Limitation of Rights: The alcohol ban and Human Rights in a time of COVID-19

Ignatius France and Jessica Dewhurst

Training Coordinator and Executive Director

The Justice Desk

Fin24, ran an article recently on the brewing fight between a forum of liquor traders in Gauteng and the President. The case being argued for, by the traders, is that the ban is unconstitutional and that it firstly, infringes on their right to trade and secondly, their income which sustains them. In response to this, The Economic Freedom Fighters have also come out in support of the President’s efforts and have encouraged him to stand firm with the country’s ban on the sale of alcohol during lockdown.

There are different ways of approaching this issue. This issue can be looked at from an economic, health and human rights viewpoint as it has a number of implications and aspects to dissect. However, as a human right’s organisation our focus is on the human rights implications of the issue at hand.

One should note that in terms of the South African constitution, all rights can be limited. The limitation of certain freedoms during this lockdown period is in accordance with Section 36 of the constitution, and has already been noted by various legal minds as being “a justifiable infringement”. Such infringements, according to Professor Currie of Wits, is not unconstitutional if it takes place for a reason that is accepted as justifiable, in an open and democratic society, based on human dignity, equality and freedom. Professor Currie further states that any limitations to our freedoms are only justifiable if there are no other realistic and available alternatives in a given situation.

It must be understood that while all rights are interrelated and dependent on one another to create a sustainable framework of rights; the limitation of some rights allows for, and gives credence to, a certain hierarchy of rights. In this instance the public health and the lives of thousands, if not millions, of South Africans, is dependent on the application of section 36 of the constitution.

The reality of the COVID-19 pandemic is that many of our rights have been limited, for a justifiable reason, which is ‘the preservation of life’. Experts have claimed that the only available means to practically prevent the extensive spread of this virus is for all South Africans to be social-distancing and as far as possible self-isolating at home.

Whilst we understand that many of our people are likely to lose their jobs (if they have not already) - the reality is that this lockdown is a necessary instrument to contain the virus and potentially save the lives of millions of South Africans.

We, South Africans, also do not have the best relationship with alcohol. The rate of women and child abuse is high and is exacerbated by alcohol abuse. No to mention the high fatality rates on our roads, each year during Easter and Christmas, where the key ingredient leading to the spike in fatality is and has been alcohol. These facts cannot be argued. Whilst the prohibition on the sale of alcohol does not solve the issues of abuse, it does eliminate the cases that are exacerbated by alcohol consumption and abuse. It also allows for the resources aimed alcohol-induced abuse and accident relief efforts to be redirected to other issues affecting millions of South African families, such as food insecurity and poverty.

The justifiable reason on the ban of alcohol is so that many of our people, who would otherwise be outside purchasing alcohol regularly, can be localised to their homes. Should the alcohol ban be lifted, it is highly likely, if not guaranteed, that consumers will be gathering in places to purchase and consume alcohol and engage in more reckless behaviour. As a result, this virus will continue to spread and countless lives may be lost. The knock-on effect of opening or even relaxing the trade of alcohol will undo all the sacrifices we have already made as a country.

We would support the traders in a bid to access financial assistance from government during this time – just as we would support this for every other business and entrepreneur in the entire country. No one wants families to suffer during this harsh and uncertain period. However, any attempt to create a system through which alcohol is sold, whether in a regulated fashion or through standard trading, will most likely result in an increase in the exposure of our people to Covid-19. Most importantly, it will also increase the risk of exposure to many of our frontline workers such as non-profit organisation workers, armed forces, healthcare workers, and many others who are putting their lives at risk to overcome this virus.

The limitation on the sale of alcohol during South Africa’s lockdown, in the fight against Covid-19, is justifiable and therefore should stand. As South Africans we have a responsibility to protect the lives of one another, and to ensure that we all make it through this unprecedented period of uncertainty.