The problems with the Liquor Bill - Dean Macpherson

DA MP says raising the age limit to 21 ill-considered, will only increase the size and scope of the illicit trade

Increasing drinking age makes it more difficult to prevent minors from drinking

Note to editor: The following remarks were made today by DA Shadow Deputy Minister of Trade and Industry, Dean Macpherson MP, at a press conference in Parliament regarding the shortfalls of the Draft Liquor Bill. Macpherson was joined by DA Shadow Minister of Trade and Industry, Geordin Hill-Lewis MP and DA Chief Whip, John Steenhuisen MP.

Today, the Democratic Alliance releases its position paper on the Draft Liquor Amendment Bill (DLAB) which has been tabled by the Minister of Trade Industry, Rob Davies for public comment.

In its current form, the bill attempts to regulate what many people already know: alcohol abuse is a serious problem in our society and costs our country dearly.

South Africa ranks as a country with one of the highest levels of per capita alcohol consumption in the world, with an average consumption of pure alcohol of 27.1 litres per drinker where abstainers in the population are excluded.

We also know that alcohol abuse related issues cost our economy an estimated 7-10% of GDP, which equates to R165 - R236 billion per year.

Finally, law enforcement and the scope of law enforcement to enforce the original Liquor Act is simply not good enough leading to an increase in alcohol related deaths.

There is a serious problem which needs to be addressed.

However, in the Department’s view, the problem can simply be regulated away, which, in the DA’s opinion, is a big mistake. We are concerned by the lack of focus on enforceable solutions as well as poorly thought-out proposals which put jobs at risk.

There are several problematic provisions in the Bill, chief among them being:

1. Constitutional concerns:

The proposed standardisation of licensing: Schedule 4 and 5 of the Constitution deal with National and Provincial spheres of legislative competence. In terms of Schedule 4, there is concurrent legislative competence between National and Provincial spheres for “trade” and“industrial promotion”. However, Schedule 5A of the Constitution states that Provinces have exclusive legislative powers in regard to liquor licences.

The Bill proposes that no new licenses be issued within 500 meters of ”schools, place of worship (sic), recreational facilities, rehabilitation or treatment centres, residential areas, public institutions and other like amenities.” This would seem to infringe on provincial legislative mandates and may fall foul of Schedule 5.

Provincial liquor regulators are better placed to design context-sensitive restrictions for each new license application, instead of an arbitrary national rule.

In addition, such a provision would have profound unintended consequences. In Metropolitan areas, one would struggle to find any location that does not contravene this provision.

Section 6 of the DLAB, suggests that the Minister will set the relevant B-BBEE level that will need to be met by registrants to encourage participation and transformation. It goes on to state that failure to comply with the above codes will result in a suspension or revocation of liquor licenses by the National Liquor Regulator. This would be contrary to the Broad-Based Black Economic Empowerment Act of 2003as well as the BEE Codes of Good Practice.

2. Lack of law enforcement:

The draft Bill does not explicitly empower all Peace Officers to enforce alcohol-related legislation, which would ease the burden on law enforcement agencies and help to enable the better enforcement of existing legislation

Currently, local and provincial authorities bear a disproportionate burden with respect to the health care costs of alcohol abuse, and the traffic enforcement costs of over-the-limit drivers. So while they carry the heaviest burden, they are often hamstrung in their enforcement efforts. Enforcement can be significantly boosted by empowering the largest number of persons to fulfil this function.

The draft Bill should also be seen as an opportunity to resolve all of the legal impediments to the use of breathalyser testing and mobile blood testing that have rendered these modes of enforcement almost useless in the past. The end goal of the amendment process should be a situation in which enforcement officers are empowered to make use of all methods of on-the-spot alcohol testing, and that such tests should be admissible as evidence in a court of law. This would need to be done in conjunction with the Department of Transport.

3. Age Limits:

Raising the age limit to 21 years old is ill-considered in that (a) it will not prove to be an effective deterrent and (b) it will only increase the size and scope of the illicit trade in liquor by driving it underground. It will also criminalise what is normal and acceptable behaviour, while those who abuse alcohol will continue to do so.

While increasing the age limit can lead to a reduction in harm caused by alcohol abuse, notably in the targeted age group and in contexts where law enforcement has the dedicated resources required, even then, this effect is often disappointingly minor and short term in nature.

South Africa lacks the capacity to enforce this law. As such, the DA contends that efforts to boost current enforcement capacity, within the existing legislative context, should remain the primary objective.

In an effort to limit the exposure of minors to drinking behaviour, the DA proposes that all persons under the age of 18 should be prohibited from entering drinking establishments, such as bars, taverns and nightclubs, as well as bottle stores. As such, persons over the age of 18 will be required to produce an identity document (ID) proving their age prior to gaining entry to said premises, and not only in order to procure alcohol products.

The DA has previously attempted to address these issues and made substantive inputs into the Liquor Policy in 2015, proposing a number of amendments. We are disappointed that the Department chose not to include them in the new Bill, however we will be moving for these changes to be included during the committee phase of the Bill, namely:

A) Cost Recovery:

- We will propose that provincial governments are empowered to determine and impose levies on alcohol sales. The revenues generated by this Provincial Levy will be similarly deposited into a dedicated fund, managed by provincial authorities.

B) Additional Controls relating to liquor wholesalers:

- We propose that liquor wholesalers be obliged to maintain a database of its clients. Any person purchasing alcohol products from a liquor wholesaler will be required to produce an ID and/or business license. The wholesaler will be obligated to make and retain a copy of the document(s) and will be required to input client information into a centralised database, created and maintained by either the provincial liquor boards or local municipal Police. This database will allow authorities to track, identify and trace suspicious purchasing behaviour.

C) Revocation of licenses for repeat offenders:

- Habitual flaunting of regulations by enterprises selling liquor products will automatically have their licenses suspended after three offences.

- A “three-strike” provision will also prohibit the offending proprietor from applying for a new liquor license for a period of five years.

- The DA contends that liquor licensees are more likely to adhere to prescribed regulations, particularly related to selling liquor to minors, should they face the real prospect of having their licenses revoked.

D) Enforcement:

- The DA will be making amendments to the bill to widen the scope for as many persons as possible to enforcement the Act, including Peace Officers.

- Resolve outstanding issues regarding breathalysers and blood testing to empower officers to conduct more on the spot testing which can result in greater convictions for offenders.

- Any establishment that sells or advertises liquor, will be required to obtain ID from any entrant to ensure they are over the age of 18 years old.

It is clear that the DLAB does not go far enough in addressing a number of important issues. Nor does the current and envisaged legislation adequately take into consideration the impact of alcohol-related harms on society, the costs born to the State and the ability to enforce practical legislation through empowered enforcement.

Through the committee process, the proposed Bill must be amended to address the problem of fragmented legislation in order to allow for the co-ordination of existing resources. Furthermore it must simplify the process to prove alcohol-related offences while increasing the sanctions, especially on outlets that continue to violate licensing conditions. Most importantly, increasing the number of liquor law enforcement officials to allow the law to be effectively implemented to protect society. Coupled with this, an amended Bill must lessen the financial burden on cities and provinces to carry the financial costs associated with alcohol-related harms.

The DA invites all sectors of society to work with us during the important public participation process to ensure that we can put together a Bill that is respected, enforceable and protects society from the harms of alcohol.

We urge the Minister to strongly consider the issues raised in the public comment phase and to make the necessary changes to the draft Bill before it is tabled before the portfolio committee. Should the Minister not take these concerns into consideration the, DA will seek to make the amendments once it is tabled.

It is of vital importance that the Bill is not rushed, all voices are heard and the views of society, NGO’s and political parties are seriously considered in order that we may present a Bill that South Africans can take seriously, is enforceable and protects South Africans from the harms associated with liquor.

Statement issued by Dean Macpherson MP, DA Shadow Deputy Minister of Trade and Industry, 7 November 2016