Durban - More than 1 600 liquor outlets in KwaZulu-Natal – 470 in Durban alone – were facing closure after a court ruling in a test case which determined that all liquor licence holders had to comply with new rules that they could not be situated next to schools or places of worship.
The judgment, by Pietermaritzburg High Court Judge Mahendra Chetty, confirmed the legality of the provisions of the new Liquor Act, which came into effect in 2010, and also confirmed that businesses which had liquor licences under the old, less-stringent 1989 act had to comply with new provisions to address the negative affect of alcohol on communities and, in particular, children.
The specific provisions under the spotlight give the Liquor Board a discretion “after assessing harm and prejudice” to grant licences when considering applications to operate within 500m of a school or place of worship.
But they ban any licence being issued on premises within 80m of a school or place of worship.
In the case of Shoprite Checkers – which launched the court challenge against the MEC for economic development, tourism and environmental affairs, the premier and the Liquor Board – this directly affected 12 of its KZN shops.
Figures in the papers before the court suggested there were 1 600 other liquor shops in the province which fell into the 80m zone which, if they did not take advantage of an amnesty to take steps to comply, would have to close.
Shoprite spokeswoman Sarita van Wyk said on Monday that its legal department was studying the judgment and was not yet in a position to comment.
The retailer launched the application last year arguing that the 80m prohibition should only be applicable to those applying for new licences and not pre-existing licence holders and, even if it did, this removal of a right to trade would be an “arbitrary deprivation of property and a violation of the constitutional right to property”.
It said it had no argument with the prohibition itself and did not challenge the contention by the MEC that there were compelling social reasons for the policy.
“The respondents say that some learners are immature and unable to make moral or value judgements and are at an age where they are susceptible,” Judge Chetty said.
“They submit that the policy was determined after extensive public participation with liquor manufacturers, retailers, trade associations and others.
“There was no intention for a two-tier system of those with old-order rights and those with new ones, which would create a ‘super-class of licence holders’ whose rights were forever immune.”
While Shoprite pointed to wording in the act stating that existing licence holders “are entitled to a licence without having to comply with the application procedures”, the respondents said this did not give them a “free pass” and immunity from the provisions.
Judge Chetty agreed with the MEC, saying the terms of conditions of the licence had to be consistent with the new act.
Regarding argument that the old licence was a “vested right” which could not be changed or altered, Judge Chetty said numerous aspects of life were subject to regulations which changed.
Examples of this were new credit card-styled driver’s licences, restrictions in gun licences and Fica requirements when buying cellphones.
The judge said the implication of the retail group’s having to comply with the act “may entail a degree of hardship”, but it did not equate to “arbitrary deprivation” because it would not be stripped of its right to trade, it would simply have to do it from different premises.
Making no order as to costs, he said that while Shoprite had lost its case, the issue had a huge impact “on hundreds of liquor licence holders” and had constitutional considerations.
Bheko Madlala, spokesman for the economic development MEC, said the ruling was welcomed.
“We feel vindicated by the ruling. Our lawyers are studying the judgment and we will only be able to give a comprehensive comment once they have finished.
“The act is to protect the most vulnerable members of society. However, we believe that we need to take a balanced approach. It is because of this reason that, in spite of the court ruling, if there are issues that the industry wants to raise, we are more than prepared to listen.”
The Mercury