Saturday, July 31, 2021

KBL carries the hopes of elbow-benders

Scores of habitual alcohol consumers are expected to be glued to their respective electronic gadget screens this coming week as the country’s largest brewer, Kgalagadi Breweries (Pty) Ltd, takes the government to court over the latest alcohol sale ban. Sunday Standard has made an application to stream the landmark case live on our social media platforms.

KBL has filed an urgent application with the Gaborone High Court challenging the legality and rationality of President Mokgweetsi Masisi’s most recent directive imposing yet another wholesale ban on the sale of alcohol beverages.  As has been the case with the previous bans since the outbreak of Coronavirus, elbow-benders find themselves at the mercy of ruthless black-market mafias. The retail price of alcoholic beverage has (at the very least) doubled as illegal operators look to cash in on the ban.

While the date for the possible lifting of the ban remains anyone’s guess, KBL have decided they cannot take any more of the total restrictions. The company lost P800 million (48 %) in revenue last year (2020) as a result of multiple alcohol sale prohibitions. Consequently the government through the Botswana Revenue Services (BURS) also lost in excess of P200 million in taxes. It is not clear how long the current ban is expected to last.

The most recent ban took almost two months. By the end of January 2021 the company, which directly employs over 600 people, had sent home 95 percent of its work force due to the recent ban. The majority of those sent home were on unpaid leave. The company also, as a consequence of the recent prohibitions, reduced suppliers from 469 to 384, condemning many to a life of possible poverty. This time the company wants to challenge the decision to impose another ban on the sale of alcoholic beverage.

KBL argues (among other points raised in their affidavit) that the President has never shared any clear, substantive and compelling reasons for the current and previous alcohol bans. “The consequence is that KBL has been unable to scrutinize and engage with the Government’s true basis and rationale for imposing the ban.” While the government has said in the past that the prohibition on sale of alcohol was imposed on account of evidence that consumption of alcohol increases the risks posed by Covid-19 due to its negative effects on adherence to Covid-19 protocols with reference made to ‘evidence submitted’ to President Masisi by the Director of Health Services, KBL argues that no such evidence has been put forward.

“The evidence, if any, must be real evidence and not supposition, speculation or suspicion. And it must demonstrate that the state of affairs not only merits the imposition of the ban, but that such a ban was necessary in the sense that no other solution to the problem existed…there is no conclusive and objectively verifiable evidence that but for the wholesale ban, government would not have been able to fight the spread of covid-19.”

The company argues that if the reason is that drinking alcohol makes one behave in a way that makes them susceptible to catching or passing Covid-19, that argument will not hold water with off premises sales where people buy alcohol and consume within the comfort and safety of their home. “To the best of KBL’s knowledge, there is no clear and conclusive evidence justifying the imposition of the ban,” the company says in their court papers, deposed by Managing Director Bruno Kliger Diaz. The company also cited Deputy Coordinator of the Presidential Task Force on Covid-19 Professor Mosepele Mosepele when he was quoted by the media reportedly having said the lifting of a previous ban had revealed no evidence that the lifting of the ban had any impact on the number of infections.

“It appears from Mosepele’s remarks that there is not even a mere correlation between a ban and the spread of Covid-19.” KBL also questions the lawfulness and validity of the Notice to impose the ban. The company argues that there are jurisdictional requirements for the exercise of any power in terms of Regulations. “The requirements have not been met in the present case. Moreover the power has not been exercised lawfully and in terms of the Constitution and underlying statutes.”

The government through the Attorney General had not filed their responding affidavit by the time of going to press. Both the President and the Director of Health Services have been cited. KBL is represented by Minchin & Kelly law firm. 

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