Politics and business for the longest time, have been known to be intimate bed fellows because they desperately needed each other to survive. Business is notoriously known to finance politicians who in turn, offer it unfettered business opportunities as a reward. Not this time around! Politicians are now reading business the riot act in an emphatic manner. Kgalagadi Breweries Limited (KBL) and the Botswana Government led by the President are coming face to face at the High Court this morning. This because the former is accusing the latter of almost running its business operations to the ground by unilaterally and temporarily restricting it to trade in alcohol which is its prime business commodity. It further argues the temporary restriction of alcohol has caused almost if not, permanent harm in terms of revenue loss and potential loss of employment of its employees and dependants. The President, who is the key Respondent in the matter owing to the fact that he signed the instrument that caused the said temporary restriction of alcohol, argues very strongly that his action was, or is motivated by his duty to protect the nation from the ravaging consequences of Covid-19 pandemic occasioned by the reckless consumption and behaviour of alcohol by some members of the society who in large measure, do not observe and adhere to Covid-19 health protocols of social distancing and properly wearing masks to minimise Covid-19 transmissions. In this conversation, I will be comparing the judgement of the South African High Court on alcohol restriction vis-à-vis the KBL v Botswana Government case. I am doing so as an ordinary fellow not schooled in law.
Covid-19 pandemic has become both a political and economic issue that has evoked palpable emotions and despair from across members of society across the globe. A balance acceptable to both parties in so far as saving lives vis-à-vis saving businesses from collapsing has brought both parties on a collision course in more ways than one. Recently in South Africa, a judgement on a similar case to the one launched by KBL was delivered between the South African Breweries (SAB) as the Applicant and the Minister of Cooperative Governance and Traditional Affairs as one of the Respondents (Western Cape Division of the High Court Case No. 10996/2021 before Henney J. Herein, the SAB was ‘aggrieved with the decision taken by the Minister on 27 June 2021 in making regulations to suspend and limit the sale, dispensing or transportation of alcoholic beverages, which led to a total prohibition on the sale and dispensing of alcoholic beverages as from the mentioned date. This led to the SAB seeking relief from this court, on an urgent basis, to have the decision which resulted in the Minister making the impugned regulations reviewed and set aside….’ The South African government through the decision of the Minister held that ‘….The government realised that when the decision was made to impose the suspension, contained in the impugned regulation which forms the subject of these proceedings, the healthcare infrastructure of some of the more economically advanced and better-resourced countries, when faced with similar challenges, had reached critical or near-breaking point, and that based on these experiences of what happened in other countries and how they coped with the new variants of Covid-19 the government on the advice rendered by scientists from South Africa and other medical exerts adapted certain measures to mitigate the number of Covid-19 related deaths and to ensure continued access to healthcare services…..These measures also decrease the likelihood of transmissions, because of the social aspect of liquor consumption and an associated decrease in inhibition, which may translate into an increase in risky behaviour, which in relation to Covid-19 involves not adhering to social distancing, mask wearing and regular hand washing/sanitising rules. Based on the best available information at their disposal at the time, and in the prevailing circumstances, the difficult decision had to be taken to impose the temporary suspension as detailed in the impugned regulation. The failure to do so (in the face of an exponential increase in the number of overnight infections and increased transmissibility of the Delta variant) could result in the virus spiralling out of manageable control, unimaginably desecrating our healthcare service and leading to a devastating (and preventable loss of life, with a further direct indirect and direct impact on the economy’
Broadly and generally speaking, the Botswana Government’s opposition to the KBL case is based on similar if not identical reasons as in the South African case. And one should on one hand say these reasons are compelling given the devastation Covid-19 virus is doing to humanity globally while on the other, KBL is crying foul that its business stands to lose colossally from the temporary restriction of the sale of its product-alcohol. KBL is also aggrieved that it has sought to meet the President on numerous occasions without success in order to conjure a solution that would be less harmful to each party consequent to the challenges brought about by the pandemic.
This point was argued by SAB whereupon the court said ‘The SAB accepts that procedural rationality does not mean that the decision-maker must always afford a hearing to the affected party……’ Further to this, other alcohol industry players have raised the issue of scientific evidence to confirm that alcohol is indeed responsible for the promotion of Covid-19 virus transmissibility. Fair enough! But alcohol the world over is known for its anti-social tendencies and behaviours amongst which in the context of managing Covid-19 pandemic, would be seriously challenged in observing health protocols of properly wearing masks, regularly washing/sanitising hands and keeping the expected social distance. If these protocols were evidently enforceable in the lower value chain of the product particularly the consumers and the immediate dispensers of the beverage, it is almost certain alcohol would not be restricted. KBL as the producer of alcohol may itself be observing the strictest Covid-19 protocols at production and distribution levels. But the same cannot unfortunately be said about the end product users, the consumers. Not all consumers are reckless but a good number of them are.
One interesting aspect of the KBL case is that the Respondents raise various points in limine particularly with respect to urgency. They content that the KBL has ‘failed to satisfy the requirements of Order 12 Rule 12 of the High Court specifically that: (a) it has failed to concisely in its founding affidavit facts that render the matter urgent (b) reasons as to why it may not be afforded substantial redress at a hearing in due course. In any event, the Applicant would, if it is found that the President has acted unlawfully, be entitled to damages…’ The very same issue of urgency was canvassed in the SAB matter where the court held that ‘Whilst the SAB might have brought this application to promote their commercial and self-interest, and not merely for the interests of the industry or society at large, that does not mean that the court cannot view it as urgent. They are, in my view, entitled to do so and I agree with Mr Campbell that it is well established that where a party acts in its own commercial interests, such a party is justified in bringing such an application on an urgent basis.’ It will be interesting to see how the High Court is going to rule on the urgency aspect of points in limine.
While the legislation bringing the two similar if not identical cases are not the same whereupon the SAB case was grounded on the Disaster Management Act of 2002 with the KBL grounded on the Emergency Powers Act as read with Emergency Powers (Covid-19) Regulations, 2020, the substantive argument is to do with the restriction in alcohol trade. Given that the SAB matter was dismissed with costs, I am looking forward to how our High Court will decide the KBL matter particularly with respect to whether the President can be challenged over the Covid-19 decisions he may have taken under the Emergency Powers Act. I have always debated this point in silence. The President contends this Act confers upon him absolute powers under the State of Public Emergency. That said, Covid-19 pandemic has brought politicians and businessmen head-on. We will see whether peoples’ health will prevail over business interests. While I sympathise with the compelling arguments brought about by KBL, it appears the odds are heavily stacked against it. I am prepared to be persuaded otherwise as always. Judge for yourself!
‘No one is safe until everyone is safe.’ Let us all adhere to all Covid-19 protocols without fail. My sympathies go to all who are infected and affected by the devastation of Covid-19 pandemic in whatever respect.
