Kgalagadi Breweries Limited (KBL) has filed an expedited appeal challenging President Mokgweetsi Masisi’s decision to suspend the sale of alcohol, The Business Weekly & Review has established.
The colossal beer brewer says Masisi’s decision is irrational and lacks substance.
In its court papers filed before the Court of Appeal on the 16th August 2021, KBL says the matter at hand is of massive public interest and involves the lawfulness of the exercise of power by the Executive including the President regulating citizens’ conduct during the State of Public Emergency (SOE) declared in response to the COVID-19 pandemic.
KBL avers that the declaration of the SOE by the President has affected the lives of every citizen in Botswana.
“These regulations have impacted not only the lives of citizens, but also their legal rights, both under the Constitution and the common law,” says KBL.
According to the brewer, a Government Notice dated 28 June 2021 (GN362 of 2021) was issued according to Emergency Powers(COVID-19) Regulations 2020 which was in turn promulgated under the Emergency Powers Act 9CAP 22:04) (EPA).
KBL states that legal advice proffered to them was that the decision on the “ban on the sale of liquor” was unlawful.
“Under the legal advice KBL received following the notice, it was advised that the decision to ban liquor sales throughout Botswana was not a lawful exercise of power and that an urgent application could be directed to the High Court for an order declaring this decision unlawful and invalid, and reviewing and setting aside Government Notice 362 of 2021,” states KBL.
In the court papers seen by The Business Weekly & Review, KBL says it advanced several grounds for review as guided by “administrative law.”
The St Louis beer maker asserts that it advanced grounds that the ban issued on the 28 June 2021 was not within the limits of authority provided by the EPA and regulations.
The firm holds the view that power was exercised by the wrong official being the President (Masisi) rather than the Director of Health Services as the President is authorised to advise than take the decision.
The second reason advanced by KBL is that President Masisi’s decision “is irrational in the sense that it is not based on any cogent or objectively verifiable evidence or facts which established a causal connection between the reduction of COVID-19 cases and consumption of alcohol, (contrary to the unsubstantiated allegations made by His Excellency, the President, that the decision was based on medical or scientific evidence),” asserts KBL in the papers.
To compound this logic, the company argues that the decision is grossly unreasonable because it disproportionately and needlessly “affects the rights (including constitutional rights” of KBL and its employees.
The liquor trader posits that the ban has an impact on several constitutional rights as provided by the Constitution of Botswana at section 8 (deprivation of property), and indirectly in Botswana’s obligations to respect individual dignity and the right to work which is provided by international treaties and other instruments the government is forced to uphold.
Furthermore, it says following the decision to impose the ban, through its lawyers’ Minchin & Kelly, KBL wrote a letter to the Attorney General (AG) advancing its argument regarding the unlawful ban and requested for it to be uplifted but the efforts were unsuccessful.
Subsequent to the failed efforts to engage the AG, as per the court papers, KBL proceeded to file an urgent application at the High Court seeking an order for the decision to be reviewed and set aside, and pending the determination of their sought relief. KBL states that an order was also sought to suspend the operation of the Government Notice/ ordering that it be suspended.
However, despite being a matter of public interest, KBL reveals that the matter on grounds for urgency was argued on the 03 August 2021 where a panel of three judges ruled in favour of the respondents (Attorney General, President and Director of Health Services).
Consequently, the brewer holds that the court order given in favour of government has a bearing on its rights to be protected from the unlawful exercise of power through imposing the ban.
In addition, it notes that barring KBL or its employees from urgent access to the courts will prejudice and cause irreparable harm to them.
Another reason they cite is that the matter is of exceptional public interest and there should be judicial considerations for the party’s rights more so that it’s an issue that deals with constitutional rights as enshrined in the Constitution.
KBL further adds that the judgement arrived at by the courts is incorrect as the court “has significantly misdirected itself and failed to apply its discretion judicially”
