Job creation and the development of sustainable small businesses remains the biggest challenge in South Africa. Declining economic activities and slow economic growth result in increased unemployment.
The declining levels of economic activity further leads to increasing dependency of self-employment as a survival mechanism.
As stated before in previous editions, shebeens have a unique place in South African history. The trade has survived hardship and persecution by the apartheid government, from preventing the consumption of liquor by black people to designing by-laws which made it impossible to sell liquor in the townships.
Shebeen traders continue to face these hardships and persecution long after the dawn of the new South Africa.
As much as the shebeen traders were granted shebeen permits to formalise the trade, many opportunities were missed by both shebeen traders as well as the Gauteng Liquor Board at the time.
Firstly, shebeen permits were not made to be permanent legal documents to trade in liquor for township dwellers who predominantly sell liquor at their place of residence. Emphasis must be made that these traders sell liquor at their places of residence.
The Gauteng Liquor Act is the main culprit and a poorly drafted piece of legislation. It remains clear that the drafters of this piece of legislation never had shebeen traders in mind and their interests at heart.
As to how this legislation was passed without protests from shebeen traders, who remain the heartbeat of the liquor industry in South Africa, remains a mystery.
Firstly, the Act defines a shebeen as “any unlicensed operation whose main business is liquor and sells less than 60 cases of beer per week”.
This definition alone gives insight into the attitude of the drafters of this legislation. If you define a business as unlicensed by law, where does that put 15 000-plus shebeens in law if its legal definition excludes them from being licensed?
The Gauteng Liquor Act is and remains the only legal authority in all retail liquor in Gauteng. Flowing from this discriminatory and inadequate definition, section 28 of the Gauteng Liquor Act lists all kinds of licenses available under the Act but fails to list shebeen licenses.
The failure to list shebeen licenses is deliberate, mischievous and discriminatory in nature. Throughout the Act you find no expression of shebeens, apart from the definition section and the section on regulations. This section vaguely refers to “a phased-in approach, whereby shebeens will be given an opportunity to comply with the Act”.
This is indeed embarrassing to all shebeeners who are expected to comply with the Act which does not acknowledge their very existence!
The preamble of the Act says that “it provides for the control of the retail sale and supply of liquor within the Gauteng province… to regulate application for licenses… to regulate the granting of licenses in respect of all kinds of different licenses”.
By now many shebeen permit holders are aware that in 2018, the court shot down the argument that shebeens must be granted the status of a special license, where the Act gives the board discretion to give “any other licenses”.
What had further deepened the plight of shebeen traders, with a permit to sell all kinds of liquor, is the action of municipalities enforcing by-laws by closing them down on the basis that they are running businesses in a residentially zoned area.
A valid permit holder is now expected by the municipality to close down because they do not have a zoning certificate or consent use. A reasonable person, who runs a shebeen with a valid permit, which bears his or her full name and physical address where liquor is supposed to be sold, the quantity of liquor which could be sold per week, and the time he or she is legally obliged to open and close, cannot be deemed to be negligent (or even criminally liable) to sell liquor on the basis of the rights they derive from a valid permit.
It is now in the hands of the liquor authority, whom the court has instructed to remedy the defect in as far as shebeen permits are concerned. In the task of remedying the defect, section 141(1) (m) gives the MEC powers to develop and design a phased-in approach, to give opportunity to all valid shebeen permit holders to comply with the Act, which requires compliance with by-laws. Section 23(4) requires an unequivocal approval by the relevant department of the relevant metropolitan or district council in addition to any zoning or planning laws requirements. This, in addition to the fact that under the Gauteng Liquor Act, there is no provision for a shebeen permit.
Lastly, as the court also acknowledged, shebeens will never be wished away, they are here to stay, as to under which legal dispensation, it’s anybody’s guess, at least for now.
Thabo Thlobelo, Abantu Tobacco & Liquor Laws, 083 725 7708