Valid permit holders should be phased into the Gauteng Liquor Act

Shebeen owners must be afforded the opportunity to comply with the Act

All 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.

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.

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”?

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.”

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 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.    

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.

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.

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.

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.

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.

Clearly, this approach does not favour a direct application of Section 23, but requires a progressive realisation of full compliance with the primary purpose of the Gauteng Liquor Act.

Since Section 23 application requires local authority approval for pubs, taverns, night clubs and pool clubs, many of the shebeen permit holders are affected by this clause as it requires full compliance with relevant municipal by-laws, many of which prohibit the sale of liquor in private homes, at least without its prior approval from relevant municipalities.

A solution may be found by collaboration between different stakeholders, including municipalities, or by simply amending the requirements of the Section 23(4) application.

The subject of local authority approval is a complex one. Gauteng Liquor Board seemed to favour complete compliance as opposed to substantial compliance.

We wait for the Gauteng Liquor Board to advise on the next stage. Whether it will take on squarely the issues raised by the court (Yeoville Ratepayers’ Association), namely public notice and public participation, or whether the Liquor Board decides to look beyond the two points and extend its reach to include compliance with by-laws, a stage-by-stage approach remains an obligation vested with the Liquor Board to afford shebeen permit holders an opportunity to comply with the Act. 

Thabo Thlobelo, Abantu Tobacco & Liquor Laws – 083 725 7708