Category: Legal

DEARSA TAKES ACTION AGAINST REGULATIONS PROHIBITING THE SALE AND DISPENSING OF PETROL AND DIESEL INTO CONTAINERS

DearSA has instructed its attorneys to notify Minister Gwede Mantashe that should an amendment to regulations prohibiting the sale and dispensing of petrol and diesel into containers not be withdrawn, legal action will be taken.

The letter highlights adverse consequences caused by a lack of public participation in drafting the regulations and requests the amendment be reconsidered.

Although not a formal legislated requirement, the regulations were published without proper public participation or engagement with interested and affected parties. This omission is procedurally unfair, irrational and unreasonable as the amendment is not logically connected to the purpose it sets out to achieve.

“Several less restrictive and disruptive means could and should have been considered. The purported reason for the regulations is to mitigate disruptions in the supply of petrol and diesel and to prevent ‘hoarding,’ says Daniël Eloff, DearSA’s attorney.

While this rationale is understood against the current civil unrest and looting backdrop, the amendment to the regulations is not an appropriate way to achieve the purpose. Furthermore, the amendment is rushed, unrefined, not nuanced, not well thought out and, therefore, exceeds the bounds of reasonableness.

DearSA urges the Minister to repeal the amendment to the regulations. Alternatively, the amendment is rendered less restrictive by carving out a list of exceptions after giving the adequate public time to make presentations and deliver commentary on the proposed regulation.

DearSA has requested a written response to the request no later than the close of business on 19 July 2021.

Proposed amendments to the law will make it possible to prosecute sex offenders decades after the offences were committed – unlike the existing Criminal Procedures Act which allows for a 20 year window in which to bring prosecutions.

DearSA requested expert legal opinion on the proposed amendments from attorneys Hurter Spies.” This is a crucial amendment to our criminal legal framework, and we wanted to ensure that the voices of victims are properly heard at the highest levels of government,” says DearSA programme director Rob Hutchinson. “Parliament should be commended for its work in bringing our criminal laws into conformity with the Constitution and our legal opinion reflects that position.”

In keeping with its mandate to ensure broad public participation in all matters governance-related, DearSA requested an expert legal opinion to ensure that ordinary South Africans have a say in the shaping of these legal amendments. The Criminal Procedure Amendment Bill, 2018, was introduced in Parliament on 30 May 2018 as a result of the Constitutional Court judgment delivered in the now infamous “Frankel Eight” case.

However, the Department of Justice and Constitutional Development briefed the Portfolio Committee of Justice and Correctional Services on the proposed amendment without asking interested parties to comment. DearSA believes these amendments are of broad public interest and are therefore deserving of public comment.

The proposed amendments will also broaden the net of sex victims to include not just children, but adults. This follows a Constitutional Court ruling in 2018 that required Parliament to amend a number of laws to conform with the Constitution.

The genesis of these amendments goes back to the infamous case of Sidney Frankel, the billionaire former stockbroker, who died in 2017 before having a chance to face eight accusers who claimed they had been sexually assaulted and raped as children.

The so-called Frankel Eight came forward in 2013 with startling allegations against the former stockbroker.  They alleged they had been sexually assaulted by Frankel between 1970 and 1989 when they were aged between 6 and 15 years old and had suffered physical, emotional, and psychological trauma thereafter.

Frankel passed away in April 2017 shortly before getting his day in court, but he would in any event be able to claim that the 20 year ”prescription” since the time of the sexual abuse had lapsed. In other words, the victims had waited too long to bring their claims of criminal sexual assault.

The Director of Public Prosecutions for Gauteng refused to bring a prosecution against Frankel on the grounds that the Criminal Procedures Act debars prosecution for sex crimes more than 20 years after the fact.

Not satisfied with this outcome, the Frankel Eight in 2017 brought a case before the Johannesburg High Court to have the 20 year prescription (time period allowed for the launching of legal proceedings) outlined in the Criminal Procedure Act (CPA) of 1977 declared unconstitutional.

The legal case was a success, the court ruling that section 18 of the Criminal Procedure Act was unconstitutional in barring victims of sexual abuse from launching legal proceedings after a period of 20 years had elapsed from the time the offence was committed.

The finding was appealed by the estate of Sidney Frankel, and eventually found its way to the Constitutional Court for confirmation of the Joburg High Court’s ruling. The Joburg High Court also ruled that not only was the 20 year prescription unconstitutional, but also the law fact that relevant sections of the CPA applied only to children.

The Constitutional Court agreed with the Joburg High Court and gave Parliament 24 months to amend the section 18 of the CPA so that it conforms with the Constitution.

In January 2019, Parliament decided to draft amendments to section 18 of the Criminal Procedure Act, 1977, and section 12 of the Prescription Act, 1969.

The amendment to the CPA extends the list of sexual offences for which prescription does not apply. In other words, there will be no longer be a 20 year expiration date for bringing legal action, and the range of sex offences will be broadened considerably.

Amendments to the Prescription Act will make it possible for victims of sexual offences o institute legal proceedings even where they have deemed to have suffered ‘‘mental or intellectual disability, disorder or incapacity’’, rather than “insanity” as in the current wording of the Act.

The range of sexual offences for which prosecutions may be instituted include rape, compelled rape (where someone is compelled to witness a sex act) or using a child or person who is mentally disabled for pornographic purposes.

Perpetrators of sexual offences may now be subject to both criminal and civil proceedings on a wider range of offences, irrespective of when the crimes took place.

The purpose of these amendments is to encourage survivors of sexual offences to reports these matters so that perpetrators are not left to roam free.

“We are also cognisant of the fact that our criminal justice system still has to undergo more substantive reforms in order to systemically address any secondary victimization experienced by survivors in the criminal justice system,” says Daniel Eloff, attorney with Hurter Spies. “We believe the proposed amendments will undoubtedly pass constitutional muster as it is a direct response to a declaration of unconstitutionality by the Constitutional Court.”

 

Parliament’s Portfolio Committee on Health has agreed to formulate an ‘action plan’ around the issue of alcohol abuse in South Africa.

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This follows a briefing from the South African Medical Research Council (SAMRC) which found that the reintroduction of the sale of alcohol has led to a significant increase in trauma cases at the country’s hospitals.

Committee chairperson Dr Sibongiseni Dhlomo said that while relatively few South Africans consume alcohol, many of those who do, consume alcohol excessively.

He said that the committee is of the view that South Africa cannot continue to debate the gross domestic product (GDP) benefits of alcohol sales and not talk about ‘the costs of cleaning up’ after alcohol has been abused.

Hospital admissions, intensive care usage, gender-based violence and death all escalate as a result of excessive alcohol consumption, he said.

“The committee has agreed to meet next week to formulate an action plan on the basis of the report.

“This is in line with a letter sent to the Speaker of the National Assembly by a group of academics, researchers and policy specialists offering advice on steps to curb the abuse of alcohol in South Africa. The letter has since been referred to the committee for consideration.”

Policy changes 

While the SAMRC’s presentation primarily focused on the impact of the coronavirus, an accompanying question paper developed by parliament’s internal research unit outlined some of the draft regulations which lawmakers should consider.

“South Africa needs to control alcohol in order to save lives, improve health, and strengthen the economy. This is possible given the listed three draft Bills that require deliberation in order to increase regulation,” the researchers said.

The three draft bills which have previously been mooted include:

• The Draft Control of Marketing of Alcoholic Beverages Bill of 2013;
• The Draft Traffic Amendment Bill of 2015;
• The  Draft Liquor Amendment Bill of 2017.

The Draft Control of Marketing of Alcoholic Beverages Bill primarily deals with advertising, including where alcohol may be sold, what times alcohol advertisements may be shown on TV, and who alcohol may be sold to.

The Draft Liquor Amendment Bill proposes much more wide-reaching changes including:

• Increasing the drinking age to 21 years;
• The introduction of a 100-metre radius limitation of trade around educational and religious institutions;
• Banning of any alcohol sales and advertising on social and small media;
• The introduction of new liability clause for alcohol-sellers.

Drunk-driving

The Traffic Amendment Bill has already been approved by President Cyril Ramaphosa and is set to be introduced before the end of 2020.

Alongside a number of other traffic-related offences, it will create a zero-tolerance approach to drunk driving.

It introduces a total prohibition for the use and consumption of alcohol by all motor vehicle operators on South Africa’s public roads.

The National Road Traffic Act (NRA) currently enables those who have consumed alcohol to get behind the wheel provided they are under the blood alcohol limit.

These laws differentiate between normal drivers and professional drivers (those drivers who hold professional driving permits).

For normal drivers, the concentration of alcohol in any blood specimen must be less than 0.05 gram per 100 millilitres, and in the case of a professional driver, less than 0.02 gram per 100 millilitres.

The new laws would make this limit zero in both cases.

Cape Town – The Fair-Trade Independent Tobacco Association has asked for urgent leave to appeal the high court’s dismissal of its challenge of the ban on cigarette sales in the Supreme Court of Appeal.

Fita, in its application, said the North Gauteng High Court erred in interpretation of the threshold for concept of necessity in the Disaster Management Act in terms of which the government declared a state of disaster in response to the Covid-19 pandemic.

It should, Fita said in its papers, have found that the test was whether something was “absolutely necessary”.

The court also erred in its application of the rationality test, which goes towards whether imposing a ban on cigarette sales was rationally linked to the purpose for which the government promulgated regulations in terms of section 27 of the act.

A full bench of the high court in Pretoria held that rationality was not a particularly stringent test and it had been satisfied by Cooperative Governance Minister Nkosazana Dlamini Zuma in her reasoning for prohibiting the sale of tobacco products.

“The question before the Court is rather, having regard to the evidence considered and relied on by the minister, could it be said that there is enough to conclude that the prohibition placed on the sale of tobacco products is justified?” the judges held.

“In our view the answer is clearly in the affirmative.”

Lawyers for the minister argued that, based on the available scientific research, the government imposed the ban to prevent hospitals being overrun with smokers who presented with severe Covid-19 symptoms.

Fita disputed the scientific evidence and has done so again in its application for leave to appeal, but argued that to a large extent it was irrelevant because the rational foundation for the minister’s actions fell away unless it was proven that people had stopped smoking en masse as a result of the prohibition on cigarettes.

“The Court erred in not finding that the ban in the regulations is based on the fundamental false premise that if a certain number of people are prevented from gaining access to cigarettes and tobacco products for a limited period of time they will cease to be ‘smokers’,” the association said.

It is challenging the judgment in its entirety, including the cost order imposed by the court.

Fita said it was challenging the decision to award costs against it because the State expressly did not seek a cost order on the basis that the case was in the public interest.

African News Agency/ANA 

A look at the arguments and evidence it faces. Meanwhile Sars’s tobacco tax revenues continue to go up in smoke …

Original article from Barbara Curson – MoneyWeb

The urgent application brought by British American Tobacco South Africa (Batsa) to have the ban on the sale of tobacco products set aside has been delayed by President Cyril Ramaphosa and Minister of Cooperative Governance and Traditional Affairs (Cogta) Dr Nkosazana Dlamini-Zuma for some six weeks because of “scheduling complications”.

Perhaps the president and the minister lost their eagerness to be heard in court when they received Batsa’s replying affidavit and realised what they were up against.

After all, they would be required to come up with evidence to support all aspects of the tobacco ban, including how decisions were made.

It is questionable whether they had even gone through Batsa’s founding affidavit and the some 500 accompanying pages of documents that were submitted on May 20.

Inexplicable

Batsa has described the decision to delay this urgent application to lift the tobacco sales ban as “inexplicable” and “worrying”.

Taxpayers should also be concerned, as they will be required to cough up the difference.

But perhaps the most concerned should be the Government Employees Pension Fund (GEPF) members, as they are the ultimate passive sitting ducks.

As for the South African Revenue Service (Sars), it is going deeper into the red, and it’s unlikely it will be receiving any taxes from the illicit tobacco dealers. Sars, unsurprisingly, declined to comment as: “The matter you are enquiring about is before the court … ”

Batsa claims that this six-week delay will cost South Africa more than R1.4 billion in excise taxes alone, and thousands of jobs.

“This delaying of justice and a resolution of this issue is inexplicable. By the time the case is heard the ban will have been in place for four and half months during which time billions of illegal cigarettes will have been sold,” said Johnny Moloto of Batsa.

The applicants in Batsa’s matter (the application) cover the entire value chain for tobacco and vaping products, including agricultural, manufacturing, retail and consumer sectors. This application is also made in the interests of a group of persons who are not in a position to litigate in their own interests (per section 38(c) of the Constitution), as well as in the public interest (per section 38(e) of the Constitution).

The purpose of the application is to set aside Regulation 45, which prohibits the sale of tobacco and vaping products during Alert Level 3 as it violates a series of fundamental rights, and is thus unconstitutional. Further, the regulation is irregular in terms of the principles of administrative law.

Even vaping products that do not contain tobacco are restricted in the same way as tobacco products.

Timeline marked by no response, no reply

Prior to the commencement of lockdown on March 26, the Department of Trade Industry and Competition (DTIC) announced that a limited range of goods would be available for sale during the lockdown period. Batsa wrote to the Minister of Small Development and the Minister of Finance on March 24 requesting that tobacco products be included in the list of basic goods that can be manufactured and sold during the lockdown. Batsa also wrote to the DTIC on March 25 following the publication of the amended regulations. No replies were received to these letters.

There were divergent opinions between the Western Cape Provincial Government and DTIC on whether tobacco products could be sold. On April 23, the president addressed the nation to give an update on the government’s response to the Covid-19 pandemic. He announced that cigarettes could be sold from May 1, “when the country moves to Level 4 … ”

A draft framework for all five alert levels, called The Risk Adjusted Strategy was published on April 20. Alert Level 4 included tobacco products as goods that could be sold.

The Risk Adjusted Strategy called for public comment.

Hence, Batsa submitted a written representations expressing gratitude that tobacco products could be sold, and added that Alert Level 4 would allow the harvesting, processing, manufacturing and sale of tobacco products, and also cited a range of factors to support the lifting of the prohibition. Batsa also commented that there was insufficient evidence on the impact of smoking and vaping on Covid-19. No reply was received.

Meanwhile, Batsa’s operations immediately went into action, and between April 29 and May 4, orders to the value of R293 million were captured.

“In an extremely volte-face”, the minister announced on April 29 that the prohibition of the sale of tobacco and vaping products would continue.

In an attempt to embark on an engagement process, Batsa addressed further submissions to the president. No reply was received.

Batsa CEO Andre Joubert, in the founding affidavit: “The continued prohibition on the sale of tobacco and vaping products causes harm not only to individual consumers, but also to Batsa, the tobacco industry and the fiscus.”

Arguments and evidence to be led in court

These include:

Evidence on the impact on consumers:

• An affidavit deposed by Dr Chris Proctor on the harm caused by the prohibition to the emotional well-being on consumers of tobacco and other products. Countries such as Italy, France, Switzerland and Spain have classified outlets that sell tobacco products as essential during lockdown.

• A research report compiled by an independent research body, which estimates that 90% of smokers will continue to purchase cigarettes during lockdown.

The impact on the tobacco industry:

• There are over 200 commercial tobacco farmers, and 150 emerging tobacco farmers in South Africa. These farmers provide approximately 8 000 jobs. The dependents are estimated to number more than 30 000, primarily in rural areas. Tobacco farmers are also excluded from the R1.2 billion disaster fund made available to assist South African farmers.

• Batsa’s total revenue loss exceeds R2 billion in a nine-week period.

Regulation 45 is unconstitutional and amounts to an arbitrary deprivation of property:

• It is an unjustifiable limitation on the rights of farmers and tobacconists to choose their trade, it constitutes an arbitrary deprivation of the property rights of participants in the tobacco and vaping supply chain, and it amounts to an unconstitutional infringement of the rights of consumers.

• The recently harvested tobacco crop will go to waste, while tobacco farms, manufacturers and wholesalers cannot make productive use of their facilities.

• Section 22 of the Constitution protects one’s right to choose and practice a trade, occupation and profession.

Administrative action:

• The making of regulations constitutes “administrative action” within the meaning of the Promotion of Administrative Justice Act (Paja). It must also comply with the principles of legality.

• The minister will have to show that, in making the regulations, she complied with Section 27(2) of the Disaster Management Act; that the minister has the power to make regulations “after consulting with the responsible cabinet member”. For example, does a collective decision of the National Coronavirus Command Council (NCCC) fall within the ambit of this section, or did the minister unlawfully abdicate to the NCCC a power that is vested in her?

Section 27 of the act:

• This section provides that the minister may make regulations regarding the “sale, dispensing or transportation of alcoholic beverages in the disaster stricken or threatened area”, but not of other goods, such as tobacco or vaping products.

• “Prohibiting the sale of those products must be rational, reasonable and not motivated by unlawful purpose, whether in terms of Paja or in terms of the principle of legality.”

Regulation 45 inflicts harm on consumers and on participants in the tobacco/vaping supply chain:

• Is this harm necessary to avoid a greater harm that would occur if tobacco and vaping products were to be sold?
• The minister had concern about the sharing of cigarettes; however, illicit cigarettes will continue to be shared.
• Even if smoking increases the risk of contracting Covid-19 or exacerbates the severity of the disease (which Batsa does not accept), any adverse consequences of smoking would not be reversed by not smoking during the lockdown.
• The minister should have given Batsa and other interested parties an opportunity to comment on the scientific studies that she relied on.

Procedural fairness:

• The tobacco industry and the consumers of tobacco and vaping products have never been invited to comment, or to make submissions, notwithstanding the fact that the only items that cannot be sold under Alert Level 3 are tobacco and vaping products.

• As a comparison, the liquor industry was given an opportunity to engage.

Various scientific studies and research papers have been submitted on the relationship between smoking and Covid-19.

Loss of tax revenue

The total loss of revenue of all the parties involved in the tobacco industry (farmers, manufacturers, wholesalers, suppliers, commission earners, employees), and hence, the loss in tax revenue, is incalculable.

For Batsa alone, every week of no sales results in approximately R350 million of revenue lost. Batsa estimates that in relation to Batsa alone, Sars would lose Vat of about R50 million per week, and excise duty losses of about R214 million per week.

The illicit cigarette trade is booming, and it will be difficult to stamp this out. It is to be noted that Sars recently discontinued the tender process for the track and trace system.