Vincent Bergh Liquor Law & Business Consultants Pty (Ltd) News from the desk of Vincent Bergh
IMPORTANT INFORMATION Proposed new amendments to the Liquor Act
The new amendments to the current Liquor Act 59 of 2003, as amended, promise to have severe negative consequences for the liquor industry. Whilst there are justified concerns regarding the effects of the irresponsible sale and the abuse of liquor, negative behaviour can’t be rectified by making more laws to control it. In the end, it still remains the responsibility of each individual to behave responsibly. These amendments seem to be poorly thought through and an emotional response to a serious problem, whilst the necessary tools to address the problem have been in place for years but have not been applied effectively.
One of the biggest contributors to the irresponsible sale and use of liquor is the illegal sale thereof, as well as the illegal concoctions that are often brewed and sold to customers by these outlets. The effective policing and control of such illegal outlets would go far to reduce the current problem with the irresponsible use of liquor. Those outlets sell whatever they want to whoever will buy.
Despite the fact that fines up to R1 million or 5 years imprisonment being provided for in the Western Cape Liquor Act, Act 4 of 2008, as amended, prosecutors still regard the illegal sale of liquor as a minor offence and don’t hesitate to withdraw these cases without the blink of an eye. There is, therefore, no incentive for the responsible Police officers, who often have more than enough on their plates, to take these matters to court as the cases are either withdrawn or the offenders get away with merely a slap on the wrist.
The first port of call, if Government is serious about reducing the negative effects of the sale of liquor, would, therefore, be proper policing with serious consequences for offenders, to make it more attractive for those selling liquor illegally to come into the legalised framework.
The second step would be to appoint enough inspectors in the various provinces to control legal undertakings. The majority of these undertakings do everything they can to stay within the legal boundaries, but you also have the mavericks who abuse this opportunity to carry on other illegal activities. These must be rooted out. The worst thing Government can do, however, is to try and take the individual responsibility of decision-making away from individuals.
The proposed amendments to the act would have far-reaching consequences for an industry that is already severely regulated. Despite the fact that the impractical consequences of these decisions were pointed out during the commentary period to Government, it just pushed ahead not taking these negative consequences into consideration.
It is inconceivable that the legal drinking age is increased to 21 years of age, whilst all the other ages where no consent is required, remain between 12 and 18 years, with actions that could have worse effects than the use of liquor.
As a practical example: a 12-year-old can consent to an abortion without her parents’ consent: although not generally recognized, such decision could have negative effects on that child for the rest of her life.
Another example: an 18-year old can enter into an agreement that could affect that person for the rest of his/her life. The last, and most bizarre situation, with this ill-conceived idea, is that a couple can get married without parental consent at the age of 18 years, they can have a reception where they can smoke tobacco but are not allowed to drink a glass of sparkling wine to celebrate their wedding whilst the guests attending who are over 21 years of age, can do so! This is just absurd.
The absurd consequences of the proposed amendments go further: No manufacturer of liquor or liquor outlet may be allowed in urban and rural communities if situated within 500m from schools, places of worship, recreational facilities, rehabilitation or treatment centres, residential areas, public institutions and other like amenities. In the Western Cape, many towns have developed around manufacturers of liquor. Some towns and cities will not have one liquor outlet as there are no business zones further than 500m away from any of the above facilities. Many manufacturers and outlets that have been established hundreds of years ago, will have to close down, as they all fall within the 500m radius of exclusion.
This requirement is so unreasonable that it should be regarded as the worst form of mala fides on the part of Government.
It is quite evident from the proposed amendments that the economic contribution made by the responsible sale and manufacturing of liquor had not been considered. I am fully aware of the new buzz-word in those circles who want to completely rid the society of the consequences of irresponsible sale and use of liquor, namely that the amount of money created by the sale of liquor to Government, is less than the money spent on the social consequences caused by the illegal sale and the abuse of liquor, but as with all statistics, this is only partially true. If the number of jobs created by the industry is taken into consideration, the financial impact of that and the fact that Government doesn’t have to provide for those people who would lose their jobs, then it becomes a different picture.
Banning advertisements for the sale of liquor is no answer to the problem. It will cost the media billions of Rand, without any real effect. Advertising of smoking has been banned, but people are still smoking.
Drugs are arguably the most destructive of all addictions, yet it is not legally for sale, advertised or controlled. The number of drug addicts grows every year as drugs become more readily available on the market. This is a far worse problem than the sale of liquor.
If the sale of liquor continues as it does, with the amendment of those who supply illegal outlets with liquor being held responsible for the consequences (if it would be practical to impose that), being the only amendment, as well as a minimum fine and imprisonment being imposed to bring the seriousness of illegal liquor sale to the attention of the prosecutors and the courts, the act doesn’t need to be changed.
Provinces should be made aware that they must provide enough funding for the Liquor Boards/Authorities to appoint enough inspectors and the necessary staff to competently run their respective departments.
These amendments will further create many more illegal outlets, as it is commonly known that the Police can’t control those and due to the feeble consequences, there is no real deterrent for these illegal activities. It must be kept in mind that in many areas getting together whilst enjoying a drink, is the only social activity those people can afford. Many of them don’t have private transport and they can only walk to these establishments. As was seen in the U.S.A. in the previous century, the ban on liquor (which this will effectively be) had created far worse consequences that were ever imagined.
What these amendments will also cause, is that it would become impossible for the current illegal traders to legalise their businesses. Whilst we are trying to legalise those illegal businesses by trying to convince municipalities that they should re-look their urban designs and listen to what the people need, all our efforts are being wasted by these new draconian amendments.
No province, actually no town even, have the same dynamics. Whilst we understand and applaud the concerns of government for their concerns for the unfortunate consequences of the abuse of liquor, the problem can’t be addressed on a national scale. That is why the responsibility has been placed with the various provinces and local authorities. By taking the responsibility upon itself, the government is usurping the role and function of provinces and local authorities. It must recognize the difference in the various provinces and local authorities that the liquor industry plays.
It is definitely not in the interest of the country as a whole if the national government tries to govern the liquor industry in this manner. The ill-thought through amendments are proof of this: the Western Cape, for instance, has totally different requirements as far as the liquor industry is concerned, then the rest of the country.
The liquor industry will have to take steps to prevent these amendments from being passed, otherwise, we will face consequences that would have dire effects on the industry and its employees.
The fact that I am considered an adult is both terrifying and hillarious