INPUT BY KWAZULU-NATAL PROVINCE ON THE REVISED LIQUOR BILL 2003
By: ROGER BURROWS M.E.C.: ECONOMIC DEVELOPMENT AND TOURISM

After a close study of the 1998 Liquor Bill and the Constitutional Court ruling in 1999, KwaZulu-Natal has proceeded with devising a KwaZulu-Natal Liquor Licencing Bill. That Bill, of which you now have a copy, was made public on the 4 July 2003 for comment and reaction by stakeholders and the public by the 15 August 2003.

During the course of the preparatory work for the submission of that draft KZN Bill to the public my office had, obviously to make a close and careful study of the events surrounding the discussion of the national legislation draft, as at that stage.

Needless to say there were several very clear areas from which KwaZulu-Natal differed regarding the Bill presented to the National Assembly in February this year. Since these have been removed there is no major need to comment on them.

This now brings us to the Bill before us today and this workshop.

From the point of view of the KZN Department responsible for Liquor matters, this Bill represents a most significant improvement over the previous draft. Without going into detail the most important of these is that it significantly takes on board the Constitutional Court ruling pertaining to the powers of the provinces regarding retail licencing. I will visit this area in detail later.

It is therefore my intention to consider the present Bill anew, and to comment, where necessary on sections of it. Obviously I am particularly concerned regarding those sections which impact on the provincial competency areas of retail liquor licencing, micro-manufacturing and the sorghum beer industry. My references are from the version from the Internet Government Gazette site.

CHAPTER 1
Section 1 Definitions
"applicable provincial legislation" - This appears to contain no reference to the licencing/registration of sorghum beer manufacturers and retailers, which appears to be a provincial competence in terms of the Constitutional Court ruling.
"distribute" - Does the meaning of this, as used in the Bill, refer also to the distribution of products from micro-manufacturers to their own retail outlets and/or to other retailers of liquor?
"micro - manufacturer" - presumably the "or" in (b) should be "and/or",
"sport ground zone" -~ several questions relate to the meaning of this phrase. Does it, for example, apply to horseracing premises? Is there any applicable zoning or planning legislation where this phrase is more carefully and legally defined? (The English also appears questionable, is it not -"sportsground zone"? - or is it something different?)

CHAPTER 2
Section 4
Why' if the Provinces have to establish an independent provincial regulatory authority in terms of this Bill, the Minister himself/herself may regulate the manufacture and distribution of liquor nationally. Surely there is a valid argument for the creation of a National Liquor Licencing Authority?

Section 5
Presumably these norms and standards would comply with the understanding arising from the Constitutional Court ruling?

Section 5 (1) (f) (i and ii), Is to 'provide a mechanism for the determination of', days of non-trading and for hours of non-trading, accomplished by vesting in a Provincial Liquor Licencing Authority the right to determine conditions pertaining to an individual licence, amongst which would be the right to determine on which days and for which hours trading in that establishment should not be permitted?

Section 5 (1) (f) (iv) This may be eminently desirable aim but how does it come into effect practically? Even taking account of the transitional measure of an existing one year life span, as provided for in Schedule 1, section 6, there is the question of existing vested rights to trade in premises previously licenced. There are in KwaZulu-Natal 5 900 state schools, and presumably many currently licenced liquor retail outlets currently fall within what might be defined as a "school zone". The similar situation exists with regard to 'sportsground zones". Even without going into the question of whether this provision is constitutional, in that it prescribes to provinces on a matter that should surely be within their competence ~ decide upon, there is the matter of some very practical decisions which have to be taken.

I must presume that this restriction will have to be tempered with some proviso concerning existing retail outlets or to provide for wording that allows for a restriction on numbers/proximity rather than an outright ban.

Section 5 (1) (g) There is an inherent contradiction contained here relating to the previous sub-section. Here, quite correctly, mechanisms must be provided for the consideration of community views 'in respect of the number and proximity of retail sellers to schools etc". This presumes that there WILL BE retail sellers close to schools, or are these those outside the 'banned school zone'? What is important is that this sub-section may contain the basis for the assessment of how to implement these matters.

Section 5 (1) (f) (iii) and Section 5 (2) These appear to be mutually contradictory unless it is understood that a province may establish an age of majority above the age of 18 years. This could, then, result in 9 different ages being decided upon1.

Section 5 (1) (j) If the provinces have to provide for "adequate enforcement mechanisms to ensure the proper monitoring and compliance with this Act" and this Act" is a specifically national piece of legislation, then presumably the national fiscus will provide the funding necessary for this enforcement or this provision could be regarded as an unfunded mandate being imposed upon the provinces.

Section 6 Can we throughout this bill assume that the regulation of methylated spirits (in whatever quantities) will occur in terms of this Bill and that provincial legislation need not concern itself with meths?

Section 6 (3) Is the word 'impotable" defined anywhere? Section 7 (1) So where does "sorghum beer" manufacturing reside?

Section 7 (3) Why should this national legislation make this a requirement for micro-manufacturers who are licenced/registered in terms of provincial legislation? Is this a national norm? If so then it surely should be under Section 5.

Section 9 Once again, I must presume that this is a national norm, desired to be binding on the provinces. It may, therefore, be incorrectly placed. Nevertheless it does raise the question of micro-manufacturers and retailing. Presumably this means that micro-manufacturers who wish to sell to the public on their farms or premises have to, in addition to a micro-manufacturing licence, to obtain a licence as a retail seller

Section 10 (T) (b) If there are differences between provincial legislation (as there is going to be) and advertising is broadcast or carried or publicised nationally, then presumably the advertisers have to comply with each individual provinces legislation.

Section 11(2) Are the full implications of this understood? It means, presumably, that apart from a parent/guardian giving a minor a celebratory glass of sparkling wine, any other person, friend, relation etc would be guilty of an offence. Whilst possibly desirable, it would appear to be unworkable, unless significantly reworded, possibly by giving parents/guardians, the right to authorise others to supply liquor In any event surely what is being suggested here is once again a national norm which should be encapsulated in Section 5. There is also the question as to whether the consumption of liquor by a minor, other than so permitted, is an offence? Presumably not?

Section 12 This provision has already been discussed. It raises very major practical problems - some of which have been highlighted. The phraseology used here is absolute. This means that there can be no provision for the supply of liquor at any functions held by adults, including teachers, at a school, nor can there be any supply of liquor at any sports ground. This appears nonsensical and provision must surely be made for the licencing of retail facilities at sports grounds and for the provincial legislation to allow for supply of liquor in terms of generally applicable legislation at and to schools and in school zones. It is quite clear that this section has not been thought through thoroughly enough.

CHAPTER 3
Throughout this Chapter reference is made to "the Minister" being the applicable authority. The comments made in terms of the definitions clause applies, in that there appears to be no good reason not to have a National Liquor Licencing Authority.

There appears to be no reference to the length of time for which a licence or registration is applicable. An annual licence fee is applied. Does this mean re-registration. Does the registration/licence become a real right?

Since much of this chapter 15 not specifically applicable to provinces [have not commented thereon.

Section 23 (1) Whilst supporting the view that the Minister needs to be aware when a registered person applies for licencing/registration as a retail seller, the reciprocal arrangement should apply and that the provincial legislation must make provision for the fact that a registered person must so declare that fact at the time of making application under the applicable provincial legislation. In addition should the Minister undertake any action in terms of Section 23 (2) (b) and (3), the provincial licencing authority should be so notified.

Section 31(1) Presumably this means that the Minister's register will have the names and applicable information of all provincially licenced retailers, micro-manufacturers etc.

CHAPTER 4
Section 33 (3) (b) The reference to "subsection (1) (e)" may be an error.

CHAPTER 6
Whilst fully supporting the concept of a National Liquor Policy Council, and the composition of such a Council, a question exists regarding its powers and functions. The introductory wording of sub - section (2) (a) makes provision ~ consult on", a variety of matters. Subsections (b) and (c) makes provision to promote and facilitate intergovernmental relations and disputes. In none of these is there any sense that decisions, or binding/prescriptive matters would be considered. Why then is provision
made in Section 48 (6) for a formal vote to be taken on a decision? If a decision has to be made, on what function of the Council would that be?

CHAPTER 7
Section 49 (b) This must, of necessity, also apply to sorghum beer manufacturers.

Section 50 (1) This is not listed as a function of the Council and would appear to infringe the rights of provinces in terms of the Constitutional Court ruling, unless reference is made to the fact that these were to be determined in terms of the applicable sections of this legislation i.e. Section 5. There also appears to be no other matters, which are strictly within the provincial competence which could, or should, be included in the Minister making regulations pertaining to retailing and micro-manufacture of liquor. In this connection reference must also be made to Section 51 (2).

CHAPTER 8
Presumably the repeal or legislation and transitional arrangements will be coordinated together with all provinces

SCHEDULE 1
Reference has already been made to the practical difficulties envisaged regarding Section 6.