LIQUOR LAW
E B D L U O H S S R E D L O H VALID PERMIT T C A R O U IQ L G N E T U A HE G PHASED INTO Taff orded the Shebeen owners must be the Act with opportunity to comply
A
ll shebeen permit holders must obtain a liquor license in order to be fully under the ambit and authority of the Gauteng Liquor Act. It’s equally important to note that shebeen permit holders are generally willing and prepared to be phased into the Act and not create a separate legal regime outside of the Act. After all, the shebeen permits were issued in terms of the regulations of the Gauteng Liquor Act.
who were registered by application then converting them into licenses. This last step of converting shebeen permits into licenses was successfully challenged in the High Court.
Shebeens have been singled out by the Act, though the Act mentioned them briefly both in definitions and under miscellaneous matters. The fact that shebeens find a special mention in the Act cannot be overstated.
The Constitutional Court judgment, in the matter of South African Liquor Traders Association (SALTA) and others vs. Chairperson of Gauteng Liquor board as the first respondent, accepted that the Gauteng Liquor Act contains a subsidiary purpose, which seeks to bring shebeens within the overall framework of the Act. The Court further stated that the primary purpose of the Act, being “to provide for the control of the retail sale and supply of liquor within the Gauteng province,” does not exempt shebeens. Therefore for all intents and purposes, though there is a subsidiary purpose, the primary purpose of the Act is applicable to shebeen permit holders.
Shebeens are generally operated in private homes. This fact is well known and generally accepted as applying to shebeens. Shebeens have historically been informal and unlicensed liquor traders who sold liquor largely to customers in townships. This practice comes into sharp conflict with the applicable by-laws of certain municipalities and metros. What was the intention of the legislature when the Act was drafted and saw fit to leave an instruction for “a phased-in approach where shebeens should be given an opportunity to comply with the Act”?
34
This will then take us back to the first step of implementing a phased-in approach, namely of merely having a quantified number of shebeen permits, awaiting a second phase in the form of new or amended regulations.
As I write this column, the second phase has not yet started, though the Liquor Board is left with four months to remedy the defects of the 2013 regulations.
A quick look into a dictionary for a definition of the phrase “phased in” yields: “a phased implementation is a method of changing from an existing system to a new one that takes place in stages.”
The Act is limited in its text on the scope and application of a phased-in approach. Such an approach without further provision in the Act about the application of a phased-in approach presents great difficulty not only to the authorities, but to the shebeen permit holders as well.
Looking into the history of shebeen permits from when they were first issued in 2004 to the 2013 regulation, which attempted to convert valid shebeen permits to shebeen licenses, one will reasonably deduce that the liquor board followed the meaning of a phased-in approach, first by collating and registering all operating shebeens during the period mentioned above, and when all known shebeens were registered, through the issuing of permits to confirm registration to those
One cannot fault the Gauteng Liquor Board for lack of trying as they have unsuccessfully attempted to license shebeen permit holders by converting permits to licenses in line with the Act. However, it would be wrong to direct shebeen permit holders to simply follow the Section 23 application process to apply for liquor licenses, because there remains a subsidiary purpose of the Act to implement a stage-by-stage approach of phasing in shebeen permit holders into the Act.
www.spotongmag.co.za
