The Business Weekly & Review perused President Mokgweetsi Masisi’s responding affidavit, filed before Court on the 15th of July 2021. The affidavit was in response to an urgent application filed by the beer brewing firm on the 6th of July 2021, challenging Masisi’s decision to discontinue the sale of alcohol indefinitely. Masisi’s main argument is that in terms of Section 17 of the Constitution, the President is empowered to declare a state of emergency.
“Pursuant to this constitutional power, Parliament promulgated the Emergency Powers Act, which sets out the powers of the President when the country is in a state of emergency. Moreover, the Emergency Powers Act bestows upon the President the powers to make regulations as may deem necessary and expedient for purposes of managing the state of emergency or as the case may be,” Masisi says in his affidavit filed in Court.
In its urgent application, KBL’s arguments lie on whether the President acted lawfully when issuing Government Notice No 362 of 2021 that suspended trading of liquor in the country a fortnight ago.
In its papers, KBL argues that Masisi erred in making the decision to impose the ban as it ought to have been a call made by the Director of Health Services, then Dr. Malebogo Kebabonye. Masisi disputes all that in his responding affidavit, stating that the Director of Health Services does not have the power to make regulations pursuant to the EPA. To him, such powers lie with him as President.
“I aver that the Director of Public Health is a credible source on matters of public health and I accordingly gave due weight to her advice in deciding to re-instate the ban,” Masisi says.
Dr. Kebabonye has since been replaced as the Director of Health Services.
Further in arriving at the decision to halt the liquor sales, as was the case by Government Notice No 362 of 2021, Masisi adds in his affidavit that there had been considerations that the risks posed by COVID-19 had increased and therefore it was expedient and necessary to suspend all liquor licences.
“ Bars and other liquor outlets were clearly some of the major hotspots in the sense of such being high risk areas at which the virus spread rapidly,” he notes. Further he states that alcohol was one of the major causes of non-compliance with the Health protocols that were put in place to control the spread of COVID-19. Masisi says there were arrests made on people failing to adhere to COVID-19 protocols at gatherings. By re-instating the suspension of liquor licenses, Masisi says it was necessary to preserve lives and reduce spread of the virus.
Masisi further concedes that he is aware the suspension of liquor trade affects some sectors of the economy. However, he says after due consideration, priority was given to the safety of the nation.
“The results would only catastrophic in that when we emerge from the scourge we will be left with a depleted and ailing nation from COVID-19 and side effects,” Masisi responds, adding that he deliberately stopped the sale of alcohol based on evidence from the Director of Health Services.
However, KBL decried lack of consultation by the President. KBL Spokesperson Masegonyana Madisa says they were not consulted when the President arrived at this decision which created anxiety and confusion.
Madisa responds, “government cannot impose a ban indefinitely (and the) industry has a right to know when they will start trading in a restricted and controlled way again.”
To him, the role of government to enforce laws when it has identified hotspots.
The matter will be argued on the 3rd of August 2021 before a panel of three Judges, Motswagole, Nyamadzabo and Radijeng.