 on Sundays and public holidays.”
According to Police Minister Bheki Cele
Police Minister Bheki Cele has clarified that restaurants, pubs and other establishments may continue operating past 6pm. But, they won’t be allowed to sell alcohol after 6pm. #TheLead with @ShahanR Courtesy #DStv403 pic.twitter.com/m4rw0D9uhq
— eNCA (@eNCA) March 19, 2020
